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In re Automobile Antitrust Cases I and II

California Court of Appeals, First District, Fourth Division

July 5, 2016

In re AUTOMOBILE ANTITRUST CASES I and II.

         City & County of San Francisco Judicial Council Coordination Proceeding Nos. 4298, 4303 Hon. Richard A. Kramer Trial Judge.

          Counsel for Respondents: Latham & Watkins, Margaret M. Zwisler, Gregory G. Garre, Jason L Daniels, Michael E. Bern, Katherine I Twomey, Adam R. Thomas.

          Counsel for Appellant: Zelle, Craig Carter Corbitt, Jiangxiao Athena Hou, Michael S. Christian, Saveri & Saveri, Guido Saveri, R. Alexander Saveri, Berman DeValerio, Joseph John Tabacco Jr., Todd A. Seaver, Matthew D. Pearson, Hausfeld, Michael Paul Lehmann, Michael D. Hausfeld, Christopher L. Lebsock, Cooper & Kirkham, Josef Deen Cooper, Tracy R. Kirkham, John D. Bogdanov, Berger & Montague, H. Laddie Montague, Jr., Lieff Cabraser Heimann & Bernstein, Michele Chickerell Jackson, Eric B. Fastiff, Cohen Milstein Sellers & Toll, Daniel A. Small, J. Douglas Richards, Kathleen M. Konopka, Emmy Levens, Alioto Law Firm, Theresa Driscoll Moore, Duane Morris, Paul S. Rosenlund, Blecher & Collins, Maxwell M. Bleecher, Harold Runkle Collins Jr., Zwerling, Schachter & Zwerling, Robert S. Schachter, Dan Drachler, Joseph S. Tusa, Amamgbo & Associates, Donald Chidi Amamgbo, The Terrell Law Group, Reginald Von Terrell, Blumenthal & Nordrehaug, Norman B. Blumenthal, Morris & Associates, Stephen Bryan Morris, John Haslet Boone, Chimicles & Tikellis, Steven A. Schwartz, Glancy, Binkow & Goldberg, Susan Gilah Kupfer, Lionel Zevi Glancy, John F. Innelli Schubert Jonckheer & Kolbe, Robert C. Schubert, Willem F. Jonckheer, Miranda Kolbe, Bramson, Plutzik, Mahler & Birkhaeuser, Alan Roth Plutzik, Kyle Loyd Crenshaw, Davis, Cowell & Bowe, Elizabeth Ann Lawrence, Philip F. Bowe, Finkelstein Thompson, Richard M. Volin, Rosemary Medellin Rivas, Green & Noblin, Robert Stanley Green, Gordon-Creed Kelley Holl & Sugerman, Kevin John Holl, James Dombroski, The Ekenna Law Firm, Chief Nnamdi Ekenna, Hagens, Berman, Sobol & Shapiro, Steve W. Berman, Anthony D. Shapiro, Elaine Teresa Byszewski, Hallisey & Johnson, Jeremiah F. Hallisey, Gross Belsky Alonso, Terry Gross, The Mogin Law Firm, Daniel Jay Mogin, Lisa J. Frisella Chad McManamy, Alexander Michael Schack, Lawrence Genaro Papale, Joseph M. Patane, Jeffrey Kenneth Perkins, Trump, Alioto, Trump & Prescott, Mario Nunzio Alioto, Reich Radcliffe, Marc Gene Reich.

          REARDON, J.

         In this coordinated proceeding, certain purchasers of new automobiles in California (plaintiffs) brought state law claims against a number of automobile manufacturers and dealer associations under the Cartwright Act (Bus. & Prof. Code, §§ 167201-6728) and the Unfair Competition Law (Bus. & Prof. Code, §§ 17200-17210). Specifically, the plaintiffs allege that the defendant manufacturers and associations conspired to keep lower-priced, yet virtually identical, new cars from being exported from Canada to the United States, thereby keeping new vehicle prices in California higher than they would have been in a properly competitive market. After years of litigation, the trial court granted summary judgment in favor of the two remaining defendants in the case-Ford Motor Company (Ford U.S.) and its subsidiary, Ford Motor Company of Canada, Ltd. (Ford Canada) (collectively, Ford)-concluding that the plaintiffs had failed to produce sufficient evidence of an actual agreement among Ford and the other manufacturers to restrict the export of new vehicles from Canada to the United States.

