Opinion
HANING, J.Plaintiff/appellant Craig Mirvis appeals a summary judgment in favor of defendant/respondent Becky Crowder in his action for personal injury, contending the court erred in determining his action was barred by the statute of limitations. We conclude that Rappleyea v. Campbell (1994) 8 Cal.4th 975 [35 Cal.Rptr.2d 669, 884 P.2d 126] requires reversal.
Facts
On November 18, 1991, appellant was injured when a car driven by his sister in which he was a passenger, was involved in an accident with respondent’s car. On Friday, November 13, 1992, a legal assistant from appellant’s counsel’s San Francisco office sent by two-day priority mail the summons and complaint to the court for filing together with a check for the filing fee. Counsel’s San Francisco office address and telephone number were on the summons and complaint, but his firm’s San Jose office address and telephone number were on the check. On November 17, 1992, the court clerk telephoned a secretary at appellant’s counsel’s San Jose office and assured him the complaint would be filed on the date received, but that the *1686balance of the filing fee, which had recently been increased, was owing. The secretary immediately requested preparation of a check for the balance, and a check for the additional fee was dated November 17, 1992. On November 19, 1992, the legal assistant from the San Francisco office called the clerk’s office and discovered that the complaint had not been filed. The complaint and summons were file-stamped November 23, 1992.
Respondent moved for summary judgment on the ground that the action was barred by the one-year statute of limitations (Code Civ. Proc., § 340, subd. (3).) In opposition, appellant submitted declarations showing that on November 13, 1992, his attorney’s office transmitted the summons and complaint in the action and a $134 check for the filing fee to the court, unaware that the filing fee had recently been increased to $182. On November 17 the court clerk notified appellant’s counsel that the balance of the filing fee was due, but assured him that the complaint would be filed by that date. A check for the balance of the filing fee was dated that day and sent to the court.
The trial court granted summary judgment on the ground that the complaint was barred by the statute of limitations.
Discussion
Appellant contends the complaint should be deemed filed on November 17, 1992, because it was received by the court by that date, and on that date the clerk said it would be filed.
Government Code section 6100 states that county officers “shall not perform any official services unless upon the payment of the fees prescribed by law for the performance of the services,” with certain exceptions not relevant in the instant case. Government Code section 24350.5 provides: “County officers shall. . . demand the payment of all fees in civil cases, in advance.” Government Code section 6110 states, in relevant part: “Upon payment of the fees required by law, the officer shall perform the services required.” Finally, Government Code section 26820 provides that the county clerk shall charge and collect the fees fixed for service performed by that office.
The statutory scheme indicates the Legislature has required that filing fees in civil actions be paid in advance, and the clerk is justified in refusing to file pleadings until receipt of the fee. (See Kientz v. Harris (1953) 117 Cal.App.2d 787, 790 [257 P.2d 41]; 2 Witkin, Cal. Procedure (3d ed. 1985) Courts, § 294, p. 315.) Implicit in Government Code section 24350.5 and *1687Kientz is that the filing fee must be paid in full before the clerk can accept the pleading for filing.
However Rappleyea v. Campbell, supra, 8 Cal.4th 975, which had not been decided at the time the trial court ruled, provides an exception. In Rappleyea the superior court clerk misinformed the defendants, who were from out of state and representing themselves, that the correct filing fee for their answer was $89 (the fee for a single defendant’s answer), when in fact it was $159 (the fee for two defendants’ answer). When the clerk’s office received the answer and defendants’ $89 check it rejected and returned the answer. Although defendants promptly sent back their answer with the correct fee, the answer was filed eight days late. Meanwhile, on the first day possible to do so, plaintiff applied for and obtained the clerk’s entry of default. Plaintiff thereafter misinformed defendants that they had no legal rights under Code of Civil Procedure section 473 (relief from judgment taken by mistake, inadvertence, surprise or excusable neglect), even though the statute’s six-month limitation period had not expired. After the six-month limitation period expired, defendants learned that a default judgment might soon be entered against them and moved to set aside the clerk’s entry of default. The court denied the motion on the ground that good cause had not been shown under Code of Civil Procedure section 473 and entered a default judgment against defendants of $200,240.39. The Court of Appeal affirmed the judgment.
The Supreme Court reversed with directions to vacate the default judgment and the entry of default. It characterized the misinformation from the clerk as extrinsic mistake, “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits” (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981), and which give rise to equitable relief. “ ‘Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended . . . .’ [Citations.]” {Ibid.) It reasoned that “the clerk’s misunderstanding of the number of answering defendants constituted an extrinsic mistake. The court never intended to have defendants send the fee applicable to a sole defendant and thereby default, but that was the effect of the clerk’s ministerial action.” {Id., at p. 983.)
We conclude Rappleyea requires a similar result here. The filing fee had only recently been increased, and counsel was unaware of that fact. The clerk’s representation to appellant’s counsel that the complaint would be timely filed despite the incorrect filing fee constituted extrinsic mistake under Rappleyea and entitles appellant to relief. The clerk speaks for the court, and to paraphrase Rappleyea, the court in this case never intended to *1688permit the clerk to assure appellant that his complaint would be timely filed despite the incorrect filing fee and then dismiss the action under the statute of limitations. Had appellant’s counsel not been assured by the clerk on November 17 that the complaint would be timely filed, he could have had the balance of the filing fee delivered to the court that day to ensure timely filing.
Given our determination that the complaint should be deemed timely filed and therefore not barred by the statute of limitations, we need not address appellant’s remaining claim that the statute of limitations was tolled under Vehicle Code section 17463 by respondent’s absence from the state.
Judgment is reversed.
King, J., concurred.