Judge: Douglas W. Stern, Case: BC709916, Date: 2023-02-21 Tentative Ruling
Case Number: BC709916 Hearing Date: February 21, 2023 Dept: 68
Cho Yang vs. Kia Motors America, Inc., Case No. BC709916
Motion for Reconsideration of Previous Court Order Sustaining Demurrer as to Certain Causes of Action
Moving Party – Plaintiff Cho Yang
Responding Party – Defendant Kia Motors America, Inc.
Moving Party’s Position
This is a Song-Beverly Warranty Act case. Plaintiff filed her Complaint on June 13, 2018. On July 31, 2019, the Court sustained Defendant’s demurrer as to Plaintiff’s Sixth and Seventh Causes of Action related to fraudulent inducement by concealment. The Court’s exact reasoning for sustaining the demurrer is unclear from the order.
Plaintiff argues that the Court sustained the demurrer on the theory that the economic loss rule bars claims for fraudulent inducement through concealment. (Motion at p. 2.) Because of this, Plaintiff’s motion for reconsideration is based on the assertion that the recent California Court of Appeal decision, Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 [300 Cal.Rptr.3d 715, review granted 2/1/2023 2023 WL 1458039, held that the economic loss rule does not bar fraudulent inducement by concealment. Plaintiff argues that this would constitute a change of law within the meaning of CCP § 1008(c), allowing for reconsideration of the demurrer.
Defendant’s Opposition
Defendant argues that because the July 31, 2019, court order does not give a specific reason for why the demurrer was sustained as to the Sixth and Seventh Causes of Action, Defendant’s other reasons for demurring to those causes of action would still apply. Defendant had argued that Plaintiff’s concealment allegations lack the requisite factual specificity because Plaintiff cannot establish that Kia had a duty to disclose and failed to plead with specificity what the misrepresentations were that induced her into purchasing the vehicle. Defendant also argued that the statute of limitations barred the fraud claims because the fraud claims would have accrued on the purchase date (August 2012) and the statute of limitations for fraud claims is three years. Defendant argues that Plaintiff failed to plead delayed discovery sufficient to justify delayed accrual, and Plaintiff failed to plead facts to justify estoppel under the fraudulent concealment rule. Defendant also argues against Plaintiff’s claim that Dhital would allow her causes of action to proceed. Finally, Defendant indicates that because review has been granted for Dhital, then Dhital is only persuasive and not binding or precedential.
Plaintiff’s Reply
In Plaintiff’s reply, Plaintiff provides, for the first time, a transcript from the July 31, 2019, hearing on the demurrer in which Judge Mooney stated that he did not think that the economic loss rule applied to the case and that it really was not a fraud case. (Reply – Law Decl., ¶ 1, Ex. 1, pp. 8-9, Lines 26-28 and 1-2.) Plaintiff argues that the only thing at issue then is whether the economic loss rule applies and not whether the facts have been pled with specificity or whether the statute of limitations applies. Plaintiff doubles down her argument that Dhital would allow for the application of the economic loss rule to her fraud claim.
Request for Judicial Notice
Plaintiff has requested that the Court take Judicial Notice of Dhital v. Nissan N. Am., Inc.) (2022) 84 Cal.App.5th 828, review granted. It is the view of the Court that there is no need to ask for judicial notice of published state decisions when the purpose is to present the decision as legal authority. The Court declines to endorse the overused practice of filing Requests to take Judicial Notice simply to cite published decisions. The Court shall apply cited California law without the need for a Request to take Judicial Notice.
Analysis
Plaintiff’s entire argument is that there had been a change of law allowing a reconsideration under C.C.P. § 1008. Plaintiff’s reliance on Dhital is premature, as review of the decision is currently pending before the California Supreme Court.
“Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court…, a published opinion of a Court of Appeal in the matter has no binding or precedential effect and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.” (Cal. Rules of Court Rule 8.1115(e)(1).)
Because Dhital only has persuasive value at this time while review is pending and is not binding or precedential, this Court shall deny the motion for reconsideration.
[The Court would note that the effort associated with this motion is not related to a Song-Beverly claim. While the Court is not making any determination at this time regarding the potential for recovery of attorneys fees should Plaintiff prevail on a Song-Beverly claim that might entitled Plaintiff to recover attorneys fees, the Court orders that Plaintiff make appropriate billing notations at this time setting forth the billings/time/costs devoted to this motion.]