1

Filed 7/5/2016 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re AUTOMOBILE ANTITRUST CASES I and II. A134913
( City & County of San Francisco Judicial Council Coordination Proceeding Nos. 4298, 4303)

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, §§ 1672 01

– 6728) and the Unfair Competition Law (Bus. & Prof. Code, §§ 17200

– 17210 )

. Specifically, the plaintiffs allege that the defendant manufacturers and associations conspired to keep low e r

- pr iced, yet virtually identical, new cars from being exported from Canada to the United States, thereby keeping new vehicle prices
in California hi gher than they w ould have been in a prop e r ly competitive marke t. After years of litigation, the t rial court gr anted summary judg ment in favor of th e two remaining defendants in the case

— Ford Motor Company (Ford U.S.) and its subsidiary
, Ford Motor Company of Canada, Ltd. (For d Canada) (collectively, Ford)

— concluding that the plaintiff s had failed to produce sufficient evidence of an actual agreement among Ford and the other ma nufacturers to restrict the export of
new vehicles from Canada to the United States.2

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 improp e r ly
excl uded 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 W e therefore
reverse the tri al 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

ma nufacturers 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 ind ividuals who purchased or leased new vehi c l es in California that were
manuf actured or distributed within a cert ain 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, 10 6 ( Automo bile
Antitrust Cases )

. ) Thereafter, in October 2003, the plaintiffs filed their consolidated

1 The trial court concluded below that the plaintiffs‘ unfair competition claim was founded upon the alleged violation of the Cartwright Act, and was thus derivative of the complaint‘s antitrust allegations. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 866

– 867 (

Aguilar ); Eddins v. Redstone (2005) 134 Cal.App.4th 290, 344. The plaintiffs have not challenged this determination on appeal. Since the two causes of action stand or fall together, we will not separately discuss the plaintiffs‘ unf air competition claim.3

amended class action complaint, the operative pleading in this matter. 2 In addit ion to Ford, the class action complaint named numerous other automobile manufacturers as
defendants. 3 Also designated as d e fendant s were the Canadian Automobile Dealers Association (CADA)

— a trade organization that represents, promotes
, and protects
the interests of franchised automobile dealers in Canada

— and t he National
Automobile D ealers Association (NA DA), CADA‘ s United States counterpart. (See
i bid. ) 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 indicate d above, the complaint alleges that the defendant automobile manufacturers and dealer associations violated state antitrust and unfair competition laws by conspiring to re strict the movement of lower

- priced Canadian vehicles into
the U .S. market, thereby a void ing downward pressure on new vehicle prices in the
United States

. According to the plaintiffs, during the timeframe relevant to this

2 The plaintiffs

— the majority of whom eventually became class representatives in this litigation

— are George Bell, Wei Cheng, Laurance de Vries, Joshua Chen, Jason Gabelsberg, Ross Lee, Jeffrey M. Lohman, Christine Nichols, Local 5 88 of the United Food & Commercial Workers Union, Estelle Weyl, Michael Wilsker, and W. Scott Young. Each plaintiff alleges an injury caused by one or more of the defendants.

3 The named manufacturer defendants include: General Motors Corporation (GM) and General Motors of Canada, Ltd. (GM Canada) (collectively, General Motors); Volkswagen AG, Volkswagen of America, Inc., and Volkswagen Canada, Inc. (Volkswagen Canada); Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc., and Toyota Canada, Inc. (Toyota Canada) (collectively, Toyota); Honda Motor Company, Ltd. (Honda Japan); American Honda Motor Co., Inc., and Honda Canada
, Inc. (Honda Canada) (collectively, Honda); DaimlerChrysler Aktiengesellschaft (DaimlerChrysler AG); DaimlerChrysler Corporat ion (DaimlerChrysler U.S.), DaimlerChrysler Motors Co., LLC, and DaimlerChrysler Canada, Inc. (Chrysler Canada) (collectively, Chrysler); Nissan Motor Company, Ltd. (Nissan Japan), Nissan North America, Inc. (Nissan USA), and Nissan Canada, Inc. (Nissan Ca nada); Bayerische Motoren Werke Aktiengesellschaft (BMW AG), BMW of North America, LLC, and BMW Canada, Inc. (BMW Canada); and various subsidiaries of these entities.4

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 Crewc ab 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 sy s tem required the continued segregation of
the Canadian and U.S. a utomobile markets.
B eginning 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 a nd
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 Can adian dollar made export sales increasingly attractive . ( See In re Ne w Motor Vehicles Can. Export Anti. Lit

. (1st Cir. 2008) 522 F.3d 6, 9

– 10.) Faced with this particu l a rly advantageous arbi trage 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

creat ed a discount distribution chan nel, or ―gra y market‖ for Canadian vehicles in the
United States

. 6

4 Specifically, according to the plaintiffs, the only changes typically required for Canadian vehicles exported to the United States were replacement of odometers/speedometers (Canadian automobiles record kilometers, while United States automobiles record miles) and certain headlight adjustments. ( Automobile Antitrust Cases , supra , 135 Ca l.App.4th at pp. 105

– 106 & fn. 2.)

5 ― Arbitrage describes the practice of simultaneously buying and selling identical securities, currency, or other assets in different markets,  ̳with the hope of profiting from the price difference in those markets.‘ ‖ ( In re New Motor Vehicles Can. Export Anti. Lit. , supra , 522 F.3d at pp. 9

– 10 & fn. 2.)

6 ―A gra y market is one  ̳in which the seller uses legal but sometimes unethical methods to avoid a manufacturer‘s distribution chain and thereby sell goods (esp. import ed goods)5

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 do ing their part to stamp out Ca nadian exports, rather than taking the profits available by

p ermitting their Canadian dealers to sell Canadian c ars 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; t he Canadi an Vehicle Manufacturer s ‘ Assoc i a tion (CVMA), which represented the ―key or leading‖ automobile manufact urers in Canada,
includ ing Ford Canada, Chry s l er Canada, and GM Canada ; and the Association of International Automobile Manufacturers of Canada ( AIAMC ), which represented
inter national manufacturers such as Honda Canada , Toyota Canada , Nissan Canada
, BMW C anada, 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 goal s of their conspiracy . By the late 1 980 ‘ s , for example, Ford had modified its Canadian dealer franchise agreements (generally Franchise Agreeme nts) to forbid export sales. The Fra nchise Agre ements of other manufacturers contain ed similar provisions. In addition , manufacturers created and f requently updated ―blacklists‖ of entities known to export vehi cles 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. On ce an exported vehicle was trac ed back to the particular dealer who made the export sale, many Franchise Agreements
all owed for the imposition of ―chargebacks,‖ substantial fines (often in the thousands

at prices lower than those envisioned by the manufacturer.‘ ‖ ( In re New Motor Vehicles Can. Export Anti. Lit. , supra , 522 F.3d at pp. 9

– 10 & fn. 3.)6

of dollars) paid by the dealer to the manufacturer . The manufacturers also imposed vehicle allocation restrictions on exporting Canadian dealers, and, at times, pursued

te rmination of dealers engaged in the export trade. Ford, for example, initiated
successful te rmination proceedings against a dealer that had a high incidence of export sales in 1999 and 2000

. Some manufacturers also required their Canadian dealers to inc lude ―no export‖ clauses in their sales agreements, under which buyers, themselves, could be required to pay a penalty if the purchased vehic le was transferred to the United States within a designated period of time . Moreover, Canadian dealers were requir ed to conduct a ―due diligence‖ investigation of every buyer to identify potential exporters.
If a Canad ian car arrived in the United States despite the erection of these substantial barriers to export , manufacturers voided warranties for the repair of ne w 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 a lleged conspiracy period
, plaintiffs presented evidence that the manufacturers‘ multi

- faceted attempt to restrict the export of new ve hicles 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 cro ss

- 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 a utomobile manufacturers to sell or lease new cars in California, and indeed throug hout the United States, at artific i ally 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.7

During 2004 and into 2005, the trial court considered a number of preliminary motions filed by the defendants
, incl uding motio ns contesting personal jurisdic tion
and demu rrers to the consolidated complaint. For example , the trial court concluded that it lacked personal jurisdiction over four of the nonresident defendants

— Honda Japan, Volkswa gen 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, 13 7

– 1 38 (the
f ederal multidistrict litigation or MDL) .) Parallel cases were also pending in a
numb er of other state courts. In June 2004, the trial court issued an order, after
consultation with Judge Hornby

— the judge in the federal MDL

— coo rdinating 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 S pring 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, i n May 2009, the tria l court granted plaintiffs‘ motion for
class certification in this proceeding

. T he court defined the class generally as : ―All persons and entities residing in California on the date notice is first published , who

7 Although Judge Hornby certified a nationwide injunctive class and exemplar state damage class es (including a California class) in 2006, the First Circuit subsequently vacated his certification orders in 2008. ( In re New Motor Vehicles Can. Export Anti. Lit. , supra , 522 F.3d 6; In re New Motor Vehicles Canadian Export Antitrust (D. Me 2006) 235 F. R.D. 127 [certifying exemplar state damage classes]; In re New Motor Vehicles Canadian Export Antitrust Litigation (D. Me 2006) 2006 U.S. Dist. LEXIS 10240 [certifying nationwide injunctive class].) The plaintiffs later elected not to pursue California cl ass certification in the federal action and Judge Hornby dismissed the California claims. ( In re New Motor Vehicles Canadian Export Litig. (D. Me 2009) 632 F.Supp.2d 42, 63.)8

purchased or leased a new motor vehicle m anufactured 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, address ing 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, 4 4

