Ford Motor Company v. The Superior Court of Los Angeles County, Jose Luis Aguilar, Real Party in Interest

SUMMARY

Code of Civil Procedure section 404.1 governs the

conditions for coordination of civil actions.1 In February 2016, a

coordination motion judge found that a coordination proceeding

was appropriate for approximately 470 cases filed in nine

California counties. Six months later, the judge assigned as the

coordination trial judge for those cases, applying the same

statutory factors, refused to add to the coordination proceeding

467 substantively indistinguishable cases in the same counties,

most of which had been recently filed.

In this writ proceeding, we conclude a trial judge’s order

declining to add cases to a coordination proceeding, like the

coordination motion judge’s original order, is subject to our

independent review. We further conclude the trial court erred in

refusing to add the cases to the proceeding. Accordingly, we

grant the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2015, Ford Motor Company filed a petition for

coordination of more than 775 cases in which plaintiffs in 44

counties across the state had sued Ford. The actions alleged Ford

breached warranties with respect to cars equipped with the

“DPS6 transmission” (Ford Fiesta model years 2011-2015 and

Ford Focus model years 2012-2015). Ford contended the cases



1 Further statutory references are to the Code of Civil

Procedure.

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met the criteria for coordination described in section 404.1 and

court rules. Section 404.1 states:

“Coordination of civil actions sharing a common question of

fact or law is appropriate if one judge hearing all of the

actions for all purposes in a selected site or sites will

promote the ends of justice taking into account whether the

common question of fact or law is predominating and

significant to the litigation; the convenience of parties,

witnesses, and counsel; the relative development of the

actions and the work product of counsel; the efficient

utilization of judicial facilities and manpower; the calendar

of the courts; the disadvantages of duplicative and

inconsistent rulings, orders, or judgments; and, the

likelihood of settlement of the actions without further

litigation should coordination be denied.”

By order dated February 4, 2016, the coordination motion

judge (Hon. Emilie Elias) found that a coordination proceeding

was “proper and would benefit the goals of the Coordinated

Cases” as to approximately 470 of the 775 cases, in nine (mostly

southern) of the 44 counties. Judge Kenneth R. Freeman was

designated the coordination trial judge, and the Second Appellate

District was selected as the Court of Appeal.

Several plaintiffs sought a writ of mandate overturning the

coordination order, describing the coordinated cases as “simple

breach of warranty cases brought under California’s lemon law—

the Song-Beverly Consumer Warranty Act—that happen to have

a common defendant-manufacturer. . . .” We summarily denied

the writ petition on April 6, 2016.

The coordination trial judge issued an order on April 27,

2016, staying the coordination proceeding until the initial status

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conference. In a letter from court counsel, we were advised the

stay is still in place and has not been modified.

In May 2016, Ford filed a petition to add 467 similar cases,

most of which had been recently filed, to the coordination

proceeding. These “add-on” cases consisted of “(1) 408 recently

filed cases served around or after the time Ford identified actions

to include in its original Petition for Coordination filed on

December 7, 2015 to the present; (2) 50 cases Ford inadvertently

not included [sic] in the original petition; and (3) 9 cases

previously excluded from Ford’s original Petition due to a preApril

15, 2016 trial date, which trial dates have since been

continued.” (Ten days later, Ford withdrew 35 cases from the

add-on cases as having been “settled and/or dismissed or

otherwise should be withdrawn . . . .” As of March 7, 2017,

approximately 254 of the cases subject to the add-on petition had

been settled or dismissed.)

Ford declared that all the add-on cases “assert a claim for

breach of warranty regarding the 2011-2015 model-year Ford

Fiesta and 2012-2015 model-year Ford Focus vehicles equipped

with the DPS6 transmission,” and were pending in one of the

nine counties identified in Judge Elias’s coordination order. Ford

asserted coordination was appropriate because the add-on cases

“involve similar allegations and the same named defendant,

Ford,” and coordination would advance the convenience of the

parties, witnesses and counsel, conserve judicial resources and

avoid the risk of duplicative or inconsistent rulings, orders, and

judgments.

At an initial status conference on June 15, 2016, the court

continued the add-on motion to July 8, 2016, and ordered the

parties to file a joint report on case categories, a discovery plan,

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views on a protective order, and a proposed case management

plan. The court stated it needed to know how many of the cases

“are products liability cases versus Lemon Law cases.” One of

plaintiffs’ counsel responded that there were “Lemon Law, SongBeverly,

warranty and fraud cases,” but “I don’t think there are

any product cases.” The chart prepared for the July 8, 2016

status conference confirmed there were no products liability cases

already under coordination or among the add-on cases. The

status conference set for July 8, 2016, was continued to July 29,

2016.

The court issued a tentative ruling denying Ford’s petition

for coordination of the add-on cases. At the hearing, the court

summarized its reasoning this way:

“All right. So here is the problem.

