Judge: Gail Killefer, Case: 22STCV14354, Date: 2023-06-29 Tentative Ruling
Case Number: 22STCV14354 Hearing Date: June 29, 2023 Dept: 37
HEARING DATE: June 29, 2023
CASE NUMBER: 22STCV14354
CASE NAME: Jose Vazquez Bautista, et al. v. Nissan North America, Inc.., et al.
MOVING PARTY: Plaintiff Jose Vazquez Bautista
aka Jose Vazquez
OPPOSING PARTY: Defendant, Nissan North America,
Inc. (“NNA”)
TRIAL DATE: None.
PROOF OF SERVICE: OK
PROCEEDING: Motion for Reconsideration
OPPOSITION: June 15, 2023
REPLY: June
22, 2023
TENTATIVE: Plaintiff’s motion for
reconsideration is denied. NNA is to give notice.
This is
a lemon law action arising in connection with the purchase by Jose
Vazquez Bautista aka Jose Vazquez
(“Plaintiff”) of a 2021 Nissan Sentra on January 2, 2021 (the “Vehicle”) from
Defendant LAD-N, LLC, dba “Lithia Nissan of Downtown LA” (“Dealer Defendant”).
Plaintiff alleges that Defendant, Nissan North America, Inc. (“NNA”), which manufactured
the Vehicle, provided Plaintiff various warranties in connection with the
Vehicle in which Defendants undertook to preserve or maintain the performance
of the Vehicle and to repair the Vehicle in the event of any defects during the
warranty period. Plaintiff alleges that the Vehicle developed numerous defects
during the warranty period, namely an emergency braking defect. Further,
Plaintiff alleges that the Defendants failed to repair defects to the Vehicle
when it was presented to Defendants and their authorized representatives for
repair.
Plaintiff’s
Complaint alleges three causes of action: (1) violation of the Song-Beverly
Act—breach of express warranty against NNA, (2) fraudulent
inducement—intentional misrepresentation against NNA (3) fraudulent
inducement—concealment against NNA, and (4) negligent repair—Dealer Defendant.
On February 1, 2023, the court granted NNA’s petition to
compel arbitration. Plaintiff now moves for reconsideration of the court’s February
1, 2023 order. NNA opposes the motion.
Pursuant to CCP § 1008(a), a motion for
reconsideration must be brought “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.” (New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212.)
The moving party must present a satisfactory explanation for
failing to provide the evidence or different facts earlier. (Garcia
v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) In addition, a party
may not seek reconsideration on the ground that the trial court adopted an alleged
“different” or “contrary” interpretation of the law that expected. (Gilberd v.
AC Transit (1995) 32 Cal.App.4th 1949, 1500.)
CCP § 1008 allows a party to move for reconsideration of an
order within 10 days after service upon the party of written notice of entry of
the order, based on new or different facts, circumstances, or law.
Here, the court issued its ruling on NNA’s motion to compel
arbitration on February 1, 2023, and NNA was ordered to provide notice of the
ruling. NNA has not filed a Notice of Ruling with this court. However,
Plaintiff brings this motion pursuant to the recent decision in Ford Motor
Warranty Cases (Ochoa, et al.) (2023) 89 Cal.App.5th 1324, 306 Cal.Rptr.3d
611. The Ochoa decision was filed and certified for publication by the
Second Appellate District on April 4, 2023. Plaintiff’s motion was filed on June
2, 2023. Thus, whether based on this court’s February 1, 2023 ruling, or the Ochoa
court’s April 4, 2023 ruling, Plaintiff’s motion was filed much later than the
10 days defined by CCP section 1008. Therefore, the court agrees with NNA that
the motion itself is untimely. (Opp., 3.)
Motions for reconsideration are restricted to circumstances
where the moving party offers facts or circumstances not previously considered,
as well as a valid reason for not presenting them
earlier. (See Gilberd v. AC Transit (1995) 32
Cal.App.4th 1494, 1500.) A party seeking reconsideration of a prior
order based on “new or different facts, circumstances or law” must provide a
satisfactory explanation for failing to present the information at the first
hearing; i.e., a showing of reasonable diligence. (Garcia v.
Hejmadi (1997) 58 CA4th 674, 690, 68 CR2d 228, 238; see also Even
Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015)
61 Cal.4th 830, 839.)
In reply, Plaintiff contends that the “10-day period for a
motion for reconsideration has no bearing on this Court’s authority to
reconsider its order based on a change in law, which has occurred here.”
