PETERSON, P. J. I respectfully dissent.
Rappleyea v. Campbell (1994) 8 Cal.4th 975 [35 Cal.Rptr.2d 669, 884 P.2d 126] (Rappleyea) is inapposite to the case at bench, and is more narrowly drawn than the majority holds. By a bare four-to-three majority, Rappleyea granted equitable relief from the clerk’s entry of a default against nonresident, unrepresented defendants to whom plaintiff’s counsel falsely represented no default relief was available.
This case is not, as Rappleyea was, an appeal from the denial of equitable relief. This is an appeal from a summary judgment. It is undisputed the complaint was untimely filed. Appellant’s counsel procrastinated in filing until almost the last minute; then forwarded the complaint to the Contra Costa County Clerk by mail rather than by messenger; depended upon the erroneous decision of a legal assistant, who did not contact the clerk for up-to-date information on the amount of the required filing fee for a complaint in that county, as to the amount of that fee; and primarily and unsuccessfully responded to the motion for summary judgment on a claim the statute of limitations period was tolled because defendant was out of state for a time.
Appellant opposed summary judgment, inter alla, by the following means:
1. Submission of a declaration of his counsel’s legal assistant (Dibble, employed in counsel’s San Francisco office) which, as considered by the [1689]court,1 disclosed that she forwarded to the clerk for filing the summons and complaint, bearing the firm’s San Francisco address and telephone number, with a $134 check which was inadequate to pay the required filing fee; the check bore the firm’s San Jose address and telephone number. Dibble’s declaration contained as exhibits the $134 check and a subsequent check for $48, again bearing the San Jose address and telephone number. The latter is strangely characterized as bearing an “ ‘invoice date’ ” of November 17, 1992, whereas the $134 check is characterized as “dated November 13, 1992.” (Italics added.) The $48 check appears to be dated after the “ ‘invoice date.’ ”
2. Submission of a declaration by Millwood, incorporating a note in Millwood’s handwriting dated November 17 which “I believe” refers to a telephone call from a Contra Costa deputy clerk “regarding the complaint” in this case, advising the “full amount of the filing fee had not been transmitted. . . . [^Q . . . The clerk told me not to worry and assured me that the complaint would be filed on the date it was received, but that I did need to send a check for the balance of the filing fee that was owing as soon as possible. I immediately requested preparation of a check for the balance." The $48 check apparently represents the balance of the deficient filing fee.
The record clearly shows that Dibble, conceded to be responsible for the filing of this complaint by no later than November 18, 1992, never herself contacted the clerk’s office until November 19, 1992, after the statute had run. Dibble, therefore, never knew from any source of, and never relied on, a deputy clerk’s alleged representation to Millwood (who had nothing to do with the case except to answer a phone inquiry on November 17 as to the deficiency in the tendered filing fee) that the complaint would be filed before the filing fee was paid. Thus, Dibble could not have been, and was not, influenced by any alleged representations of the clerk before the statute of limitations ran on appellant’s cause of action because she was ignorant of them. Millwood did nothing by way of conversation with Dibble or otherwise to convey the clerk’s message he claims to have received, or to ascertain the date the statute would run, or to explore the urgency of getting the correct filing fee to the clerk’s office. An important event — timely filing of critical documents preceded by tender of required fees — was simply left to counsel’s legal assistant and a secretary in different offices, without any communication between them or any solicitation or receipt by either of guidance from counsel as to whether the complaint could, in fact, be filed without prepayment of the requested fee, an act the clerk was legally forbidden to perform.
[1690]Out of this classic case of the right hand being ignorant of the left hand’s activities, coupled with appellant’s failure to establish his tolling defense, his secondary and last gasp is “The [clerk] made me do it.”
In crediting this defense which the lower court rejected, the majority, in my view, has erroneously broadened .the reach of Rappleyea in which a majority of the Supreme Court noted, “We draw our conclusion narrowly.” (8 Cal.4th at p. 984.) It was established long ago that the untimely filing of a complaint due to the failure to pay the proper filing fee is not grounds for relief from untimely filing. The governing precedent here is Boyd v. Burrel (1882) 60 Cal. 280, 282-283, which was reaffirmed in Davis & Son v. Hurgren & Anderson (1899) 125 Cal. 48, 50-51 [57 P. 684]. Those cases held papers are not timely filed if they are refused by the clerk on the ground of nonpayment of the proper fees; these cases have never been overruled, in Rappleyea or otherwise, and are still binding authority from our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) The narrow, fact-bound proposition for which Rappleyea stands is that a motion for relief from a clerk’s entry of default due to untimely filing of an answer may be granted on equitable grounds, if a litigant in proprio persona is misinformed by the clerk as to the correct filing fee, attempts to file the document in timely fashion in reliance upon the clerk’s incorrect statement of the required fee, and is thereafter misled by the opposing party as to the availability of relief from default. (See 8 Cal.4th at pp. 984-985.)