“We have all these Lemon Law cases against Ford,

and the Lemon Law cases are individual consideration

cases. [¶] Has Ford had an opportunity to correct the

defect? How many times has the car been taken to the

dealer? Who is the defendant? Is it the dealer who failed

to maintain or is it the Ford Motor Company that in some

way created a defective vehicle, a lemon? [¶] So what you

have is you have every case is different.

“Yes, there can be one common protective order, but

you don’t need a complex court for that.

“And so because every case is different, the Court

can’t manage these cases in the way that the complex

courts generally manage.

“If we have a series of cases that can be managed by

the Court, cases with a common—for example, if this were

a products liability case we could suspend any discovery on

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anything other than the specific defects and then Ford

could have discovery in that one area. We could determine

whether there was some sort of design defect in this

transmission.

“The Court commonly handles multiple plaintiff tort

cases where the torts are all the same. [¶] The Court

commonly handles class actions where, you know, you have

CLRA claims, fraud claims, although fraud doesn’t

generally work for class actions.

“The point is Lemon Law cases are not amenable to

complex management, because I can’t look at specific issues

that I can solve. [¶] For example, where we have one

motion or we take a bellwether, one case, and that could be

applied to all the rest.

“Instead we have cases with many, many different

components that are not the same, different dealers,

different repair histories, some with no repair histories.

“There is no way to manage these cases. It would be

like saying every single Lemon Law case against Ford

should be in one court. And you would have one court. It’s

the Ford court handling Lemon Law cases.

“Then we would still need to worry about discovery

which is individualized.

“There is no legal issue that we can decide that will

decide all of the cases.

“In short, in my view these cases should not have

even been coordinated in the first place.”

The court also observed that Judge Elias’s ruling was “not

an issue here because Judge Elias’ ruling is complete. I have

these cases. [¶] The question is do I add more to them, because

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as I see it . . . before the year is over I would have another

thousand cases. [¶] Then I would wind up doing nothing but

litigating these individual cases. [¶] . . . [¶] . . . [A]t this stage

I’m only concerned with whether I should add more of the same.

[¶] And also what I have in front of me is slightly different than

what Judge Elias had, because with Judge Elias there were

product liability cases included.”2

Judge Freeman took the matter under submission and a

month later denied the petition, finding the criteria for

coordination under section 404.1 were not satisfied, and that the

cases were not complex under the rules of court. (Cal. Rules of

Court, rule 3.400.)3

Judge Freeman found only one coordination criterion was

satisfied: the relative development of the actions and the work

product of counsel favored coordination, as the great majority of

the add-on cases were recently filed with no trial date, and in the

others no depositions or vehicle inspections had occurred. The

court found all the other factors weighed against coordination.

Specifically, the court concluded that:



2 The record does not show that the cases coordinated by

Judge Elias included product liability claims. According to the

petition for writ of mandate challenging the coordination order,

the cases were “simple breach of warranty cases brought under

California’s lemon law . . . .” As demonstrated in the caption, the

Judicial Council Coordination Proceeding designation for these

cases is “Ford Motor Warranty Cases,” thus making clear these

cases all involve claimed breaches of warranty.

3 All further references to rules are to the California Rules of

Court.

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First, “litigating issues regarding the defective

transmissions will inherently be heavily individualized as to each

individual vehicle, and would not be a predominating fact

significant to this litigation. To the contrary, the Court would be

required to consider, among other factors, the specific design or

manufacturing problem with each vehicle and any

representations made by the Defendant (as well as the dealer)

leading up to the purchase of each vehicle.”

Second, “there would be great inconvenience to counsel,

parties, and witnesses in having to travel from different counties

to litigate their claims in Los Angeles (especially given that a

large number of the cases originated in San Diego, Riverside, and

San Bernardino).”

Third, “[i]t would not be more convenient to have all of

these cases coordinated before a single trial judge, as it would not

make efficient use of judicial facilities and manpower.”

Fourth, “[t]here is not a significant risk that there would be

duplicative and inconsistent rulings regarding Ford’s liability if

individual cases were allowed to go forward outside of the

coordination process (again, given the issues specific to each

vehicle and to each filed case).”

Fifth, “the Court is not persuaded that settlement would be

more likely in a coordinated proceeding than if the cases were

individually allowed to proceed.”

Finally, the court stated that it could not “make the finding

that the cases are all ‘complex’ under [rule] 3.400. It is not at all

apparent that the cases would require numerous pretrial motions

raising difficult or novel legal issues with respect to the model

year transmissions.”

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Thus, the court determined “that, on balance, the criteria

under [section] 404.1 are not satisfied, and that coordination of

the add-on cases is not appropriate.”

Three weeks later, Ford filed a petition for writ of mandate

directing the trial court to vacate its ruling and to grant the addon

petition, or in the alternative, to reconsider the add-on petition

consistent with the coordination rules and other legal authorities.

We directed real parties in interest to file a preliminary

response to the petition and permitted Ford to file a reply. We

then issued an alternative writ, directing the trial court either to

vacate its order and enter a new order granting Ford’s petition, or

to show cause before this court why a peremptory writ requiring

the court to do so should not issue.

