Judge: Loren G. Freestone, Case: 37-2021-00017552-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00017552-CU-BC-CTL ROSALES MAYORAL VS PERRY MOTORS OF NATIONAL CITY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Sergio Alberto Rosales Mayoral's motion for reconsideration is GRANTED.

Mayoral moves the court to reconsider the May 13, 2022 order compelling arbitration based on a change of law. Such a motion must be made within 10 days after service of written notice of entry of the order.

(Code Civ. Proc., § 1008, subd. (a); but see id at subd. (c) [court may reconsider orders based on a change of law on its own motion 'at any time'].) As there is no evidence such notice was ever served, and Defendant FCA US LLC does not argue otherwise, the motion is timely.

As to the merits, the court may to reconsider its ruling on a motion to compel arbitration when warranted by a change in the law. (See Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237–239; Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 768–769; Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 59–60.) New appellate opinions giving rise to a split of authority can constitute a 'change of law' for purposes of section 1008. (See Malek, supra, 121 Cal.App.4th at pp., 54, 60; see also International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 784, 788.) Although one trial court judge generally may not reconsider a ruling by another trial court judge, that rule does not apply where the first judge is unavailable (such as by retirement). (See International Ins., supra, 62 Cal.App.4th at p. 786, fn. 2.) Here, in May 2022, Judge Meyer granted FCA's motion to compel arbitration based on the doctrine of equitable estoppel, as applied by the Third District Court of Appeal in Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. The order granting the motion states, in pertinent part: 'Felisilda is controlling. Mayoral signed a sales contract with an identical arbitration provision. Mayoral's claims against FCA relate directly to the condition of the vehicle. The RISC was the source of the warranties at the heart of this case. Mayoral is therefore estopped from refusing to arbitrate his claims against FCA.' 'Mayoral argues that Felisilda is 'an outlier' with 'flawed logic,' but is not this court's role to second guess an opinion from the court of appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Mayoral suggests there is a conflict among the courts of appeal, but the cases he cites (e.g., Jarboe v. Janless Auto Group (2020) 53 Cal.App.5th 539) did not involve RISCs or claims under Song-Beverly. Felisilda is on-point binding authority.' Calendar No.: Event ID:  TENTATIVE RULINGS

3000429  30 CASE NUMBER: CASE TITLE:  ROSALES MAYORAL VS PERRY MOTORS OF NATIONAL CITY LLC  37-2021-00017552-CU-BC-CTL After a long and distinguished career on the bench, Judge Meyer retired in March 2023.

Then, in April 2023, the Second District Court of Appeal, Division 8, issued its opinion in Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, review granted July 19, 2023 (S279969). That case disagreed with Felisilda and held that Song-Beverly claims are not intimately founded in or intertwined with the sales contract. Rather, the claims are based upon the manufacturer vehicle warranties, which are independent of the sale contract. As such, the manufacturer may not compel arbitration based on the doctrine of equitable estoppel.

In the months that followed, the Second District Court of Appeal, Division 7, a different panel of the Third District Court of Appeal, and the First District Court of Appeal, Division 4, have all followed the lead of Ford Motor Warranty Cases and disagreed with Felisilda. (See Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958; Kielar v. Superior Court (2023) __ Cal.App.5th __ [2023 WL 5270559]; Yeh v. Superior Court (2023) __ Cal.App.5th __ [2023 WL 5741703].) As such, there has been a 'change of law.' Whereas the court was previously bound to follow Felisilda as the lone case on point, the court may now choose a side in this 4-1 split of authority. (See Auto Equity Sales, supra, 57 Cal.2d at p. 456.) The Fourth District Court of Appeal, Division 1, has not yet weighed in on this split, and the issue will eventually be resolved by the California Supreme Court. However, having reviewed all the opinions, the court finds Ford Motor Warranty Cases and its progeny to be better reasoned.

The motion for reconsideration is therefore granted. The May 13, 2022 order is vacated and the court enters a new order denying the motion to compel arbitration.

The court sets a case management conference for October 20, 2023 at 9:30am.

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