Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 08CECG01846 of Fresno County. Jeffrey Hamilton, Jr., Judge.
The law office of Thomas M. Giovacchini and Thomas M. Giovacchini for Plaintiff and Appellant.
Ramon Yuen-Garcia for Defendant and Respondent.
OPINION
HILL, J.
Petitioner appeals from the dismissal of its petition for a writ of administrative mandate. The petition was dismissed on the ground it was not timely filed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, Nolte Sheet Metal, Inc. (Nolte), was a subcontractor on a public works project. On July 6, 2006, the Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), issued a civil wage and penalty assessment to Nolte for alleged failure to pay prevailing wages to its employees. After an administrative hearing, the director of DLSE (director) issued a decision modifying and affirming the assessment. The decision was served on the parties on March 26, 2008. On March 27, 2008, the DLSE filed a motion for reconsideration of the director’s decision. On April 8, 2008, the director served on the parties an order granting reconsideration and amending findings of fact, in which the amounts of wages due and penalties imposed were modified.
On May 28, 2008, a document runner took Nolte’s petition for writ of mandate, which sought review of the director’s decision, to the Fresno County Superior Court for filing. He was informed that the civil clerk’s office had moved to another location, and the clerk’s office at which he had arrived accepted only family law filings; the clerk refused to accept the petition for filing. Because it was 3:50 p.m., the document runner believed it was too late to travel to the new location of the civil clerk’s office and file the petition, so he filed the petition on the following day, May 29, 2008.
On September 24, 2008, DLSE moved to dismiss the petition on the ground it was not timely filed. DLSE asserted the petition was required to be filed within 45 days of service of the original decision, that is, by May 12, 2008, and it was therefore untimely. Nolte opposed the motion, asserting the time for filing the petition ran from service of the modified decision, and the time was extended by five days pursuant to Code of Civil Procedure section 1013 due to service of the decision by mail, making the due date May 28, 2008. It argued that the petition was tendered to the clerk for filing on May 28, 2008, and was constructively filed on that date. After extensive briefing, the court granted the motion to dismiss and entered a judgment dismissing the petition. Nolte appeals, again asserting the time for filing the writ petition ran from service of the modified decision, the time was extended by five days due to service of the decision by mail, and the petition was constructively filed by the May 28, 2008 deadline.
DISCUSSION
I. Standard of Review
Questions of law are reviewed de novo. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108.) Where the facts are undisputed, an order granting a motion to dismiss a petition for writ of mandate is also reviewed de novo. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1118.)
II. Commencement of Period for Filing Petition for Writ
Generally, a contractor or subcontractor on a public works project is required to pay its employees the prevailing rate of wages in accordance with the prevailing wage law (Lab. Code §§ 1720-1861). (§ 1771.) A civil wage and penalty assessment may be imposed for violation of this requirement. (§ 1741.) A contractor or subcontractor against whom a civil wage and penalty assessment has been made may obtain review of the assessment by requesting a hearing. (§ 1742, subd. (a).) “Within 45 days of the conclusion of the hearing, the director shall issue a written decision affirming, modifying, or dismissing the assessment.” (§ 1742, subd. (b).) The director’s decision must be served on the parties “pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party.” (Ibid.)
All further statutory references are to the Labor Code unless otherwise indicated.
The director’s decision is reviewable by writ of administrative mandate.
“An affected contractor or subcontractor may obtain review of the decision of the director by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the decision. If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final.” (§ 1742, subd. (c).)
Section 1742 provides the exclusive method for review of this type of civil wage and penalty assessment. (§ 1742, subd. (g).)
On May 29, 2008, Nolte filed its petition for writ of mandate, seeking review of the director’s decision on the civil wage and penalty assessment imposed on Nolte. The petition alleged the DLSE issued Nolte a civil wage and penalty assessment for alleged failure to pay prevailing wages. The assessment charged that $83,378.08 in unpaid wages and statutory penalties was due. A hearing was held and the director issued a decision finding that some of the wages and penalties assessed were not due, but a total of $78,289.04 was due and owing. The petition alleged the director issued his decision on March 21, 2008, and the proof of service was dated March 26, 2008. It also alleged an amended decision was issued on April 4, 2008. Nolte’s petition challenged the findings and decision of the director.