The trial court declined to comply with the alternative writ.

A letter from court counsel stated: “The cases in the granted

original coordination petition were coordinated based upon

causes of action against Ford alleging product liability and design

defect issues, which was appropriate for coordination. However,

the appropriate cases were mixed in with standard ‘Lemon Law’

cases that were based upon individual dealer’s alleged failing to

fix specific problems after a reasonable number of tries. Such

cases achieve no benefit from coordination because individual

issues predominate; each rises and falls on a particular dealer’s

ability to correct a particular problem.”4 Counsel further stated



4 We are perplexed by the trial court’s statement that the

coordinated cases include product liability claims, as the record

and the parties’ briefs demonstrate that is not the case; and also

by the trial court’s statement that product liability cases are

appropriate for coordination but lemon law cases are not. Both

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the trial court believed it would be helpful if the parties briefed

the issue of the court’s discretion to deny an add-on petition in

these circumstances, and requested that we publish our opinion

to provide guidance to the coordinating court.

Real parties in interest then filed a written return to the

petition, and Ford filed its traverse.

DISCUSSION

1. The Governing Legal Principles

Section 404 governs a petition for coordination, and

requires it to be supported by a declaration “stating facts showing

that the actions are complex, as defined by the Judicial Council[5]

and that the actions meet the standards specified in Section

404.1.” The Chairperson of the Judicial Council then assigns, or

authorizes the assignment of, a coordination motion judge “to

determine whether the actions are complex, and if so, whether

coordination of the actions is appropriate . . . .” (§ 404.)

The coordination standards specified in section 404.1 have

been recited above. The same coordination standards apply to a

decision whether to grant a request to coordinate an additional

action. Section 404.4 provides in pertinent part that: “[t]he

presiding judge of any court in which there is pending an action

sharing a common question of fact or law with actions

coordinated pursuant to Section 404, on the . . . motion of any



product liability and lemon law cases involve defective products

with common issues, as discussed more fully below.

5 Rule 3.400 defines a complex case as “an action that

requires exceptional judicial management to avoid placing

unnecessary burdens on the court or the litigants and to expedite

the case, keep costs reasonable, and promote effective decision

making by the court, the parties, and counsel.” (Rule 3.400(a).)

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party supported by an affidavit stating facts showing that the

action meets the standards specified in Section 404.1 . . . may

request the judge assigned to hear the coordinated actions for an

order coordinating the action. Coordination of the action shall be

determined under the standards specified in Section 404.1.”

Similarly, rule 3.501 defines an “[a]dd-on case” as “an

action that is proposed for coordination, under . . . section 404.4,

with actions previously ordered coordinated.” (Rule 3.501(2).)

Rule 3.521 governs the contents of petitions for coordination,

including “a request that a coordination trial judge make such a

determination concerning an add-on case . . . .” (Rule 3.521(a).)

Such petitions must be supported by a memorandum and

declarations showing “[t]he facts relied on to show that each

included action meets the coordination standards specified in . . .

section 404.1 . . . .” (Rule 3.521(a)(7).)

Rule 3.544 governs add-on cases, specifying that requests

to coordinate add-on cases must comply with the requirements of

the rules governing an original petition for coordination. (Rule

3.544(a).) Rule 3.544 also specifies that, “[i]n deciding the

request to coordinate, the court must consider the relative

development of the actions and the work product of counsel, in

addition to any other relevant matter.” (Rule 3.544(c).)

Also pertinent to our decision in this case is McGhan

Medical Corp. v. Superior Court (1992) 11 Cal.App.4th 804

(McGhan). In McGhan, the petitioners sought—and obtained—

reversal of a superior court order denying coordination. McGhan

involved a petition for coordination of at least 300 separate cases,

pending in over 20 California counties, with “additional cases . . .

being filed almost daily.” (Id. at p. 807.) The complaints sought

damages for personal injuries sustained by women who had

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breast implants. The defendants were “various manufacturers of

the implant devices, producers of implant materials, and

physicians who prescribed or administered the implants.” (Ibid.)

Some cases involved multiple plaintiffs, and most “join[ed] either

several or numerous defendants,” so that “the number of parties

involved must run in the thousands.” (Ibid.)

The trial court in McGhan denied the coordination petition

on the ground that “common question[s] of fact or law” (§ 404.1)

did not predominate, “ ‘in that the cases involve different

implants, different designs, different warnings, different

defendants, different theories of defect, different modes of failure,

and different injuries.’ ”6 (McGhan, supra, 11 Cal.App.4th at p.

808.)