         On appeal, the plaintiffs challenge the trial court's grant of summary judgment in favor of Ford, arguing that the evidence presented in this case was more than sufficient to raise a triable issue of material fact as to the existence of an illegal agreement to curb exports. In addition, they claim that the trial court improperly excluded certain direct evidence of the alleged conspiracy. Based on our de novo review of this matter, we conclude that summary judgment was appropriately granted to Ford U.S. However, we agree with the plaintiffs that the admissible evidence presented was sufficient to demonstrate the existence of a material fact as to whether Ford Canada participated in an illegal agreement to restrict the export of automobiles from Canada to the United States in violation of the Cartwright Act.[1] We therefore reverse the trial court's grant of summary judgment in favor of Ford Canada.

         I. BACKGROUND

         A. Preliminary Matters

         This litigation began over a decade ago when, in early 2003, more than a dozen different lawsuits were filed in California against various automobile manufacturers and trade associations, each alleging state law causes of action for antitrust conspiracy and unfair business practices and each filed as a class action on behalf of individuals who purchased or leased new vehicles in California that were manufactured or distributed within a certain period of time by one of the named defendants. The lawsuits were eventually coordinated into this proceeding. (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 106 (Automobile Antitrust Cases).) Thereafter, in October 2003, the plaintiffs filed their consolidated amended class action complaint, the operative pleading in this matter.[2] In addition to Ford, the class action complaint named numerous other automobile manufacturers as defendants.[3] Also designated as defendants were the Canadian Automobile Dealers Association (CADA)-a trade organization that represents, promotes, and protects the interests of franchised automobile dealers in Canada-and the National Automobile Dealers Association (NADA), CADA's United States counterpart. (See ibid.) All told, the manufacturer defendants accounted for approximately 88 percent of automobile sales in the U.S. and Canada from 2001 to 2003. Sales by Ford, General Motors, and Chrysler-sometimes referred to as the "Big 3"-constituted approximately 67 percent of that market.

         As indicated above, the complaint alleges that the defendant automobile manufacturers and dealer associations violated state antitrust and unfair competition laws by conspiring to restrict the movement of lower-priced Canadian vehicles into the U.S. market, thereby avoiding downward pressure on new vehicle prices in the United States. According to the plaintiffs, during the timeframe relevant to this litigation, the defendant automobile manufacturers typically charged their California dealers between 10 and 30 percent more than they charged their Canadian dealers for the same make and model vehicle. Ford Canada, for example, estimated that a 2000 Model F350 Crewcab 4x4 DRW Lariat could be imported from Canada and sold at a price $8, 265 less than its United States counterpart ($29, 569 as opposed to $37, 834). Maintenance of this two-tiered pricing system required the continued segregation of the Canadian and U.S. automobile markets.

         Beginning in the 1990's, however, trade policy between the United States and Canada made exporting simpler and less expensive. Moreover, after the safety and environmental regulations governing new vehicles sold in the United States and Canada were harmonized between 1998 and 2000, the vehicles sold in the two countries became virtually identical.[4] Then, from at least 2001 through 2003, the currency exchange rate differential between the strong United States dollar and the cheaper Canadian dollar made export sales increasingly attractive. (See In re New Motor Vehicles Can. Export Anti. Lit. (1st Cir. 2008) 522 F.3d 6, 9-10.) Faced with this particularly advantageous arbitrage opportunity, [5] exporters began buying more and more Canadian vehicles and selling them in the United States to franchised dealers, dealers of another brand, independent dealers, and used car dealers. This created a discount distribution channel, or "gray market" for Canadian vehicles in the United States.[6]

         The plaintiffs claim that, in the face of this mounting activity by exporters, the manufacturer defendants illegally agreed that they would all hold firm, each doing their part to stamp out Canadian exports, rather than taking the profits available by permitting their Canadian dealers to sell Canadian cars freely into the U.S. market. According to the plaintiffs, this alleged conspiracy was created and implemented through a series of meetings and conference calls among the defendant manufacturers. These contacts were facilitated by a number of trade associations, including: CADA; the Canadian Vehicle Manufacturers' Association (CVMA), which represented the "key or leading" automobile manufacturers in Canada, including Ford Canada, Chrysler Canada, and GM Canada; and the Association of International Automobile Manufacturers of Canada (AIAMC), which represented international manufacturers such as Honda Canada, Toyota Canada, Nissan Canada, BMW Canada, and Volkswagen Canada.