Pursuant to section 1742, subdivision (c), a petition for a writ of mandate to review the director’s decision on a civil wage and penalty assessment must be filed in superior court “within 45 days after service of the decision.” (§ 1742, subd. (c).) The director’s original decision was served on the parties on March 26, 2008. A 45-day period commencing on that date, without any extension, would have expired on May 12, 2008.
The 45th day fell on a Saturday, so the period was extended to the following Monday, May 12. (Code Civ. Proc., §§ 10, 12, 12a.)
Nolte, however, contends the director issued an amended decision, and the time for challenging his final decision ran from service of that decision on the parties. Section 1742, subd. (b) provides: “Within 15 days of the issuance of the decision, the director may reconsider or modify the decision to correct an error, except that a clerical error may be corrected at any time.” Section 1742 does not expressly state when the time for filing a writ petition commences if the director reconsiders and issues a modified decision.
Regulations clarify the applicable rules. The director “may reconsider or modify a decision … for the purpose of correcting any error therein.” (Cal. Code Regs., tit. 8, § 17261, subd. (a).) This must be done within 15 days after the date of issuance of the original decision (Id., subd. (b).) “An application for reconsideration made by any Party shall not extend the time for seeking judicial review pursuant to Labor Code section 1742(c) unless the Director issues a modified or reconsidered decision within the 15-day time limit prescribed in subpart (b) of this section.” (Id., subd. (d).) “[I]f the Director has issued a modified decision pursuant to and within the 15-day limit of the Director’s reconsideration authority under Section Rule 61 [Section 17261] above and Labor Code section 1742(b), the right of review and time for seeking such review shall extend from the date of service of the modified decision rather than from the original decision.” (Cal. Code Regs., tit. 8, § 17262, subd. (a).)
Thus, if the director issues a modified or reconsidered decision within the 15-day period, the 45-day period for filing a petition for writ of mandate to review that decision runs from service of the modified or reconsidered decision on the parties. The director granted DLSE’s motion for reconsideration and issued an order amending his findings of fact and modifying the amount of the assessment due. The amended decision was issued and served on the parties within the 15-day period. Consequently, the 45-day period for filing a petition for a writ of mandate ran from April 8, 2008, the date the amended decision was served on the parties. The last day to file the writ petition, absent some extension, was May 23, 2008.
Analogizing to appeals from civil judgments, DLSE argues the time for filing a writ petition should not run from service of the amended decision when the change in the decision is not a substantive modification, but merely the correction of a clerical error. The modification in this case was not a mere correction of a clerical error, however.
In the analogous situation of an appeal after a civil judgment, courts have distinguished between amendments to correct clerical error and amendments affecting the substance of the judgment. “In the case of a civil judgment, the period for filing a notice of appeal is not extended by an amendment that corrects a clerical error, but it is extended by an amendment that effects a substantial or material change or involves the exercise of a judicial function or judicial discretion. [Citations.]” (Nestlé Ice Cream Co., LLC v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1104, 1109 (Nestlé).)
“‘“When the trial court amends a nonfinal judgment in a manner amounting to a substantial modification of the judgment …, the amended judgment supersedes the original and becomes the appealable judgment (there can be only one ‘final judgment’ in an action …). Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment. … On the other hand, if the amendment merely corrects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective as the only appealable final judgment; the amendment does not operate as a new judgment from which an appeal may be taken.”’ [Citation.]” (Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1081, fn. 11 (Erickson.)
A court has the power to correct clerical errors in its judgment as entered so as to conform to the judgment directed. (Code Civ. Proc., § 473, subd. (d); In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).) “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.] ” (Candelario, supra, at p. 705.)
