Judge: Kevin C. Brazile, Case: 22STCV22040, Date: 2023-01-31 Tentative Ruling

Hearing Date: January 31, 2023

Case Name: Perez, et al. v. Kia Motors America, Inc., et al.

Case No.: 19STCV32276

Matter: Motion for Reconsideration

Moving Party: Plaintiffs Jorge Perez and Francisco Perez 

Responding Party: Defendant Kia America, Inc.

Notice: OK

Ruling: The Motion is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is a lemon law matter.  On January 30, 2020, Plaintiffs Francisco Perez and Jorge Perez filed the operative Second Amended Complaint (“SAC”) against Defendant Kia Motors America, Inc. for (1) violation of Civ. Code § 1793.2(d), (2) violation of Civ. Code § 1793.2(b), (3) violation of Civ. Code § 1793.2(a)(3), (4) violation of Civ. Code §§ 1791.2(a), 1794, and (5) concealment.  

On June 23, 2020, the Court dismissed the fifth cause of action pursuant to demurrer.  

Plaintiffs now seek reconsideration of the Court’s June 23, 2020, ruling, on the ground that that ruling was partly based on the application of the economic loss rule, which recent case law indicates does not apply to Plaintiffs’ concealment claim.  (See Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 828 [“[U]nder California law, the economic loss rule does not bar plaintiffs’ fraudulent inducement claim.”].)

Code Civ. Proc. § 1008(a) provides, “When 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.”

Code Civ. Proc. § 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.”

It’s true that the economic loss rule does not apply to Plaintiffs’ fraud claim.  On the other hand, the Court’s prior order was also based on Plaintiffs’ failure to plead a sufficient duty to disclose.  The SAC still fails to allege a proper transactional relationship that would create a duty to disclose.  While Dhital found that a “buyer-seller” relationship had been adequately alleged therein, the Court noted its conclusion was based on “the absence of a more developed argument by Nissan on this point) . . . .”  (Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 828, 844.)  There is no discussion of the Bigler-Engler case in Dhital.  Therefore, the Court will not resurrect Plaintiffs’ fraud claim.

The Motion for Reconsideration is denied.  The Request for Judicial Notice is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.