Judge: Teresa A. Beaudet, Case: 21STCV45553, Date: 2024-01-08 Tentative Ruling

Case Number: 21STCV45553    Hearing Date: January 8, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Deanna Clark (“Plaintiff”) filed this lemon law action on December 14, 2021, against Defendant Hyundai Motor America (“Defendant”). The operative First Amended Complaint was filed on July 14, 2022, asserting 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, and (4) breach of the implied warranty of merchantability.

On October 26, 2022, the Court issued an Order in this matter granting Defendant’s motion to compel arbitration. The Court’s October 26, 2022 Order provides, inter alia, that “Defendant’s motion to compel arbitration is granted. The entire action is stayed pending completion of arbitration of Plaintiff’s arbitrable claims.” (October 26, 2022 Order at p. 11:6-7.)  

Plaintiff now moves the Court “to reconsider and reverse its Oct. 26, 2022, Order with respect to its granting of [Defendant’s]…Motion to Compel Binding Arbitration.” Defendant opposes. 

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 Court’s October 26, 2022 Order, in light of the recent Court of Appeal opinions Kielar v. Superior Court (2023) 94 Cal.App.5th 614 (Kielar), Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324 (Ochoa), Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958 (Montemayor), and Yeh v. Superior Court (2023) 95 Cal.App.5th 264 (Yeh).

The Court’s October 26, 2022 Order in the instant action on Defendant’s motion to compel arbitration provides, inter alia, as follows:

“As Defendant notes, this arbitration agreement is not materially different from the one examined in Felisilda. In this case, like the buyers’ claims in Felisilda, Plaintiff’s

 claims against Defendant ‘directly relate[] to the condition of the vehicle that [allegedly] violated warranties [Plaintiff] received as a consequence of the sales contract.’ Because Plaintiff ‘expressly agreed to arbitrate claims arising out of the condition of the vehicle — even against third party nonsignatories to the sales contract — [Plaintiff is] estopped from refusing to arbitrate [her] claim against [Defendant].’ As such, the Court must reach the same result here.” (October 26, 2022 Order at p. 5:20-6:2.)

In the instant motion, Plaintiff argues that the Court “should reconsider and deny [Defendant’s] Motion to Compel Binding Arbitration. Kielar, Ochoa, Montemayor, and Yeh squarely faced the issue of whether a manufacturer can compel arbitration through equitable estoppel. This Court should follow those cases, not Felisilda.” (Mot. at p. 8:22-24.)

As an initial matter, in the opposition, Defendant asserts that Plaintiff’s motion is procedurally improper. Defendant cites to Code of Civil Procedure section 1008, subdivision (a), which provides that “[w]hen 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.” Defendant asserts that “[h]ere, the Court’s Order granting Defendant’s motion to compel arbitration became the final Order of the Court October 26, 2022, making Plaintiffs’ motion untimely by over a year. Therefore, Plaintiffs’ Motion for Reconsideration should be denied as it is untimely under CCP section 1008(a).” (Opp’n at p. 1:15-18.) But as set forth above, Plaintiff relies on Code of Civil Procedure section 1008, subdivision (c) here.

Defendant also asserts that “section 1008(c) does not authorize any motion for reconsideration brought by a party. Instead, section 1008(c) is only available to a Court on its own motion. Clearly, Plaintiffs’ Motion is not a motion of the Court, and therefore, Plaintiff has no authority to bring this motion for reconsideration.” (Opp’n at p. 1:22-25, emphasis omitted.) But Defendant does not provide any legal authority in support of such argument.