In Erickson, after judgment was entered against plaintiff and in favor of defendant, the court entered a minute order awarding defendant attorney’s fees of $116,000 and ordering defendant to submit an amended judgment reflecting that award. (Erickson, supra, 126 Cal.App.4th at pp. 1077-1078.) Plaintiff objected to defendant’s proposed amended judgment, and the court clarified its order; the amended judgment the court subsequently signed awarded defendant $97,000 in attorney’s fees. Defendant moved to dismiss plaintiff’s appeal of the attorney fee award as untimely, because it was not filed within 60 days after notice of entry of the minute order was served. (Id. at p. 1079.) The court denied the motion, concluding the time to appeal ran from notice of entry of the amended judgment. The amended judgment “did not simply accomplish the ministerial or clerical function of reflecting the award made in the … Minute Order.” Instead it made a substantial reduction in the attorney fee award. (Id. at p. 1081.)
In Nestlé, a workers’ compensation judge made an award to a claimant, then amended the award to correctly state the names of the parties and increase the amount of the award. The employer filed a petition for reconsideration before the Workers’ Compensation Appeals Board (Board) that was timely when calculated from the amended award, but not when calculated from the original award; the Board dismissed the petition as untimely. The court concluded both the change in party names and the increase in the award amount constituted substantial and material changes to the award, rather than corrections of clerical errors. (Nestlé, supra, 146 Cal.App.4th at pp. 1110-1111.) The amended award included retroactive temporary disability payments at the rate in effect at the time the award was made, instead of at the lower rate previously in effect. The claimant’s attorney had argued in a letter to the workers’ compensation judge that payment at the higher rate was statutorily required. The court concluded: “Payment of benefits at a higher rate constituted a substantial and material change in the award. Amending the award to comport with [the statute] and the case law applying it was a judicial function, not merely a clerical one.” (Id. at p. 1111.)
The director’s original decision set out the amounts Nolte was required to pay, totaling $78,289.04. The total due in the amended decision was increased to $89,503.08. The increase in the amount to be paid constituted a substantial and material change in the decision.
Additionally, the amendment of the decision required the exercise of judicial functions. The director’s original decision determined that Nolte was required to pay Alfredo Rojas and Mario Rojas prevailing wages for their work at the site of the public works project. It also determined that the employees were not entitled to be paid either prevailing wages or overtime for travel time to the site. The original decision set out multiple hourly rates at which each employee was actually paid during the course of the project, but not the dates or time periods during which they were paid at each rate. It set out the total hours for which the director determined each employee was entitled to additional wages and the total amount to be paid to each employee.
The amended decision indicated that the wages due were incorrectly calculated in the original decision. It stated that, in the original decision, “the total hours assessed [by the DLSE] were modified by deducting the three hours of travel time per day claimed by the two workers, and the assessed unpaid wages for those workers were reduced by subtracting the full prevailing wages claimed for the deducted travel hours.” The director concluded that he instead should have reduced the assessment only by “the difference between the prevailing wages and the amount Nolte actually paid for the travel time.” Based on Nolte’s payroll records, he determined the average amount each employee was actually paid per hour for travel time. Apparently, he then used that amount, the prevailing rate he determined was applicable, and the number of travel hours claimed by the employees to make the appropriate adjustment to the award. The actual calculation is not set out in the amended decision.
The original decision does not indicate that the director calculated the amount of unpaid wages Nolte was required to pay by making deductions from the assessment for amounts disallowed. It does not indicate exactly how the total amount to be paid was calculated.
The error corrected in the director’s amended decision was not an error in recording the decision rendered. Nothing in the record supports a conclusion that the director initially announced a decision or intended to render a decision in accordance with the amended decision, but his decision was somehow altered in the process of clerically recording it. Rather, in amending the decision, the director was required to determine the correct means of calculating the adjustment to the assessment that needed to be made. He determined that the appropriate reduction for the disallowed hours of travel time was the difference between the prevailing rate and the rate at which the employee was actually paid; he apparently also determined to use the average hourly rate at which each employee was paid in calculating the amount the employee was paid for the claimed travel time. Thus, the amendment required a judicial function, not a mere clerical correction.
Accordingly, the time for filing a petition for a writ of mandate to review the decision of the director ran from service of the amended decision on the parties, not from service of the original decision. A 45-day period commencing on April 8, 2008, expired on May 23, 2008; absent some extension, the petition filed on May 29, 2008 was untimely.
