Judge: Michael D. Washington, Case: 37-2023-00046283-CU-PA-NC, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 21, 2024

03/22/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2023-00046283-CU-PA-NC MACIAS VS APODACA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 01/29/2024

The Motion to Extend, Toll, and/or Delay the Running of the Statute of Limitations for Filing of Complaint for Damages Pursuant to CCP § 473(b) brought by plaintiff Jose Macias (Plaintiff) is DENIED.

Plaintiff previously brought a Motion for Order for Filing Complaint for Damages Nunc-Pro-Tunc in this case. (ROA 9.) This Court wrote an extensive ruling on that motion, which included the following: ... in considering the instant motion, the Court takes a broad view of the declaration and information provided and would be prepared to construe the motion as a motion for relief under Code of Civil Procedure § 473(b). Under that authority, this Court would be inclined to grant relief on grounds of mistake, surprise, inadvertence, or excusable neglect if not for the fact that there has been significant delay. (ROA 10, p. 2.) Plaintiff now brings a separate motion seeking relief under Code of Civil Procedure § 473(b) – the very statute that this Court already indicated it considered and could not grant relief upon due to the significant delay. As such, this Court DEEMS the instant motion as a Motion for Reconsideration under Code of Civil Procedure § 1008. Plaintiff has not met the requirements of Code of Civil Procedure § 1008. The Court further adopts the entirety of the reasoning previously set forth in the ruling on the Motion for Order for Filing Complaint for Damages Nunc-Pro-Tunc. (See ROA 9.) As this Court previously noted: Ultimately, Plaintiff did file another complaint on October 25, 2023. That complaint remains on-file. And, though the briefing on the instant motion indicates that: 'The Statute of Limitations ran on September 17, 2022,' a s Plaintiff is not prevailing on the instant motion, that particular statement will not preclude Plaintiff from making other arguments to extend, toll, or delay the running of the statute of limitations. In other words, today's ruling does not dispose of the case – it only denies Plaintiff the requested relief of backdating the existing complaint that is on-file and that was filed a little over a year after the earlier attempted filing in September 2022. (ROA 11, p. 3 (emphasis added).) The words 'extend, toll, or delay,' taken from the Court's prior ruling, appear to form the basis of the Plaintiff's new motion – the instant motion. The problem with the way Plaintiff is raising the issue is that the adversarial process is not at work. Named defendant Yoana Apodaca has not been served or made an appearance in this case. As such, said defendant has not raised a statute of limitations defense in this action. For the Court to address the statute of limitations, in the absence of Ms. Apodaca, would deny Ms. Apodaca basic due process rights of notice and hearing to be able to defend her interests – it Calendar No.: Event ID:  TENTATIVE RULINGS

3091153 CASE NUMBER: CASE TITLE:  MACIAS VS APODACA [IMAGED]  37-2023-00046283-CU-PA-NC would result in a court order tolling or extending the statute of limitations that Ms. Apodaca has a legal right to invoke.

To the extent that there is any daylight between the previous motion and the instant motion, the previous motion was framed as a correction of a clerical error – something that can be done more readily without the adversarial process. The problem with that original motion was that there was no clerical error – the original complaint had been correctly rejected. In analyzing the issue, and, in particular, out of concern for avoiding a miscarriage of justice, the Court considered not only the 'clerical' error as raised, but also considered the issue from a substantive point of view as seeking relief under Code of Civil Procedure § 473(b). The motion was too late to be considered under Code of Civil Procedure § 473(b), which remains true of the present motion. But, also important is the fact that consideration of more substantive relief such as tolling the applicable statute of limitations requires the adversarial process. Said another way, if this Court were to grant the instant motion and issue an order tolling the applicable statute of limitations, when Defendant is served and makes an appearance in this case they would have every right to challenge that order since, having not been present to oppose the instant motion, the order tolling the statute of limitations would not be binding as to Defendant. In other words, even if this motion were granted, Plaintiff would have exactly what he has now: a complaint on file against a defendant who can invoke a statute of limitations defense.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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