The Court of Appeal reversed the trial court’s order,

remanding the case with instructions to order all the cases



6 The trial court in McGhan further explained that while

there were certain common issues, “ ‘the differences among the

cases and the sheer number of them, presently pending around

the state and those yet to be filed, are such that coordination

would be impractical and would result in unnecessary delay of

discovery and of trial. [¶] The unmanageability of this large

number of cases would provide none of the economies of scale

which are the goals of coordination. [¶] . . . [¶] Additionally, . . .

coordination would inconvenience the plaintiffs, their counsel,

defendant health care providers and witnesses by requiring them

to travel to a selected site or sites to process their cases; would

tax judicial resources by sending hundreds, and possibly a

thousand cases, to one county, and any possibility of duplicate

and inconsistent rulings, orders, or judgments can easily be

addressed and minimized by the relatively few judges hearing the

breast implant cases filed in the various California courts.’ ”

(McGhan, supra, 11 Cal.App.4th at p. 808, fn. 2.)

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coordinated and, as discussed post, expressly rejecting the trial

court’s assessment of several of the section 404.1 coordination

standards. (McGhan, supra, 11 Cal.App.4th at pp. 812-814.)

2. The Standard of Review

The McGhan case establishes that our review of the trial

court’s order denying coordination of the add-on cases is de novo.

In McGhan, the court explained, at considerable length,

that plenary review of the coordination motion judge’s order

denying coordination was appropriate. (McGhan, supra, 11

Cal.App.4th at pp. 808-811.) We will not reiterate that

discussion, except to commend its analysis and note our

agreement with its conclusions, namely: “The specific

discretionary call in this case was the ultimate conclusion that

the benefit to be derived by coordination was outweighed by

complications and problems the judge anticipated would result

from attempted coordination. This decision, we apprehend, is one

not necessarily made better by a trial court judge than by an

appellate tribunal. . . . [T]his is a decision which requires the

‘exercise [of] judgment about the values that animate legal

principles,’ and hence ‘ “the concerns of judicial administration . .

. favor the appellate court, and the question should be classified

as one of law and reviewed de novo.” ’ ” (Id. at p. 811.)

Here, real parties in interest point out this case is in a

different posture, and contend we should review the trial court’s

decision for abuse of discretion. They point to McGhan’s

observation that, “[o]nce coordination is established and

commenced, the then rulings of the coordinating judge will most

likely not be the mixed bag of law and fact . . . . They will be

administrative rulings in the process of the hands-on control of

specific cases by a trial judge. We would expect that such rulings

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would be reviewable only upon a basis of according substantial

deference to the trial court’s opinions.” (McGhan, supra, 11

Cal.App.4th at p. 814.)

We do not disagree with that principle. But we do not

consider a ruling on an add-on petition to be within McGhan’s

contemplation when it referred to “administrative rulings in the

process of the hands-on control of specific cases . . . .” (McGhan,

supra, 11 Cal.App.4th at p. 814.) On the contrary, as real parties

in interest themselves insist, the same section 404.1 coordination

standards apply to add-on cases as apply in an original

coordination petition. No reason appears for us to apply a

different standard of review to the denial of an add-on petition

than the standard of review that applies to the denial of an

original coordination petition.

3. This Case

Ford’s writ petition contends the add-on cases asserted

“substantively identical claims for breach of warranty related to

the DPS6 transmission” as were asserted in the cases Judge Elias

determined should be coordinated, and were pending in the same

counties. Ford contends Judge Elias would have coordinated the

add-on cases if they had been included in Ford’s original petition,

and Judge Freeman “instead conducted [his] own reconsideration

of Judge Elias’s February 4, 2016 Order,” and “failed to apply the

correct legal calculus . . . .”

Real parties in interest, on the other hand, contend that

Judge Elias’s order “is simply not at issue”; appellate review

“must focus solely on [Judge Freeman’s] written order,” not on his

comments from the bench during the hearing; and his ruling

denying coordination of the add-on cases “correctly applied . . .

controlling law.”

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We agree with Ford that the trial court erred in refusing to

coordinate the add-on cases.

a. The inconsistent rulings

We agree with real parties in interest on one point: as a

general matter, in deciding whether to add cases to a

coordination proceeding, courts are to apply the standards

specified in section 404.1. That much is clear from the face of the

statutes and rules we recited in part 1, ante. But in addition, as

Ford points out, in considering add-on cases, rule 3.544(c)

expressly requires the court to consider one of the section 404.1

factors—“the relative development of the actions and the work

product of counsel.” This suggests the primacy of that factor in

determining the propriety of adding a case or cases to a

coordination proceeding.

That primacy makes a good deal of sense where the

proposed add-on cases have no meaningful differences from the

cases already being coordinated. Where the cases are

substantively alike, most other coordination standards—that is,

the common question of law or fact predominating; efficient

utilization of judicial facilities and manpower; the disadvantages

of duplicative and inconsistent rulings—are unlikely to be

different from those existing when the original coordination order

was made. On the other hand, counsel may have devoted

extensive resources in discovery and other trial preparation in

some or many of the add-on cases, and those cases may have trial

dates. Adding such cases to the coordination proceeding may

result in costly duplication of efforts and delay in resolution of

those cases.

