Judge: Marcella O. Mclaughlin, Case: 37-2021-00032844-CU-FR-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2021-00032844-CU-FR-CTL TILLERSON JR VS SALATINO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/12/2024

Defendants' motion to set aside and vacate judgment is DENIED.

A. The motion to vacate based on Code of Civil Procedure section 663 is denied.

The court's power to rule on a motion to vacate under section 663 expires 75 days after service of notice of entry of judgment or service of the first notice of intention to move to vacate, whichever occurs first.

Code Civ. Proc. § 663a(b). If the motion is not determined within the 75-day period, 'the effect shall be a denial of the motion without further order of the court.' Id. In this case, notice of entry of judgment was served on February 26, 2024. ROA 130. Thus, the motion to vacate was required to be heard no later than May 13, 2024. See Code Civ. Proc. §§ 12a, 663a(b).

As the current hearing date is beyond the 75-day window, the court lacks jurisdiction to rule on the motion and it is therefore denied by operation of law.

B. The motion to vacate based on Code of Civil Procedure section 128(a)(8) it is denied. The power conferred on courts by Code of Civil Procedure section 128(a)(8) is 'limited to such exercise as the correction of clerical errors.' Baske v. Burke (1981) 125 Cal.App.3d 38, 44. Defendants do not contend that the judgment in this case suffers from any clerical errors.

C. Finally, to the extent that defendants seek to rely on the court's inherent authority to reconsider and reverse its own rulings on grounds other than clerical error, the court declines to exercise its discretion in such a manner. The court has already considered – and rejected – the arguments raised in the moving papers. See ROA 115-116, 121. Moreover, the court is not persuaded that plaintiff's failure to plead equitable estoppel deprived defendants of a fair trial. See Atteq v. Najor (1993) 15 Cal.App.4th 1351, 1358 (permitting the plaintiff to claim estoppel for the first time in his response to the defendant's motion for judgment because the 'complaint did not clearly indicate the statute of limitations would have run'); see also Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1266 fn. 4 (deciding the plaintiff was not required to plead facts to avoid a timeliness bar since 'the limitations defense is not shown on the face of the...complaint').

D. Judicial notice is taken as requested. Evid. Code § 452(c), (d).

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