Legal Question in Civil Litigation in California
2 rulings: Rojas v Cutsforth and Voit v Superior Court....the Courts ruled that a clerk "should" accept papers for filing if they comply with the Rules of Court even with "defects" and the clerk "should" file the papers and notify the filing party to correct the defects.....my question is, does the use of "should" as opposed to "shall" impose a mandatory duty or is the duty considered discretionary?
2 Answers from Attorneys
"Should" is not mandatory. Clerks, however, have generally got the message and follow the the court's recommendation.
It's discretionary. It can be a pain where your papers are correct, and the clerk thinks they are wrong, and then rejects them. That creates a hassle when you have to wait in line, as an attorney, just to speak to their supervisor.
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