Here, the proposed add-on cases are substantively no

different than those in the original coordination order. On the

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record before us, we find no basis to conclude that adding them to

the coordination proceeding will result in delay or duplication of

effort. The coordinated proceeding has been stayed since

April 27, 2016, so there is no risk that new counsel representing

plaintiffs in the add-on cases will seek to depose witnesses whose

depositions were already taken. The add-on cases had been

recently filed or had previously set trial dates vacated. If any of

the add-on cases has had a trial date set during the pendency of

this writ proceeding, or if other developments in any add-on case

renders such case unsuitable for coordination, then the

coordination trial judge may consider whether to exclude that

case from the coordination proceeding.

Judge Elias concluded that coordination of the original 470

cases was “proper and would benefit the goals of the Coordinated

Cases . . . .” While her order was short and succinct, it indicates

the judge “read and reviewed all of the papers”; “heard the

concerns of [Ford] that it is more efficient and cost effective to

have all of the cases in front of one judge”; and “also heard the

points made by the Plaintiffs that it would not be fair to require

plaintiffs in small counties and with few cases to have to travel to

Los Angeles or other large Metropolitan areas to have their

matters adjudicated.” We necessarily presume that the

conclusion of the coordination motion judge—the judge

specifically designated “to determine whether coordination is

appropriate” (rule 3.501(7))—was based on evaluation of the

requisite section 404.1 factors.

Six months later, Judge Freeman concluded, applying the

same section 404.1 factors, that none of them supported

coordination of additional, substantively indistinguishable cases,

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except for the factor given primacy in rule 3.544(c): the fact they

were recently filed.

We find it difficult to avoid the conclusion that Judge

Freeman’s order was a direct repudiation of the coordination

motion judge’s (Judge Elias’s) order. Real parties in interest

assert that “disagreement with the original coordination order

was never a basis for [Judge Freeman’s] actual order . . . .” We

believe otherwise. Judge Freeman’s tentative decision was to

deny coordination of the add-on cases. His statement from the

bench, after summarizing his view of the matter, was that: “In

short, in my view these cases should not have even been

coordinated in the first place,” and “at this stage I’m only

concerned with whether I should add more of the same.” His

final written decision was exactly the same as his tentative

decision. We cannot view his statement as “an isolated comment

from the bench” that is without significance.

The way we see it, after the duly-assigned coordination

motion judge determined the cases in the original petition were

complex and coordination was appropriate, the judge who was

subsequently assigned to handle the coordinated proceedings

instead rejected the determination that coordination was proper.

We cannot countenance the implicit reversal of a decision by the

duly-assigned coordination motion judge, particularly since a

mandamus petition challenging that decision was filed (as

expressly permitted by section 404.6) and denied. Thus, the

coordination proceeding was duly established.

As is apparent, the coordination statutes and rules

expressly contemplate add-on cases. Unless there is some

distinction between the coordinated cases and the add-on cases—

and none has been suggested here—we are unable to see any

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basis for the coordination trial judge’s refusal to add cases to the

coordination proceeding. Yet that is precisely what has been

done.

We realize, of course, that there are circumstances where

the addition of a substantively similar case would be properly

rejected by the coordination trial judge—such as if the case is

ready for trial, or some other feature distinguishes it from the

cases in the coordination proceeding. But the coordination

statutes and rules simply do not contemplate a decision by the

coordination trial judge to constrict a duly-constituted

coordination proceeding by refusing to include “more of the

same.”7

b. The “complex case” issue

At its core, the trial court’s refusal to coordinate the add-on

cases appears to lie in its belief that lemon law cases are not

complex cases within the meaning of rule 3.400. At the hearing,

the court stated that it “can’t manage these cases in the way that

the complex courts generally manage,” and “[t]he point is Lemon

Law cases are not amenable to complex management,” and

“[t]here is no way to manage these cases.” Likewise, in its

written ruling the court stated it “cannot make the finding that

the cases are all ‘complex’ under [rule] 3.400.”

First, it is not the province of the coordination trial judge to

determine that add-on cases that are substantively



7 Rule 3.542 provides a pertinent analogy. That rule allows

the coordination trial judge to remand a coordinated action to the

court in which it was originally pending, but “[n]o action . . . may

be remanded over the objection of any party unless the evidence

demonstrates a material change in the circumstances that are

relevant to the criteria for coordination under . . . section 404.1.”

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indistinguishable from cases already subject to coordination are

not complex cases. Section 404 authorizes the coordination

motion judge—Judge Elias—“to determine whether the actions

are complex, and if so, whether coordination of the actions is

appropriate . . . .” In the context of a request for coordination of

add-on cases, the statutes and rules do not contemplate a further

determination of whether the add-on actions themselves are

complex. The only criteria to be applied are the coordination

standards specified in section 404.1. (See § 404.4 [“Coordination

of the action shall be determined under the standards specified in

Section 404.1.”].)

Second, we are compelled to point out the trial court’s

apparent misunderstanding of the nature of the coordinated

actions and those proposed to be added. As noted earlier, Judge

Freeman and court counsel have asserted that the cases before

Judge Elias included product liability cases as well as lemon law

cases, and took the view that the former are amenable to

coordination while the latter are not. The court’s position has

two flaws.

