Mirvis

Plaintiff/appellant Craig Mirvis appeals a summary judgment in favor of defendant/respondent Becky Crowder in his action for personal injury, contending the court erred in determining his action was barred by the statute of limitations. We conclude that Rappleyea v. Campbell (1994) 8 Cal.4th 975 [ 35 Cal.Rptr.2d 669 , 884 P.2d 126 ] requires reversal.

Facts

On November 18, 1991, appellant was injured when a car driven by his sister in which he was a passenger, was involved in an accident with respondent’s car. On Friday, November 13, 1992, a legal assistant from appellant’s counsel’s San Francisco office sent by two-day priority mail the summons and complaint to the court for filing together with a check for the filing fee. Counsel’s San Francisco office address and telephone number were on the summons and complaint, but his firm’s San Jose office address and telephone number were on the check. On November 17, 1992, the court clerk telephoned a secretary at appellant’s counsel’s San Jose office and assured him the complaint would be filed on the date received, but that the *1686 balance of the filing fee, which had recently been increased, was owing. The secretary…

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…

Plaintiff/appellant Craig Mirvis appeals a summary judgment in favor of defendant/respondent Becky Crowder in his action for personal injury, contending the court erred in determining his action was barred by the statute of limitations. We conclude that Rappleyea v. Campbell (1994) 8 Cal.4th 975 [ 35 Cal. Rptr.2d 669 , 884 P.2d 126 ] requires reversal.

On November 18, 1991, appellant was injured when a car driven by his sister in which he was a passenger, was involved in an accident with respondent's car. On Friday, November 13, 1992, a legal assistant from appellant's counsel's San Francisco office sent by two-day priority mail the summons and complaint to the court for filing together with a check for the filing fee. Counsel's San Francisco office address and telephone number were on the summons and complaint, but his firm's San Jose office address and telephone number were on the check. On November 17, 1992, the court clerk telephoned a secretary at appellant's counsel's San Jose office and assured him the complaint would be filed on the date received, but that the balance of the filing fee, which had recently been increased, was owing. The secretary…