Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC375937 Michael L. Stern, Judge.
Aroustamian & Associates, Ara Aroustamian and Mary Der-Parseghian; Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr., for Plaintiffs and Appellants.
Jackson & Wallace and Stuart E. Supowit for Defendant and Respondent.
Jackson Jenkins Renstrom and Stuart E. Supowit for Defendant and Respondent.
CROSKEY, J.
The plaintiffs in this case appeal from a judgment granted to the defendants after their demurrer was sustained without leave to amend on statute of limitations grounds. In between the filing of plaintiffs’ complaint and the sustaining of the demurrer, plaintiffs moved to have the record of the clerk of the superior court amended to state a filing date for their complaint that is different from the clerk’s file stamp date on the complaint. Plaintiffs contend the complaint was actually filed by facsimile transmission on a date that was prior to the running of the statute of limitations. Their motion to amend the clerk’s record was denied as was their motion for reconsideration, and it is those rulings to which this appeal is directed.
It is apparent from the record that the motion to amend the filing date was denied because the court perceived a discrepancy between the number of pages plaintiffs assert they had timely filed to commence this suit, and the number of filed pages that was indicated on the telecopier transmittal sheet. Although an explanation for the difference in the number of pages was given by plaintiffs at the hearing on their motion to amend the clerk’s record, the court nevertheless stated its belief that the numbers did not “jive.”
At the hearing on plaintiffs’ motion for reconsideration the court stated that it had denied the motion to amend the clerk’s record on more than just the perceived page discrepancy. However, the reporter’s transcript does not bear that out. Because it may be that the court did have additional reasons for denying the motion to amend we will reverse the judgment and remand the case for rehearing on plaintiffs’ motion to amend to allow the court to make a complete record of its analysis of the motion.
BACKGROUND OF THE CASE
1. Plaintiff’s Complaint
Plaintiffs’ complaint alleges they were present at the defendant hotel on the day it was “hosting the polling and elections for the Islamic Republic of Iran.” Also present at the hotel was the defendant private security agency the hotel had hired “to keep control and manage the event in a secure manner.” According to the complaint, plaintiffs were there as part of a group of political activists and journalists who were “peacefully assembled to protest the alleged polling and elections, ” and while at the hotel plaintiffs suffered assault and battery, intentional infliction of emotional distress, and false imprisonment at the hands of defendants and their agents, and the defendants failed to protect and aid them at that time.
2. Defendants’ Demurrer
Defendants filed a demurrer to the complaint asserting that plaintiffs did not bring their suit within the two year statute of limitations for personal injury and the one year statute of limitations for false imprisonment. The date on which the tortious acts alleged in the complaint actually occurred initially depended on whether one examined the copy of the complaint served on defendants or the complaint that is in the court’s file.
At the hearing on defendants’ demurrer the trial court noted that the copy of the complaint defendants had attached to their demurrer stated that plaintiffs’ causes of action occurred on June 17, 2005, whereas the complaint in the court’s file stated the causes of action occurred on June 17, 2006. The trial court stated the two complaints are identical except for that one detail-June 17, 2005 vs. June 17, 2006. The court clerk’s filing date stamp on both of the original and the copy of the complaint is August 14, 2007. Because the complaint in the court’s file states the alleged causes of action occurred on June 17, 2006, the court sustained the demurrer to the cause of action for false imprisonment because it has a one-year statute of limitations and overruled the demurrer to all of the other causes of action because their applicable statute of limitations is two years.
Thereafter defendants filed a motion for reconsideration of that ruling and asked the court to take judicial notice of the fact that the Iranian election occurred on June 17, 2005, not June 17, 2006. To support their request for judicial notice defendants presented newspaper articles on the election. Defendants argued that the complaint alleges plaintiffs’ causes of action occurred on the day of the election and thus the complaint in the court file, which states the causes of action occurred on June 17, 2006, and which was the pleading on which the court had relied to overrule defendants’ statute of limitations-based demurrer, was incorrect. In their opposition to the motion, plaintiffs cited Code of Civil Procedure section 1008 which provides for motions for reconsideration and which states such motions must be based on new or different facts, circumstances or law. Plaintiffs asserted that defendants’ motion was not based on new or different facts, circumstances or law.