The first flaw is factual. As described above in the Factual

and Procedural Background, the record does not support the

assertion that the cases before Judge Elias included product

liability cases. Indeed, at the hearing before Judge Elias,

plaintiff’s counsel, arguing against coordination, made that clear:

“The fact is they are individual cases. The issues are going to be

individual. [¶] And the claim is a Song-Beverly Consumer

Warranty Act claim, not a product liability claim involving a

transmission but individual Song-Beverly claims . . . .”

The second flaw is more significant. We see no basis for

concluding that, while product liability cases are suitable for

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coordination, lemon law cases are not. Both product liability and

lemon law cases involve defects. The defect in a product liability

case may be in design or manufacture, while in lemon law cases,

the defect is described in terms of a departure from warranty

that substantially impairs the use, value or safety of the car.

Certainly the latter cases raise individual issues, but so do

product liability cases. Just as in the asbestos cases and the

breast implant cases in McGhan, a great deal of efficiency can be

accomplished by coordinating lemon law cases, as we discuss,

post, despite individual issues relating to repair histories. At oral

argument, real parties in interest were unable to explain why it

was beneficial to coordinate the asbestos and breast implant

cases, but not these lemon law cases. In short, product liability

cases filed by many individual plaintiffs are recognized as

complex, and there is no reason why multiple-plaintiff lemon law

cases should be treated differently.

We also note the coordination trial judge gave only one

reason for concluding the add-on cases were not complex under

rule 3.400: that “[i]t is not at all apparent that the cases would

require numerous pretrial motions raising difficult or novel legal

issues with respect to the model year transmissions.” The reason

cited by the court is only one of five factors, “among other things,”

that a court must consider in deciding whether an action is a

complex case. (Rule 3.400(b).) It is not a necessary factor. (See

Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 835, fn. 8

[rejecting the notion that coordinated actions must necessarily be

“difficult or novel”; “The coordinated actions with which we are

here concerned are ‘complex’ within the meaning of this rule only

because of the large number of represented parties in related

actions pending in different counties.”].)

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In sum, the determination whether cases are complex was

a determination for the coordination motion judge. That finding

was made, and was clearly proper. The coordination trial judge

is not at liberty to make a contrary finding with respect to

substantively indistinguishable add-on cases.

c. The section 404.1 standards

Even if we ignore the inconsistency between the order

establishing the coordination proceeding and Judge Freeman’s

order, we would conclude the latter cannot stand. The section

404.1 coordination standards, properly applied, plainly favor

coordination of the add-on cases.

i. The common questions of fact or law

As the trial court acknowledged, all the add-on cases (like

the coordinated cases), are “Lemon Law” cases that “deal with

defects in the transmissions of the identified model-year Ford

Fiesta and Ford Focus vehicles.” Nonetheless, the court found

this factor “weigh[ed] against coordinating the cases,” because

“litigating issues regarding the defective transmissions will

inherently be heavily individualized as to each individual vehicle,

and would not be a predominating fact significant to this

litigation.” As discussed below, even real parties in interest

concede there are common discovery issues involving the design

and modification of the transmission and Ford’s repurchase

policies and procedures.

Ford’s original coordination petition emphasized the

coordination of pretrial motion practice, written discovery and

common depositions. Perhaps more significantly, real parties’

own position in the June 15, 2016 joint initial status conference

report in the coordination proceeding, while proposing a “dual-

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track approach” for discovery on non-common issues, confirms

the importance of common issue discovery.

For example, real parties in interest pointed out that each

plaintiff may recover treble damages by showing Ford willfully

failed to comply with its statutory obligation to replace or

repurchase a vehicle, and relevant factors in assessing willfulness

“include the existence and contents of Ford’s repurchase policies

and Ford’s knowledge of unrepairable defects. . . . Consequently,

each included action requires discovery into ‘common’ issues such

as the design and modification of the dual-clutch transmission,

Ford’s knowledge of defects with the dual-clutch transmission,

and Ford’s repurchase policies and procedures.” (Italics added.)

“Common issue discovery,” real parties in interest stated,

“should be divided into two phases,” the first geared toward

immediate production of material that Ford has already produced

“plus routine foundational matters such as database locations,

custodians, search terms, and document retention policies,” and

the second phase targeting “subject matter, data sources, time

frames, and witnesses not included in Ford’s initial production.”

The initial phase of discovery, according to real parties in

interest, “will focus on the design, testing, implementation,

failure and modification of the dual-clutch transmission and is

anticipated to comprise the more than two-million pages of

documents Ford has already . . . produced in . . . federal class

actions.”

Real parties in interest further proposed that a global

protective order be presented to the court, followed by Ford’s

production of its document retention policies, the documents

produced in the class action cases, a privilege log and all

documents Ford was ordered to produce in any individual action

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before the coordination stay. Real parties in interest proposed

further details concerning common issue discovery on the dualclutch

transmission, as well as on Ford’s “internal policies

regarding vehicle repurchases and lemon law compliance as well

as the policies, training materials, scripts, organization charts,

and related materials” governing a specified Ford subsidiary.

