Judge: Linda S. Marks, Case: 2018-01026533, Date: 2023-05-15 Tentative Ruling

1. Motion for Reconsideration filed by Miguel L. Munoz

Plaintiff Miguel Lopez Munoz (“Plaintiff”) moves for an order reversing the Court’s January 27, 2020 ruling sustaining the demurrer by Defendant Kia Motors America, Inc. (“Defendant”) as to the sixth cause of action for Fraud by Omission pursuant to the economic loss rule.

Plaintiff argues that the Court should reverse its January 27, 2020 ruling sustaining Defendant’s demurrer to Plaintiff’s sixth cause of action in conformance with the recent controlling decision, Dhital v. Nissan North America, Inc., (2022) 84 Cal.App.5th 828, which holds that under California law, the economic loss rule does not bar a plaintiff’s fraudulent inducement claims and that such claims fall within the exception to the economic loss rule.

Defendant argues that Dhital is not binding on this Court because the Supreme Court has granted review and while review is pending, the case has no binding or precedential effect.  Defendant argues, therefore, that there has been no change of law and Plaintiff’s Motion must be denied.  Defendant further argues that if reconsideration is granted, the Court should reconsider the arguments raised in Defendant’s demurer regarding the sufficiency of the allegations and statute of limitations and sustain the demurrer on these alternate grounds.

Pursuant to California Rules of Court, Rule 8.1115(e)(1), when review of a published opinion has been granted and the review is pending, the opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only.”   The comments to California Rules of Court, Rule 8.1115 also provide, “[u]nder subdivision (e)(1) of this rule, if the Supreme Court grants review of a published Court of Appeal decision, that decision now remains published and citable for its potentially persuasive value while review is pending unless the Supreme Court orders otherwise.”

Here, when the California Supreme Court granted the petition for review, it stated:

Further action in this matter is deferred pending consideration and disposition of a related issue in Rattagan v. Uber Techs., Inc., S272113 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.  [¶] The request for an order directing depublication of the opinion is denied.  (Dhital v. Nissan North America (2023) 523 P.3d 392.)

Since the Supreme Court did not state that Dhital has a binding or precedential effect different from that specified in California Rules of Court, rule 8.1115(e)(1), it has no binding or precedential effect, and may be cited only for potentially persuasive value.  Plaintiff cites to no case for the proposition that a published appellate case which is pending review in the California Supreme Court and has no binding or precedential effect constitutes a change in the law warranting reconsideration.

Based on the foregoing, the Court finds that Dhital does not constitute a change in law for the purposes of Code of Civil Procedure section 1008(c) and that no reconsideration is warranted at this time.  Thus, the Motion for Reconsideration is DENIED.

Defendant to give notice.

2. Status Conference