Judge: Robert B. Broadbelt, Case: 21STCV32014, Date: 2023-04-20 Tentative Ruling

Case Number: 21STCV32014    Hearing Date: April 20, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Rina Morataya Gonzalez aka Rina Gonzalez

RESPONDING PARTY:       Defendant Kia America, Inc.

Motion for Reconsideration

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

DISCUSSION

Plaintiff Rina Morataya Gonzalez aka Rina Gonzalez (“Plaintiff”) moves the court for an order reconsidering and reversing its April 22, 2022 order sustaining the demurrer filed by defendant Kia America, Inc. (formerly known as Kia Motors America, Inc.) (“Defendant”) to Plaintiff’s fourth cause of action for fraudulent inducement – concealment.

On April 22, 2022, the court sustained Defendant’s demurrer to Plaintiff’s fraudulent inducement – concealment cause of action on the ground that it was barred by the economic loss rule.  (April 22, 2022 Order, p. 2:4-6.)  Plaintiff argues that there has been a change in law based on the Court of Appeal’s decision in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (“Dhital”) that warrants reconsideration of the court’s order pursuant to Code of Civil Procedure section 1008.

Plaintiff does not specify under which subdivision she moves for relief, but it appears that Plaintiff moves for relief under subdivision (c).  Even if Plaintiff made this motion pursuant to subdivisions (a) and (b), she would not be entitled to relief because (1) she did not file this motion within 10 days after service upon Plaintiff of written notice of entry of the court’s April 22, 2022 order, and (2) Plaintiff is not the “party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms,” since Defendant filed the underlying demurrer.  (Notice of Ruling on Defendant’s Demurrer filed by Defendant on May 2, 2022; Code Civ. Proc., § 1008, subds. (a), (b).)

Pursuant to Code of Civil Procedure section 1008, subdivision (c), “[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).)  “A ‘change of law’ under section 1008, subdivision (c), ‘is always an appropriate basis, up until a final judgment is entered, for changing an interim order….’  [Citations.]  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 [internal citations omitted].)

The court acknowledges that Dhital held that, under California law, the economic loss rule does not bar a plaintiff’s claim for fraudulent inducement by concealment.  (Dhital, supra, 84 Cal.App.5th at p. 843.)  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).)  

ORDER

The court denies plaintiff Rina Morataya Gonzalez aka Rina Gonzalez’s motion for reconsideration.

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

IT IS SO ORDERED.

DATED:  April 20, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court