Juan Silva v. Cesar Balsulto Cervantes

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94.) No other extrinsic evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110

Cal.App.3d 868, 881.)

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the

truth of all material facts properly pleaded, i.e., ultimate facts alleged, but not contentions,

deductions, or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591; Adelman v.

Associated Int’l. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) Facts appearing in exhibits attached

to the complaint will also be accepted as true and, if contrary to the allegations in the pleading,

will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d.

593, 604.) The plaintiff’s ability to prove the allegations is of no concern in ruling on a demurrer.

(Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d. 197, 213-

214.) The complaint will be construed liberally. (Code Civ. Proc., §452.)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to

amend if there is a reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan,

supra, 39 Cal.3d at p. 318.) On the other hand, “a trial court does not abuse its discretion by

sustaining a general demurrer without leave to amend if it appears from the complaint that under

applicable substantive law there is no reasonable possibility that an amendment could cure the

complaint’s defect.” (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)

Analysis

Belated amendment. As a threshold issue, Defendant notes the Court’s October 17, 2025

ruling sustaining the demurrer granted Plaintiff only 15 days leave to amend. The amended

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pleading was therefore due to be filed no later than November 3, 2025. However, Plaintiff filed

the FAC one day later, on November 4, 2025.

Defendant asks the Court dismiss the action due to this belated filing. A plaintiff’s failure

to file an amended complaint within the time specified subjects the action to dismissal under Code

of Civil Procedure section 581, subdivision (f)(2). However, such dismissal is discretionary.

(Harlan v. Department of Transp. (2005) 132 Cal.App.4th 868, 874.) The Court declines to

dismiss the action on this ground.

Statute of limitations. Plaintiff argues that the clerk of the court had no authority to reject

Plaintiff’s filing of the original complaint on December 5, 2024, pursuant to the holding in Carlson

v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268 (Carlson).

In Carlson, the plaintiff attempted to timely submit a complaint for filing with the Los

Angeles Superior Court, but it was rejected because it failed to include a “Certificate of

Assignment,” as required by a local rule. Instead of filing the complaint, the clerk of the court

mailed it back to counsel. By the time counsel was able to return the complaint to the court with a

Certificate of Assignment several days later, the statute of limitations period had elapsed. (Carlson,

supra, 68 Cal.App.4th at p. 1270.) The appellate court reversed the trial court’s order sustaining

the demurrer based on statute of limitations grounds. It held that, “the local superior court may not

condition the filing of a complaint on local rule requirements. Instead, so long as a complaint

complies with state requirements, the clerk has a ministerial duty to file. In legal effect, a complaint

is ‘filed’ when it is presented to the clerk for filing in the form required by state law.” (Ibid.)

Code of Civil Procedure section 402, subdivision (a)(3), specifically provides that “the

clerk may not reject a case for filing, because it is filed, or a person seeks to file it, in a court

location other than the location specified by local rule.” San Bernardino County Superior Court

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Local Rule 131 provides the Presiding Judge shall designate where all actions shall be filed and

heard by general order.

But in Carlton, the court discussed that “the local superior court may not condition the

filing of a complaint on local rule requirements. Instead, so long as a complaint complies with

state requirements, the clerk has a ministerial duty to file. In legal effect, a complaint is ‘filed’

when it is presented to the clerk for filing in the form required by state law.” (Id. at p. 1270.) The

Court also discussed that nothing in Code of Civil Procedure section 575.2 authorizes a clerk to

refuse to file a pleading for its failure to comply with the court’s local rule. (Carlson, supra, 68

Cal.App.4th at pp. 1279-1280.) Section 575.2, subdivision (b), explains the intent of the

Legislature that failure to comply with local rules is the responsibility of counsel, not the party,

and any penalty imposed should not affect a party’s cause of action. (Carlson, supra, 68

Cal.App.4th at p. 1280.)

If section 402, subdivision (a)(3), is considered, then Plaintiff’s original filing was

improperly rejected and the clerk should have either transferred the submission to the correct

location for filing, or accepted it for filing and the court, on its own motion, transferred it to the

proper location.

Code of Civil Procedure section 1010.6, subdivision (e)(4)(E), is specific to electronically

filed documents and provides for a tolling of the statute of limitations when a clerk does not file a

complaint because it “does not comply with applicable filing requirements or the required filing

fee has not been paid.” It provides that any applicable statute of limitations “shall be tolled for the

period beginning on the date on which the court received the document” through the later of either

“the date on which the clerk of the court sent the notice of rejection” or “the date on which the

electronic filing service provider or electronic filing manager sent the notice of rejection”, “plus

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one additional day if the complaint ... is subsequently submitted in a form that corrects the errors

which caused the document to be rejected. The party filing the complaint ... shall not make any

change to the complaint ... other than those required to correct the errors which caused the

document to be rejected”

A reasonable interpretation of section 1010.6, subdivision (e)(4)(E), is that a clerk must

first have legal authority to reject a complaint for it to apply. Again, “[t]he functions of the clerk

are purely ministerial.” (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777.) “‘When a proper

offer of filing has been made by a party, the party shall not suffer for the failure of the clerk to

perform his duty.’” (Rojas, supra, 67 Cal.App.4th at p. 778, quoting Dillon v. Superior Court

(1914) 24 Cal. App. 760, 765-766.)

Defendant confusingly argues that “Plaintiff’s own documents reflect the clerk rejected the

initial e-filing on February 18, 2025...” (Demurrer, 4:25-26.) The FAC alleges no such thing.

The only reference in the FAC to February 18, 2025 is that One Legal sent an email on that date

notifying that Plaintiff’s counsel that the firm credit card had been charged for $20.80. “[H]owever

this newly discovered communication did not have any status update as to the filing.” (FAC, ¶22.)

As a matter of pleading, the action can be considered filed on December 5, 2024 and is therefore

timely. This can be challenged later in the case, but not at the pleading stage. The Court overrules

the demurrer on this ground.1

Movant to give notice.

Dated-

____________________________ Judge

1 Plaintiff alternatively argues the action is saved under the doctrine of equitable tolling for much the same reasons. The Court need not reach this second argument.

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