Estes v. D W W III Co. CA4/3

Filed 11/22/22 Estes v. D W W III Co. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSEPHINE ESTES,

Plaintiff and Appellant, G060501

v. (Super. Ct. No. 30-2020-01168325)

D W W III CO., INC., et al., OPI NION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Reversed. Request for judicial notice. Granted. John L. Dodd & Associates and John L. Dodd; Gregory L. Bartone for Plaintiff and Appellant. Hallstrom, Klein & Ward, Grant J. Hallstrom and Paul J. Kurtzhall for Defendant and Respondent. * * *

This appeal arises from a demurrer sustained without leave to amend. While a new complaint was filed within the requisite time period, the complaint incorrectly listed the case number of a previously filed complaint that had been dismissed without prejudice. The clerk, rather than assign a new case number to the new complaint, rejected the filing, and waited a month to notify the plaintiff who was self-represented but assisted by counsel, and then engaged in a protracted back-and-forth with plaintiff’s counsel that misled counsel into believing the new complaint would be filed. By the time it became clear the clerk would not accept the filing, the statute of limitations had run. Plaintiff ultimately filed her new complaint, but suffered a dismissal after the trial court sustained the demurrer based on the statute of limitations. It was error for the trial court to sustain the demurrer and dismiss the case on the basis of the statute of limitations. The new complaint that was initially submitted for filing having sufficiently complied with the rules. The clerk should have filed the complaint and assigned a new case number, disregarding the old case number. At minimum, the court should have deemed the new complaint filed on the date of the original attempted filing date of June 1, 2020. Accordingly, we reverse.