         The plaintiffs further contend that the manufacturers used a variety of different tools to discourage the export of new Canadian vehicles to the United States, thereby furthering the goals of their conspiracy. By the late 1980's, for example, Ford had modified its Canadian dealer franchise agreements (generally Franchise Agreements) to forbid export sales. The Franchise Agreements of other manufacturers contained similar provisions. In addition, manufacturers created and frequently updated "blacklists" of entities known to export vehicles for resale so that their Canadian dealers could consult the lists and refrain from selling to those entities. Additionally, the manufacturers began tracking every vehicle's unique Vehicle Identification Number (VIN) to determine which new vehicles made for sale in Canada had actually been exported to the United States. Once an exported vehicle was traced back to the particular dealer who made the export sale, many Franchise Agreements allowed for the imposition of "chargebacks, " substantial fines (often in the thousands of dollars) paid by the dealer to the manufacturer. The manufacturers also imposed vehicle allocation restrictions on exporting Canadian dealers, and, at times, pursued termination of dealers engaged in the export trade. Ford, for example, initiated successful termination proceedings against a dealer that had a high incidence of export sales in 1999 and 2000.

         Some manufacturers also required their Canadian dealers to include "no export" clauses in their sales agreements, under which buyers, themselves, could be required to pay a penalty if the purchased vehicle was transferred to the United States within a designated period of time. Moreover, Canadian dealers were required to conduct a "due diligence" investigation of every buyer to identify potential exporters. If a Canadian car arrived in the United States despite the erection of these substantial barriers to export, manufacturers voided warranties for the repair of new vehicles exported from Canada, declined to provide information regarding recalls, and withheld certificates of origin from exporters. Distribution controls were also placed on the parts used to convert odometers from kilometers to miles.

         Although the cross-border sale of used vehicles began to skyrocket in 1999 and 2000 and continued at very high levels throughout the alleged conspiracy period, plaintiffs presented evidence that the manufacturers' multi-faceted attempt to restrict the export of new vehicles from Canada to the United States proved effective. In fact, export sales of new vehicles actually decreased during the alleged conspiracy period, despite circumstances amounting to a "perfect storm" for cross-border arbitrage. (Cf. In re New Motor Vehicles Can. Export Anti. Lit., supra, 522 F.3d at p. 10.) The plaintiffs maintain that cutting off this discount distribution channel allowed the defendant automobile manufacturers to sell or lease new cars in California, and indeed throughout the United States, at artificially inflated prices. Thus, according to the plaintiffs, class members paid more to buy or lease new vehicles during the conspiracy period than they would have in the absence of defendants' illegal agreement to restrict exports. The plaintiffs' expert estimates total class damages at $1.073 billion.

         During 2004 and into 2005, the trial court considered a number of preliminary motions filed by the defendants, including motions contesting personal jurisdiction and demurrers to the consolidated complaint. For example, the trial court concluded that it lacked personal jurisdiction over four of the nonresident defendants-Honda Japan, Volkswagen AG, Nissan Japan, and CADA-and thus granted their motions to quash service of summons. (In re Automobile Antitrust Cases, supra, 135 Cal.App.4th at p. 105.) We subsequently affirmed this determination on appeal. (Ibid.)

         In addition, a similar lawsuit had been filed in federal court against many of the same defendants, alleging violation of federal antitrust laws. (See In re New Motor Vehicles Canadian Export (D. Me. 2004) 307 F.Supp.2d 136, 137-138 (the federal multidistrict litigation or MDL).) Parallel cases were also pending in a number of other state courts. In June 2004, the trial court issued an order, after consultation with Judge Hornby-the judge in the federal MDL-coordinating discovery among this action, the federal action, and other state actions.

         The plaintiffs filed their motion for class certification in the instant matter in the Spring of 2005. Proceedings were stayed, however, while the parties conducted extensive coordinated discovery and litigated their class certification motion in the federal MDL.[7] Ultimately, in May 2009, the trial court granted plaintiffs' motion for class certification in this proceeding. The court defined the class generally as: "All persons and entities residing in California on the date notice is first published, who purchased or leased a new motor vehicle manufactured or distributed by a defendant, from an authorized dealer located in California, during the period January 1, 2001 through April 30, 2003, for their own use." We later denied defendant's petition for writ of mandate seeking review of the class certification order. (General Motors of Canada, Ltd. v. Superior Court (Aug. 13, 2009, A125424) [nonpub. order].)

