Judge: Elaine Lu, Case: 22STCV14244, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV14244    Hearing Date: October 5, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On April 26, 2022, Plaintiff Joseph Saban (“Plaintiff”) filed the instant action against defendants Ford Motor Company (“Ford”) and DCH Ford of Thousand Oaks (“DCH”) (jointly “Defendants”) arising from the purchase of a 2018 Ford F-150 (“Subject Vehicle”).  The complaint asserts six causes of action for (1) Violation of Civil Code § 1793.2(d), (2) Violation of Civil Code § 1793.2(b), (3) Violation of Civil Code § 1793.2(a)(3), (4) Breach of the Implied Warranty of Merchantability, (5) Fraud Inducement – Concealment, and (6) Negligent Repair.  The first, second, third, fourth, and fifth causes of action are against Defendant Ford.  The sixth cause of action is against Defendant DCH.

            On December 27, 2022, the Court granted Defendants’ motion to compel arbitration in part and ordered the claims against Defendant Ford be compelled to arbitration.  The Court stayed the action pending arbitration, relying on what was then the only California appellate opinion on the issue, Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486.  (Order 12/27/22.)

            On June 5, 2023, Plaintiff filed the instant motion for reconsideration of the December 27, 2022 Order compelling arbitration.  On August 23, 2023, Plaintiff filed supplemental authority in support of the instant motion.  On September 18, 2023, Defendants filed an opposition.  On September 28, 2023, Plaintiff filed a reply.

Request for Judicial Notice

            In conjunction with the moving papers, and reply papers, Plaintiff requests that the Court take judicial notice of:

1.     Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324

2.     Yeh v. Superior Court of Contra Costa County (2023) 95 Cal.App.5th 264

3.     Third District Court of Appeal’s response to a Petition for Writ of Mandate in Ortiz et al. v. Superior Court of Sacramento County (C099135)

4.     Third District Court of Appeal’s response to a Petition for Writ of Mandate in Campos v. Superior Court of Butte County (C098848)

As the Court may take judicial notice of court records and actions of the State, (See Evid. Code, § 452(c)(d)), Plaintiffs’ unopposed request for judicial notice is GRANTED.  However, the Court does not take judicial notice of the truth of assertions within the Court records. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) 

Discussion

            Plaintiff seeks reconsideration of the Court’s December 27, 2022 Order compelling arbitration in part based on Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324 (“Ochoa”) and later cases relying on the reasoning in Ochoa. 

The Instant Motion is Untimely

            Here, the instant motion must be brought under Code of Civil Procedure section 1008 which “more generally states procedures for applications to reconsider any previous interim court order. It ‘applies to all applications for interim orders’ [Citation.] and provides time limits and other requirements for such applications.”  (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1098.) 

            An application to reconsider, modify, or revoke a prior order must fall under Code of Civil Procedure section 1008 subdivisions (a), (b), or (c).  Plaintiff purports to bring the instant motion under Code of Civil Procedure section 1008(c).  (Motion at p.ii:5.)  However, subdivision (c) only applies to the Court bringing its own motion.  (CCP § 1008(c), [“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.”], [Italics and Bold Added].)

Similarly, subdivision (b) only applies to renewed motions that were either refused or granted conditionally.  (CCP § 1008(b), [“A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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 instant motion is not a renewed motion and thus does not fall under subdivision (b).

            The sole remaining basis for the instant motion is under subdivision (a) which provides that “[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.”  (CCP § 1008(a), [Bold and Italics Added].) 

            Notice of the December 27, 2022 Order was given the same day.  Thus, Plaintiff “plainly failed to move for reconsideration within the 10–day statutory timeline established by section 1008, and his motion could properly [] be[] denied on th[is] ground alone.”  (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)  As the Supreme Court has explained, “a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section 437c, subdivision (f)(2), or 1008. The court need not rule on any suggestion that it should reconsider a previous ruling and, without more, another party would not be expected to respond to such a suggestion.”  (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)  Therefore, “[u]nless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion.”  (Ibid.)

The May Bring Its Own Motion for Reconsideration

             An improper motion under 1008 may be the catalyst for reconsideration of a prior ruling as “the trial court's inherent authority to correct its errors applies even when the trial court was prompted to reconsider its prior ruling by a motion filed in violation of section 1008”  (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303–1304.)  However, “[t]o be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion … it should inform the parties of this concern, solicit briefing, and hold a hearing.”  (Le Francois, supra, 35 Cal.4th at p.1108; accord Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 61 [“the trial court had the authority to correct its error on its own motion. It did so by acknowledging its error, soliciting further briefing, and holding a further hearing.”].)

            The December 27, 2022 Order compelling arbitration relied on what was then the only California appellate opinion on the issue, Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486.  Since the December 27, 2022 Order, numerous California appellate opinions have disagreed with Felisilda including Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324 (“Ochoa”), Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, Kielar v. Superior Court of Placer County (2023) 94 Cal.App.5th 614, and most recently Yeh v. Superior Court of Contra Costa County (2023) 95 Cal.App.5th 264.

            In light of this new appellate authority, the Court hereby gives notice that it is bringing its own motion for reconsideration.  The court hereby invites briefing from the parties.  The Court’s own motion for reconsideration shall be heard on December 11, 2023 at 8:30 am.  In connection with the hearing, the Court requests simultaneous supplemental briefing by the parties limited to 5 pages, plus supporting declarations and evidence, if any, regarding the standard a Court applies when deciding on its own motion to reconsider a prior decision pursuant to CCP 1008(c) and how this Court should consider and evaluate various factors in this case, including the length of time that has elapsed since the Court ordered arbitration, the passage of time between the purported change in law and Plaintiff’s filing of the instant motion for reconsideration, whether there has been delay, the extent to which any purported delay has caused prejudice, efforts by the parties to proceed with arbitration per the Court’s December 27, 2022 Order, and the extent to which any party failed to comply with the Court’s December 27, 2022 Order to arbitrate.  Such supplemental briefing and materials shall be filed and served by no later than November 27, 2023.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff’s Joseph Saban’s motion for reconsideration of the December 27, 2022 order is CONTINUED TO December 11, 2023 at 8:30 am.  The Court’s own motion for reconsideration shall also be heard on December 11, 2023 at 8:30 am.

Moving Party to give notice and file proof of service of such.

DATED: October ___, 2023                                                  ___________________________

                                                                                                Elaine Lu

                                                                                                Judge of the Superior Court