– 4 5.) Before the federal court were summary judgment motions from each of the remaining manufacturer defendants challenging the existence of a conspira cy 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.‖ ( I d. at p. 47. ) Of particular interest here , the judge opined that this conclusion ― is easiest for Ford and Chrysler; it is somewhat close r 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.
, f ns

. omitted .) In the end, however, Judge Hornby did not finally decide the issue, because he concluded that the manufacturers were entitled to summary judgmen t 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 th em from the case. Following these

8 The parties disagree as to the import of Judge Hornby‘s conspiracy discussio n. While certainly relevant, we do not view Judge Hornby‘s analysis as binding on us in any way, especially since he appears to have considered much more of the plaintiffs‘ evidence than our own trial court did. ( In re New Motor Vehicles Canadian Export Antitrust Litigation , supra, 632 F.Supp.2d at pp. 47

– 50.)9

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 indepen dent 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. G iven this

non

- conspiratorial expla na tion for it s enforcement o f export restraints
, Ford argued
that its conduct was as consistent with permissible competition as it was with
unlawful con s piracy . Thus, summary judgment in its favor was appropriate . In addition, although Ford conceded that it had atten ded a number of meetings with other manufacturers during the con s piracy period at which possible joint action to combat the export problem w as discussed, it asserted that no such joint action was ever taken as a result of those meetings. Indeed, Ford clai med 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 oppos ition 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

9 The other manufacturers filed similar summary judgment motions on the conspiracy issue, which are not included in the record before us. In addition, all of the remaining defendants filed a joint motion for summary judgment on the issue of antitrust impact as well as a motion to exclude the opinions and testimony of plaintiffs‘ expert witness, Robert E. Hall, Ph.D. Although fully briefed, these two joint motions have not been argued or decided by the trial court.10

Can a dian new vehicle exports to the Un ited 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. Speci fically, 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 th an losing U.S. sales to competitor s‘ Canadian exports. Finally, the pla i n t i ffs‘ 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 judgmen t motions before it which argu ed lack of an actionable conspiracy. After hearing on January 18, 2011, the trial court granted summa ry judgment motions in
favor of Nissan USA and H onda. In particular, the trial court conclud ed that the evidence produc ed 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 meet ings that might possibly have been viewed as conspiratorial

— was sufficient to shift the burden to the plaintiffs to produ ce evidence of a n issue of material fact regarding the existence of the alleged conspir acy. Although the t rial 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 d id it find evidence of shared warranty policies or of the ―stepping up‖ of anti

- export activities after the date of the alleged conspiracy particu l a rly relevant to the existence of an actionable agreement.11

In sum , s ince the evidence submitted by the plain tiffs 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 jud gment 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 busi ness purpose behind the conduct at issue, denials of any wrongful behavior , and refusals to participate in certain joint export activities

— was sufficient to s hift the burden to the pl aintiffs 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 th eir burden, crea ting 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 t hat there was no evidence that Ford U.S.

― conspired with an yone in Canada to do anything. ‖ Ford further a sserte d that, w ith

respe ct to Ford Canada, the evidence established, at most, that the manufacturer attended meetings and confer ence calls at which possible so l u tions 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 claim ed
, 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 al leged conspiracy. GM Canada made similar arguments, stressing its repeated refusals, when asked, to engage in meetings or any kind of joint activity.12

A fter a rgument, the trial court direct ed the plaintiffs to submit a summary of their conspi racy evidence

. While these summary judgment proceedings were pending
, however, GM Canada agreed to settle its four rema i ning 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 plai ntiff s reviewed the evidence they believed support ed t he existence of an unlawful agreement to restrain exports. For d then challenged the plaintiff s ‘ evidence and conclusions. In the end, the trial cour t authorized certain additional filings and indicated that it would take the matter under submission as of July 8, 2011.
Thereafter , b y order dated November 4, 2011, the trial court granted the summary judgments motions of both Ford U.S. and Ford Canad a. 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 determin ed that the plaintiffs had fail ed 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 Cartwri ght 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 expor ts after the start of the alleged conspiracy period, was not enough to carry plaintiffs‘ burden. Finally, the

10 In conjunction with its order granting summary judgment, the trial court issued separate orders ruling on the plaintiffs‘ objections to Ford‘s evidence, Ford U.S.‘s evidentiary objections, and the objections to the plaintiffs‘ evidence filed by Ford Canada.13

trial court stated that the evidenc e 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 p laintiff s‘ timely notice of appeal again brought the matter befo re this court.
I I. EVIDENTIARY ISSUES
We first address the plaintiff s ‘ challenge to two evidentiary rulings made by
the trial court in connection with the summary judgment moti on here at issue. Specifically
, the plaintiff s contend that , in making its summary judgment determination, the trial court erred in refusing to consider on hearsay grounds cert ain deposition testimony of Pierre Millette, general counsel for Toyota Canada, regarding a May 15, 2001 , CADA meeting
, a s well as t he min utes 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 exclud ed 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 declara nt‘ 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 c ase. As we review the trial court‘ s treatment of the alleged hearsay in this matter, we note that there is some dispute regarding o ur standard of review for such determinations. ―[T]he weight of authority holds that an14

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.4 th 688, 694 ( Carnes ); see also Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 .) However, in Reid v. Google , Inc. (20 1 0) 50 Cal.4th 512 ( Reid ) , our high
court ack nowledged the argum ent that a different rule should apply when evidentiary

ru lings 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 ru lings 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. 53 5, quoting the appellate court opinion). Ultimately, t he 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 discre tion 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 ] .) W ith respect t o the consequences of our evidentiary review, however,

we will follow the tenet

— correctly point ed 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 prejud icial . (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.4th15

1298, 1317 ( Pannu ) .) With these standar ds 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, 200 1 , 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 cou nsel for the plaintiffs a nd 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 genera l consensus that the vehicle s w ould 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 thi s additional testimony
from Millet t e, which it n ow 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 agree ment. It was simply a concept that there was some consensus on from everyone at th e 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 judg ment hearing on January 24, 2011, afte r 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,16

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, plaintiff s ‘ counsel and the trial court had an extended discussion regarding the admissibility of the Millette testimony. Ac cording 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 witn ess 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 rul ing on Ford‘s evidentiary objections in connection with its grant of summary judg ment, 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 inadmissib le hearsay because it is out

- of

- court de position 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 testimony17

may be used ―for any purpose‖ where deponent resides m ore 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 Ev idence 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 w hich 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).) A s 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 be fore us is whether Millette‘ s testimony would constitut e inadmissible hearsay if he were testifying as a
witness in court.
Ford ar gues that the Millette statements at issue are indeed inadmissible on this basis because they ―conveyed ‖ hearsay. Specifically, according to Ford, when the testimony is rea d in context, it is ―clear Millette was describing statements made by the other participants in the meeting.‖ Ford contends that these out

- of

- co urt statements of other declaran ts are hearsay, and no exception to the hearsay rule has
be en offered justifying th e i r 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 stateme nts made by particular participants. Rather, he was simply recounting generally his impressions and conclusions based on

11 On appeal, plaintiffs do not chal lenge the trial court‘s exclusion of Millette‘s first statement

— that he remembered ―comments being made that everyone supported the concept of trying to keep the vehicles in Canada.‖ We therefore focus our review on the admissibility of his two subsequent statements and do not consider the first statement in our summary judgment analysis.18

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 pre

judicial 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 find ing

re garding 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 sepa rate lines of inquiry. First, we must

co nsider whether the Millette statements

— improp erly 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 fro m having participated in the May 15, 2001 meeting (and other conspiratorial meetings) on behalf of Toyota, alongside exe cutives from Ford, GM, Chrysler and CADA.‖ While this makes him competent to testify as to

12 Although not necessary to our resolution of this matter, we note that if statements attributable to all of the other participants at the May 15 meeting were the basis f or Millette‘s conclusion that a consensus had been reached to keep Canadian automobiles in Canada, then any such statements would likely themselves be admissible as admissions of co

- conspirators, because they would have then been made while participating i n a conspiracy and in furtherance of the objective of that conspiracy. (Evid. Code, § 1223.) Indeed, such statements could also be understood as operative facts, evincing the conspiratorial agreement itself, and therefore be deemed admissible as nonhears ay. (See 1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 32

- 36, pp. 825

- 830.) Of course, logically, it is difficult if not impossible to reach any ultimate conclusion regarding how these alleged ―statements‖ should be characterized as there is a bsolutely no evidence of who actually said what, a circumstance which underscores the inherent unworkability of Ford‘s ―conveyed‖ hearsay theory.19

facts he personally observed, it do es 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 knowledge of it.‖ ( 1 Witkin, Cal. Evidence (5th ed. 2012) Opinion Evidence, § 1, p. 608 .) Thus, plaintiffs‘ ar gument does not go far enough
,

on its own, to justify the adm ission of the Millette statements

. Instead, w e believe that the challenged depos ition testimony is best understood as an opinion of a lay witness, admissible in accordance with section 800 of the
Evidence Code (section 800)

. 13 That statute provides: ―If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of

13 In November 2015, the parties were given the opportunity to file supplemental letter briefs addressing thi s theory of admissibility, along with certain others. Both did so, and we have considered their submissions in rendering our decision. In Ford‘s supplemental briefing, the automobile manufacturer argues that the plaintiffs‘ failure to specifically refere nce section 800

