Apparently Fax Cover Sheets Have an Actual Purpose

Fry v. Superior Court, No. B248923 (Dec. 19, 2013) 

Division One of the Second District holds that faxing a form affidavit to the trial court's general fax filing number is insufficient to “make” a peremptory strike under Code of Civil Procedure § 170.6.

Petitioners tried to strike the writs and receivers judge to whom they were assigned under Code of Civil Procedure § 170.6. To do so, they filed L.A. Superior Court Form LACIV 015, which is a form affidavit or prejudice. The filed by faxing the form pursuant to L.A. Superior’s fax filing number. Although they faxed the requisite cover sheet, they did not provide any filing directions to the clerk’s office on the appropriate line. Apparently, the form got lost somewhere in the building that is this blog’s namesake. About a month after the form was filed—well past the deadline for striking the judge under §170.6—petitioners filed an ex parte application asking the judge to consider the form filed nunc pro tunc to the date on which it was faxed and to strike herself accordingly. The trial judge denied the request because § 170.6 requires a party filing a strike to make the motion to the assigned judge or the trial judge. Just faxing the form was not enough. Petitioners’ sought relief by writ, which the court of appeal took up. Given that the issue implicated the trial court’s case management procedures, the court took the rare step of inviting L.A. Superior Court to submit a response. 

The court first dispensed with L.A. Superior’s (somewhat astounding) argument that Form LACIV 015—a form drafted and disseminated by the court itself—was insufficient to serve as a § 170.6 affidavit and motion for peremptory challenge. It further rejected the argument that fax filing in writs and receivers was per se insufficient, given that it is permitted under a local rule.* That a § 170.6 motion must be “made to” the assigned or presiding judge does not mean that it needs to be handed to that particular judicial officer. Under the court’s local rules and procedures, filing at the clerk’s intake window, in the relevant department, or a properly directed fax filing is sufficient to satisfy the rule.

But what was deficient here was that petitioners failed to provide instructions on the official fax coversheet directing the form to be filed in the assigned department or with the presiding judge. “Where a form provides a means of supplying processing instructions, a party is expected to supply them when needed. If it does not, it must bear the risk of delay, including the risk that a statutory time limitation will run. Because the peremptory challenge here was directed to no one, it was not ‘made to’ either [the assigned department] or the presiding judge, and denial of the challenge was correct.”

Writ denied. 

So to my surprise (and unlike the Smashing Pumpkins) fax cover sheets might actually have a function, at least in L.A. Superior Court. Personally, I enthusiastically await the final demise of the fax. After all, the heyday of the fax dates to the era of 5 1/4" floppies and acoustic modems. When you can .pdf with a click and send with three more, the rigamorole of faxing feels like Morse Code.

I had always figured that the last holdout on the couldn't-go-to-the-dustbin-of-history-sooner use of the facsimile machine would be doctors' offices. But nowadays, even my GP manages to email me the results of my bloodwork. Soon L.A. Superior Court might be the last institution in the world to permit the transmission of official documents by fax but not electronically. You can, for instance, e-file documents in the state courts of Lagos, Nigeria. In L.A. Superior, however, it seems unlikely we will see general civil e-filing before 2015.