Department 58

Hearing Date: January 19, 2023

Case Name: Maria Barajas Quintero, et al. v. Kia Motors America, Inc.

Case No.: 19STCV13263

Matter: Motion for Reconsideration

Moving Party: Plaintiffs Maria Quintero and Oscar Quintero

Responding Party: Defendant Kia Motors America, Inc.

Tentative Ruling: The motion for reconsideration is denied.

This is a Song-Beverly action arising from alleged defects in a 2016 Kia Optima. Plaintiffs Maria and Oscar Quintero filed their Complaint against Kia Motors America (Defendant) alleging (1) violation of express warranty, (2) violation of implied warranty, (3) violation Civ. Code § 1793.2, (4) fraudulent inducement—concealment, and (5) fraudulent inducement—intentional misrepresentation.

On June 17, 2021, this Court granted Defendant’s motion for summary adjudication on the fourth and fifth fraud causes of action, as well as on the issue of punitive damages.

Plaintiffs now move for reconsideration of the order granting summary adjudication on the fourth cause of action for fraudulent concealment based on a recent Court of Appeal decision, Dhital v. Nissan North America (2022) 84 Cal.App.5th 828 (Dhital). Defendant filed an opposition contending that the prior order did not rely on the economic loss rule and Dhital was decided at the pleading stage. Plaintiffs reiterate their argument on reply. Plaintiff’s request for judicial notice of the Dhital case is granted. (Evid. Code, § 452, subd. (a).)

Legal standard

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

The burden under Code of Civil Procedure section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

Discussion

Procedural requirements

Plaintiffs’ motion invokes Code of Civil Procedure section 1008 but does not comply with the procedural requirements for a motion for reconsideration. The motion must be accompanied by a declaration from the moving party stating (1) what application was made previously, (2) when and to what judge the application was made, (3) what order or decisions were made, and (4) what new or different facts, circumstances, or law are claimed to be shown. (§ 1008, subd. (a).) Plaintiffs fail to submit any declaration in their moving papers. The motion is also untimely, as it was filed almost one and a half years after the order on summary adjudication. (Code Civ. Proc., § 1008, subd. (a).)

Plaintiffs are reminded that a violation of Code of Civil Procedure section 1008 may be sanctionable as allowed under section 128.7. (§ 1008, subd. (d).) Since Defendant has not requested sanctions, the Court will not impose them.

The motion’s untimeliness and failure to comply with the procedural requirements would be sufficient and independent reason to deny the motion. Nevertheless, the Court will address the merits. (§ 1008, subd. (c).)

Plaintiffs have not shown how reconsideration of summary adjudication is proper, given that this Court did not rely on the economic loss rule and Dhital was a case at the pleading stage.

Plaintiffs first argue that in Dhital, the Court of Appeal held that the economic loss rule does not bar fraudulent inducement claims. (84 Cal.App.5th at p. 841.) In Dhital, the trial court sustained a demurrer based on Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979 that the plaintiff did not suffer “personal injury or any damage to property other than the car.” (84 Cal.App.5th at pp. 835-836.) The Court of Appeal reversed, finding that the Robinson case “did not hold that any claims for fraudulent inducement are barred by the economic loss rule.” (Id. at p. 839.) Instead, the appellate court noted, the Robinson Court dealt only with the issue of affirmative misrepresentation. Thus, Robinson “left undecided whether concealment-based claims are barred by the economic loss rule.” (Id. at p. 840.) Applying the reasoning and public policy in Robinson, the Court of Appeal in Dhital found that a “defendant’s conduct in fraudulently inducing someone to enter a contract is separate from the defendant’s later breach of the contract or warranty provisions that were agreed to.” (Id. at p. 841.) Thus, because the Dhital plaintiff alleged presale concealment, this constituted “fraudulent conduct that is independent of Nissan’s alleged warranty breaches” and the economic loss rule does not bar such claims. (Id. at pp. 841, 843.)

With respect to this case, when this Court granted summary adjudication on the fourth cause of action, it did not rely on the economic loss rule, but concluded Plaintiffs had offered insufficient evidence:

“Further, for the purposes of concealment, Defendant has presented evidence that Plaintiffs did not view any marketing in relation to the subject vehicle. This is fatal as without marketing there was no transactional relationship between Defendant and Plaintiffs so as to justify a fraud claim. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 312.) Rather, the vehicle was sold by a dealership. Plaintiffs merely reference their SAC to dispute Defendant’s facts, but this is not evidence. Thus, the fourth and fifth causes of action fail.” (Minute order dated June 17, 2021.)