(Reply, 2.) In the moving papers, Plaintiff correctly cites Blake v. Ecker
for support:
“Contrary to defendants' assertions, the 10-day time
limitation of section 1008 has no bearing on the trial court's
jurisdiction to vacate an order made a year or more earlier. A change in the
law is always an appropriate basis, up until a final judgment is entered, for
changing an interim order; courts retain the inherent power, regardless
of Code of Civil Procedure section 1008, to change their orders at any
time prior to entry of judgment. (Darling, Hall Rae v. Kritt (1999) 75
Cal.App.4th 1148, 1155.) And the fact that a party brings the basis for such a
change to the court's attention, even if via a motion for reconsideration
pursuant to section 1008, and even if such motion is made after the 10-day
period, does not negate this inherent power. (Remsen v. Lavacot (2001) 87
Cal.App.4th 421, 427.)”
(Blake v. Ecker (2001) 93 Cal.App.4th 728, 739 n.10.)
Thus, while the motion itself may be untimely pursuant to
this court’s ruling, the court recognizes its own authority to address the
merits of this motion.
Plaintiff contends that reconsideration of the court’s order
granting NNA’s motion to compel arbitration is warranted based on new law set
forth in Ochoa, which Plaintiff contends is a change of law from the Felisilda
ruling which this court relied on in granting NNA’s motion to compel
arbitration. (Motion, 6-10.) Specifically, Plaintiff asserts that Ochoa precludes
Defendant NNA from enforcing the arbitration provision as a nonsignatory
through either equitable estoppel or third-party beneficiary theories of
liability. (Id.)
However, the motion is unavailing because it fails to
present any “new” laws to satisfy CCP § 1008(a). This court here
notes that while Ochoa reached a different conclusion than Felisilda, the Ochoa decision merely
creates a split in precedent and authority, and does not override the
precedential effect of Felisilda. Where there is a split of
authority, trial courts have discretion to choose between the decisions. (Auto
Equity Sales, Inc. v. Sup. Ct. (1962) 57 Cal.2d 450, 456.) Thus, the court
agrees with Defendant NNA that,
“this merely represents one appellate
authority that diverged from another. Both remain published and binding
decisions. Even if this motion were otherwise properly brought, this Court cold
[sic] therefore decide whether to follow Felisilda or Ochoa,
and Felisilda is the more persuasive authority.”
(Opp., 5.) Because Ochoa is not a change of law within the
meaning of CCP § 1008, Plaintiff’s motion is unavailing.
Since the parties concede that the split in authority does
not create a material change in the law, the court finds Plaintiff has brought
this motion without sufficient basis.
Even if the court is to reconsider its reasoning in light of
the split of authority, Plaintiff has failed to show that Ochoa must
control here.
Under the doctrine of equitable estoppel, “a nonsignatory
defendant may invoke an arbitration clause to compel a signatory plaintiff to
arbitrate its claims when the causes of action against the nonsignatory are
‘intimately founded in and intertwined’ with the underlying contract
obligations.” (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th
1222, 1237.) The doctrine applies in either of two circumstances: (1) when the
signatory must rely on the terms of the written agreement containing the arbitration
clause in asserting its claims against the nonsignatory or (2) when the
signatory alleges “substantially interdependent and concerted misconduct” by
the nonsignatory and a signatory and the alleged misconduct is “founded in or
intimately connected with the obligations of the underlying agreement.” (Goldman
v. KPMG, LLP (2009) 173 Cal.App.4th 209, 218-219.) At bottom, “[t]he
linchpin for equitable estoppel is equity—fairness.”” (Id. at p.
220.)
A review of longstanding precedent in California law reveals
a strong interrelationship between warranties and underlying purchase
agreements. “A warranty is a contractual term concerning some aspect of the sale, such as title to the
goods, or their quality or quantity.” (Jones v. ConocoPhillips Co. (2011)
198 Cal.App.4th 1187, 1200 (emphasis added).)
“A warranty is as much one of the elements of sale and as much a part of
the contract of sale as any other portion of the contract and is not a mere
collateral undertaking.” (A. A. Baxter Corp. v. Colt Industries, Inc. (1970)
10 Cal.App.3d 144, 153.) To this point,
in reviewing the Song-Beverly Act’s legislative history, the California Supreme
Court has noted that “the Legislature apparently conceived of an express
warranty as being part of the purchase of a consumer product.” (Gavaldon v. DaimlerChrysler Corp.