Ford’s views on discovery and the scope of the proposed

protective order were significantly different,8 but the controlling

point is clear: the cases are ripe for coordination on discovery

and related pretrial matters. A “continued” joint initial status

conference report for the July 8, 2016 hearing included charts

prepared by plaintiffs “categorizing cases by alleged defect and

causes of action,” as well as materials further reflecting the

parties’ respective positions on discovery, a proposed protective

order and a case management plan.

All this clearly demonstrates the benefits of early

coordination of discovery and motion practice—benefits that are

in no way negated by the court’s concern over litigation that is

“heavily individualized as to each vehicle.” (See McGhan, supra,



8 Among other things, Ford proposed production of all

vehicle-specific documents and plaintiff-specific information

before plaintiffs conduct liability and damages discovery.

Providing such information “at the outset will permit the parties

and the Court to properly identify relevant subcategories of cases,

promote early settlement or other disposition of cases, limit the

need for individualized discovery as to each Plaintiff, and

otherwise permit orderly and efficient discovery. For example, to

the extent numerous Plaintiffs’ vehicles were repaired at a single

third-party facility, the parties would be able to seek production

of relevant repair records for multiple Plaintiffs through a single

subpoena rather than in multiple, intermittent requests, thereby

limiting the burden on those third parties.”

24

11 Cal.App.4th at pp. 808, 811 [rejecting coordination motion

judge’s conclusion that common questions did not predominate

because breast implant cases involved “ ‘different implants,

different designs, different warnings, different defendants,

different theories of defect, different modes of failure, and

different injuries’ ”].) As in McGhan, while “all determinations as

to whether to coordinate a case are but best estimates” (id. at p.

813), it seems obvious that “the preparation for trial in terms of

depositions, interrogatories, admissions, collection of physical

data, etc., will be better achieved if done in a coordinated

manner” (id. at p. 814).

ii. Convenience of parties, witnesses

and counsel

The trial court’s finding that the convenience factor

weighed against coordination of the add-on cases is similarly

flawed. The court merely found that traveling from other

counties to Los Angeles would be a “great inconvenience” to

counsel, parties, and witnesses. But with today’s technology,

there is no reason why counsel, parties and witnesses should

have to travel frequently to Los Angeles. The complex courts in

Los Angeles have used electronic filing and email for years now,

pretrial and post-trial court appearances may be made by

telephone or video using CourtCall, and many judges accept

conference calls to informally resolve discovery disputes. Counsel

and the court may take advantage of technology to devise means

to coordinate discovery and other pretrial practice so as to avoid

“great inconvenience.” (See Tech Tips From the Bench: An

Interview with Hon. Emilie Elias, ABTL Report Los Angeles,

Summer 2015
summer2015.pdf>[as of May 8, 2017].) The Judicial Council

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recommends the court consider the use of a website for

coordinated complex cases, with the parties responsible for its

maintenance and cost. The Judicial Council has described at

length many other uses of technology to manage discovery,

pretrial and trial of complex cases. (Judicial Council of Cal.,

Deskbook on the Management of Complex Civil Litigation (2016),

§§ 3.90-3.99 (Deskbook).)

As McGhan observed 25 years ago: “That [the coordinating

judge] probably will elect to centralize and coordinate discovery

and motion practice does not require burdensome travel. There

is no reason why the coordinating judge cannot prescribe special

rules by which discovery materials are lodged in a document

center available to all counsel in their offices through computer

networking . . . .” (McGhan, supra, 11 Cal.App.4th at p. 813.)

The same is true today in spades.

9

iii. Efficient utilization of judicial facilities

and manpower; the calendar of the courts

The trial court’s analysis of the efficiency factor consisted of

the single statement that coordination before a single judge



9 Real parties in interest contend that coordinated

proceedings “take much longer to resolve than individual Lemon

Law cases,” and this delay is “highly prejudicial to the individual

plaintiffs who rely on their vehicles in their daily lives.” The trial

court made no mention of delay as a justification for its ruling.

(See McGhan, supra, 11 Cal.App.4th at p. 813 [acknowledging

that some delay in certain cases might be experienced, but

viewing “this potential detriment to the few to be a modest price

to pay for the efficiency to be gained by the majority of cases

through coordination”]; ibid. [“One of the purposes . . . of a

centralized coordinating authority is to vest in one administrator

the power to organize the litigation in an efficient and equitable

manner, for the benefit of all.”].)

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“would not make efficient use of judicial facilities and

manpower.”

Coordination does not mean that all the cases must be tried

in one forum. Ford proposed that up to ten cases per side be

selected for bellwether trials. A fair and efficient trial structure

is needed for complex cases that involve numerous parties and

issues. The Judicial Council has suggested that counsel and the

court consider “the trial of one or more test cases, with

appropriate provision being made concerning the res judicata or

collateral estoppel effects of a judgment on plaintiffs and

defendants.” (Deskbook, supra, § 2.61.) In addition to deciding

which case or cases to try first, coordination will enable the

parties to consider stipulations of facts that need not be proven

and other procedures to expedite the presentation of evidence, to

obtain rulings on motions in limine, and to develop jury

questionnaires, jury instructions, special verdicts and

interrogatories that may be used in future trials. (Ibid.)