— either in the trial court or on appeal

— precludes any reliance on it. As described in detail above, however, Ford claimed in the trial court that the statements at issue are hearsay and the plaintiffs have argued strongly, both below and be fore this court, that they are not. We believe that this was more than sufficient to preserve the issue. Having agreed with the plaintiffs that the testimony is nonhearsay and was erroneously excluded, we consider section 800 only as part of our prejudic e analysis. Indeed, even if further specificity were required to preserve the argument in this limited context, the plaintiffs claimed in their appellate briefing that ―Mr. Millette used his senses to observe behavior at the meeting and form an understand ing of what happened. He conveyed his understanding through his testimony.‖ (Italics added.) And, before the trial court, plaintiffs similarly argued: ―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 [] now there was.‖ (Italics added.) The trial court seemed to agree, stating: ―My present view of that is that he is giving his understanding of what happened and that this is not hearsay.‖ (Italics added.) Thus, plaintiffs have adequately raised the question of whether Mr. Millette could properly testify as to his understanding or opinion regarding the events at issue.20

his testimony.‖ (Evid. Code, § 800.) A trial court has broad discretion to admit lay opinion testimony, especially where adequate cross

- examination has been allowed. ( Osborn v. Mission Rea dy Mix (1990) 224 Cal.App.3d 104, 112 ( Osborn ).) Our Supreme Court has recently summarized the law regarding lay opinions
under section 800 as follows: ―  ̳ A lay witness may express an opinion based on his or her perception, but only where helpful to a cl e ar understanding of the witness‘ s testimony ( Evid. Code, § 800, subd. (b)), ― i.e., where the concrete observations on which the opinion is base d cannot otherwise be conveyed.‖ [Citation.]‘ [Citation.]
Such a situation ma y arise when a witness‘ s impress ion of what he or she observes regarding the appearance an d demeanor of another rests on  ̳subtle or complex
interactions‘ between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness‘ s concrete observations. [Cit ations.] A lay witness generally may not give an opinion about another person‘ s state of mind, but may testify about objective behavior and describe behavior as being consistent with a
state of mind. [Citation.]‖ ( People v. DeHoyos (2013) 57 Cal.4th 79, 13 0

– 1 31 ( DeHoyos ) .) Put another way, the opinion rule for nonexperts ―  ̳merely requires that witnesses express themselves at the lowest possible level of abstraction. [Citation. ] Whenever feasible ―concluding‖ should be left to the jury; however, when the details observed, even t hough recalled, are ―too complex or too subtle‖ for concrete description by the witness, he may state his general impression.‘ ‖ ( Angelus Chevrolet v. State of California (1981) 1 15 C al.App.3d 995, 1001 ( Angelu s Chevrolet ) .) Thus, for example, ―a lay witness may express an opinion that a person
was  ̳drunk‘ [citation], or that people enga ged in a discussion were  ̳angry‘ [citation]
, or that an impact was strong enough to jar a passenger from a seat [citation]
, or that someone appeared to be  ̳trying to break up a fight.‘ [Citation.]‖ ( Osborn
, supra , 224 Cal.App.3d at p. 113.) Where a lay opinion is otherwise admissible, the witness‘ s experience may affect the weight of the testimony. (See People v. McAplin (1991) 53 Cal.3d 1289, 1307.)21

We find Justice Werdega r‘s recent opinion in Seumanu , supra, 61 Cal.4th 1293, particularly useful. In that case, a murder defendant (Ropati) presented testimony at trial from his brother (Tautai ) claiming that he

— Tautai

— was the one
who killed the victim rather than Ropati . ( Id. at p p

. 1303, 1306.) To counteract this testimony, the prosecution presented evidence from a third crime partner, Iuli, who had pleaded guilty to reduced charges and agreed to testify for the prosecution. ( Id.

at p p. 1304, 130 9

– 1 310.) In particular, Iuli described a pretrial encounter he had when he, Tautai, and Ropati were together in a holding cell. I u l i testified that Ropati ―asked him an d Tautai to  ̳take the blame off of him and that he would be out there taking care of us‘ by sending them money in prison.‖ ( Id. at p. 1309.) Iuli rejected the proposal , but stated that Tautai ―remained silent and did not appear angry.‖ ( Ibid. ) Follow

- up questions indicating that Iul i thought Tautai looked like he was going to take the blame were objected to as improperly calling for an opinion. ( Id. at p. 1310.) However, under these circumstances, the Seuman u Court concluded that ―Iuli‘s testimony regarding his perceptions was not improper opinion evidence from a lay witness.‖ ( Ibid. ) Rather, ―Iuli was a percipient witness to the encounter in the holding cell and he thus spoke from personal knowledge gleaned from his own participation in, and observation of, the event in question. ‖ ( Id. at p. 1311.) Similarly, in this case, Millette was a percipi ent witness to the May 15, 2001
, meeting , and h is opinion was based on personal knowledge gleaned from his own partic i pation in, and observation of, that interaction , as well as his numerous previous
contacts with the alleged co

- conspirators

. (Cf. Seumanu , supra , 61 Cal.4th at

pp. 130 9

– 1 311.) Further, it is quite likely that his conclusions were based , at least in part, on observations regarding the appearance an d demeanor of other meeting participants and rested on the ―  ̳subtle or complex interactions‘ ‖ among them

. ( DeHoyos , supra , 57 Cal.4th at pp. 13 0

– 1 31; see also People v. Hinton (2006) 37 Cal.4th 839, 889 [ lay opinion by third party that a defendant was directing another individual in a drug transaction may be proper where it is ―certainly possible‖ that the third party‘s impression ―rested on subtle or complex interactions

. . . that were22

difficult to put in words‖ ] ; Angelus Chevrolet
, supra , 115 Cal.App.3d at p. 10 01 .) Moreover, there is no indication in the record that Millette was able to recall any particular statements or actions by any of the meeting participants. Thus, his comments were useful to understanding what transpired at this all

- important meeting
because t he concrete observations on which his opinion wa s base d likely could not otherwise be conveyed. (See DeHoyos , supra , 57 Cal.4th at pp. 13 0

– 1 31.) Under
such circumstances, he was testifying at the ―  ̳lowest possible level of abstraction.‘ ‖ ( Angelus Che vrolet
, supra , 115 Cal.App.3d at p. 1001.) In sum, although Millette could not properly testify as to the actual state of mind of any of the other meeting participants, he was allowed to express his opinion that they behaved in a way
consistent with reach ing a consensus to restrict exports. ( See DeHoyos , supra , 57 Cal.4th at pp. 13 0

– 1 31. ) His challenged testimony i s therefore properly admissible
in accordance with section 800. 14 Having determin ed that the testimony at issue is admissible, we next consider the second prong of our prejudice analysis: whether consideration of th at evidence, in conjunction with the other admissible eviden ce presented by the plaintiffs, would likely have led to a different outcome . We believe that, with respect to For d Canada‘s summary judg ment motion, it is probable that it would have. We discuss
this conclusion in detail below, in the context of our review of the plaintiffs‘ conspiracy evidence as it relates to Ford Canada. In sum, plaintiffs‘ entire case
stands or falls on whether they have presented s ufficient admis sible evidence of an illegal agreement to restrict Canadian exports. Unsu r prisingly, there is no unambiguous evidence of such an agreement in the record before us

. However , Mr. Millette‘s statements a re important evidence suggesting conspiracy and could clearly

14 Ford repeatedly urges us to defer to the trial court‘s exercise of discretion in this case. However, because the trial court made a legal error

— characterizing nonhearsay as hearsay

— it never exercised its discretion with respect to whether the testimony at issue was otherwise admissible. If anything, though, the court‘s comments seem to indicate that it properly understood Millette‘s statements for what they are: His understanding of what happened at the May 2001 meeting.23

have tipped the balance in the plaintiffs‘ favor. In short, base d on his testimony
, a reasonable juror could conclude that

— at least in the mind of one of the key alleged

co

- conspirators

— all of the participants at t he May 15, 2001
, CADA meeting had reached a consensus to keep Canadian automobiles in Canada . Under these
circumstances , exclusion of the Millette statements was not only erroneous, but also prejudicial.
B

. The CADA Minutes of the M ay 2001 Meeting After the May 15, 2001
, meeting discussed in the Millette testimony
, Melissa
Clark

— a CADA employee who attended the me eting

— drafted minutes based on her
handwritten notes

. The document indicates that it is ―confidential notes‖ from the

― E xport Sales Meeting ‖ held on May 15 , 2001, and lists the individuals from Ford Canada, Toyota Canada, AIAMC, CVMA, GM Canada, Chrysler Canada, CADA, and various local dealer associations who participated. A ccording to the minutes,

a fter a CADA representative articulated the meeting objective of ―developing a strategy to solve the industry problem of export sales,‖ t he meeting participants discussed the pros and cons of various ways they could work together to m ake export restraints m ore effective. The minutes also include a laundry list of proposed follow

up actions, such as obtaining industry

- wide statistics on the size of the export problem and seeking ―advice from outside counsel with respect to any Competition Act implications of any industry

- wide export sales initiatives.‖ They end with the
admonition: ― PLEASE KEEP THESE NOTES CONFIDENTIAL .‖
In c onnection with its summary judg ment motion, Ford objected to the
admission of the Export Sales M eeting minutes on hearsay grounds and to certain statements of CADA rep resentatives memorialized in those minutes as multiple hearsay

