Rosenberg v. Superior Court

Opinion

POCHÉ, Acting, P. J.

This petition for a writ of mandamus raises the question of whether under the California Rules of Court a complaint transmitted by a facsimile machine to a trial court after the court closes to the public for the day is deemed to have been filed that day or the next day the court is open to the public.

Facts

On June 29, 1993, at 9:56 p.m., counsel for plaintiff, Denise Lynda Germino, transmitted by facsimile machine (fax) a complaint to the Oakland-Piedmont-Emeryville Municipal Court. It alleged personal injury to

[899]

plaintiff resulting from an automobile accident on June 29, 1992, and named petitioner as defendant.

On June 30, 1993, the court clerk informed counsel for plaintiff that because the complaint had been received after 5 p.m. the previous evening it would be deemed to have been filed as of the next day, June 30. Plaintiff applied to the municipal court for an order directing the clerk to file the complaint as of June 29, 1993, and upon denial of the application, plaintiff filed a petition for mandamus in respondent superior court.

Respondent court granted the petition and directed issuance of a peremptory writ of mandamus directing the municipal court to file the complaint as of June 29, 1993. Bruce Rosenberg, named as defendant by the complaint, filed the instant petition in this court and we issued an alternative writ. Respondent superior court then vacated its order. Although that action has rendered the petition moot, the question before us will recur throughout the state. Therefore, we exercise our discretion to retain the matter and decide the issue.

(Davies

v.

Superior Court

(1984) 36 Cal.3d 291, 294 [204 Cal.Rptr. 154, 682 P.2d 349].)

Discussion

Rules for fax filing and fax service were adopted effective March 1, 1992, by the Judicial Council.

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