At the hearing on defendants’ motion plaintiffs represented to the court that they would be filing a motion to correct the clerk’s record regarding the date on which this case was filed. Hearing on defendants’ reconsideration motion was continued so that both motions could be heard on the same day.
3. Plaintiffs’ Motion to Correct the Superior Court Clerk’s Record
a. Moving Papers-Plaintiffs’ Authorities and Exhibits
By their motion to correct the clerk’s record, plaintiffs asserted that although the court’s record showed that their complaint was filed by facsimile on August 14, 2007, it actually was filed by facsimile on June 11, 2007, and by placing a filing date of August 14, 2007 on their complaint, the clerk of the court had caused plaintiffs’ complaint to have apparently been filed after expiration of the statute of limitations. As authority for their motion, plaintiffs cited Code of Civil Procedure section 473, subdivision (d) which provides that a “court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” Plaintiffs cited cases that deal with nunc pro tunc orders to correct judgments and orders.
Plaintiffs should have cited California Rules of Court, rule 2.304 (rule 2.304), as authority for their motion. It provides for direct filing of papers with courts by facsimile. Part (d) of the rule provides that a motion for an order filing a document nunc pro tunc may be made when a document that was transmitted to a court by a fax machine “is not filed with the court because of (1) an error in the transmission of the document to the court that was unknown to the sending party or (2) a failure to process the document after it has been received by the court.” Of course the issue in this case is whether the complaint was faxed to the court on June 11, 2007 and thus was filed before the statute of limitations ran. Plaintiffs asserted there was no error in the transmission of the summons and complaint to the court because their attorneys’ fax machine produced a facsimile transmission record showing that the court received all pages of the papers that were filed on plaintiffs’ behalf to initiate this suit. They asserted the error occurred in the clerk’s office.
Plaintiffs also cited cases holding that a court has inherent authority to determine when a complaint is deemed filed. However, whereas those cases dealt with issues of law, plaintiff’s motion to correct the record raised a question of fact-whether plaintiffs actually did transmit their complaint on June 11, 2007, by facsimile transmission, to the fax filing clerk of the superior court. Evidence Code section 664 states in relevant part that “[i]t is presumed that official duty has been regularly performed.” To be successful in their motion, plaintiffs had to present to the trial court evidence to rebut the section 664 presumption that on June 11, 2007, the fax filing clerk regularly performed his or her duty to file each and every complaint presented to the court on that day by facsimile transmission. Stated another way, plaintiffs had to present evidence to convince the trial court that on June 11, 2007, the fax filing clerk failed to file a complaint in this case that was transmitted to the clerk by facsimile transmission and thereby failed to regularly perform his or her duty.
Plaintiffs submitted three documents to support their motion. One is the signature page of the complaint. It bears the date June 4, 2007. The second document is a telecopier transmittal sheet used by plaintiffs’ attorneys’ law office. The front of the sheet bears the date June 11, 2007. It states the fax was being sent to “Fax Filling [sic] Clerk” from “Elizabeth, ” states a telephone number for the transmission (213 625 3244), and states it is regarding a “summons & complaint” and 28 pages were being faxed. It does not indicate the name of the case for which the summons and complaint were being filed. Plaintiffs assert this telecopier transmittal sheet was used on June 11, 2007 to fax the summons and complaint for this case to the court clerk’s office. This telecopier transmittal sheet bears a facsimile transmission record which states that on June 11, 2007, there was a facsimile transmission to the phone number 12136253244 that began at 9:56, printed 24 of 28 pages, with a time of 13:30, and had a “result” of “cont., ” which the facsimile transmission record states stands for “continue.” The same facsimile transmission record on the telecopier transmittal sheet states a second start time of 10:13 on June 11, 2007, to the same phone number, with a printing of 4 of 28 pages, a time of 2:28, and a “result” of “OK.” The telecopier transmittal sheet states that the facsimile transmission record was printed on June 11, 2007 at 10:16.
Defendants contend this facsimile transmission record should be viewed as stating there were two transmissions rather than one transmission that stopped and then started again. It is a matter for the judge deciding plaintiffs’ motion to amend the clerk’s record to determine whether it was one transmission that was interrupted for some reason, say to add paper to the receiving fax machine, or was actually two transmissions. The same can be said for defendants’ contention that the dates on the facsimile transmission record “are controlled by the senders (Appellants’ counsel’s) facsimile machine.”