. In response, the p laintiffs argued that the minutes were admissible under numerous exceptions to the hearsay rule, including the bu s i ness record exception (Evid. Code, § 1271), the exception for adoptive adm ission s (Evid. Code, § 1221),
and the co

- conspirator exception (Evid. Code, § 1223)

. In the end, however, t he trial

court sustained Ford‘s h earsay objection

. O n appeal, the plaintiffs renew their24

argum ent that the meeting minutes are properly admissible
, both as a bu s i ness record and as an adoptive admission of Ford Canada. We agree with the plaintiffs that the meeting minutes here at issue are a

― textbook example ‖ of an adoptive admission of Ford Canada under section 1221 of
the Evidence Code (section 1221)

. Pursuant to section 1221, ―  ̳ [e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.‘ The theory of adoptive admiss ions expressed in section 1221  ̳ ― is that the hearsay declaration is in effect repeated by the party; his conduct is in tended by him to express the same proposition a s that stated by the declarant. ‖ ‘ ‖ ( Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 326 ; see also People v. Hayes (1999) 21 Cal.4th 1211, 1257 [―[t]he hearsay rule does not bar evidence offered against a party who has admitted the truth of the hearsay statement‖]; People v. Osuna (1969) 70 Cal.2d 759, 765 ( Osuna ) [conversation among codefendants admitted under adoptive admission rule where ―[h] ad one disagreed with what the other said, it is reasonable to assume that he
would have said so ‖] .) In the instant case, after Melissa Clark of CADA drafted the meeting minutes,
she forwarded them to Norm Stewart

— Vice President of Government Relations and
General Counsel for Ford Canada

— for his review and comment. Accor ding to Stewart, he made a few comments that weren‘t ―super substantive‖ and sent the
revised minutes back to Clark . Stewart also stated that he felt that the minutes ―generally captured the sense of what went on at the meeting‖ and were ―pretty

accurate. ‖ Indeed, the only complaint he was able to articulate was that he ―didn‘t think‖ the minutes ―totally accurately recaptured the concept that issues were put out,
but not necessarily brought to closure,‖ an idea which, in our view, is adequately conveyed within the document

. In sum, by engaging in this review and revision process, Stewart (on behalf of Ford Canada) clearly manifested his belief in the

accura cy of the meeting minutes . Presumably, had he seen any errors, he would have25

corrected them. ( Osuna , supra , 70 Cal.2d at p. 765.) T hus
, the minutes were admissible against Ford Canada as an adoptive admission and were erroneously excluded by the trial court.
O n ap peal
, Ford does not challenge the plaintiffs‘ characterization of the meeting minut es as adoptive admissions . Instead, it argue s only that the plaintiffs

were not prejudiced by the exclusion of the minutes because evidence of the ―content of the discussion at the CADA meeting‖ was ―plainly before the court.‖ Moreover, according to Ford , the minutes do not support an inference of conspiracy because the meeting partic i pants never adopted any of th e specific actions proposed on May 15.
As we discuss further below, we do not find the failure of the alleged co

- conspirators to implement any of the joint actions suggested at the May 15 meeting to be particu l a rly relevant to the existence of plaintiffs‘ claimed conspiracy. Moreover , we doubt that being aware of the gist of what was discussed at the meeting has the same impact as viewing an off icial document which sets forth the names of each alleged

co

- conspirator; indicates the willingness of each to discuss at length engaging in patently anti

- competitive behavior; evinces knowledge by the participants of the

pos s ible anti

- competitive nature o f their pursuits ; and requests that confidentiality be
maintained. H owever, ultimately, we need not decide the issue of prejudice
because

— irres p e ctive of our proper consideration of the minutes as part of our de

novo review

—

we would reverse the trial court‘s grant of summary judgment in favor
of Ford Canada for the other reasons stated herein. Because we do not rely on the improper exclusion of the minutes as a basis for reversal, w e need not determine
whether that exclusion was prejudicial. Having r esolved these preliminary matters , we turn now to the sufficien c y of
the plaintiffs‘ conspiracy evidence.26

III. SUMMARY JUDGMENT ON EXISTENCE OF AGREEMENT
A. Analytical Framework and Standard of Review The standards for granti ng summary judgment are well

- settled and easily delineated. A trial court must grant a motion for summary judgment ― if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ‖ ( Cod e Civ. Proc., § 437c, subd. (c).) When, as here, defendants move for summary judgment, they can ―meet thei r burden by demonstrating that  ̳a cause of action has no merit,‘ whi ch they can do by showing that  ̳ [o]ne or more elements of the cause of action cann ot be separately established

. . . . ‘ [Citations.] Once defendants meet this burden, the burden shifts to plaintiff to show the existence of a triable issue of mater ial fact.‖ ( Nazir , supra , 178 Cal.App.4th at p. 253.) The i nitial burden of a defend a n t moving for summary judgment is a ―burden of production to make a prima facie showing of
the nonexistence of an y triable issue

. ‖ ( Aguilar , supra, 25 Cal.4th 826, 850.) Thus, such a defendant is only required to pr esent some ev idence creating a rebuttable presumption that no material fact issue exists before the burden shifts to the plaintiff opposing the motion

. ( Id. at pp. 85 0

– 8 51 .) Our review of an order granting summary judgment is de novo . Under such
circumstances
, t he trial court ‘ s stated reasons for granting summary judgment ― are not binding on us because we review its ruling, not its rationale. ‖ ( Ram’s Gate Winery. LLC v. Roche (2015) 235 Cal.App.4th 1071, 1079.) Thus, ―[t] he sole question properly before us on review of the summary judgment is whether the j udge reached the right result

. . . whatever path he mi ght have taken to get there .‖ ( Carnes , supra , 126 Cal.App.4th at p. 694 .)
I n u ndertaking our analysis, we ―  ̳accept as true the facts . . . in the evi dence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.‘ ‖ ( Nazir , supra , 178 Cal.App.4th at p. 254.) We must, however, disregar d any evidence to which objection s have been made and sustained . ( Guz v.
Bech tel National, Inc. (2000) 24 Cal.4th 317, 334 ( Guz ) ; Code Civ. Proc., § 437c,27

subds. (b)(5), (c) & (d) .) Finally, as an overarching princip l e , we view the evidence in the light most favorable to the losing party

— here the plaintiffs

— liberally construing the plaintiffs‘ evidentiary submissions and strictly scrutinizing the defendants‘ evidence in order to resolve any evidentiary doubts or ambiguities in the plaintiffs‘ favor. ( Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 741 ; Nazir , supra , 178 Cal.App.4th at p. 254 .) In addition to these general tenets regarding motions for summary judgment,

our Supreme Court in the seminal case of Aguilar , supra, 25 Cal.4th 826
, set forth guidance specifically applicable to summary judgment motions in antitrus t actions for unlawful conspiracy. ( Id. at p. 843.) In Aguilar
, plaintiff s argued that nine petroleum companies had violated the Cartwright Act by ―enter[ing] into an unlawful conspiracy to restrict the output of CARB [California Air Resources Board cleaner

burning ] gasoline and to raise its price.‖ ( Id. at pp. 83 7

– 8 39.) While concluding that summary judgment was appropriate on the facts before it, t he Aguilar court clarified

― the law that courts must apply in rul ing on motions for summary judg ment , both in actions generally and specifically in antitrust actions for unlawful conspiracy.‖ ( Id.

at p p. 84 2

– 8 43.)
W ith respect to antitrust conspiracy cases in particular
, the Aguilar court

— after reviewing rec ent state and federal law on the subject 15

— opined : ―On the
defendants ‘ motion for summary judgment, in order to carry a burden of production to make a prima facie showing that there is a triable issue of the material fact of the existence of an unlawful conspiracy, a plaintiff, who would bear the burden of proof by a preponderance of evidence at trial, must present evidence that would allow a
reasonable trier of fact to find in his favor on the unlawful

- conspiracy issue by a

15 ― In antitrust actions brought under the Cartwright Act, we look to interpretations of its federal law counterpart, the Sherman Antitrust Act (15 U.S.C. § 1 et seq.), for guidance since the federal act was a model for our own in most respects. ‖ ( Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1420 ( Biljac ), overruled on other grounds as stated in Reid
, supra , 50 Cal.4th at p. 532 & fn. 8.)28

preponderance of the evidence, that is, to find an unlawful conspiracy mor e likely
than not

. Ambiguous evidence or inferences showing or implying conduct that is as consistent with permissible competition by independent actors as with unlawful conspiracy by colluding ones do not allow such a trier of fact so to find.‖ ( Aguilar
, supra , 25 Cal.4th at p. 852, italics added ; see also Matsushita Elec. Industrial Co. v.
Zenith Radio (1986) 475 U.S. 574, 588 ( Matsushita) .) Thus, an antitrust plaint iff

must also ― present evidence that tends to exclude, although it need not actually

ex clude, the possibility that the alleged conspirators acted independently rather than collusively. ‖ (

Aguilar
, supra , 25 Cal.4th at p. 852; see also Matsushita
, supra , 475 U.S. at p. 588

