Judge: Robert B. Broadbelt, Case: 20STCV20387, Date: 2023-04-10 Tentative Ruling

Case Number: 20STCV20387    Hearing Date: April 10, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Mauro Mirante        

RESPONDING PARTY:       Defendant Kia America, Inc. (f/k/a Kia Motor Americas, Inc.)  

Motion for Reconsideration

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court grants plaintiff Mauro Mirante’s request for judicial notice.  (Evid. Code, § 452, subd. (d).)

DISCUSSION

Plaintiff Mauro Mirante (“Plaintiff”) moves the court for an order reconsidering and reversing its March 25, 2022 order sustaining the demurrer filed by defendant Kia Motors America (“Defendant”) to Plaintiff’s fourth cause of action for fraudulent inducement—concealment and fifth cause of action for fraudulent inducement—intentional misrepresentation. On March 25, 2022, the court issued its order (1) sustaining Defendant’s demurrer to the fourth cause of action for fraudulent inducement—concealment on the ground that it was barred by the economic loss rule, and (2) sustaining Defendant’s demurrer to the fifth cause of action for fraudulent inducement—intentional misrepresentation on the ground that the Complaint failed to allege facts establishing the elements of reliance and damage with the specificity required for a fraud cause of action.  (Mar. 25, 2022 Order, pp. 2:6-8, 3:1-5.)  

Plaintiff appears to bring this motion pursuant to Code of Civil Procedure section 1008, subdivision (c).  Under this provision, “[i]f 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.”  (Code Civ. Proc., § 1008, subd. (c).)  The court notes that, even if Plaintiff requested relief pursuant to Code of Civil Procedure section 1008, subdivisions (a) and (b), Plaintiff would not be entitled to relief under those provisions because (1) this motion was not brought “within 10 days after service upon [Plaintiff] of written notice of entry of the order” subject to the motion (i.e., the court’s March 25, 2022 order), and (2) Plaintiff is not the “party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms,” since Defendant filed the demurrer that is the subject of the motion for reconsideration.  (Code Civ. Proc., § 1008, subds. (a), (b); Def. Notice of Ruling on Demurrer, filed March 30, 2022.)  

The court finds that there has not been a change of law that warrants it to reconsider its prior order and therefore denies Plaintiff’s motion.  (Code Civ. Proc., § 1008, subd. (c).)

Here, Plaintiff contends that the Court of Appeal’s decision in Dhital v. Nissan North America (2022) 84 Cal.App.5th 828 (“Dhital”) constitutes a change of law that warrants reconsideration of the court’s order.  (Mot., p. 4:1-4.)  “An appellate decision published during an action’s pendency may be a change of law under section 1008, subdivision (c), and requires a trial court to reconsider its earlier ruling if the decision materially changed the law.”  (State of California v. Superior Court (Flynn) (2016) 4 Cal.App.5th 94, 100.)

The court acknowledges that Dhital held that the economic loss rule does not bar a claim for fraudulent inducement by concealment.  (Dhital, supra, 84 Cal.App.5th at p. 832.)  However, the California Supreme Court has granted the petition for review of Dhital.  (Dhital v. Nissan North America, reviewed granted February 1, 2023, S277568.)  Thus, while review is pending, Dhital “has no binding or precedential effect, and may be cited for potentially persuasive value only.”  (Cal. Rules of Ct., rule 8.1115, subd. (e)(1).)  The court finds that, because the Dhital ruling has no binding or precedential effect, it has not “materially changed the law.”  (State of California (Flynn), supra, 4 Cal.App.5th at p. 100.)  The court therefore denies Plaintiff’s motion.  (Code Civ. Proc., § 1008, subd. (c).)

Finally, the court also notes that, even if Dhital represented a material change of the law regarding the application of the economic loss rule to claims for fraudulent inducement by concealment, the court’s March 25, 2022 order did not sustain the demurrer to the fifth cause of action for fraudulent inducement—intentional misrepresentation on the ground that it was barred by the economic loss rule.  (Mar. 25, 2022 Order, p. 4:1-5.)  Instead, the court sustained the demurrer to this cause of action on the ground that Plaintiff failed to allege facts establishing the elements of reliance and damages with the specificity required by California law.  (Ibid.)  Dhital did not address the sufficiency of a cause of action for fraudulent inducement based on affirmative misrepresentations.  (Dhital, supra, 84 Cal.App.5th at p. 832 [plaintiffs appealed court’s order sustaining a demurrer to fraudulent inducement claim based on fraudulent concealment].)  Thus, the Dhital ruling—even if it were binding on the trial court—would not represent a change of the law impacting the court’s ruling on the fifth cause of action for fraudulent inducement—intentional misrepresentation.

ORDER

The court denies plaintiff Mauro Mirante’s motion for reconsideration.

The court orders defendant Kia America, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 10, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court