As the majority points out, Government Code sections 6100, 24350.5, and 26820 require filing fees to be paid in advance of filing. Rappleyea's equitable remedy for its extrinsic mistake exception to these statutory requirements, announced over a vigorous dissent, granted equitable relief only for a clerk’s mistaken “ministerial action," which was the clerk’s “misunderstanding of the number of answering defendants,” in erroneously quoting a reduced filing fee for their answer. (8 Cal.4th at p. 983, italics added.)
As Division Four of this district has observed: “A ministerial act . . . is one that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed, when a given state of fact exists. (Williams v. City of Stockton [(1925)] 195 Cal. 743, 748 . . . .) Stated otherwise, it is an act with respect to the performance of which a public officer can exercise no discretion — an act or duty prescribed by some existing law that makes it incumbent on him to perform precisely as laid down by the law. [Citations.]” (People ex rel. Fund American Companies v. California Ins. Co. (1974) 43 Cal.App.3d 423, 431 [117 Cal.Rptr. 623], italics added (Fund American Companies).)
[1691]The clerk here, as the majority finds, had the legal duty to demand payment of the filing fee before timely filing the complaint. Performance of that duty constituted a ministerial act. The clerk has no legal duty to defer payment of filing fees before filing a complaint, and is proscribed by statute from doing so. In short, if in performing a duty the law mandates (collection of fees prior to filing a pleading) the clerk mistakenly calculates those fees, that mistake is an extrinsic one in the course of a ministerial action performed under legal compulsion (See Bayside Auto & Truck Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561, 566 [26 Cal.Rptr.2d 109]; Kientz v. Harris (1953) 117 Cal.App.2d 787, 790 [257 P.2d 41]) for which equitable relief, properly sought, may be available (Rappleyea, supra, 8 Cal.4th at p. 983).
Conversely, a clerk’s representation, that receipt of required filing fees will be waived before filing a complaint, is not an extrinsic mistake made in the course of a legally compelled ministerial action, because that waiver is not a ministerial action. It is an action the law forbids the clerk to take in the first instance and cannot, therefore, be “ministerial.”
A mistake in the ministerial act of calculating a filing fee the clerk is mandated by law to collect (dealt with in Rappleyea) is a far cry from a clerk’s alleged agreement or representation to waive that fee before filing the complaint, when its prefiling collection is required by statute.
Appellant’s counsel and their employees made the mistake here in not timely determining that fee from the Contra Costa County Clerk. It is common knowledge that filing fees are not uniform in every county of this state, and that they change with some frequency. Appellant cannot generate entitlement to the equitable relief Rappleyea granted by shifting the responsibility for a complaint’s untimely filing to a claimed representation of a deputy clerk who illegally promised to perform an act in violation of “the mandate of legal authority." (Fund American Companies, supra, 43 Cal.App.3d at p. 431.)
The majority holding will fuel uncertainty in the law by encouraging litigants’ counsel, who have missed applicable filing deadlines, to seek out clerks as the scapegoats for their own failings which have created a statute of limitations defense to their clients’ causes of action. This decision encourages the casting of a sympathetic eye on the careless and unprepared, accords apparent authority to a county clerk which the Legislature has proscribed, and will widen the gap the majority in Rappleyea sought to narrow through its warning that such sympathetic deference to the carelessness of litigants and their counsel will fragment procedural law “into a kaleidoscope of shifting rules.” (8 Cal.4th at p. 979.)
[1692]I would affirm the finding of the lower court that the complaint cannot be deemed to have been timely filed merely because of the clerk’s alleged representation the complaint would be filed without full prepayment of the filing fee. The majority having reversed the judgment on this point alone, I do not address appellant’s alternate claim that the application of Vehicle Code section 17463 tolled the statute of limitations.
Respondent’s petition for review by the Supreme Court was denied June 1, 1995.
Parts of Dibble’s declaration were stricken as hearsay, as were parts of the declaration of Millwood, a former secretary of the firm’s San Jose office, discussed post.