. ) ― Insufficient is a mere assertion that a reasonable trier of fact m ight disbelieve any denial by the defendants of an unlawful conspiracy.‖ ( Aguilar
, supra , 25 Cal.4th at p. 852.) When attempting to prove unlawful conspiracy, antitrust plaintiffs may rely on
both direct a nd circumstantial evidence. ―  ̳ ― [D]irect evidence ‖ ‘ means evidence that directly proves a fact, without an inference or presumption, and which in itself, if true,

c onclusively establishes that fact. ‖ ( Biljac
, supra , 218 Cal.App.3d at p. 1430 [quoting Evid. Code, § 410] .) An inference, in contr ast, is ―  ̳ ― a deduction of fact that may logically and reason ably be drawn from another fact or group of facts found or
otherwise established in the action. ‖ ‘ ‖ ( McGrory v. Applied Signal Technology,
Inc. (2013) 212 Cal.App.4th 1510, 15 29 , quoting Evid. Code, § 600, subd. (b).) As
the Aguilar court acknowledged , antitrust plaintiffs ― must often rely on inference rather than evidence since, usually, unlawful conspiracy is conceived in secrecy and lives its life in the shadows.‖ ( Aguilar
, s upra , 25 Cal.4th at p. 858 .) Whether direct evidence or inference, however, ―if the court determines that any evidence or inference presented or drawn by the plaintiff indeed shows or implies unlawful conspiracy more likely than permissible competition, i t must then deny the defendants‘ motion for summary judgment, even in the face of contradictory evidence or inference presented or drawn by the defendants, because a reasonable trier of fact could find for the plaintiff. ‖ ( Aguilar
, supra , at pp. 85 6

– 8 57.)29

In addition
, Continental Ore Co. v. Union Carbide (1962) 370 U.S. 690, 699 ( Continental Ore ) teaches that plaintiffs in an antitrust action for unlawful conspiracy ―should be given the full benefit of their proof without tightly compartmentalizing
th e various factual components and wiping the slate clean after scrutiny of each. ‖ Thus, ―  ̳[t] he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a
whole. ‘ ‖ ( Ibid. ) With respect to the substantive law of conspiracy, while some sort of concerted activity is necessary for an antitrust claim, it is well settled that an explicit or formal agreement is not required . ( United States v. General Motors Corp. (1966) 384 U.S. 127, 14 2

– 1 43 ( General Motors ); Biljac
, supra , 218 Cal.App.3d at p. 1423.)
In General Motors , for instance, the United States Supreme Court found sufficient evidence of conspiracy under the federal antitrust laws wh ere General Motors
worke d with a number of its dealers and lo cal dealer associations
, to ―persuade‖ a subset of dealers to agree not to sell Chevrolets through certain discount houses. 16 ( General Motors
, supra , 384 U.S. at pp. 13 0

– 1 31, 13 4

– 1 38.) In rej ecting the trial
court‘s co nclusion that each a lleged co

- conspirator was engaging solely in parallel
action in furtherance of its own self

- interest rather than acting pursuant to an illegal agreement , the Supreme Court opined: ― [I] t has long been settled that explicit

16 Other cases considering conspiracy allegations in the context of cutting off a discount channel of distribution include Coca

- Cola Co. v. Omni Pacific Co., Inc. (N.D. Cal. 2000) 2000 U.S. Dist. LEXIS 17089 ( Coca

- Cola ) (sufficient evidence to survive summary judgment on claim of illegal horizontal conspiracy between Coca

- Cola and its competitors to eliminate exporters selling lower

- priced U.S. beverages into higher

- priced foreign markets based on exchanges of information regarding those exporters), Toys “R” Us, Inc. v. F.T.C. (7th Cir. 2000) 221 F.3d 928 ( Toys “R” Us ) (agreements between Toys ―R‖ Us and toy manufacturers to restrict sales to a discount competitor of Toys ―R‖ Us constitute illegal horizontal conspiracy where toy manufacturers would not enter into agreements without assurances that other manufacturers were also bound), and Alvord

Polk, Inc. v. F. Schumacher & Co . (3d Cir. 1994) 37 F.3d 996, 1005

– 1006, 1013

– 1014 ( Alvord

- Polk ) (evidence insufficient to prove conspiracy among wall

- covering manufacturers to restrict sales by discount 800

- number dealers).30

agreement is not a necessary part of a Sherman Act conspiracy

— certainly not where, as here, joint and collaborative action was pervasive in the initiation, execution, and fulfillment of the plan. ‖ ( Id. at pp. 14 2

– 1 43.) Rather, to maintain an actionable
antitrust claim, ―[c]ircumstances must reveal  ̳a unity o f purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.‘ ‖ ( Monsanto Co. v. Spray

- Rite Service Corp. (1984) 465 U.S. 752, 764 ( Monsanto )

. ) Thus, as the Biljac court p ut it in the context of a Cartwright Act claim , a ll that is required from
an anti trust plaintiff is ―  ̳ direct or circumstantial evidence that reasonably tends to prove t hat the [defendant] and others ― had a conscious commitment to a common scheme designed to achieve an u nlawful objective.‖ ‘ ‖ ( Biljac
, supra , 218 Cal.App.3d at pp. 142 5

– 1 426, quoting Monsanto , supra , 465 U.S. at p. 764

. ) In attempting to prove unlawful conspiracy, o ne type of evidence antitrust plaintiffs often presen t

— as the plaintiffs do here

— is evidence that the alleged co

conspirators met and shar ed industry information at conferences or trade association meetings . The law is clear, however, that ― [i]n general, trade association activities tend to promote competition and are lawful. Gathering and compiling industry information and disseminating it among members does not offend antitrust policy, even though to do so naturally  ̳ tends to stabilize tha t trade or business and to produce uniformity of price and trade pract ice.‘ ‖ ( Biljac
, supra , 218 Cal.App.3d at

p. 1430, quoting Maple Flooring Ass n

. v. United States (1925) 268 U.S. 563, 582 ( Maple Flooring) .) Moreover, tr ade association members do not ―  ̳ become

. . . conspirators merely because they gather and disseminate information

. . . bearing on the business in which they are engaged and make use of it in the management and control of their individual businesses

. . . . ‘ ‖ ( Biljac at p. 1430 , quot ing Maple Flooring .) ―[O] nly when they take concerted action to restrain trade based on such information do they act illegally. ‖ ( Ibid. , citing Maple Flooring .) Thus, for instance, in Biljac
, the plaintiffs argued the existence of a conspiracy to manipu late variable interest rates on certain loans. ( Biljac
, supra , 218 Cal.App.3d at p. 1415.) In support of their position, the Biljac plaintiffs pointed to31

evidence that interest rates and interest

- rate pricing were topics of discussion at trade association meetings . This, however, was deemed insufficient to prove the existence
of the claimed conspiracy. ( Id. at p. 1430.) Specifically, the Biljac court concluded that no inference of conspiracy could be drawn from indus try discussions of this

na ture ― without proof of agreement or conc erted action to manipulate the . . . market
wit h such information.‖ ( Ibid. ) Put another way, t he Biljac pla intiffs‘ proof failed
because ―further inferences‖ were required ― to conclude that any agreement or

consens us came out of those discussions.‖ ( Ibid.; s ee Aguilar
, supra , 25 Cal.4th at

p p

. 83 9

– 8 40 , 86 2

– 8 63 [ concluding that the gather ing and dissemination of pricing information by the petroleum companies through an independent industry service did not imply collusive action where there was no evidence the information was misu s ed as a basis for an unlawful conspiracy ; rather, evidence suggested that individual companies used all available resources ―to determine capacity, supply, and pricing
decisions which wo uld maximize their own individual profits‖ ] ; see also In re Citric Acid Litigation (9th Cir. 1999) 191 F.3d 1090 , 109 7

– 1 099 [ insufficient evidence that defendant was part of price

- fixing conspiracy where there was no evidence illegal activities took place at trade association meetings attended by the defendant; further, gathering information about pricing and competition in the industry was a legitimate
function of the trade association ] ; Alvard

- Polk
, supra , 37 F.3d at pp. 100 5

– 1 006,
101 3

– 1 014 [ evidence in sufficient to prove conspiracy among wall

- covering manufacturers to restrict sales by discount dealers where discussion of issue and possible responses to it at conventions was an information exchange only, providing no evidence of an illegal agreement] .) Finally
, as we conduct our review of these proceedings , we are also mindful that ―both California and federal decisions urge caution in granting a defendant‘s motion for summary judgment in an antitrust case.‖ ( Fisherman’s Wharf Bay Cruise Corp. v. Sup erior Court (2003) 114 Cal.App.4t h 309, 321 ( Fisherman’s Wharf ) .) As the United States Supreme Court stated in Poller v. Columbia Broadcasting (1962) 368 U.S. 464, 473 : ―We believe that summary procedures should be used sparingly32

in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and host i le witnesses thicken the plot. ‖ (See also Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 852 [quoting Poller with approval]; Fisherman’s Wharf
, supra, 114 Cal.App.4t h at p. 321 [same].) The Aguilar court acknowledged as much. ( Aguilar
, supra , 25 Cal.4th at p. 852.) However, it went on to opine that the presumption that such a motion should be granted ―  ̳sparingly‘ does not mean  ̳seldom if ever.‘ Hence, although such motions should be denied when they should, they must be granted when they must.‖ ( Id. at pp. 847, 852. ) On this relatively unhelpful note, we turn to our review of the conspiracy evidence presented by the plaintiffs in the instan t

case. B

. Sufficiency of the Conspiracy Evidence : Ford U

. S

. We consider first whether the evidence submitted by the plaintiffs is sufficient
to raise a triab le issue of material fact with respect to Ford U.S.‘s participation in the alleged conspiracy to restrict Canadian exports . Specifically, under Aguilar , we ask
whet her it is more likely than not