Plaintiff cites to Int'l Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 784, 786, where “International Insurance Company sold several liability insurance policies to Rhone-Poulenc Basic Chemicals Company. In 1986, Rhone-Poulenc sued International over a coverage dispute about several third party environmental actions. In 1988, the coverage action was assigned to the Honorable G. Keith Wisot …. In 1990, International prevailed on a motion for summary adjudication of issues. In 1994, Judge Wisot retired and the coverage cases were assigned to the Honorable Valerie L. Baker. In 1996, Rhone-Poulenc moved for reconsideration of Judge Wisot’s summary adjudication order on the ground that two recent cases (Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal. 4th 645 [42 Cal. Rptr. 2d 324, 913 P.2d 878]; Homestead Ins. Co. v. American Empire Surplus Lines Ins. Co. (1996) 44 Cal. App. 4th 1297 [52 Cal. Rptr. 2d 268]) constituted a ‘change of law’ within the meaning of Code of Civil Procedure section 1008, subdivision (c)…In 1997, Judge Baker granted reconsideration and vacated Judge Wisot’s summary adjudication ruling.” “International filed a petition for a writ of mandate, contending Judge Baker had no jurisdiction to reconsider Judge Wisot’s ruling because there had not been a ‘change of law’ within the meaning of section 1008,” and the Court of Appeal denied the petition for a writ of mandate. (Id. at pp. 786, 788.)

In addition, in the motion, 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 October 26, 2022 Order. Defendant does not address this legal authority in the opposition.

As set forth above, Plaintiff asserts that the Court should reconsider the Court’s October 26, 2022 Order in light of the recent Court of Appeal opinions in Kielar, Ochoa, Montemayor, and Yeh.

The Court notes that on October 25, 2023, the California Supreme Court granted a petition for review in Kielar. ((See Kielar v. S.C. (Cal. 2023) 536 P.3d 1214, “[t]he petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Ford Motor Warranty Cases, S279969 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.”)

Similarly, on September 20, 2023, the California Supreme Court granted a petition for review in Montemayor. ((See Montemayor v. Ford Motor Co. (Cal. 2023) 535 P.3d 1, “[t]he petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Ford Motor Warranty Cases, S279969 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.”)
In addition, on November 15, 2023, the California Supreme Court granted a petition for review in Yeh. ((See Yeh v. S.C. (Cal. 2023) 537 P.3d 1151, “[t]he petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Ford Motor Warranty Cases, S279969 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.”)

On July 19, 2023, the California Supreme Court granted a petition for review in Ochoa. The California Supreme Court in Ford Motor Warranty Cases (Cal. 2023) 532 P.3d 270 noted that “[t]he issue to be briefed and argued is limited to the following: Do manufacturers’ express or implied warranties that accompany a vehicle at the time of sale constitute obligations arising from the sale contract, permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel? Pending review, the opinion of the Court of Appeal, which is currently published at 89 Cal.App.5th 1324, 306 Cal.Rptr.3d 611, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937, to choose between sides of any such conflict. (See Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.).”

In the motion, Plaintiff asserts that “[w]hile Ochoa is on review and may be cited only for its persuasive value, Ochoa, Montemayor, Kielar, and Yeh all squarely faced the equitable estoppel issue.” (Mot. at p. 9:3-4.) But as set forth above, review has also been granted in the Montemayor, Kielar, and Yeh cases. In addition, Plaintiff does not appear to assert that Ochoa and Felisilda are in conflict. To the contrary, Plaintiff asserts that “[t]here is a difference between the outcome in Felisilda, and the precedent in that case. While both cases deal with superficially similar issues regarding arbitration, Felisilda addresses a dealership’s motion to compel arbitration under its own contract of a single joint cause of action, whereas Montemayor and Ochoa and Kielar and Yeh address the manufacturer’s motions…The two cases are thus on different issues, and hence not in conflict.” (Mot. at p. 9:14-19.)

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.” Pursuant to California Rules of Court, rule 8.1115, subdivision (e)(3), “[a]t any time after granting review or after decision on review, the Supreme Court may order that all or part of an opinion covered by (1) or (2) is not citable or has a binding or precedential effect different from that specified in (1) or (2).”

In light of the fact that the California Supreme Court has granted the petitions for review in Ochoa, Kielar, Montemayor, and Yeh, the Court finds that Plaintiff’s instant motion for reconsideration is premature.  

Conclusion

Based on the foregoing, Plaintiff’s motion for reconsideration is denied without prejudice.

Plaintiff is ordered to give notice of this Order. 

DATED:  January 8, 2024                                                                             

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court