The third document submitted by plaintiffs in support of their motion is Judicial Council form MC-005, a “facsimile transmission cover sheet.” It bears the name of the instant case, states four documents were being transmitted and states the number of pages of each document-summons one page, complaint 19 pages, civil case cover sheet two pages, and civil case cover sheet addendum four pages. It contains the credit card number to be used for the filing fee for the complaint. It does not have a date, nor does it bear a facsimile transmission record indicating that the documents were faxed to the court on June 11, 2007.
Rule 2.304(b) states in relevant part that when a party files a document with the court directly by facsimile the party “must use the Facsimile Transmission Cover Sheet (Fax Filing) (form MC-005). The cover sheet must be the first page transmitted.” Regarding plaintiffs’ position that they filed their complaint on June 11, 2007 using form MC-005, if plaintiffs’ attorneys had followed this directive to make the form MC 005 cover sheet the first page transmitted to the court, a facsimile transmission record produced by the attorneys’ fax machine would be on that form and the form would have on it both the date of the transmission and the name of the case.
b. Moving Papers-Declarations Submitted
Plaintiffs submitted two declarations to support their position. Mary Der Parseghian, an attorney with the law firm that represents plaintiffs, stated in her declaration that she signed plaintiff’s complaint on June 4, 2007, and the law firm’s telecopier transmittal sheet shows that 28 pages of a summons and complaint were faxed on June 11, 2007, and the “TX” report generated by the law firm’s fax machine shows an “OK” result for the transmission. The attorney stated the discrepancy between the June 11, 2007 facsimile filing date claimed by plaintiffs and the clerk’s August 14, 2007 file stamp date was discovered by her on the date of the hearing on defendants’ demurrer to the complaint.
Attorney Der-Parseghian stated that after the summons and complaint were faxed to the court she expected to receive a conformed copy from the court and when it did not arrive within a week her secretary contacted the clerk’s office and on three to five occasions, over the course of five weeks, spoke with a clerk by the name of Christie or Christine and the clerk repeatedly assured the secretary that the filing was completed and the conformed copy would be mailed. When conformed copies were received by the law office about six weeks later the attorney gave copies to the process server and did not discover the filing date error until after it was reported to her by the attorney who made the appearance at the hearing on the demurrer.
Der-Parseghian stated that when she learned the complaint had been file stamped with the August 14, 2007 date she left messages with the clerk’s office over the course of approximately 10 days and finally was able to speak to a supervisor about the matter and to forward “copies of the fax filing and the facsimile TX Report generated by our fax machine, resulting in an OK result for the fax transmission.” Thereafter there were “a couple weeks of discussion, and providing several names of individuals that my office spoke to personally at the time of the filing in order to obtain conformed copies of the Complaint.” She stated she was advised in February 2008 that the issue of correcting the filing date was currently pending with the supervising court clerk who handles fax filings, and because the matter had not been resolved by the time of defendants’ motion for reconsideration of its demurrer, her law firm was making the motion to correct the clerk’s record.
Elizabeth Chouchanian submitted a declaration in which she stated she is Ms. Der-Parseghian’s secretary and it was she who prepared, for this case, the “attachments to the Summons and Complaint for a total of twenty-eight pages to be filed via Facsimile in the regular course of filing Complaints in our office on June 11, 2007 in the morning.” She “forwarded the facsimile transmission to [the central courthouse] fax line of 213-625-3244” and the facsimile transmission record shows she faxed 28 pages with a result of “OK” and shows the transmission began at 9:56 a.m. and was complete at 10:13 a.m. on June 11, 2007. Her experience is that the central courthouse does not provide a conformed copy of transmittals via facsimile the same day, and a conformed copy, with an issued summons is sent by mail the following week. When she did not receive the conformed copy within a week she contacted the clerk’s office because “the Statute of Limitations of June 17, 2007 was fast approaching.” She spoke with a clerk named Christie or Christine. The clerk told her that the complaint was filed and a conformed copy was sent and she should wait a few more days for it, but the clerk could not tell her on what day the conformed copy had been sent. After waiting a few days she then “began to call the clerk’s office on a daily basis over the next five weeks and spoke to the same fax filing clerk who repeatedly indicated that the filing was complete and the conformed copies would be mailed. When the conformed copies finally arrived “close to a month and a half later” she did not notice the file stamp date because she “didn’t think it was an issue, ” and she followed instructions to forward copies to the process server. When “the Court’s error” was discovered she was not able to find the same fax filing clerk and attorney Der-Parseghian took charge of the matter. She has worked for attorney Der-Parseghian for more than three years and repeatedly used the court’s fax filing system with no problems.