— on the evidence presented

— that Ford U.S.
entered into an illegal agreement with any other alleged co

- conspi rator to restrict the export of Canadian vehicles into the United States. As a preliminary matter, we acknowledge the authority cited by Ford for the proposition that a corporation and its wholly owned subsidiary are incapable of conspiring under the anti trust laws. (See Copperweld Corp. v. Independence Tube Corp. (1984) 467 U.S. 752, 76 9

– 7 71 ( Copperweld ) ; Freeman v. San Diego Association of Realtors (1999) 77 Cal.App.4th 171, 189.) As the United States Supreme Court explain ed in Copperweld : ― [T]he

coor dinated activity of a parent and its wholly owned subsidiary must be viewed as that of a single enterprise for purposes of [ section ] 1 of the Sherman Act. A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives

are co mmon, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single dri ver. With33

or without a formal  ̳ agr eement,‘ the subsidiary acts for the benefit of the parent, its sole shareholder. If a parent an d a wholly owned subsidiary do  ̳agree‘ to a course of action, there is no sudden joining of economic resources that had previously served
different interests, and there is no justif ication for [ section ] 1 scrutiny.‖ ( Copperweld
, supra, 467 U.S. at p. 771.) In fact , the plaintiffs here acknowledge that they are not arguing that Ford U.S. is liable because it conspired with its subsidiary,
Ford Canada. Thus , in reviewing the materials the plainti ffs contend establish Ford
U.S.‘ s participation in the alleged conspiracy, evidence that Ford U.S. and Ford Canada were working together to combat the export of Canadian vehicles to the
United State s proves nothing more than unilateral action by For d in response to a perceived threat

. Nevertheless, i n an attempt to me e t their burden under Aguilar , plaintiffs point
first to a collection of mater ials prepared in advance of a November 2001 meeting
bet ween Ford U.S. and Ford Canada on the issue of unauthorized Canadian exports
, referred to in the documents as ―Canadian brokering

. ‖ The record contains three
different iterations of an agenda or talking points for this anticipated ―Canadian Brokering Summ it, ‖ which were prepared by Ford U.S. and make clear that the

company was concerned about the Canadian export issue from a dealer relations standpoint. Specifically, Ford U.S. was receiving a substantial number of complaints
fro m their U.S. dealers regar ding unfair competition from Canadian exports bei n g sold as ―new‖ within their franchise area s . The issue was particularly contentious
with re s pect to Thunderbirds, a ―high

- profile, high

- margin vehicle.‖ In addition,
Canadian b r oker ing was problematic for Ford U.S. because it was costing them

money. Indeed, a ccording to the materials, Ford U.S. was making ―as much as $5000 less on some vehicles which [were] sold in Canada and then brokered, compared to what [they] would have earned had the vehicle gone directly to a US dealer.‖ Attached to the agenda was a list of suggest ed actions that could be taken to help solve the export problem, including the pros and cons of each

. For instance,34

Ford U.S. suggested adding a unique characte r to Canadian VIN ‘ s to make the
Canadian vehicles easier to track. Another proposal was to cancel the sale of an exported vehicle, charge back the Canadian deal er who sold it, and then re

- rep o r t the sale using the appropriate U.S. dealer code. N one of t h e proposed action items
, however, sugges ted or require d the involvement o f any other manufacturer; nor did any of the agenda materials mentioned above discuss coordination with competitors. Indeed, pla i ntiffs conceded as much below, but argued that the do cuments show that Ford U.S. exercised ―a modicum of control‖ and directed Ford Canada on the issue of exports. To t he contrary, we view these materials as reveal ing only that Ford U.S. had identified what it saw as a significant problem and was looking to Ford Canada to help solve it. There is certainly no evidence that Ford C anada was acting as an authorized agent of Ford U.S. for purposes of entering into an unlawful conspiracy. (See United States v. Bestfoods (1988) 524 U.S. 51, 61 ( Bestfoods ) [a parent corporation generally ― is not liable f or the acts of its subsidiaries‖ ]; see also In re Capacitors Antitrust Litigation (N.D. Cal. 2015) 106 F.Supp.3d 1051, 1071 [quoting Bestfoods in dismissal of parent corporation from antitrust action where there were no allegations that the parent company, itself, participated in the alleged conspiracy ] .)
T he plaintiffs also claim that Ford U.S

. was likely part of the alleged conspiracy because it was the primary beneficiary of the export restrictions
, which
al lowed the manufacturer to sell its U.S. vehicles at a premium. The evidence does reveal that Ford U.S. possessed a motive to conspire

. Reporte dly, for instance, the
consensus at the Novem ber 2001 Canadian Brokering Summit was that between 500
and 700 For d vehicles per month were being brokered from Canada to the United
States at that time. As stated above, Ford was losing as much as $5000 on each
Canadian brokered sale. In deed, in considering the situation, Bill Glick, a Ford U.S. executive, opined: ―T here still appears to be a substantial revenue/profit opportunity for the Company if we can effectively address the Canadian brokering situation.‖ In line with this conclusion, Ford U.S. generated a list of proposed follow

- up actions35

after the November 20 01 meeting which included: redefining ―new vehicle‖ as having less than a certain number of miles; working toward eliminating the Canadian tax rebate (GST) for exp orted vehicles; rewriting buyer orders to be cancelable if the buyer is determined to be a brok er; increasing manpower to audit dealerships; reviewing competitive procedures regarding warranties (especially Honda‘s) ; providing feedback to dealers on actions taken; engaging a consultant to study the brokering issue and recommend solutions; and in vestigating specific brokering activity involving Hertz as well as the brokering of Ford Thunderbirds. Again,
however

— other than collecting information regarding competitors‘ warranty procedures

— none of these proposed actions mentioned involvement of, or coordination with, competitors. 17 Moreover , a lthough the evidence may show that
Ford U.S had motiv e to conspire with other automobile manufacturers to restrict Canadian exports , this, without more, is insufficient to prove conspiracy. ( See Aguilar
, supra , 25 Cal.4th at p. 864 [―We recognize that Aguilar did indeed present evidence that the petroleum companies may have possessed the motive, opportunity, and means to enter into an unlawful conspiracy. But that is all. And that is not enough ‖ ]. ) In sum, no thing in the Canad ian Brokering Summit materials ― tends to
exclude ‖ the possibility that Ford U.S. was acting independently and in its own self

interest, rather than collusively with other alleged co

- conspirators

. ( Aguilar
, supra , 25 Cal.4th at p. 852.) In addition, however, plaintiffs point to several emails they cla im are evidence that Ford U.S. ― was involved with and approved of c ommunications with competitors.‖ The first is a December 1999 email from a Ford Canada executive to Ford U.S. stating that he had been in touch with his ―contact‖ at Honda Canada
, who reported the use of export controls very similar to those used by Ford Canada. The email additionally mentions that Honda Canada had been voiding warranties, but had

17 We discuss below the insufficiency of information gathering from competitors as a basis for establish ing antitrust liability.36

been recei ving a significant amount of ―push back ‖ from relocated Canadian consumers and U.S. customers who had unknowingly purchased gray market vehicles. The second email was written by a Ford U.S. executive, Bill Glick, in March 2002 and indicates that representatives of Ford U.S . had learned from a former Ford employee working for Chrysler that Chrysler was considering voiding warranties. With respect to the Ford Canada email, there is no indication that Ford
U.S. either solicited or approved of Ford Canada‘ s collection and diss emination of industry information from H onda Canada. More importantly, though, both emails fail to go beyond information gathering from competitors regarding an industry problem, activity that is condoned under the antitrust laws. ( See Biljac
, supra , 218 Cal.App.3d at p. 1430 [ industry participants do not ―  ̳become

. . . conspirators merely because they gather and disseminate information

. . . bearing on the business in which they are engaged and make use of it in the management and control of their
indiv idual businesses

. . . ‘ ‖ ] .) Thus, these emails do little to prove unlawful
collusion. The only other conspiracy evidence identified by the plaintiffs involving Ford
U.S. is a March 2002 internal Ford U.S. memorandum wri tten by Bill Glick. In that
docu ment , Bill Glick stated: ―[P]lease note that Dave Kelle her [an in

- house atto r ney for Ford U.S. ] has calls into his counterparts at DCX [DaimlerChrysler U.S.] and GM to discuss potential industry

- wide solutions.‖ Plaintiffs contended in the trial

cour t th at this evidence alone showed Ford U.S. ―actively participating in the conspiracy.‖ However, even assuming the calls were made

— a fact disputed below

— there
is no indication in this statement that Ford U.S. did anything more than make initial

contact with certain competitors to discuss an industry issue. Further

— in contrast to the meeting evidence discussed below where numerous alleged co

- conspirators accepted an invitation to meet knowing that the sole topic of discussion would be the development of a n i ndustry

- wide solution to the Canadian export problem

— there is
no indication here that Ford U.S .‘ s competitors were even willing to talk about these37

issues. Under such circumstances, there is simply no evidence, or even i nference, from which a reasonable j ur y could conclude that Ford U.S. agreed with any other alleged co

- conspirator to do something together about the export problem or that it even understood the goals of the alleged conspiracy and actively participated in it