         In the interim, Judge Hornby issued an opinion on July 2, 2009, in the federal MDL action, addressing the viability of the remaining state law damage claims. (In re New Motor Vehicles Canadian Export Litig., supra, 632 F.Supp.2d at pp. 42, 44-45.) Before the federal court were summary judgment motions from each of the remaining manufacturer defendants challenging the existence of a conspiracy and a joint summary judgment motion arguing lack of evidence of antitrust impact. (Id. at p. 45.) With respect to the conspiracy issue, Judge Hornby concluded that there "is probably enough evidence to reach a jury on whether the manufacturers had an illegal horizontal agreement." (Id. at p. 47.) Of particular interest here, the judge opined that this conclusion "is easiest for Ford and Chrysler; it is somewhat closer for GM because of disclaimer statements it made; it is closest of all for the Honda and Nissan entities because for them the evidence is almost entirely circumstantial." (Ibid., fns. omitted.) In the end, however, Judge Hornby did not finally decide the issue, because he concluded that the manufacturers were entitled to summary judgment on the issue of antitrust impact.[8] (Id. at p. 45.)

         While this litigation progressed in both state and federal courts, Toyota reportedly agreed to settle. Additionally, in 2009, both GM and DaimlerChrysler declared bankruptcy, effectively removing them from the case. Following these settlements and bankruptcies, the remaining defendants litigating this action were Ford, GM Canada, Nissan USA, and Honda.

         B. Ford's Summary Judgment Motion and Plaintiffs' Response

         In January 2010, Ford filed a motion for summary judgment, arguing that the plaintiffs could not prove on the evidence presented that Ford's conduct in restraining exports during the identified conspiracy period was more likely than not the result of an unlawful agreement rather than independent action.[9] Specifically, Ford advanced evidence that it had been independently combating the problem of what it termed "gray market exports" for decades prior to the designated conspiracy period and continued to do so during that period for the same legitimate business reason-that is, to preserve the integrity of its dealer distribution system. Given this non-conspiratorial explanation for its enforcement of export restraints, Ford argued that its conduct was as consistent with permissible competition as it was with unlawful conspiracy. Thus, summary judgment in its favor was appropriate. In addition, although Ford conceded that it had attended a number of meetings with other manufacturers during the conspiracy period at which possible joint action to combat the export problem was discussed, it asserted that no such joint action was ever taken as a result of those meetings. Indeed, Ford claimed that its actions to stop exports after these industry meetings clearly differed from the methods used by its competitors to combat exports, making it "impossible" for the plaintiffs to establish any kind of conspiracy among the defendants.

         In opposition to Ford's summary judgment motion, the plaintiffs contended that they had produced documentary and testimonial evidence showing that the defendants made a conscious commitment to a common scheme-the restraint of Canadian new vehicle exports to the United States-and thus summary judgment was inappropriate. Further, the plaintiffs suggested that the manufacturers' claimed "legitimate business reason" for their export restraints was likely pretextual given the economic realities of the situation. Specifically, according to plaintiffs' expert, absent an agreement among the manufacturers to block exports, all defendant manufacturers facing competition from Canadian exports would have maximized profits by lowering list prices in the United States rather than losing U.S. sales to competitors' Canadian exports. Finally, the plaintiffs' argued that it was irrelevant that the manufacturers did not impose the exact same export restrictions during the alleged conspiracy period. Rather, evidence that all of the manufacturers imposed some form of restraint during the relevant timeframe and that none chose to abandon their export controls in favor of quick profits was sufficient evidence of parallel conduct.