d. Defendants’ Opposition to the Motion to Correct
In their opposition to the motion to correct the clerk’s official record defendants contended the statutory authority upon which plaintiffs relied for the motion, Code of Civil Procedure section 473, subdivision (d) is not applicable to the case. Defendants also asserted that plaintiffs had not met their burden of proof as to when the complaint was filed so as to rebut the Evidence Code section 664 presumption that the fax filing clerk regularly performed his or her official filing duties on June 11, 2007 by filing all papers that were submitted for filing by facsimile on that date. They asserted that neither Der-Parseghian nor Chouchanian established a foundation that would indicate they have personal knowledge upon which to base their assertions of what happened in the clerk’s office respecting the filing of the complaint, and further asserted the declarations of the attorney and the secretary contain impermissible hearsay and double hearsay regarding what persons from the clerk’s office allegedly said. Defendants filed evidentiary objections to those portions of the declarations. They also asserted that Chouchanian’s declaration does not conform to the declaration form required by rule 2.304(d), which we have set out in footnote 1.
Evidence Code section 664 is a presumption affecting the burden of proof. (Evid. Code, § 660.). The effect of a presumption affecting the burden of proof “is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.” (Evid. Code, § 606.)
Defendants contended that the three documents which plaintiffs submitted to explain how they filed their complaint in a timely manner are not sufficient to establish that the court erred when it placed a file stamp of August 14, 2007 on their complaint. Regarding the signature page of the complaint, defendants argued that at most it demonstrates when the complaint was signed by Der-Parseghian and does not demonstrate when the complaint was filed. Regarding the telecopier transmittal sheet which plaintiffs’ attorneys’ law office uses and which plaintiffs assert was used on June 11, 2007 to fax the summons and complaint for this case to the court clerk’s office, defendants contended the telecopier transmittal sheet does not bear the name of the instant case, nor any other identifying information that would link it to this case. As for the Judicial Council form facsimile transmission cover sheet that states certain documents (summons, complaint, civil case cover sheet, and civil case cover sheet addendum, totaling 26 pages) would be faxed to the court, defendants argued that although it does have the name of the instant case on it, it does not have a date, nor does it have any marks indicating that the documents were faxed to the court on June 11, 2007.
Defendants asserted that the telecopier transmittal sheet and the facsimile transmission cover sheet, even when taken together, are at best simply evidence that a summons and complaint were faxed to the clerk’s office on June 11, 2007, not that the summons and complaint in the instant case were faxed to the clerk’s office on that date, and they do not demonstrate that the clerk erred in not filing plaintiffs’ complaint with a file stamp of the same date, and did not regularly perform his or her duty. Defendants further argued that the only credible evidence upon which the trial court could rely for determining when plaintiffs’ complaint was filed are the three dates on the complaint, all of which are August 14, 2007. One is the clerk’s file stamp date, the second is the clerk’s date showing when the filing fee was paid by credit card, and the third is the fax transmission date found on the pages of the complaint.
e. Plaintiffs’ Reply
In their reply papers plaintiffs asserted that the declarations and documents they presented to the court were sufficient evidence to support their motion to amend the clerk’s record. To meet defendants’ assertion that the telecopier transmittal sheet of June 11, 2007 does not provide evidence that it was plaintiffs’ complaint that was faxed on that date rather than some other document sent to the court by facsimile transmission, plaintiffs requested that the trial court take judicial notice, under the permissive judicial notice statutes (Evid. Code, §§ 452 & 453) that “no other action or pleading in any other matter was filed with the Central Courthouse via facsimile filing on June 11, 2007” by plaintiffs’ attorneys. Plaintiffs did not present their own evidence to support the request for judicial notice. Rather, plaintiffs asserted that the trial court “upon its own request can easily obtain all the necessary internal information of the Clerk’s office to determine if in fact such ‘other’ filing contemplated by the Defendants have [sic] in actuality occurred.”
