California Code of Civil Procedure. California

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СКАЧАТЬ (3) the party has 20 days from the date of mailing of the notice within which to pay the remainder of the required fee and the administrative charge, except as provided in subdivision (f). If the person who tendered the check is not a party to the action or proposed action, but only is acting on behalf of a party, the clerk shall notify not only the person who tendered the check, and also the party or that party’s attorney, if the party is represented. The clerk’s certificate as to the mailing of notice pursuant to this section establishes a rebuttable presumption that the fees were not paid. This presumption is a presumption affecting the burden of producing evidence. This subdivision does not apply to an unlawful detainer action.

      (b) The clerk shall 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 in subdivision (a) within 20 days of the date on which the notice required by subdivision (a) was mailed. Any filing voided by this section may be disposed of immediately after the 20 days have elapsed without preserving a copy in the court records notwithstanding Section 68152 of the Government Code.

      (c) If a check for less than the required fee was tendered, the remainder of the required fee and the administrative charge were not paid within the period specified in subdivision (a), and a refund of the partial payment has not been requested in a writing mailed or presented by the party or person who tendered the check within 20 days from the date on which the remainder of the required fee was due, the partial payment shall be remitted to the State Treasurer to be deposited in the Trial Court Trust Fund, except for the amount of the administrative charge described in subdivision (g), that shall be deducted from the partial payment and shall be distributed as described in subdivision (g) to the court which incurred the charge. If the party or person who tendered the check for partial payment requests a refund of the partial payment, in writing, within the time specified in this subdivision, the clerk shall refund the amount of the partial payment less the amount of the administrative charge imposed by that court. All partial payments that the court received before January 1, 2006, and that remain on deposit for filings that the clerk voided pursuant to this section, once three years have passed from the date that the filing was voided, shall be remitted to the State Treasurer for deposit into the Trial Court Trust Fund.

      (d) If an adverse party files a response to a complaint or other first paper referred to in subdivision (a), together with a filing fee, and the original filing is voided pursuant to subdivision (b), the responsive filing is not required and shall be voided. The court shall, by mail, provide notice to the parties that the initial paper and the response have been voided. The responding party’s filing fee shall be refunded upon request, provided that the request for a refund is made in writing within 20 days from the date on which the notice was mailed. Upon receipt of the request, the court shall reimburse the responding party’s filing fee without imposing any administrative charge. A refund under this subdivision is available if the adverse party has filed only a responsive pleading, but not if the party has also filed a cross-complaint or other first paper seeking affirmative relief for which there is a filing fee.

      (e) If an adverse party, or a person acting on behalf of the adverse party, tenders a check for a required filing fee in an amount less than the required fee, the procedures in subdivisions (a), (b), and (c) shall apply.

      (f) If any trial or other hearing is scheduled to be heard prior to the expiration of the 20-day period provided for in subdivision (a), the fee shall be paid prior to the trial or hearing. 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.

      (g) The clerk shall impose an administrative charge for providing notice that a check submitted for a filing fee is in an amount less than the required fee and for all related administrative, clerical, and other costs incurred under this section. The administrative charge shall, in each instance, be either twenty-five dollars ($25) or a reasonable amount that does not exceed the actual cost incurred by the court, as determined by the court. The notices provided by the court under subdivision (a) shall state the specific amount of the administrative charge that shall be paid to the court. Each administrative charge collected shall be distributed to the court that incurred the charge as described in Section 68085.1 of the Government Code. When a partial payment is to be remitted to the State Treasurer under subdivision (c), the court shall notify the Administrative Office of the Courts of the amount of (1) the partial payment collected, and (2) the administrative charge to be deducted from the payment and to be distributed to the court.

      (Amended by Stats. 2007, Ch. 738, Sec. 5. Effective January 1, 2008.)

      411.35. (a) In every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect’s certificate issued pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, or of a person holding a valid registration as a professional engineer issued pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or a person holding a valid land surveyor’s license issued pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code on or before the date of service of the complaint or cross-complaint on any defendant or cross-defendant, the attorney for the plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b).

      (b) A certificate shall be executed by the attorney for the plaintiff or cross-complainant declaring one of the following:

      (1) That the attorney has reviewed the facts of the case, that the attorney has consulted with and received an opinion from at least one architect, professional engineer, or land surveyor who is licensed to practice and practices in this state or any other state, or who teaches at an accredited college or university and is licensed to practice in this state or any other state, in the same discipline as the defendant or cross-defendant and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a party to the litigation. The person consulted shall render his or her opinion that the named defendant or cross-defendant was negligent or was not negligent in the performance of the applicable professional services.

      (2) That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint.

      (3) That the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this consultation and none of those contacted would agree to the consultation.

      (c) Where a certificate is required pursuant to this section, only one certificate shall be filed, notwithstanding that multiple defendants have been named in the complaint or may be named at a later time.

      (d) Where the attorney intends to rely solely on the doctrine of “res ipsa loquitur,” as defined in Section 646 of the Evidence Code, or exclusively on a failure to inform of the consequences of a procedure, or both, this section shall be inapplicable. The attorney shall certify upon filing of the complaint that the attorney is solely relying on the doctrines of “res ipsa loquitur” or failure to inform of the consequences of a procedure or both, and for that reason is not filing a certificate required by this section.

      (e) For purposes of this section, and subject to Section 912 of the Evidence Code, an attorney who submits a certificate as required by paragraph (1) or (2) of subdivision (b) has a СКАЧАТЬ