III. Application of 5-Day Extension
Nolte contends the time for filing its writ petition was extended by five days pursuant to Code of Civil Procedure section 1013, which provides:
“In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, … or other like facility …, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served.… The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California …, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.” (Code Civ. Proc., § 1013, subd. (a), italics added.)
Code of Civil Procedure section 1013, subdivision (a), “has been described as ‘a procedural statute of general application.’” (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 273 (Poster).) It applies generally to notices and responses in all civil cases, unless a statute or rule of court makes it inapplicable. (Id. at pp. 273, 275; Code Civ. Proc., § 1013, subd. (a).) Some courts have held that, consistent with the Legislature's exemption of notices of appeal, the 5-day extension does not apply to other statutes that set forth jurisdictional deadlines, such as the deadline for filing a writ petition. (Poster, supra, 52 Cal.3d at p. 274; Department of Industrial Relations v. Atlantic Baking Co. (2001) 89 Cal.App.4th 891, 893, 895; Tielsch v. City of Anaheim, 160 Cal.App.3d 576, 579.)
It has been held that the statutory time limit for filing a petition for a writ of mandate to review the decision of an administrative agency is jurisdictional. (Elliott v. Contractors’ State License Bd. (1990) 224 Cal.App.3d 1048, 1052.) In this case, the statute setting out the procedures for review of a civil wage and penalty assessment and defining the time within which the writ petition must be filed expressly requires service of the director’s decision pursuant to Code of Civil Procedure section 1013, and makes the time for filing the writ petition run from that service. Section 1742 provides:
“(b) [¶] … [¶] Within 45 days of the conclusion of the hearing, the director shall issue a written decision affirming, modifying, or dismissing the assessment.… This decision shall be served on all parties and the awarding body pursuant to Section 1103 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. Within 15 days of the issuance of the decision, the director may reconsider or modify the decision to correct an error, except that a clerical error may be corrected at any time. [¶] … [¶] (c) An affected contractor or subcontractor may obtain review of the decision of the director by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the decision.” (§ 1742, subds. (b), (c), italics added.)
Thus, the statute itself incorporates Code of Civil Procedure section 1013 and its time extensions.
The director has also interpreted section 1742 as incorporating the time extension provisions of Code of Civil Procedure section 1013, as indicated by the regulations promulgated to implement section 1742. The regulations require that a copy of the director’s decision “be served by first class mail on all Parties in accordance with the requirements of Code of Civil Procedure section 1013” and provide that “[t]he time for seeking judicial review shall be determined from the date of service of the decision of the Director under Code of Civil Procedure section 1013, including any applicable extension of time provided in that statute.” (Cal. Code Regs., tit. 8, §§ 17260, subd. (c), 17262, subd. (c).)
Thus, the statute defining the jurisdiction of the court to review the decision incorporates the extension provisions of Code of Civil Procedure section 1013. Consequently, the time period within which Nolte was required to file its writ petition was extended five days pursuant to those provisions. That time period expired on May 28, 2008.
IV. Constructively Filed or Deemed Filed Documents
Nolte’s petition for writ of mandate was filed on May 29, 2008, one day after expiration of the period for filing the petition. Nolte contends its petition was timely filed because it was constructively filed on May 28, 2008.
The rule of constructive filing that developed for the benefit of incarcerated appellants does not apply to Nolte’s petition. The rule originated in People v. Slobodion (1947) 30 Cal.2d 362, where the court concluded that a person incarcerated in state prison who wished to file a notice of appeal in his criminal case, and was required to comply with the prison’s rules for legal mail, met the time requirements for filing the appeal by placing the notice in the hands of the state’s employees for mailing within the time period for filing an appeal, even if the notice did not actually reach the court clerk until after the time for filing had expired. (Id. at p. 366.) Although the rule was later expanded to include the filing of a notice of appeal in a civil action (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 110 (Silverbrand)), it remains applicable only to incarcerated appellants and only in special circumstances where the appellant acted diligently and the delay in filing the notice of appeal resulted from conduct or representations of prison officials or the appellant’s criminal defense attorney upon which the prisoner relied. (In re Benoit (1973) 10 Cal.3d 72, 83, 86; Silverbrand, supra, 46 Cal.4th at p. 119-120.)