         C. The Summary Judgment Hearings and Decisions

         The trial court ultimately held a number of hearings on the four summary judgment motions before it which argued lack of an actionable conspiracy. After hearing on January 18, 2011, the trial court granted summary judgment motions in favor of Nissan USA and Honda. In particular, the trial court concluded that the evidence produced by the two manufacturers-including evidence of a legitimate business purpose for the challenged conduct, denials of wrongful behavior, and evidence of refusal to participate in meetings that might possibly have been viewed as conspiratorial-was sufficient to shift the burden to the plaintiffs to produce evidence of an issue of material fact regarding the existence of the alleged conspiracy. Although the trial court acknowledged that such a conspiracy was "in the economic self-interest of each of the defendants, perhaps, " it did not find this fact probative of the existence of an impermissible agreement among the parties, which it deemed "the heart" of any Cartwright Act claim. Nor did it find evidence of shared warranty policies or of the "stepping up" of anti-export activities after the date of the alleged conspiracy particularly relevant to the existence of an actionable agreement. In sum, since the evidence submitted by the plaintiffs was "not sufficient to raise a plausible inference that either Honda or Nissan USA entered into an agreement with any competitor to restrict export sales from Canada, " the trial court granted both parties' summary judgment motions.

         The trial court next turned to the summary judgment motions of Ford and GM Canada. At a hearing on January 24, 2011, the court discussed its tentative decision to deny the summary judgment motions of both manufacturers. As with Honda and Nissan USA, the trial court concluded that the evidence produced by Ford and GM Canada-including evidence of a legitimate business purpose behind the conduct at issue, denials of any wrongful behavior, and refusals to participate in certain joint export activities-was sufficient to shift the burden to the plaintiffs to establish an issue of material fact regarding the existence of the alleged conspiracy. In the case of Ford and GM Canada, however, the trial court initially believed that the plaintiffs had satisfied their burden, creating a material issue of fact with respect to the existence of an unlawful agreement to restrict exports in violation of the Cartwright Act. As the court framed the issue, the crucial question was whether the manufacturers acted independently to restrict exports or whether they agreed "to take steps in concert to reduce the flow of cars."

         In response, Ford first maintained that there was no evidence that Ford U.S. "conspired with anyone in Canada to do anything." Ford further asserted that, with respect to Ford Canada, the evidence established, at most, that the manufacturer attended meetings and conference calls at which possible solutions to the export problem were discussed. But, according to Ford, no agreement with respect to any particular joint course of action was ever reached. Rather, Ford strenuously claimed, the evidence established that it had been taking unilateral action to curb exports for 15 years, and there was no evidence that its actions changed in any way during the period of the alleged conspiracy. GM Canada made similar arguments, stressing its repeated refusals, when asked, to engage in meetings or any kind of joint activity. After argument, the trial court directed the plaintiffs to submit a summary of their conspiracy evidence.

         While these summary judgment proceedings were pending, however, GM Canada agreed to settle its four remaining state court actions, including this California proceeding. This left Ford U.S. and Ford Canada as the sole remaining defendants in the case. At the continued hearing on May 10, 2011, the plaintiffs reviewed the evidence they believed supported the existence of an unlawful agreement to restrain exports. Ford then challenged the plaintiffs' evidence and conclusions. In the end, the trial court authorized certain additional filings and indicated that it would take the matter under submission as of July 8, 2011.

         Thereafter, by order dated November 4, 2011, the trial court granted the summary judgments motions of both Ford U.S. and Ford Canada.[10] Specifically, the trial court found that the evidence produced by the two manufacturers was sufficient under Aguilar, supra, 25 Cal.4th 826, to shift the burden to the plaintiffs to produce evidence of an issue of material fact regarding the existence of the alleged conspiracy. However, contrary to its earlier tentative ruling, the trial court now determined that the plaintiffs had failed to satisfy this burden.

         In particular, the trial court concluded that while Ford "met at different times with other alleged co-conspirators and discussed their common problem of the importation of cars from Canada to the United States, ... such discussion of a common problem by itself is not a violation of the Cartwright Act." Further, the trial court opined that, where there was insufficient evidence of an agreement, evidence that information was exchanged among alleged co-conspirators, or that some alleged co-conspirators "stepped up" their efforts to restrict exports after the start of the alleged conspiracy period, was not enough to carry plaintiffs' burden. Finally, the trial court stated that the evidence presented by the plaintiffs regarding the alleged co-conspirators' motive and economic interest to conspire was insufficient, standing alone, to satisfy the plaintiffs' burden of production. In sum, under Aguilar, "[t]here was no evidence to support a conclusion that it was more likely than not that [Ford U.S.] and/or Ford Canada entered into an agreement with any other alleged co-conspirator."

         Final judgment was entered with respect to Ford U.S. on January 9, 2012, and with respect to Ford Canada on January 13, 2012. The plaintiffs' timely notice of appeal again brought the matter before this court.