McGhan pointed this out, stating: “That these cases may

be coordinated does not mean they need be tried in one forum; it

does not even indicate that ultimate trial of the cases need be

unified.” (McGhan, supra, 11 Cal.App.4th at p. 813.) Further,

“the procedures which may be utilized by the coordinating judge

are flexible indeed.” (Id. at p. 812.) McGhan pointed out the

rules would permit the coordination trial judge to order any issue

or defense tried separately; order hearings conducted at various

sites in the state to provide convenience to witnesses, parties and

counsel; “prescribe all manner of pretrial discovery devices

designed to aid the litigation”; sever cases or claims and transfer

them back to their original venue; and try specific issues

separately. (Ibid.) The coordination trial judge is vested with

27

“whatever great breadth of discretion may be necessary and

appropriate to ease the transition through the judicial system of

the logjam of cases which gives rise to coordination.”10 (Ibid.)

iv. Other section 404.1 factors

The trial court noted two other factors as weighing against

coordination of the add-on cases: “There is not a significant risk

that there would be duplicative and inconsistent rulings

regarding Ford’s liability” in the absence of coordination, “given

the issues specific to each vehicle and to each filed case[].” Once

again, this ignores “the disadvantages of duplicative and

inconsistent rulings” (§ 404.1) on discovery and other pretrial

matters that precede determinations of Ford’s liability.

And finally, the court was “not persuaded that settlement

would be more likely in a coordinated proceeding than if the cases

were individually allowed to proceed.” According to a joint

supplemental report prepared for the July 29, 2016 hearing, at

least 219 of the originally coordinated cases had settled, and as of

March 7, 2017, approximately 254 of the cases subject to the addon

petition had been settled or dismissed. We do not know if any



10 The trial court acknowledged that “the law permits us to do

that” (send cases back to the original courts for trial), but stated

it was “not economically feasible under our current operating

procedures” to send cases from the coordination judge’s courtroom

to the various trial courts in the Stanley Mosk Courthouse. We

do not understand this remark. The coordinated cases do not all

have to be tried in the Stanley Mosk Courthouse, or even in Los

Angeles Superior Court. The chart prepared for the July 8, 2016

status conference showed there were 79 cases pending in Los

Angeles Superior Court that Ford proposed to add to the

coordination proceeding. It would seem to be more economical for

those 79 cases to be coordinated in one courtroom, even if some

must be returned to their originally assigned courts for trial.

28

of these cases would have settled if the original coordination

petition had been denied, but we find no basis to conclude that

settlement would be more likely without coordination, which is

the standard specified by section 404.1. There are many ways by

which a coordination trial judge may serve as a catalyst for

settlement discussions without interfering with the steady

progress of the cases toward trial. (Deskbook, supra, §§ 2.90-

2.95.)

d. Conclusion

The benefits of coordination of these lemon law cases

involving defective DPS6 transmissions is plain. The parties’

joint filings in the coordination proceeding demonstrate the

existence of common discovery issues, and it is incontrovertible

that coordinated management of discovery on those issues will

minimize the disadvantages of duplicative and inconsistent

rulings and promote the efficient utilization of judicial facilities

and manpower. These benefits are not unlike those that have

resulted from coordination of the Asbestos Litigation, where the

coordination motion judge found coordination appropriate

because the cases “as a group” were complex and involved

significant common pretrial issues that should be heard by a

single judge. That is the case here.

We reiterate that we do not mean to restrict the court’s

discretion to determine that specific add-on cases are not suitable

for coordination.

11 Nor do we in any way restrain the court’s



11 Real parties in interest tell us in their return that “most of

the add-on cases now have imminent trial dates.” Rule 3.521(d)

provides that “[t]he imminence of a trial in any action otherwise

appropriate for coordination may be a ground for summary denial

of a petition for coordination, in whole or in part.” Nothing we

29

discretion to determine matters related to trial of the cases. We

say only that, absent some distinguishing feature, the court may

not reject a petition to coordinate substantively identical add-on

cases by redetermining the fundamental issue already decided by

the coordination motion judge: that lemon law cases involving

allegedly defective DPS6 transmissions, in the nine counties

subject to the coordination proceeding, are complex cases and are

appropriate for coordination. The court identified no

distinguishing feature in the add-on cases that would support the

court’s analysis of the section 404.1 coordination standards, and

we conclude that analysis was erroneous. Accordingly, we grant

Ford’s petition.

The order to show cause is discharged. Let a peremptory writ of mandate issue directing the trial court to vacate its August 29, 2016 order denying Ford’s petition for coordination of add-on cases, and enter a new and different order granting the petition, subject only to the exclusion of any action based on an

imminent trial date or other distinguishing feature rendering the action unsuitable for coordination. Ford shall recover its costs.