Judge: Melvin D. Sandvig, Case: 22CHCV01212, Date: 2023-11-28 Tentative Ruling

Case Number: 22CHCV01212    Hearing Date: November 28, 2023    Dept: F47

Dept. F47

Date: 11/28/23

Case #22CHCV01212

MOTION FOR RECONSIDERATION

Motion filed on 8/14/23.

MOVING PARTY: Plaintiff Martha Villezcas

RESPONDING PARTY: Defendant Nissan North America, Inc.

NOTICE: ok

RELIEF REQUESTED: An order reconsidering the Court’s 4/6/23 order granting Defendant Nissan North America, Inc.’s motion to compel arbitration and stay this action during the pendency of the arbitration.

RULING: The motion is denied. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiff Martha Villezcas’ (Plaintiff) purchase of a used 2020 Nissan Versa on 5/10/22 (the Vehicle) pursuant to a “Retail Installment Sales Contract – Simple Finance Charge (With Arbitration Provision)” (the Contract/RISC) Plaintiff entered with Nissan of Mission Hills.  (Complaint ¶7).  The RISC was for the sale of a warranted vehicle.  Id.  Plaintiff contends that the Vehicle is defective and Defendant Nissan North America, Inc. (Nissan) has been unable to service or repair the Vehicle to conform to the applicable express warranties contained in the RISC after a reasonable number of opportunities.  Plaintiff further contends that despite the foregoing, Nissan has failed to promptly repurchase the Vehicle as required under the Song-Beverly Act.  (Complaint ¶¶14-20).     

As a result, on 11/21/22, Plaintiff filed this action against Nissan for: (1) Violation of the Song-Beverly Warranty Act – Breach of Express Warranty and (2) Violation of Song-Beverly Act – Section 1793.2.  On 12/28/23, Nissan filed an Answer to the Complaint. 

On 4/6/23, this Court granted Nissan’s motion to compel arbitration and stay this action during the pendency of the arbitration.  (See 4/6/23 Minute Order).  On 8/14/23, Plaintiff filed and served the instant motion seeking an order reconsidering the Court’s 4/6/23 order.  Nissan has opposed the motion and Plaintiff has filed a reply to the opposition. 

ANALYSIS 

Plaintiff’s Request for Judicial Notice (RJN) is granted.

CCP 1008 provides, in part:

“(a) 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.

(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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(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.”

Plaintiff concedes that the instant motion is not timely under CCP 1008(a).  (See Motion, p.6:22-23; Reply, p.2:4-5).  Since the motion was not made within 10 days after service of written notice of entry of the order on the prior motion to compel arbitration, relief cannot be granted under CCP 1008(a).  Plaintiff could have timely sought reconsideration of this Court’s 4/6/23 order as the decision in the Ford Motor Warranty Cases (Ochoa) was handed down on 4/4/23, after the final briefing on the motion to compel arbitration in this case was completed.  See Ford Motor Warranty Cases (Ochoa, et al.) (2023) 89 CA5th 1324.  In denying Plaintiff’s request for a continuance of the hearing on the motion to compel arbitration based on a claim that the California Second District Court of Appeal would be conducting a hearing on 3/30/23 in the Ford Motor Warranty Cases that would address the issues presented by the motion to compel arbitration, the Court noted that if a change in the law occurred within the time period set forth in CCP 1008(a), Plaintiff was free to seek reconsideration of the ruling.  (See 4/6/23 Minute Order, p.6).  Plaintiff inexplicably waited more than four months to file and serve the instant motion.    

Relief also cannot be granted under CCP 1008(b) as Plaintiff did not originally make the application which she now seeks to have the Court reconsider. 

Case law provides that even without a change of law, a court has the inherent power to reconsider its prior orders on its own motion.  LeFrancois (2005) 35 C4th 1094, 1096-1097; In re Marriage of Barthhold (2008) 158 CA4th 1301, 1309; See also CCP 1008(c). 

The Court declines to reconsider its 4/6/23 order based on its inherent authority to do so.  See CCP 1008(c); LeFrancois, supra; Marriage of Barthhold, supra.  The Court finds it debatable whether the Ford Warranty Cases and the subsequent cases cited by Plaintiff which rely on the same reasoning constitute a change in law rather merely conflicting opinions.  Since the time the decision in the Ford Warranty Cases was handed down by the Second Appellate District, this Court may find it, and the subsequent cases which rely on the same reasoning, more persuasive on the issues presented in the underlying motion to compel arbitration.  However, at the time the papers were filed and considered in relation to Nissan’s motion to compel arbitration in this case, Felisilada (2020) 53 CA5th 486 was the most on point and controlling appellate decision on the issue.  Therefore, the Court finds that it was appropriate to follow Felisilada and grant the motion to compel arbitration and stay this action for the reasons set forth in the 4/6/23 ruling.  (See 4/6/23 Minute Order).      

CONCLUSION

Based on the foregoing, the motion is denied.