         II. EVIDENTIARY ISSUES

         We first address the plaintiffs' challenge to two evidentiary rulings made by the trial court in connection with the summary judgment motion here at issue. Specifically, the plaintiffs contend that, in making its summary judgment determination, the trial court erred in refusing to consider on hearsay grounds certain deposition testimony of Pierre Millette, general counsel for Toyota Canada, regarding a May 15, 2001, CADA meeting, as well as the minutes of that meeting that were prepared by a CADA employee. The hearsay rule is easily articulated: Hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) It is generally inadmissible, absent a recognized exception to the rule. (Id., § 1200, subd. (b); see also People v. Seumanu (2015) 61 Cal.4th 1293, 1307 (Seumanu) [" ‘[h]earsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity, and because the jury (or other trier of fact) is unable to observe the declarant's demeanor' "].)

         Of course, when dealing with the hearsay rule, the devil is in the details of its application to the facts of a particular case. As we review the trial court's treatment of the alleged hearsay in this matter, we note that there is some dispute regarding our standard of review for such determinations. "[T]he weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 (Carnes); see also Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852.) However, in Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid), our high court acknowledged the argument that a different rule should apply when evidentiary rulings are made in the context of a summary judgment motion: " ‘Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.' " (Id. at p. 535, quoting the appellate court opinion). Ultimately, the Reid Court concluded that it "need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo." (Ibid.; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4 (Nazir) [observing that the standard of review is unsettled].)

         Similarly, we will not here resolve this outstanding issue, as our conclusions are sound under either theory. (See In re R.T. (2015) 232 Cal.App.4th 1284, 1301 [a court abuses its discretion when it applies an incorrect legal standard]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281 [an evidentiary ruling that " ‘ "transgresses the confines of the applicable principles of law" ' " is an abuse of discretion].) With respect to the consequences of our evidentiary review, however, we will follow the tenet-correctly pointed out by both parties-that the erroneous exclusion of evidence by the trial court is not grounds for reversal unless we also determine that the error was prejudicial. (Evid. Code, § 354, subd. (a) [judgment shall not be reversed due to the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice]; see also Cal. Const., art. VI, § 13 [same]; Carnes, supra, 126 Cal.App.4th at p. 694 [citing the constitutional provision].) Thus, the plaintiffs must demonstrate that, absent the error, "a different result would have been probable." (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317 (Pannu).) With these standards in mind, we turn to the particular evidence excluded by the trial court in this case.

         A. The Millette Deposition Testimony

         During his March 2007 deposition, Pierre Millette of Toyota Canada was questioned about the May 15, 2001, CADA meeting which he attended along with representatives of Ford Canada, AIAMC, CVMA, GM Canada, Chrysler Canada, CADA, and various local dealer associations. Both Ford and Ford Canada objected on hearsay grounds to the following colloquy between counsel for the plaintiffs and Millette: "Q. Did CADA indicate that they would not support dealers who were involved in regular exporting of vehicles from Canada to the United States? [¶] [Objection.] [¶] A. I can remember comments being made that everyone supported the concept of trying to keep the vehicles in Canada, but who said what, on a general basis, I can't help you there. [¶] [Answer read back.] [¶] And that was your understanding that there was a general consensus that the vehicles would be kept in Canada, not be exported from Canada to the United States? [¶] [Objection.] [¶] A. There was general support for the approach."

         Later in the deposition, counsel for Ford elicited this additional testimony from Millette, which it now also claims is inadmissible hearsay: "Q. Okay. Was there any agreement, at that meeting or any time, to work together to keep vehicles in Canada? [¶] A. I think that would be characterizing it as a little more than what it was. It wasn't an agreement. It was simply a concept that there was some consensus on from everyone at the meeting." As Ford correctly notes, this discussion was immediately followed by an additional exchange to which no objection has been lodged. Specifically Ford's attorney queried: "Just to be clear in my question, did the participants in the meeting ever agree to work together to keep vehicles in Canada?" Millette responded: "No, absolutely not."