Silverbrand limited the rule in civil cases to self-represented appellants. It described the essence of the rule as: “providing self-represented prisoners with an opportunity to file a notice of appeal equal to that afforded nonprisoners and prisoners represented by counsel.” (Silverbrand, supra, 46 Cal.4th at p. 121)
Nolte also invokes the rule that documents are deemed filed by the clerk at the time they are presented for filing, when the clerk erroneously refuses to file them. Nolte contends the writ petition was tendered to the clerk for filing on May 28, 2008, the last day for filing it, but the clerk refused to accept it for filing. It contends the petition should be deemed filed on that date.
In United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912 (UFW), the court applied the rule, deeming a petition for review of a decision of the Agricultural Labor Relations Board timely filed. United Farm Workers (UFW) tendered its petition to the clerk of the court of appeal for filing on the final day for seeking review. The clerk stamped the petition “received,” but mailed it back to UFW with a notation that it did not comply with the California Rules of Court and needed a table of authorities index. The resubmitted petition was accepted for filing two days later. The court reversed the court of appeal’s dismissal of UFW’s petition for review. It concluded “that ‘filing’ for purposes of compliance with the time limits of Labor Code section 1160.8 means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours. [Citations.] Thus, it is the filer’s actions that are scrutinized in determining whether a petition was timely filed.” (UFW, supra, at p. 918.) The clerk’s rejection of the petition for a technical defect could not undo the filing. The court held a defective petition may not be dismissed for untimeliness when it was delivered to the appropriate clerk's office during office hours within the applicable time limits. (Ibid.)
The rule that a document may be deemed filed at the time it was submitted to the clerk has generally been applied in cases in which the clerk refused to file a document due to technical defects in the submission. In Litzmann v. Workmen’s Comp. App. Bd. (1968) 266 Cal.App.2d 203, Litzmann presented his petition for review of a decision of the Workmen’s Compensation Appeals Board (Board) to the clerk of the appellate court for filing on April 17, the last day on which a timely petition could be filed. The clerk refused to file it because it was not prepared in “‘the proper form’” and on “‘proper size sheets.’” (Id. at p. 204.) The petition was resubmitted and accepted the following day. The court noted there was no authority specifying the form of such a petition or the size of paper on which it was to be filed, and defects in the format did not justify a refusal to file the petition on the last day for filing. (Id. at p. 205.) The court concluded that, “since the petition was deposited with the clerk for filing on April 17, 1968, albeit defective in form, this court may make an order that the petition be deemed to have been filed on that date.” (Ibid.)
In Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, the clerk refused to file defendant’s notice of appeal, because the amount tendered for fees was less than the required amount. When the notice of appeal was resubmitted, the time for filing had already expired. The rules of court required the clerk to accept a notice of appeal for filing even without the filing fee, subject to later dismissal if the fee was not paid. (Id. at p. 1169.) Because the notice of appeal was delivered to the clerk for filing during office hours and within the applicable filing period, and the clerk had no legitimate basis for refusing to file it, the court deemed the notice timely filed. (Id. at pp. 1172-1173.)
In Carlsonv. Department of Fish & Game (1998) 68 Cal.App.4th 1268, the clerk mailed back plaintiff’s proffered complaint, because it did not comply with a requirement of the court’s local rules. By the time plaintiff’s counsel received the returned complaint, the statute of limitations had run. The court concluded failure to comply with a local rule was not a valid basis on which the clerk could reject a complaint for filing. (Id. at pp. 1279-1281.) The complaint was deemed filed when it was first presented to the clerk for filing. (Id. at p. 1282.)
In Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, the deadline for filing a notice of appeal was April 3; defendant’s notice of appeal was file stamped April 5. The notice of appeal had been delivered to the clerk’s office on April 3, but the clerk did not file stamp it until April 5, because she erroneously believed the notice of appeal could not be filed while defendant’s request for a waiver of fees and costs was pending. The rules of court required that the clerk file any pleading accompanied by an application for a fee waiver upon presentation. (Id. at p. 58.) Because the notice of appeal was presented to the clerk for filing within the prescribed time, and there was no lawful reason to refuse to file it, the court deemed the notice timely filed. (Id. at p. 59.)