Regarding the fact that it is the August 14, 2007 facsimile transmission date that appears on the complaint rather than a June 11, 2007 date, plaintiffs asserted that “a second Summons and Complaint was [sic] forwarded to the Clerk’s office in Plaintiffs’ counsels [sic] numerous attempts to obtain a conformed copy of the complaint.” Attorney Der-Parseghian stated in a supplemental declaration this was done pursuant to a directive of the fax filing clerk, and she stated that “the exact same pages of the June 11, 2007 filing, including the same fax cover sheets” were faxed. She did not state why, when her office was having trouble securing conformed copies, someone from the office did not go to the court to examine the court’s file to confirm that the complaint had been received and filed.
f. The Trial Court’s Decision on Plaintiffs’ Motion
On May 19, 2008, the court heard plaintiffs’ motion to correct the clerk’s record and defendants’ motion for reconsideration of their demurrer to the complaint. Regarding plaintiffs’ motion, the court observed that the number of pages that plaintiffs transmitted to the court by facsimile on August 14, 2007, (26 pages), was different from the number of pages that both the law firm’s telecopier transmittal sheet states would be faxed to the court and the law firm’s fax machine’s facsimile transmission record states were faxed to the court on June 11, 2007, (28 pages). Plaintiffs’ attorney explained to the court that there were two additional pages that were faxed-the Judicial Council facsimile transmission cover sheet and the law office’s own telecopier transmittal sheet-and that accounted for the total of 28 pages. The court was not convinced, saying “[s]till it’s – it doesn’t jive.” Plaintiff’s motion was denied. Defendants’ motion was granted, with the result that the court sustained the demurrers to plaintiffs’ remaining causes of action.
Rule 2.304 directs that the Judicial Council cover sheet is not to be filed and the court is not required to keep a copy of it.
4. Plaintiff’s Motion for Reconsideration
Plaintiffs moved for reconsideration of their motion to correct the clerk’s record. In their papers they explained again why the Judicial Council form states 26 pages were being submitted for filing but 28 pages were actually faxed. Attorney Der-Parseghian submitted a declaration in support of the motion for reconsideration wherein she stated that after the court denied plaintiffs’ motion to correct the clerk’s record she went to the clerk’s office and with the assistance of a supervisor, Cynthia Jacobs, she “went through the fax filing log for all completed and transmitted facsimiles for the June 11, 2007 date.” She stated this log was handwritten, and “identifies the fax number, the total pages, and identifying information of the document being transmitted.” She stated the log was “prepared by the fax filing clerk of that date” and “[t]he fax filing record for our Summons and Complaint was not handwritten on the log sheet.”
Ms. Der-Parseghian also stated “there was absolutely no fax filing record on the Clerk’s Log Sheet for June 11, 2007 from our fax machine 818-247-4700, ” and she asserted that was sufficient to clearly undermine defendants’ theory that the June 11, 2007 facsimile transmittal confirmation on the law firm’s telecopier transmittal sheet was actually for some other facsimile filing that her office did on that date and not for the complaint in the instant case.
Ms. Der-Parseghian’s analysis fails. Leaving aside the hearsay and foundation problems of her declaration (to which defendants made objections in their opposition to the motion for reconsideration), the lack of any notation of a fax filing from her law firm on the clerk’s June 11, 2007 fax filing log could be applicable to any filing of a summons and complaint that might have been made by her law firm on June 11, 2007, since we know that (1) it appears that something was filed by the firm on that date because there is a notation of a facsimile transmission completion for June 11, 2007 on the telecopier transmittal sheet and (2) although the telecopier transmittal sheet states a summons and complaint was being sent by facsimile, it does not state that the summons and complaint was for the instant case. Moreover, 818-247-4700 is not her law firm’s office fax number. It is the firm’s telephone number.
Ms. Der-Parseghian did not state what type of assistance supervisor Jacobs gave her, nor did she state why she did not have the supervisor submit a declaration regarding what was on the clerk’s fax filing log for June 11, 2007. She stated she and the supervisor examined the log book “for the August date which [sic] a second copy of the Summons and Complaint was transmitted, and it did indeed note the twenty-eight pages refaxed to the clerk’s office and entered into the log. Based on that log sheet the date stamped [sic] of August was provided instead of the June 11, 2007 transmittal date identified on the TX Report. The only explanation provided was that it ‘somehow got lost in the transmission.’ ”
Ms. Der-Parseghian also stated the supervisor advised her that a court computer generates a record that “identifies all fax transmittals but this record is not kept and the supervisor was not aware how long it stays in the computer, and “after searching over an hour it was clear that no other clerk’s record was available to present to the Court.” The attorney did not say who made that search, and as with the fax filing log, did not say why she did not have the supervisor submit a declaration regarding the computer record. She argued that her evidence makes it “clear” that the complaint was filed by facsimile on June 11, 2007.
