Superior Court of California

County of Los Angeles

Department 50

MELINDA LEBLANC, Petitioner, vs. KIA MOTORS AMERICA, INC., et al., Respondents.	Case No.:	19STCV21435
	Hearing Date:	March 9, 2023
	Hearing Time:	8:30 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT’S MARCH 13, 2020 ORDER SUSTAINING DEFENDANT’S DEMURRER AS TO THE SIXTH CAUSE OF ACTION FOR FRAUD

Background

On June 19, 2019, Plaintiff Melinda Leblanc (“Plaintiff”) filed this action against Defendant Kia Motors America, Inc. (“Kia”). The operative First Amended Complaint (“FAC”) was filed on November 14, 2019, and alleges causes of action for (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) of Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of express written warranty; (5) breach of the implied warranty of merchantability; and (6) fraud by omission.

On March 13, 2020, the Court issued an Order sustaining Kia’s demurrer to the fifth and sixth causes of action of the FAC, without leave to amend. The Court also granted in part and denied in part Kia’s motion to strike.

Plaintiff now moves for the Court to reconsider and reverse its March 13, 2020 Order with respect to its sustaining of Kia’s demurrer as to Plaintiff’s sixth cause of action.

Request for Judicial Notice

The Court grants Plaintiff’s request for judicial notice.

Discussion

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.”

“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. 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 quotations and citations omitted].)

Plaintiff asserts that the Court possesses authority under Code of Civil Procedure section 1008, subdivision (c) to reconsider the March 13, 2020 Order, in light of the Court of Appeal’s recent ruling in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828.[1] Specifically, Plaintiff asserts that the Court should reconsider and reverse the March 13, 2020 Order sustaining without leave to amend Kia’s demurrer to Plaintiff’s sixth cause of action for fraud by omission.[2]

The Court’s March 13, 2020 Order provides, inter alia, that “the Court declines to extend Robinson Helicopter to include claims for fraud by omission. Moreover, in the FAC, as with the original Complaint, there are no allegations of any affirmative misrepresentations made by Kia. Accordingly, the Court finds that the economic loss rule prevents [Plaintiff] from proceeding with the fraud by omission claim.” (March 13, 2020 Order at p. 3:20-24.)

In Dhital, the Court of Appeal “conclude[d] that, under California law, the economic loss rule does not bar plaintiffs’ claim here for fraudulent inducement by concealment. Fraudulent inducement claims fall within an exception to the economic loss rule recognized by our Supreme Court (Robinson, supra, 34 Cal.4th at pp. 989–990), and plaintiffs allege fraudulent conduct that is independent of Nissan’s alleged warranty breaches. The trial court erred by sustaining Nissan’s demurrer to plaintiffs’ fraud claim on the ground it was barred by the economic loss rule.” (Dhital v. Nissan North America, Inc., supra, 84 Cal.App.5th at p. 843.)

In the opposition, Kia notes that on February 1, 2023, the California Supreme Court granted Nissan North America, Inc.’s petition for review in Dhital. (See Dhital v. Nissan N. Am. (Cal. 2023) 523 P.3d 392, “[t]he petition for review is granted. 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…[t]he request for an order directing depublication of the opinion is denied.”)

Kia notes that pursuant to California Rules of Court, rule 8.1115, subdivision (e)(1), “[p]ending review and filing of the Supreme Court’s opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.”[3]

In light of the fact that the California Supreme Court has granted the petition for review in Dhital, the Court finds that Plaintiff’s instant motion for reconsideration is premature.

Conclusion

Based on the foregoing, Plaintiff’s motion for reconsideration is denied.

Kia is ordered to give notice of this Order.

DATED: March 9, 2023

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

[1]Plaintiff also cites to Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 179, where the Court of Appeal “conclude[d] that the trial court had inherent authority, derived from the California Constitution, to reconsider its earlier ruling, and its jurisdiction was not truncated by section 1008.” Plaintiff asserts that the Court thus possesses constitutional authority to reconsider the March 13, 2020 Order.

[2]The Court notes that in the motion, Plaintiff states that the sixth cause of action is for “fraudulent inducement by concealment.” However, the FAC alleges that the sixth cause of action is for “fraud by omission.” (See FAC, p. 22:18.)

[3]The Court notes that Plaintiff’s motion for reconsideration was filed on November 17, 2022, before the California Supreme Court granted the petition for review in Dhital on February 1, 2023.