Judge Upinder S. Kalra, Case Number: 21STCV06984, Date: 2023-11-09 Tentative Ruling

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RESPONDING PARTY(S): Plaintiff Ana Gonzalez, individually and as Successor-in-Interest to Victor Gonzalez

1. Reconsideration of the court’s prior ruling Quashing Service of Summons on Specially-Appearing Defendant Cosentino Group, S.A.

On September 23, 2021, Plaintiffs Victor Gonzalez and Ana Gonzalez (Plaintiffs) filed a Complaint with six causes of action for: (1) Negligence, (2) Strict Liability – Warning Defect, (3) Strict Liability – Design Defect, (4) Fraudulent Concealment, (5) Breach of Implied Warranties, and (6) Loss of Consortium.

On November 21, 2021, the court appointed Ana Gonzalez as the Successor-In-Interest of her deceased husband Victor Gonzalez.

On November 1, 2022, Plaintiff Ana Gonzalez, individuals and as Successor- In-Interest to Decedent Victor Gonzalez (Plaintiff) filed a Second Amended Complaint (SAC) for survival, wrongful death and loss of consortium and also for five causes of action: (1) Negligence, (2) Strict Liability – Warning Defect, (3) Strict Liability – Design Defect, (4) Fraudulent Concealment, and (5) Breach of Implied Warranties.

According to the SAC, Decedent Victor Gonzalez (Decedent) was exposed to products at work that contained silica, metals and other toxins which caused his silicosis and his death. Decedent worked with granite, marble, stone, and artificial stone counters from 1988 to 2019. Decedent died on September 13, 2021.

On October 12, 2023, Specially-Appearing Defendant Consentino Group, S.A. (Cosentino) filed a motion to quash service of summons which the court GRANTED on December 5, 2023.

On March 25, 2024, Plaintiff filed a reply (labeled as a supplemental memorandum of points and authorities).

“(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order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 an 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.

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

Plaintiff requests the court to exercise its discretion to reconsider its prior ruling granting Cosentino’s motion to quash service of summons or, alternatively, that it should reconsider its prior ruling in light of Division 4’s and Division 7’s denial of two separate writ applications by Cosentino as constituting new law.[1] Among other arguments, Cosentino argues that the court is not bound by the unpublished orders issued by the Court of Appeal in other cases.[2]

“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 (Flynn).) “[D]enial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ.” (Kowis v. Howard (1992) 3 Cal.4th 888, 891 (Kowis).[3]) When the Court of Appeal summarily denies a writ petition with a brief supporting station, it does not decide a cause. (Id. at p. 894.) Indeed, “[a] short statement or citation explaining the basis for the summary denial does not transform the denial into a decision of a cause entitled to law of the case effect.” (Id. at p. 895.)

Here, there is no new law warranting reconsideration of the court’s prior ruling under CCP 1008(b) and the court declines to exercise its discretion to reconsider its prior ruling under CCP 1008(c). First, as noted in Kowis, the two summary writ denials identified by Plaintiff are not the law of the case in their respective cases. (Kowis, supra, at p. 893-895.) Second, even if they were, the court is unaware of authority implicating denial of a writ petition in a separate case as binding on another case.[4] As such, Plaintiff has not identified new law impacting the court’s prior ruling granting Cosentino’s motion to quash.

[1] Plaintiff cites authority for how the court should treat new law but provides no authority, or analysis, that the denied writs are “’new law’ entitling Plaintiff to seek reconsideration of the court’s order granting Cosentino’s motion to quash.” (Mot. 5:13-15.) The same applies to Plaintiff’s conclusion that the writ denials constitute “a change in the law.” (Mot. 6:9-14.)

[2] The court declines to develop those other arguments at this time.

[3] The Kowis Court also discussed the law of the case doctrine. (Kowis, supra, at p. 893.) Here, however, Plaintiff asks this court to apply a law of the adjacent case doctrine.

[4] What is more, the court disregards unreported authority. (Cal. Rules of Court, Rule 8.1115.) To the extent Plaintiff requests judicial notice of the Supreme Court’s denial of Cosentino’s writ petition, Plaintiff failed to comply with California Rules of Court, Rule 3.1113(l). Additionally, Plaintiff concedes that it would not be precedential. (Supp. Memorandum 4:13-15.)