         At the summary judgment hearing on January 24, 2011, after reference by GM Canada to Millette's statements, the trial court responded: "I intentionally left out references to Mr. Millette. I still haven't sorted out in my mind to what extent, assuming Mr. Millette didn't testify at trial, anything that Mr. Millette said is admissible for any purpose." However, when discussing the Millette testimony at the continued hearing on May 10, 2011, in response to Ford's hearsay objection, the trial court stated: "I don't know if any of this is hearsay. It's all his understanding of what happened. No out-of-court statement offered for the truth. It's just what his understanding was."

         Later in the hearing, plaintiffs' counsel and the trial court had an extended discussion regarding the admissibility of the Millette testimony. According to counsel for the plaintiffs, the hearsay rule was not implicated by the deposition testimony because "there are no other out-of-court statements here with the exception of Mr. Millette's testimony itself. There's no other-he is a percipient witness at a meeting. He perceives what happens at the meeting. He takes away an understanding of that. He is competent to testify about what he perceived at the meeting, that where before there wasn't a consensus and now there was, there was a consensus to keep the cars in Canada, to paraphrase Mr. Millette. He's not reporting about anything anyone else said." Again, the trial court seemed to agree, stating: "Well, that's what I think-my present view of that is that he is giving his understanding of what happened and that this is not hearsay." Nevertheless, when the trial court issued its written ruling on Ford's evidentiary objections in connection with its grant of summary judgment, the court sustained Ford's hearsay objections to both of the Millette deposition excerpts.

         Initially, in considering the potential hearsay nature of the Millette statements, we note that Ford is not arguing that the challenged testimony is inadmissible hearsay because it is out-of-court deposition testimony. And, indeed, pursuant to section 2025.620 of the Code of Civil Procedure (section 2025.620), "[a]t the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition... so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness...." (See id., subd. (c)(1) [deposition testimony may be used "for any purpose" where deponent resides more than 150 miles from the place of the trial]; see also Code Civ. Proc., § 437c, subd. (b)(1) [listing depositions among the documentation appropriate for use in support of a summary judgment motion].) Moreover, in accordance with section 1291 of the Evidence Code (section 1291), "former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]... [¶] [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a)(2).) As with section 2025.620 testimony, however, the admissibility of former testimony under section 1291 is generally "subject to the same limitations and objections as though the declarant were testifying at the hearing." (Evid. Code, § 1291, subd. (b).) Thus, the question before us is whether Millette's testimony would constitute inadmissible hearsay if he were testifying as a witness in court.

         Ford argues that the Millette statements at issue are indeed inadmissible on this basis because they "conveyed" hearsay. Specifically, according to Ford, when the testimony is read in context, it is "clear Millette was describing statements made by the other participants in the meeting." Ford contends that these out-of-court statements of other declarants are hearsay, and no exception to the hearsay rule has been offered justifying their admission. We disagree. None of the challenged testimony purported to recount "a statement, " let alone to prove what was "stated."[11] Millette was not reporting particular statements made by particular participants. Rather, he was simply recounting generally his impressions and conclusions based on his participation in the meeting. This is not hearsay, and the trial court erred in concluding that it was.[12]

         The more difficult question, however, is whether the trial court's evidentiary error was prejudicial such that it provides grounds for reversal of the court's grant of summary judgment in favor of Ford. (See Evid. Code, § 354, subd. (a); see also Carnes, supra, 126 Cal.App.4th at p. 694.) As stated above, to make a finding regarding prejudice we must determine whether, absent the error, " ‘a different result would have been probable.' " (Pannu, supra, 191 Cal.App.4th at p. 1317.) In our view, this determination rests on two separate lines of inquiry. First, we must consider whether the Millette statements-improperly excluded on hearsay grounds-are otherwise admissible. Next, if they are admissible, we must resolve whether it is reasonably probable that their admission would have changed the outcome.

         With respect to the admissibility of Millette's statements, the plaintiffs argue that the testimony is admissible nonhearsay because it was based on his "personal knowledge, which he gained from having participated in the May 15, 2001 meeting (and other conspiratorial meetings) on behalf of Toyota, alongside executives from Ford, GM, Chrysler and CADA." While this makes him competent to testify as to facts he personally observed, it does not necessarily make admissible his inferences drawn from those facts. Rather, "[t]he opinion rule, which often rejects testimony of a competent witness because of the form in which the testimony is given, is distinct from the knowledge rule, which lays down a requirement of competency of witnesses. A witness is not competent to testify on a matter-either as to facts or opinions-if the witness lacks personal ...


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