Nolte does not contend its writ petition was rejected by the clerk due to any defect in the form of the petition or shortage in the fees. Rather, it asserts the clerk to whom the petition was presented refused to file it because it was presented at the wrong clerk’s office, the correct clerk’s office being located at a different address. We have found no case addressing that situation.
The cases describing when a document is filed state that filing requires “actual delivery … to the clerk at his place of business during office hours” (UFW, supra, 37 Cal.3d at p. 918, italics added), “presentation to the officer … at the proper place, and within the proper time” (City of Los Angeles v. Superior Court (1968) 264 Cal.App.2d 766, 770, italics added (City of Los Angeles)), or delivery “‘at the place where it is to be filed, to the proper officer’” (Pacific Southwest Airlines v. Dowty-Rotol, Ltd. (1983) 144 Cal.App.3d 491, 493, italics added (Pacific Southwest)). These descriptions suggest the document must be presented to the correct clerk’s office for the filing of the particular document, in order to be considered “filed.”
The few cases discussing where the document was filed are distinguishable. In National Kinney v. Workers’ Comp. App. Bd. (1980) 113 Cal.App.3d 203 (National Kinney), the last day for filing with the appellate court a petition for review of the board’s award was October 8. The employer’s petition was filed with the Fourth Appellate District on October 3. The proper district for filing was the Second Appellate District. On November 8, the Supreme Court ordered the matter transferred to the Second Appellate District. The employee argued that filing the petition in the correct appellate district was a jurisdictional matter. Because the employer’s request for transfer was made and the transfer occurred after the time for filing the petition had elapsed, the employee argued the petition was untimely and should be dismissed. (Id. at p. 207.) The court concluded that, while timely filing of the petition was a jurisdictional requirement, timely filing in the correct appellate district was not. (Id. at pp. 207-209.) Accordingly, the court did not dismiss the matter, but reviewed it on the merits.
In Pacific Southwest, the court questioned the timeliness of the appeal. (Pacific Southwest, supra, 144 Cal.App.3d at p. 493.) The deadline for filing the appeal was March 2. Plaintiff presented evidence that it mailed the notice of appeal to the superior court and the notice was received by the civil processing division of the clerk's office on February 26. The notice of appeal was not stamped as filed until March 31, however. (Ibid.) The court concluded:
“‘A paper is filed when it is delivered, at the place where it is to be filed, to the proper officer, and by him received to be kept on file.’ [Citation.] When the clerk’s office received the notice of appeal from the judgment, that notice of appeal was filed. Although it is better practice to deliver a notice of appeal to the appellate transcript division of the clerk’s office for filing, delivery of the notice to that division is not essential to vest the Court of Appeal with jurisdiction.…’ It is therefore sufficient if the notice of appeal is presented to and received by any deputy clerk of the office of the clerk of the superior court for purposes of filing.” (Id. at p. 493.)
In Montgomery Ward & Co. v. Imperial Casualty & Indemnity Co. (2000) 81 Cal.App.4th 356, 372, fn. 19, although the notice of cross-appeal was file stamped February 18, a date one day past the filing deadline, the evidence presented indicated the notice was received in the mail room of the superior court and delivered to the clerk in department 39 on February 17; the clerk in department 39 then sent the notice to the clerical appeal processing unit via the court’s messenger service. Accordingly, the court deemed the notice timely filed on February 17.
In each of these cases, the clerk accepted or retained the document when it was submitted for filing. In NationalKinney, the incorrect appellate district accepted and filed the petition for review; the filing party followed procedures set out in the rules of court for the subsequent transfer of the case to the proper district. In Pacific Southwest and Montgomery Ward, the document was mailed to, received, and retained by the court, and was eventually routed to the correct subdivision of the court.