In their opposition to the motion for reconsideration defendants asserted that other than Ms. Der-Parseghian’s declaration wherein she stated she checked court records for June 11, 2007 and her law firm’s facsimile filing of that date was not in the records, plaintiffs had failed to meet the requirement of the reconsideration statute (Code Civ. Proc., § 1008) to present new or different facts and moreover, the clerk’s office having no record of a June 11, 2007 filing of the complaint in this case is not new. Defendants also objected to the attorney’s declaration on grounds of hearsay (statements of the court clerk and Der-Parseghian’s descriptions of the documents about which she made statements), and foundation (what occurred in the clerk’s office regarding the filing of plaintiff’s complaint). Defendants also objected that the declaration does not comply with the requirements of rule 2.304(d) for motions to correct alleged errors in filings made by facsimile. (See fn. 1, ante.)
At the hearing on plaintiffs’ motion for reconsideration the court stated it had read plaintiffs’ papers and it did not “find anything new.” Plaintiffs’ attorney remarked that at the May 19, 2008 hearing the court denied plaintiffs’ motion to amend the record on the ground there was a discrepancy in the number of pages that were faxed and the number of pages that were filed. The court replied: “That was just one part of my comments on the overall situation.” To that, plaintiff’s attorney replied: “Correct.” Plaintiff’s motion for reconsideration was denied and judgment in favor of defendants was signed and filed on September 8, 2008. This timely appealed followed.
CONTENTIONS ON APPEAL
Plaintiffs contend the trial court had authority to correct the clerk’s record regarding the filing date of their complaint and it was an abuse of discretion to deny plaintiff’s request to have the record corrected to a filing date of June 11, 2007.
DISCUSSION
1. Trial Courts Have Authority to Correct Erroneous Filing Dates of Complaints
A court has authority to correct a filing date made by the clerk of the court. (Estate of Hultin (1947) 29 Cal.2d 825, 829-830, which involved a claim that the clerk of the court entered the wrong date on a notice of intention to move for new trial, which made the notice untimely.) As noted in footnote one, ante, rule 2.304(d) specifically provides that a party who has attempted to file a document with the court by facsimile “may move the court for an order filing the document nunc pro tunc” “[i]f the document transmitted to the court by fax machine is not filed with the court because of (1) an error in the transmission of the document to the court that was unknown to the sending party or (2) a failure to process the document after it has been received by the court.”
2. This Case Will Be Remanded for Further Consideration of Plaintiffs’ Motion to Amend the Clerk’s Record
Plaintiffs contend on appeal that they presented sufficient evidence to rebut the Evidence Code section 664 presumption that the fax filing court clerk regularly performed his or her official filing duties on June 11, 2007 by filing all papers that were sent by facsimile on that date. They argue that the declarations of their attorney and her secretary attesting that plaintiffs’ complaint was filed by facsimile on June 11, 2007, the declaration of the secretary that she was told by the court clerk several times that the complaint had been filed, and the exhibits submitted with their moving papers constitute such evidence. They assert that having rebutted the section 664 presumption, the burden shifted to defendants to show that the filing of plaintiffs’ complaint on June 11, 2007 did not in fact occur and defendants did not meet their burden.
Plaintiffs reject defendants’ reliance on the absence of any notation on plaintiffs’ telecopier transmittal sheet that would show that the transmittal sheet was used on June 11, 2007 for transmitting plaintiff’s complaint rather than some other complaint. Plaintiffs contend that the secretary stated in her sworn declaration that the complaint that is referenced on the telecopier transmittal sheet is the complaint in the instant case. They also assert that their attorney’s discovery that the court records indicate there was no facsimile filing on June 11, 2007 from the attorney’s law office demonstrates that the fax filing that is noted on the law firm’s telecopier transmission sheet for that date must have been lost either in transmission (despite the confirmation notation of “OK” on that sheet) or by the staff in the clerk’s office after transmission. Because it is our intention to send this case back for a rehearing on plaintiff’s motion to amend the clerk’s record, plaintiffs’ argument are best left for that day.
