Commencing Civil Actions in California

Part 2, Title 5, Chapter 2 of the California Code of Civil Procedure deals with commencing civil actions in this state. Section 411.10 provides that a civil action is commenced by filing a complaint with the court.

Section 411.20 states that, if the clerk accepts for filing a complaint or other first paper, or any subsequent filing, and payment is made by check which is later returned without payment, the clerk is required, by mail, to notify the party who tendered the check of three items.

In addition, the clerk is required to void the filing if the party who tendered a returned check or on whose behalf a returned check was tendered has not paid the full amount of the fee and the administrative charge by a means specified within 20 days of the date on which the notice required. Any filing voided by this section can be disposed of immediately after the 20 days have elapsed without preserving a copy in the court records.

If an adverse party files a response to a complaint together with a filing fee, and the original filing is voided, the responsive filing is not required and is voided. The court must, by mail, provide notice to the parties or their attorneys that the initial paper and the response have been voided.

If any trial or other hearing is scheduled to be heard prior to the expiration of the 20-day period, the fee must be paid prior to the trial or hearing. Failure of the party to pay the fee prior to the trial or hearing date will cause the court to void the filing and proceed as if it had not been filed.

Moreover, if the clerk performs a service or issues any document for which a fee is required and payment is made by check which is later returned without payment, the court may order further proceedings suspended as to the party for whom the check was tendered. The clerk must also impose an administrative charge for providing notice that a check submitted for a filing fee has been returned without payment and for all related administrative, clerical, and other costs incurred under this section.

Section 411.20.5 states that, if an electronic filing is made to the clerk by an electronic filing service provider acting as the agent of the court for purposes of collecting and remitting filing fees, and fees owed to the electronic filing service provider remain unpaid for a period of five days after notice to the attorney of record, the electronic filing service provider may notify the clerk that fees remain unpaid despite notice to the attorney of record. The clerk may then notify the attorney of record that the attorney of record may be sanctioned by the court for nonpayment of fees.

Section 411.21 provides that, if a complaint or other first paper is accompanied by payment by check in an amount less than the required fee, the clerk must accept the paper for filing, but cannot issue a summons until the court receives full payment of the required fee. The clerk is required to void the filing if the party who tendered a check in an amount less than the required filing fee or on whose behalf a check in an amount less than the required filing fee was tendered has not paid the full amount of the fee and the administrative charge by a means specified.

If an adverse party files a response to a complaint or other first paper, together with a filing fee, and the original filing is voided, the responsive filing is not required and is to be voided. The court must, by mail, provide notice to the parties that the initial paper and the response have been voided. Failure of the party to pay the fee prior to the trial or hearing date shall cause the court to void the filing and proceed as if it had not been filed.

Section 411.35 states that, in every action arising out of the professional negligence of a person holding a valid architect’s certificate issued, or a person holding a valid land surveyor’s license issued, the attorney for the plaintiff or cross-complainant must file and serve the certificate specified. In addition, a certificate must be executed by the attorney for the plaintiff or cross-complainant declaring one of three specified conditions.

Where the attorney intends to rely solely on the doctrine of “res ipsa loquitur,” or exclusively on a failure to inform of the consequences of a procedure, or both, this section is inapplicable. A violation of this section may constitute unprofessional conduct and be grounds for discipline against the attorney. The failure to file a certificate in accordance with this section is grounds for a demurrer.