The court reached a different result when the document sought to be filed was not actually retained by the clerk. In City of Los Angeles, a complaint against the city was filed on behalf of the minor plaintiff on April 7, 1967. The trial court granted plaintiff’s motion to amend the filing date to show the complaint was filed on March 29. The motion was based on the declaration of plaintiff’s counsel stating that the complaint had been submitted to the clerk for filing on March 29, within the six-month period for filing, but due to an error in the accompanying petition for appointment of a guardian ad litem (omission of the minor’s age), it was rejected. (City of Los Angeles, supra, 264 Cal.App.2d at pp. 768-769.) On appeal, the court concluded the trial court had no authority to grant the motion amending the filing date. (Id. at p. 769.)
The court cited earlier cases for the proposition that a paper is deemed filed when a proper filing or offer for filing is made by the party; a “‘“proper offer means more than a mere presentation to the officer. It means to him at the proper place, and within the proper time. When this is done, the party is required to do no more, and will not be endangered in any of his rights by the failure of the clerk, in turn, to perform his duty.”’” (City of Los Angeles, supra, 264 Cal.App.2d at p. 770.) The court distinguished those earlier cases; in the prior cases, there was no impediment to filing the document when it was offered for filing. In City of Los Angeles, however, “the complaint was not deposited in the clerk’s office on March 29, 1967, albeit it was tendered to the clerk for filing on that date, but was in fact taken away from the clerk’s office on that day by plaintiffs’ attorney.” (Id. at p. 771.) The court also concluded the evidence did not support a conclusion the complaint was erroneously rejected by the clerk. No declaration by the clerk was presented, and plaintiffs’ attorney’s declaration merely contained his conclusion regarding the reason for the rejection. (Id. at p. 772.) The court also expressed doubt that omission of the minor’s age justified withdrawal of the document; it opined the defect could have been corrected on that date by writing in the missing information by hand. (Id. at pp. 772-773.)
We conclude from the foregoing cases that a paper may be deemed filed when it has been presented to the clerk, in the correct clerk’s office for the filing of the particular paper, within the proper time for filing it and it has been erroneously rejected by the clerk. Nolte failed to demonstrate that it satisfied this rule.
The showing made by Nolte did not establish that it presented the petition for filing in the proper clerk’s office at the proper time, or that the clerk erroneously rejected it for filing. The declaration of Nolte’s attorney, Thomas Giovacchini, stated that, on May 28, 2008, he retained local counsel, Glenn Gates, to have the petition filed, and Gates retained a document runner to file the petition with the court. The declaration of the document runner, Adam Gates, stated he was hired on May 28, 2008, to file Nolte’s writ petition with the court. He stated he arrived at the courthouse at 1100 Van Ness Avenue at around 3:50 p.m., and went to the clerk’s office; he was informed the civil clerk’s office had moved to 2317 Tuolumne Street, and the Van Ness Avenue clerk’s office only accepted family law filings. The clerk refused to accept the petition for filing and advised him to file it at the other clerk’s office. Gates declared, “By then, there was insufficient time to travel to the Civil Clerk’s office on Tuolumne Street to file the Petition. [¶] … I went to the Clerk’s office on Tuolumne Street the following day and filed the Petition.”
Unlike the cases in which the proffered document was deemed timely filed, the petition in this case was not properly presented to the clerk and rejected due to some technical flaw in the document that was not a legitimate basis for rejection. The document was presented at the wrong location, and the clerk directed the document runner to the correct location for filing it. No declaration of the clerk was submitted, showing the clerk refused to file the petition or explaining the basis for that refusal. Nolte presented no evidence the document runner even attempted to file the petition at the correct clerk’s office on May 28, 2008. We note there was no evidence what time the Tuolumne Street clerk’s office closed, how late documents would be accepted for filing there, how far the Tuolumne Street office was from the Van Ness Avenue office, or how long it would have taken to travel from one office to the other. Thus, Nolte did not show that it did everything it could have done to timely and properly file the petition, but it was prevented from doing so by the erroneous actions of the clerk. Accordingly, we find no error in the trial court’s dismissal of Nolte’s petition on the ground it was not timely filed.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: LEVY, Acting P.J.CORNELL, J.