At the May 19, 2008 hearing the only reason given by the trial court for denying plaintiffs’ motion to amend the clerk’s record was a perceived discrepancy between the number of pages transmitted to the court by facsimile by plaintiffs’ attorneys on August 14, 2007, and the number of pages the telecopier transmittal sheet’s facsimile transmission record states were sent to the court on June 11, 2007. At that hearing, plaintiffs’ attorney explained that the difference in pages is accounted for by the fact that a fax transmittal sheet and a fax cover sheet were included in the facsimile transmission on the June date but not intended for filing. Nevertheless, the court was not convinced by that explanation and denied plaintiffs’ motion.
At the hearing on plaintiffs’ motion for reconsideration when the attorney observed that the court had based its May 19 ruling on the perceived discrepancy in the number of pages the court responded by saying “[t]hat was just one part of my comments on the overall situation.” Unfortunately, plaintiffs’ attorney agreed, saying “Correct.” But the record shows the court was not correct. The court did not give any other reason at the May 19 hearing for denying the motion to correct the record. Perhaps the court had other reasons in mind. We will not presume to know whether there were such reasons. Moreover, because the motion to amend was addressed to the trial court’s discretion, we will not presume to decide the motion ourselves. Rather, we will reverse the judgment and remand this case for further proceedings on plaintiffs’ motion to correct the clerk’s record to permit the trial court to reconsider the motion, hold a hearing on the matter, make rulings in its minute order on defendants’ evidentiary objections, and fully state its reasons for granting or denying the motion on reconsideration.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its orders denying plaintiffs’ motion to amend the clerk’s record and motion for reconsideration, and hold further proceedings consistent with the this court’s directive for reconsideration of the motion to amend the clerk’s record. The parties will bear their own respective costs on appeal.
We Concur: KLEIN, P. J. KITCHING, J.
Part (d) of rule 2.304 provides that the motion for an order filing a document nunc pro tunc. must include (1) the transmitting fax machine’s printed transmission record of the fax filing and (2) a declaratory proof of transmission, the specific wording of which is set out in part (d). Specifically, the declaration must state: “At the time of transmission I was at least 18 years of age and not a party to this legal proceeding. On (date) at (time), I transmitted to the (court name) the following documents (name) by fax machine, under California Rules of Court, rule 2.304. The court’s fax telephone number that I used was (fax telephone number). The fax machine I used complied with rule 2.301 and no error was reported by the machine. Under rule 2.304, I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. [¶] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”
In the instant case a declaration was submitted by the secretary of plaintiffs’ attorney in support of plaintiffs’ motion to have the clerk’s record amended. That declaration cannot be found to be in substantial compliance with rule 2.304(d)’s requirements because it failed to include a statement that the fax machine the secretary states she used on June 11, 2007 to fax the plaintiffs’ complaint to the court complied with California Rules of Court, rule 2.301. Rule 2.301 sets out a lengthy description of what the term “fax machine” means in rules 2.300 through 2.306.
Section 664 applies to court clerks. (People v. Jackson (1996) 13 Cal.4th1164, 1213; Fergus v. Songer (2007) 150 Cal.App.4th 552, 565.) In the Jackson case a clerk was directed by the trial court to place certain exhibit numbers on two transcripts of a taped interview of the defendant. One transcript was edited such that a portion of the taped interview was deleted; the other transcript was not edited and thus contained the deleted portion of the interview. Through clerical error, the edited version received the exhibit number intended for the unedited version, and vice versa. During deliberations the jury asked to see the transcript. On appeal the defendant argued that because of the confusion of exhibit numbering the jury was given the unedited transcript rather than the edited version which the jury was supposed to receive. The reviewing court rejected that argument saying it was “unable to discern, on the bare record, which version of the transcript was given to the jury. We must therefore presume, under Evidence Code section 664, that ‘the clerk “regularly performed” her official duty and submitted to the jury only the admissible portions of any exhibits which they requested.’ [Citation.] The fact that the clerk transposed the numbers on the two exhibits does not mean that she did not carry out her duty to distribute only the edited version.”