How to Avoid Disaster When Filed Pleadings Disappear

It’s rare for a filed pleading to go missing, but it happens. An original verified pleading or declaration in a time-sensitive matter is safely filed with the court, but at the hearing, the judge flips though the file and states, “I know this pleading was filed, and I looked at it yesterday, but I can’t find the original in the file and it’s necessary for me to proceed. I can continue the matter so you can provide a new pleading, or deny without prejudice. Counsel, what’s your preference?” What do you do?

Of course, your heart drops. The pleading in issue is too complex to recreate on the spot, and your client didn’t attend the hearing to verify it anyway.

But all is not lost. Code of Civil Procedure §1045 allows the court to replace any filed, but lost, original with an authenticated copy. (For probate practitioners, Prob C §1000 applies the general civil procedure rules such as this to probate procedure unless an alternate procedure is specified by the Probate Code.)

This is why you follow best practice by making one of your form pleadings for each case a declaration authenticating a file-endorsed stamped copy as a true and correct copy of the original. You need only make a “fill in the blank” version for each case and tuck it into your file.

Then all you need to say is:

“Your honor, I move under Code of Civil Procedure §1045 [and Probate Code §1000] for the court to accept an authenticated, file-endorsed copy as the original, and if you will pass the matter for a moment I can present a proper declaration in support.”

After the court agrees to consider your request, you quickly fill in the declaration and add your file-endorsed copy. When the matter is recalled, you present it to the judge.

Disaster averted! “I find the declaration sufficient to authenticate the copy,” the judge will say. The court clerk will enter it into the minute order that the court orders the authenticated copy filed in lieu of the original.

Now all you have to do it make sure to file the declaration when you file the resulting order.

For everything you need to know about preparing and filing pleadings, turn to CEB’s California Civil Procedure Before Trial, chap 11. And get an overview of litigation tools in probate matters in CEB’s California Trust and Probate Litigation, chap 10.

Other CEBblog™ articles you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Add your comment to the blog post

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s