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File On Demand

1. John Doe files an affidavit demanding that the clerk of the Superior Court of California, County of Los Angeles file his "Writ of Error" and refer it to the court for a tribunal determination. 2. The clerk previously refused to file the Writ of Error, claiming it was the wrong form, though the clerk cited no rules to support this decision. 3. Doe demands that the clerk perform only a ministerial duty of filing the document and not act as a tribunal in determining whether it will be filed. The clerk's authority is limited to a ministerial filing function.

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104 views

File On Demand

1. John Doe files an affidavit demanding that the clerk of the Superior Court of California, County of Los Angeles file his "Writ of Error" and refer it to the court for a tribunal determination. 2. The clerk previously refused to file the Writ of Error, claiming it was the wrong form, though the clerk cited no rules to support this decision. 3. Doe demands that the clerk perform only a ministerial duty of filing the document and not act as a tribunal in determining whether it will be filed. The clerk's authority is limited to a ministerial filing function.

Uploaded by

Luke
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as RTF, PDF, TXT or read online on Scribd
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1.

2.
John Doe
3. Street address
City, State
4. (000)000-0000

5. In Pro Per

6.

7.

8.

9.

10. SUPERIOR COURT OF CALIFORNIA

11. COUNTY OF LOS ANGELES

12.

13. John Doe ) CASE NO. _____________


)
14. vs. ) TO THE CLERK:
) AFFIDAVIT
15. Mary Roe ) IN RE FILE ON DEMAND
)
16. ) HEARING;
) APPEARANCE BY AFFIDAVIT
17. )
) Date: January 4, 2012
18. ) Time: 9:00am
)
19. --------------------------------------

20.

21. 1 COMES NOW John Doe to demand that the clerk perform only a

22. ministerial function, that the clerk not perform any tribunal

23. functions, and that the clerk refer the WRIT OF ERROR to the

24. court for tribunal determination regarding the filing of said

25. WRIT OF ERROR.

26. //////////

27. //////////

//////////

Page 1 of 3
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TO THE CLERK: FILE ON DEMAND THE
WRIT OF ERROR; APPEARANCE BY AFFIDAVIT
1.

2.

3. //////////

4. 2 On January 3, 2012, the clerk contacted the undersigned to inform

5. the undersigned that the WRIT OF ERROR would not be filed and would

6. not be sent to the court because the clerk believes that the paper is

7. of the wrong form, notwithstanding that the paper in form is no

8. different than the form of other previous papers filed by the

9. opposition.

10.

11. 3 When queried, the clerk did not cite any rule to support the

12. clerk’s quasi-judicial opinion. Nor did the clerk cite any rule

13. authorizing the clerk to function as a tribunal in this instance and

14. extend the clerk’s authority beyond that of a ministerial function.1

15.

16. 4 Now, therefore, the undersigned demands that the clerk “FILE ON

17. DEMAND” the ANSWER for court determination regarding the filing of

18. said ANSWER.2

19.
1 Second, the rules are clear that the clerk "must not refuse to file a paper solely because it is not in the form
20. prescribed by these rules or by a local rule or practice." Fed. R. Civ. P. 5 (d)(4). The Fifth Circuit has held that "the
clerk does not possess the power to reject a pleading for lack of conformity with form requirements, and a pleading
21. is considered filed when placed in the possession of the clerk of the court." McClellon v. Lone Star Gas Co., 66 F.3d
98, 101 (5th Cir. 1995). Here, the Complaint was placed in the constructive possession of the clerk when it was
electronically filed, and the clerk was without authority to refuse to accept the Complaint in the Miscellaneous
22. Page 12
Proceeding. In fact, even if the Complaint had been erroneously delivered to the United States trustee or the United
23. States District Court, the Court would have discretion, in the interest of justice, to deem it to have been filed with the
Houston Bankruptcy Court as of the date of its mis-delivery. Fed. R. Bankr. P. 5005(c).
24.
In re the Heritage Organization (Bankr. N.D. Tex., 2011)
25. 2 “The actions of the court clerk's office are quite troubling. ‘It is difficult enough to practice law without having the
clerk's office as an adversary.’ (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777 (Rojas).) Whether Voit's motion
26. has legal merit is a determination to be made by a judge, not the clerk's office. No statute, rule of court, or case law
gives the court clerk's office the authority to demand that a petitioner cite or quote precedent before his motion will
27. be filed.
“If a document is presented to the clerk's office for filing in a form that complies with the rules of court, the clerk's
office has a ministerial duty to file it. (See Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268,
1276.) Even if the document {Slip Opn. Page 3} contains defects, the clerk's office should file it and notify the party
that the defect should be corrected. (See Rojas, supra, 67 Cal.App.4th at p. 777.) …. By unilaterally refusing to file
Page 2 of 3
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TO THE CLERK: FILE ON DEMAND THE
WRIT OF ERROR; APPEARANCE BY AFFIDAVIT
1.

2.

3.

4. 5 I am John Doe. I am a party in this action. I declare under

5. penalty of perjury under the laws of the State of California that the

6. foregoing allegations and statements are true and correct, except as

7. to matters that are stated on my information and belief, and as to

8. those matters, I believe them to be true.

9.
January 3, 2012
10.

11.
BY____________________________
12. John Doe

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.
Voit's motion, the clerk's office prevented the court from applying this precedent, or any other relevant law, to Voit's
particular circumstances. The clerk's office's actions violated Voit's rights under both the federal and state
Constitutions to access the courts. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 3.)” Voit v. Superior Court of Santa
Clara Cnty. (Cal. App., 2011)
Page 3 of 3
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TO THE CLERK: FILE ON DEMAND THE
WRIT OF ERROR; APPEARANCE BY AFFIDAVIT

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