. (See Biljac
, supra , 218 Cal.Ap p.3d at pp. 142 5

– 1 426 ; see also In re TFT

- LCD (Flat Panel) Antitrust Litigation (N.D. Cal. 2 008) 586 F.Supp.2d 1109, 1117 [― the heart of an antitrust conspiracy is an agreement and a conscious decision by each defendant to join it, ‖ italics added] ; ibid . [finding general allegations against all corporate entities in a single corporate structure insufficient under federal antitrust law; leave to amend granted to more specifically plead how each individual corporate defendant joined the alleged conspiracy] .) T his single email , then, is manifest ly not enough to
raise a tria ble issue of material fact as to whether Ford U.S. unlawfully conspired with its competitors in violation of the Cartwright Act. (See Aguilar
, supra , 25 Cal.4th at p. 852 .) Thus, with r espect to Ford U.S., the trial court‘s grant of summary judgment was proper.
C. Sufficiency of the Conspiracy Evidence: Ford Canada A summary judgment determination with respect t o Ford Canada, however, is less straightforward. Indeed, t he record in t his matter

— including deposition testimony
, declarations, expert opinions, interrogatories, requests for admission, and related document production

— is factually complex and fills mor e than 26,000 pages.
B ecause we need only identify evidence sufficient to establish the existence of one
issue of material fact in order to re verse the trial court‘s grant of summary judgment
in favor of Ford Canada
, however, we need no t engage in an exhaustive recitation of all of the potentially relevant evidence presented bel ow. Moreover , we note that, in ruling on Ford Canada ‘s summary judgment motion, the trial court excluded vast amounts of potentially highly relevant evidence related to Ford Canada‘s alleged co

- conspirators on hearsay grounds, presumably concluding that the plaintiffs had fai led to make the prima fac ie showing necessary for application of the co

- cons p irator exception to the hearsay rule . (See Evid. Code,38

§ 1223.) Since , on appeal, the plaintiffs have only challenged the trial court‘s rejection of the t wo pieces of evidence discussed above , we will not consider the remainder of the excluded materials in reaching our decision. ( Biljac
, supra , 218
Cal.A pp.3d at p. 1420 [failure to raise issue on appeal constitutes abandonment] ; see also Guz , supra , 24 Cal .4th at p. 334 [evidence to which objection s have been made
and sustained must be disreg arded on review of summary judg ment] .) Finally, since the plaintiffs have not c ontest ed the trial court‘s conclusion that Ford Canada met its
in i tial burden of production , making

— through general denials of wrong doing; proof of prior consistent conduct; and evidence of independent business reasons for its
actions

— a prima facie sho wing of the absence of any cons p i racy , w e will not here
revisit that determination. Rather, w e are left sole ly with the question of wheth er the plaintiffs have
carried the b urden of production
, as shifted onto their shoulders
, to make a prima facie showing of the presence of an illegal a greement among the named defendants to curb Canad ian exports. In the words of the trial court, we explore whether plaintiffs produced evidence ― that tends to exclude the possibility that the defendants acted independently rather than collusively.‖ We believe that the plaintiffs have produced
such evide nce in an amount sufficient to defeat Ford Can ada‘s bid for summ ary judg ment. Preliminarily, however, we note that there is some evidence which, although stressed by one party or the other, is not particularly helpful in resolving the question
before us. For instance, we do not believe the fact that some or all of the relevant automobile manufacturers, including Ford, might have engaged in unilateral activities designed to curtail Canadian exports in the decades preceding the alleged conspiracy period neg ates the possibility of unlawful collusive action during that period. Rather, as the trial court correctly noted
, 18 entering into an anti

- competitive

18 Specifically, the trial judge opined: ―I think the law is that if you‘re doing something parallel without concerted effort and then at some point you go into

— you enter into an arrangement, an agreement, by which you say we‘re go ing to keep doing this and now39

agreement not to stop doing what you previously may have had the ability to do on your own is sufficient f

or purposes of liability under the Cartwright Act. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 41

- 43, 49

- 50 ( Quelimane ).) For example, Quelimane involved an alleged conspiracy under the Cartwright Act among title insurers wh o refused to sell title insurance on real property acquired through a tax sale. ( Quelimane , supra, 19 Cal.4th at p. 48.) Our Supreme Court
determined that the allegations in the complaint were not subject to demurrer despite the fact that ―an insurer may lawfully and individually conclude that the risks inherent in insuring a title to property conveyed by tax deed outweigh the potential
benefit and dec line to issue title insurance to purchasers of tax

- deeded property.‖ ( Id. at p. 49.) The high court reached this conclusion because ―[r]ecognition that a single participant in the market might refuse to insure tax deed titles for a legitimate
business re ason does not demonstrate that there is  ̳a purpose unrelated to elimination or reduction of competition‘ [citation] for an agreement by a combination of insurers to refuse such policies

. . . . ‖ ( Id. at pp. 49

- 50 , italics added .)
Rather
, ―an agreement a mong all title insurers in a county that none will issue policies on property conveyed by tax deed

. . . implies a purpose of ensuring that none will seek what might otherwise become a sufficiently lucrative business opportunity to outweigh the risk . ( Id. at p. 50, italics added.) In sum, ―[w] hile refusing to sell a product to a consumer does not itself violate the Cartwright Act, when that refusal is the result of a combination, agreement, or conspiracy to make that product unavailable in a given market a prohibited r estraint of trade may be

we‘re all going to do it together like we were before, but we‘re going to keep doing this, maybe step up our

—

but we promise we won‘t stop. I think that‘s enough to get to a jury as a matter of law. I think that is covered b y the Cartwright Act.‖ In the end, however, the trial court described plaintiffs‘ assertion that Ford Canada had conspired with others to continue doing what it had previously been doing unilaterally as ―pure speculation.‖ As we discuss in detail below, we disagree with this characterization of the plaintiffs‘ evidence.40

found.‖ ( Id. at p. 49.) Thus, it is the existence of an agreement (or lack thereof) that is controlling. (S ee also General Motors
, supra , 384 U.S. at p. 140 [ noting that

w hatever General Motors might lawfully have done individually to enforce its dealer agreements ― is beside the point ‖ in the face of evidence of an unlawful combination
in restraint of trade ].) Moreover, evidence of the manufacturers‘ prior course of conduct becomes less meaningful if a plausible ar gument can be made that industry conditions cha nged significantly at or around the time of the alleged conspiracy. Here , evidence ex ists from which a reasonable jury could conclude that segregating the Canad ian and
American automobile markets was becomin g increasingly difficult by the end of the last century

. Specifically, i n the 1980 ‘ s , Canadian vehicles differed from their U.S. counterparts with respect to physical and mechanical attributes, emission control systems, and safety parameters. For instance , in 198 3 , Ford Canada projected that 70 percent of its 1984 Canadian cars and light trucks would not comply with U.S. exhaust regulations and could not legally be imported or operated in the United
States. GM informed its dealers in 1986 that some of its Canadian vehicles ―may not meet U.S. EPA requirements.‖ U nder such circumstances, it appears that the ―export problem‖ during this timeframe was small er and often involve d particularly desirable, or ―hot‖ cars

. In addition , w hile manufacturers , includ ing Ford Canada, employed certain

expor t restraints to address the issue
, evidence presented suggests that tho se control s were based , at least in part, on legitimate customer satisfaction and legal concerns that no longer exist ed during the alleged conspiracy period. For instance, Ford Canada opined that export sales of its 1984 vehicles would present U.S. purchasers with ―insurmountable difficulties‖ and could result in repercussions for the dealer,
Ford Canada
, and Ford U.S. I n 1986, GM stated that the importation of gray market
vehicles made it difficult to admin i ster safety recalls and vehicle warranties and led to ―some customer dissatisfaction.‖ In 1988, Honda not ed that parts for warranty
service on non

- USA vehicles might not be readily available in the United States.41

However, as Ford Canada itself recognized
, by 1999 the gray market export of its vehicles ―seemed to be spiking up fairly significantly.‖ At the same time, the
harmonization of the Canad i a n and U.S. mark ets occurred and a favorable exchange rate for arbitrage was available

. A s a result , for the first time
, automobile manufacturers faced the possibility of large numbers of essentially fungible, yet less expensive, cars crossing the border from Canada to t he United States. 19 No l onger primarily an issue of customer dissatisf a c tion, it became more cle a rly a lost profits issue, especially if another manufacturer chose not to enforce export restrictions in order to reap the profits available from selling into this new discount channel of
distribution.
In fact, the evidence sh ows that this very thing happen ed to Ford Canada
imme d i ately prior to the alleged conspiracy period. Specifically, Ford Canada was approached in 1999 by an alleged rental car dealer seeki ng to buy 1
, 300 automobiles. Suspicious that the company was actually buying the vehicles for export, Ford
Canada decline d the transaction. However

— as reported to Ford U.S. by two
different Ford Canada executives

— GM Canada and Chrysler Canada subsequentl y agreed to split the sale of the 1
, 300 automobiles ―despite the export  ̳compromise.‘ ‖ Arguably, these statements indicating the existence of an ―export compromise‖ could be viewed as evidence that some type of conspiracy involving exports was in
existen ce as early as 1999. 20 A t a minimum , however, the evidence of this aborted

19 Unsurprisingly, this coincided with information gathering by the manufacturers with respect to the scope of the problem and possible solutions implemented by competitors. In December 19 99, a Ford Canada employee reported a discussion with his ―contact‖ at Honda Canada regarding Honda Canada‘s existing export restrictions, including the voiding of warranties. In June 2000, a Ford Canada employee contacted his counterpart at Chrysler Cana da and learned exports were a major problem for them. In September 2000, a Ford Canada executive spoke with Toyota Canada and learned about its response to the export problem, including pricing ―hot‖ cars the same in the United States and Canada.

