Judge: Olga Alvarez, Case: 37-2020-00032091-PR-LA-CTL, Date: 2023-09-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 12, 2023

09/13/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Letters Of Administration Motion Hearing (Probate) 37-2020-00032091-PR-LA-CTL ESTATE OF MARTHA RAIGOZA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Reconsideration, 05/26/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion to Reconsider filed by Daniel Acedo is DENIED.

I. Background On September 15, 2020, Petitioner Daniel Acedo (Petitioner) filed a Petition for Letters of Administration.

(ROA 1.) Thereafter, Petitioner filed: (1) a Petition for Letters of Administration with Authorization to Administer Under the Independent Administration of Estates Act (ROA 21), amended at ROA 39, a (2) Petition for Order for Citation to Compel Interrogatories pursuant to Probate Code § 8870(a)(2) (ROA 46), and (3) a second Petition for Order for Citation to Compel Interrogatories (ROA 54).

On March 18, 2021, the petition at ROA 1 was taken off calendar. (ROA 29, Minute Order dated Mar. 18, 2021.) On November 18, 2021, the petition at ROA 39 was denied with prejudice. (ROA 76, Minute Order dated Nov. 18, 2021.) The petitions at ROA 46 and 54 (to compel interrogatories) were taken off calendar.

(ROA 73, 74, Minute Orders dated Nov. 18, 2021.) On February 16, 2022, Petitioner filed a Notice of Appeal of the rulings of November 18, 2021. (ROA 78, Notice of Appeal.) In May 2022, the Fourth District, Division One, Court of Appeal ordered the appeal dismissed based on Petitioner's failure to timely designate the record on appeal. (ROA 82, Order for Dismissal filed May 16, 2022.) Subsequently, the Court of Appeal granted Petitioner's petition for writ of habeas corpus, which it treated as a motion to reinstate the appeal, and the appeal was reinstated. (ROA 83, Order Granting.) However, the appeal was dismissed a second time for Petitioner's failure to timely designate the record on appeal.

(ROA 89, Order for Dismissal of Appeal.) II. Discussion Calendar No.: Event ID:  TENTATIVE RULINGS

2989276 CASE NUMBER: CASE TITLE:  ESTATE OF MARTHA RAIGOZA [IMAGED]  37-2020-00032091-PR-LA-CTL Petitioner claims he was arrested on October 6, 2022, and a criminal case was filed. Petitioner states that he was actively pursuing an appeal of the trial court's decision of November 18, 2021, denying his petition for letters of administration, through November 15, 2022. Petitioner argues he should not be deprived of due process and the right to inherit because he was charged with a crime, and that equitable tolling should apply to toll the time to file the instant motion. Thus, Petitioner appears to argue that his arrest prevented the filing of the instant motion.

Here, the Court denied the petition for letters of administration (ROA 39) on November 18, 2021. The appeal was dismissed twice for failure to designate the record on appeal. Petitioner also states that he attempted to reinstate the appeal, but the Court of Appeal denied his motion to recall remittitur. As such, the time to appeal the judgment has run and the judgment is final. 'A petition for writ of certiorari is deemed timely filed with the United States Supreme Court if filed with its clerk within ninety days after entry of judgment of a state court of last resort.' (In re Pine, supra, 66 Cal.App.3d 593, 596; U.S.

Supreme Ct. Rules, rule 13 ['Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.'].) Petitioner had ten days to move for reconsideration from November 18, 2021, almost two years ago, but he did not. (CCP § 1008(a).) Thus, Petitioner's arrest on October 6, 2022, and whether he was actively pursuing his appeal at that time has no bearing on the instant motion. There is no basis to apply equitably tolling. Further, Petitioner does not state what new or different facts, circumstances or law warrant reconsideration on the merits.

Therefore, the motion is DENIED.

The minute order will be the final order of the Court. The clerk of the court is ordered to serve written notice of ruling on all parties.

IT IS SO ORDERED.

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