Judge: Curtis A. Kin, Case: 19STCV36154, Date: 2023-03-02 Tentative Ruling

Case Number: 19STCV36154    Hearing Date: March 2, 2023    Dept: 72

MOTION FOR RECONSIDERATION

Date:               3/2/23 (8:30 AM)

Case:              Uriel Hernandez Jr. v. Kia Motors America, Inc. (19STCV36154)

TENTATIVE RULING:

Plaintiff Uriel Hernandez Jr.’s Motion for Reconsideration is DENIED.

Plaintiff’s request for judicial notice of the Court of Appeal’s October 26, 2022 opinion in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 is GRANTED, pursuant to Evidence Code § 452(d).

Pursuant to CCP § 1008(c), plaintiff Uriel Hernandez Jr. seeks reconsideration of the January 7, 2020 order sustaining without leave to amend defendant Kia America, Inc.’s demurrer to the sixth cause of action for fraud by omission asserted in the original Complaint. The Court (Hon. Ruth A. Kwan) found that the fraud by omission cause of action was barred by the economic loss rule. (Law Decl. ¶ 6 & Ex. 1 at 3-4.)

CCP § 1008(c) states: “If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.”

Plaintiff argues that the Court of Appeal in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 recently held that the economic loss rule does not bar a fraudulent concealment cause of action. On February 1, 2023, after the instant motion was filed, the California Supreme Court granted review. Accordingly, Dhital is only citable for potential persuasive value. (Rule of Court 8.1115(e)(1).) Because Dhital is not binding, it cannot be said that there was a change in the law to warrant reconsideration under CCP § 1008(c).

Plaintiff also invokes the Court’s “inherent authority, derived from the California Constitution, to reconsider its earlier ruling, [of which] its jurisdiction [is] not truncated by [CCP] section 1008.” (Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 179.) In the absence of any new binding authority, the Court declines to exercise its inherent authority to reconsider the ruling made by a different judicial officer.

The motion is DENIED.