The Court did not consider, as Plaintiffs argue, whether “fraudulent inducement claims fall within the exception to the economic loss rule.” (Reply, p. 1:22-24.) The focus was on the lack of evidence that Plaintiffs presented. The Court did not foreclose that a transactional relationship may exist in other cases by limiting the ruling on summary adjudication “based only on the facts and circumstances of this particular case, and the governing law as it bears on such facts and circumstances.” (Minute order dated June 17, 2021.) Thus, to the extent that Plaintiffs argue for reconsideration based on the economic loss rule, the motion is denied.

Plaintiffs next contend that that Kia had a duty to disclose known defects based on the nature of the relationship between them. (Dhital, 84 Cal.App.5th at p. 844 [“we decline to hold plaintiffs’ claim is barred on the ground there was no relationship requiring Nissan to disclose known defects”].) That quoted section is under the heading of “The Sufficiency of the Allegations in the SAC.” That is, at the pleading stage, the Court of Appeal declined to find that the allegations were insufficient as to a relationship between the plaintiffs and the manufacturer. (See Ibid. [alleging that plaintiffs purchased a car from a Nissan dealership, Nissan backed the car with an express warranty, and Nissan’s authorized dealerships are its agent for purposes of the sale of Nissan vehicles to consumers].)

Plaintiffs’ arguments are directed towards the adequacy and sufficiency of their Complaint as if defending against a demurrer. (Motion, pp. 9:9-10:12.) A demurrer tests the sufficiency of the pleadings and thus looks to the operative complaint’s allegations, (see Code Civ. Proc., § 430.10, subd. (e); Blank v. Kirwan (1985) 39 Cal.3d 311, 318), while summary adjudication examines whether any material factual disputes remain to be tried and thus looks to the evidence developed and presented at the time of the summary adjudication. (See Code Civ. Proc., § 437c, subd. (c); Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1188.) Here, the Court previously found that Plaintiffs’ allegations as to fraud were sufficient and overruled Defendant’s demurrer. (Minute Order dated Dec. 18, 2019.) Plaintiffs’ arguments in their motion for reconsideration fail to address the lack of evidence.

Contrary to Plaintiffs’ arguments, the theory of the fraudulent concealment claim was based on Plaintiffs’ alleged review of marketing brochures, viewing television and/or radio commercials about the qualities of the vehicle, and general reliance on Defendant’s reputation. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748 [elements of fraudulent concealment]; Complaint, ¶ 162.) The Court granted summary adjudication because Plaintiffs failed to produce any admissible evidence that this occurred. (See Chinery Decl., ¶ 3, Ex. 1, Separate Statement in opposition to Motion for Summary Adjudication.) Instead, Plaintiffs merely pointed to their allegations in their amended Complaint for evidence, which was insufficient. In other words, while the Court does not dispute that Plaintiffs may have sufficiently alleged a claim for fraudulent concealment, Defendant met its burden to show there were no triable issues of material fact on that cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see also Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 [in deciding a motion for summary adjudication, “the parties and the court should take care to distinguish between the sufficiency of the pleadings and the sufficiency of the evidence”].) While Plaintiffs may have alleged the existence of a transactional relationship, they failed to present any evidence of such at the time of summary adjudication. Dhital does not change Plaintiffs’ burden at summary adjudication.

Plaintiffs also fail to present any new evidence to justify a departure from the prior ruling. Nor would any such evidence be properly received on a court’s own motion for reconsideration under section 1008, subdivision (c). “‘[I]n order to grant reconsideration on its own motion, the trial court must conclude that its earlier ruling was wrong, and change that ruling based on the evidence originally submitted.’” (See Marriage of Ankola (2020) 53 Cal.App.5th 369, 383 [if the trial court reconsiders based on evidence not presented at the earlier hearing, this is equivalent to granting a new trial sua sponte, which the court cannot do].) Thus, even if the Court concluded that a change in the law justified reconsideration, because the evidence for summary judgment continues to be inadequate, a change in the ruling under section 1008, subdivision (c) is inappropriate.

Accordingly, Plaintiffs fail to meet their burden and the motion for reconsideration is denied.