(2004) 32 Cal.4th 1246, 1258; see also Felisilda, supra, 53
Cal.App.5th at 496 (“[T]he sales contract was the source of the warranties at
the heart of this case.”).)
This court disagrees
with the Ochoa court’s interpretations of the manufacturer’s equitable
estoppel rights for the following reasons:
First, in finding that equitable estoppel did not support an
interpretation reading manufacturer warranties to be part of the RISC, the Ochoa
court relies on two decisions primarily: Corp. of Presiding Bishop of Church
of Jesus Christ of Latter- Day Saints v. Cavanaugh (“Cavanagh”), 217
Cal.App.2d 492, 514 (1963) and Greenman v. Yuba Power Prod., Inc. (“Greenman”),
59 Cal.2d 57 (1963). This court does not find either cases to be instructive or
binding in this motion.
Both Cavanagh and Greenman involved warranties
made and transactions entered before the enactment of the UCC and the
Song-Beverly Consumer Warranty Act in California, two statutes which form the
entire foundation of Plaintiff’s claims here. Further, while the UCC itself
forms a basis for warranties made in California, the Song-Beverly Act “was
meant to supplement, not supersede, the provisions of the Commercial Code.” (Dagher
v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 928.) Thus, while Cavanagh
and Greenman may be instructive in cases where warranties are made
outside of a strict statutory scheme because lemon law actions—and Plaintiff’s
claims here particularly—arise solely out of the Act’s statutory regime, the
two cases cannot provide this court sufficient guidance with regards to the
Act’s interpretation.
Second, this court finds that while the Ochoa court
at *621 decided that manufacturer warranties are not “part of the sale
contract,” the Gavaldon court specifically read the
legislative history of the Act to mean that warranties for new vehicles were
“part of the purchase of a consumer product, and a representation of the
fitness of that product.”
When read in concert with Civ. Code § 1792’s language
that the implied warranty of merchantability attaches to “every sale of
consumer goods that are sold at retail in this state,” it means both express
and implied warranties should be read as part of the sales contract per binding
authority and statute.
Further, if the Ochoa court’s determination
that the warranties are separate from the purchase agreement, then every
Plaintiff bringing forth Song-Beverly claims will lack standing to sue the
manufacturer. “Without this purchase agreement, Plaintiff cannot meet this
standing requirement or, indeed, the standing requirement for any warranty
claim. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th
1187, 1201 (“As a general rule, a cause of action for breach of implied [or
express] warranty requires privity of contract; ‘there is no
privity between the original seller and a subsequent purchaser who is in
no way a party to the original sale.’ ”).)”
Therefore, this court finds that, in order for the Act to
maintain its regime over manufacturers and the warranties they make,
manufacturers’ warranties must be read into sales agreements, like the RISC
here, in order for Plaintiff to have privity in contract with the manufacturer,
and thus, establish standing to bring such claims against a manufacturer.
Thus, the court finds Felisilda to be instructive,
and under its own authority pursuant to Auto Equity Sales, Inc. v. Sup. Ct.
(1962) 57 Cal.2d 450, elects to follow Felisilda’s analysis.
However, this court
agrees with Ochoa’s analysis regarding the manufacturer’s position as an
alleged third-party beneficiary, and therefore disregards such assertions as it
fails the Goonewardene factors.
Thus, the court agrees with Defendant NNA that the cases
relied upon by the Ochoa court remain inapposite to the circumstances
here, and a more direct and plain reading of the Song-Beverly Act and the
statutorily imposed implied warranties which uphold the Act instructs this
court to apply the reasoning of the Felisilda court. (Opp., 5-9.)
Plaintiff’s reply fails to explain how the split in authority creates a
material change in law, beyond simply providing this court the discretion to
choose between decisions, and further fails to explain how the Ochoa court’s analysis
must be binding precedent upon the circumstances here. While discussions and
arguments of the reasonings behind Felisilda, Ochoa, and the Act may
be heard by the California Supreme Court and other appellate courts, this court
is not an appropriate forum for such irrelevant analysis at the reconsideration
stage.
For these reasons, Plaintiff’s motion is denied.
Conclusion
Plaintiff’s motion for reconsideration is denied. Defendant
NNA is to give notice.