Judge: Curtis A. Kin, Case: 21STCV05003, Date: 2022-09-01 Tentative Ruling

Case Number: 21STCV05003    Hearing Date: September 1, 2022    Dept: 72

MOTION FOR NEW TRIAL OR TO VACATE ORDER GRANTING SUMMARY JUDGMENT

Date:         9/1/22 (8:30 AM)                   

Case:        Baback Salehani v. The Regents of the Univ. of Cal., et al. (21STCV05003)

TENTATIVE RULING:

Plaintiff Baback Salehani’s Motion for New Trial or to Vacate Order Granting Summary Judgment and Enter Different Judgment is DENIED.

On May 17, 2022, the Court granted defendant The Regents of the University of California’s Motion for Summary Judgment. Judgment was never entered. No notice of entry of judgment was ever mailed, either by the clerk of the Court or any party.

On May 31, 2022, plaintiff Baback Salehani filed notice of his intent to move for a new trial or for an order vacating the granting of summary judgment and either denying the motion for summary judgment or granting plaintiff leave to amend the operative complaint.

With respect to plaintiff’s motion for new trial, any order on a motion for new trial must be made within the time set forth in CCP § 660. (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 11.) The time under CCP § 660 for the Court to rule on a motion for new trial is “mandatory and jurisdictional.” (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517.) An order made under the time set forth in CCP § 660 “purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void.” (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101.)

CCP § 660 states, in relevant part: “Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial. If the motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court.”

Here, because notice of entry of judgment was never given, plaintiff had “75 days after the filing of the first notice of intention to move for a new trial.” (CCP § 660.) 75 days from May 31, 2022 was Sunday, August 14, 2022. Because the deadline for the Court to rule on a motion for new trial fell on a Sunday, the time for the Court to rule on a new trial motion was extended to Monday, August 15, 2022, pursuant to CCP § 12a, as referenced in CCP § 660. The time for the Court to rule on this motion has expired, and the Court has lost jurisdiction to rule on the motion.

Plaintiff also moves for an order to vacate the order granting summary judgment and to enter a different judgment. Any order on a motion to set aside and vacate the judgment must be made within the time set forth in CCP § 663a, as the deadline set forth in CCP § 663a is mandatory and jurisdictional. (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 474.) Like a motion for new trial, any order purporting to rule on a motion to vacate judgment is “beyond the court's jurisdiction and void.” (Id.)

CCP § 663a(b) states, in relevant part: “Except as otherwise provided in Section 12a, the power of the court to rule on a motion to set aside and vacate a judgment shall expire 75 days from the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or 75 days after service upon the moving party by any party of written notice of entry of the judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move to set aside and vacate the judgment. If that motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court.”

For the reasons stated with respect to plaintiff’s motion for new trial, the time for the Court to rule on the motion to set aside and vacate the judgment has expired, and the Court has likewise lost jurisdiction to rule on it.

The Court notes that, according to the confirmation of reservation attached to the motion, plaintiff set the hearing date to September 1, 2022. Plaintiff never moved ex parte to advance the hearing date to a date within the 75-day period set forth in CCP § 660 or 663a(b).

Because the time to rule on plaintiff’s motion for new trial, or alternatively, the motion to vacate judgment has expired, the motion is DENIED.

Accordingly, the Court signs the proposed Judgment of Dismissal of Entire Action Following Order Granting Motion for Summary Judgment, electronically received 5/18/22.  Defendant shall provide Notice.