20 When deposed, both Ford Canada executives offered nonconspiratorial, though differing, explanations for their use of the term ―export compromise.‖42

rental car transaction s uggest s that Ford Canada‘s adherence to its export policie s cost it millions of dollars in profits and significant market share because its vehicles
were view ed as interchangeable with the vehicles of other manufacturers for gray market purposes. Indeed, Ford Canada acknowl e d ged that it would ―feel the share impact.‖ Further, not only did Ford lose money on the initial sale of the vehicles in Canada, but the exported cars became cheaper, intra

- brand competition for Ford in
the United States. C onstruing all of this evidence in the light most favorable to the plaintiffs, a plausible inference exists that

— whatever Ford Canada‘s previous policies or ―compromi ses‖ rega rding export sales

— a substantial , and seemingl y different, problem was emerging as early as 1999 that may have demanded a new
response

. In arguing against the existence of an illegal conspiracy, Ford also continually stresses that no agreement to take joint action came out of any of the allegedly conspiratorial meetings. However, the absence of any post

- agreement indication of specific joint activity among the manufacturers is not fatal to plaintiffs‘ conspiracy
claim . Ford simply ignores the fa ct that the posited conspiracy was not necessarily to work together on joint initiatives, but rather , as the plaintiffs described it: ― to provide assurances that each defendant would enforce anti

- export policies.‖ That is, it was an agreement that no one would break ranks and take for themselves the significant profits av ailable in the export market
, as had happened in 1999 to the
financial detriment of Ford Canada

. Judge Hornby concluded as much in the federal
MDL action when, after detailing the many w ays in which the defendants declined to take industry

- wide action , he opined : ― But there is nevertheless probably enough for a jury to find at least an informal agreemen t to restrain Canadian exports.‖ ( In re
New Motor Ve hicles Canadian Export Litig

. , supra , 632 F.Supp.2d at p. 47 & fn. 8 ; see also Monsanto , supra, 465 U.S. 752, 764 ; Jones v. City of Chicago (7th Cir. 1988) 856 F.2d 985, 992 [― [i]t is enough if you understand the general objectives of the scheme, accept them, and agree, either explicitl y or implicitly, to do your pa rt to43

fur ther them‖].) T hus
, we are not persuaded that the lack of evidence of an adopted industry

- wide ― solution ‖ necessarily undercuts the plaint i ffs‘ conspiracy claims

. Finally, we agree with the trial court that evidence indicating that certain of the defendant manufacturers ―stepped up‖ their anti

- export policies after the start of the alleged conspiracy period is not n ecessarily evidence of an agree m e nt to do so. The evidence that the plaintiffs themselves present show s that manufacturers were facing
an entir ely new economic climate in which an unprecedented number of essentially fungible lower

- priced Canadian vehicles were suddenly available for profitable export to the United States. Under such circumstances, it seem s plausible, that

— even in the absence of a conspiracy

— manufacturers might decide unilaterally to boost their efforts to combat this extremely costly problem. Thus, in this case, without other evidence tending to exclude the possibility of unilateral behav ior
, do cumentation of increased action to combat exports is not particularly probative of unlawful conspiracy. Having described the evidence and arguments we find unconvincing, we turn

now to a discussion of the evidence that could be interpreted as tending to e x clude
unilateral action , thereby making unlawful conspiracy more likely than not

. 21
1. Meeting Evidence First, plaintiffs have produced significant evidence of telephone and in

- person meetings among the manufacturers, aided by CADA, the expre ss purpose of which

21 Citing Continental Ore , p laintiffs argue on appeal that the trial court erred by failing to consider all of the conspiracy evidence as a whole. Instead, they claim, the court below compartmentalized the various types of evidence and then gave the benefit of the doubt to Ford on every category. The trial court, however, expressly addressed this very argument, stating: ―I didn‘t compartmentalize the evidence. I‘m aware that when you have a claimed conspiracy, the parts relate to each other.‖ More fundamentally, given our de novo review of the matter, th e trial court‘s process in reaching its decision is essentially irrelevant. We will engage in our own review of all of the evidence presented. (See Continental Ore
, supra , 370 U.S. at p. 699; see also Code Civ. Proc., § 437c, subd. (c) [summary judgment appropriate only when ―all the papers submitted‖ show no issue of material fact].)44

was to come up with a joint approach to stamping out the gray market export of Canadian vehicles to the United States. As stated above, there is evidence in the
record that
, by 2000, the manufacturers were discussing the magnitude of t he export problem among themselves

. In addition, during this timeframe, individual
manufacturers conferr ed regarding the possibility of working together to address unauthorized export sale s. For instance, Toyota Canada asked a representative of
Ho nda Can ada (Miller) if he was ―interested in joining with some other manufacturers to come up with a common method of resolving export sales.‖ Miller was also contacted by Ford C anada and Chr y sler Canada to the same effect

. Indeed, a representative of Ford Cana da called Miller in an attempt to persuade him to work together on the export i ssue, stating that Honda Canada ―should join them. It was for the betterment of the industry‖ and ―it would be easier if all the manufacturers were common in their approach to the dealers, as it relates to export sales.‖ 22 On October 25, 2000, Norm Stewart , General Co unsel for Ford Canada, sent a message via facsimil e to the CVMA indicating that he wanted the CVMA to ―initiate a conference call‖ with representatives of GM Canada, Chrysler Canada, Honda Canada, and Toyota Canada ― as soon as possible, to discuss a proposed meeting with
CADA . . . aimed at developing an industry

- wide approach to ending unau thorized export sales ‖ (italics added)

. On October 27, 2000, Stewart p artic i pated in a
conference call with representatives of other automobile manufacturers , including Chrysler Canada (Grant), GM Canada (McDonald), Honda Canada (Miller), and Toyota Canada (Millette). According to Stewart, who admitted that the call was

org anized at his request, the purpose of the call was to ―talk about export issues.‖ Stewart‘s deposition testimony further reveals that the result of the call was direction to Dave Adams at CVMA ―to get back to CADA to indicate that we would be prepared to meet.‖

22 These statements regarding the potential benefits of joint action were not admitted by the trial court for their truth.45

Ultimately, an industry meeting was sche duled at CADA‘s offices on May 15,
2001 , to discuss the export sales problem

. Representatives of Ford Canada (Stewart), GM Canada (Risebrough and McClean ), Chrysler Canada (Rose), Toyota Canada (Mi llette)
, the CVMA (Adams), and the AIAMC (Biggs) att e nded a ― pre

- meeting ‖ on May 15 to discuss the issues that they anticipated would be raised at this CADA

sponsored event

. These same indiv i duals

— along with additiona l representatives of the AIAMC (Hodges and Watkins) and Chrysler Canada (LeBlanc), representatives
from CADA (Little, Gauthi er, Ryan, Riccoboni, and Clark) and representatives of certain regional dealer associations

— then attended the actual meeting in CADA‘s offices, which rep ortedly lasted from lunchtime until four or five o‘clock. Minutes from the meeting , the admissibility of which was determined above,
indicate t hat the meeting‘s objective , as articulated by CADA, was to develop ―a strategy to solve the industry problem o f export sales of new automobiles to the United States,‖ including the possibility of ―one set of rules, a protocol, which could be applied across the industry.‖ Possible industry solutions, and the difficulties associated with them, were explored. For i nsta nce, a representative of a regi o n al
dealer association indicated that no

- expor t clauses in sales agreements did not appear to be an effective deterrent. A common due diligence list was seen as problematic because it would be overly cumbersome to use w ith every customer; sophisticated export brokers would likely find ways to circumvent the standard process; and customers were reported to resent being questioned r egarding their purchase. Development of a shared database of known exporters, possibly main tained by CADA, was criticized due to possible definitional differences among manufacturers, the need for constant updating, and Competition Act, Privacy Act, and defamation

concerns. Participants also discussed the d evelopment of a best practices list th rough dialogue with the dealers and lobbying the gove r nment for tax reform aimed at
comba ting export sales. In the end, as mentioned previously, no particular solution was adopted. Rather, a list of proposed actions was generated, including: (1) determining the size46

of the problem through collection of statistical data from all manufacturers; (2) developing an employee education program for the dealers on the export issue; (3 ) tax reform to eliminate certain reb ates for gray market exports; (4 ) pr ofiling the importance of the two

- tiered distribution system to Canada, as equalization of pricing
in Canada and the United States could lead to fewer sales in Canada , lost jobs , and older cars on the road; (5 ) seeking advice from outside counsel ―with respect to any Competition Act implications of any industry

- wi de export sales initiatives‖ ; (6 ) surveying dealers with respect to their best practices in the prevention of exports; (7 ) checking with NADA to assess the export situation from the U.S. perspec tive ;

a nd (8 ) investigating the possible future development of a shared database. As stated above, the minutes ended with the admonition: ― PLEASE KEEP THESE NOTES
CONFIDENTIAL .‖ Citing Biljac and the trade association meeting cases, Ford argues that discussing an industry problem as a group is not evidence of an illegal agreement to

res t r ain trade and , in fact, is actually condoned by the Cartwright Act. (See Biljac
, supra , 218 Cal.App.3d at p. 1430; see also Aguilar
, supra , 25 Cal.4th at pp. 83 9

– 8 40 , 86 2

– 8 63; In re Citric Acid Litigation
, supra , 191 F.3d at pp. 109 7

– 1 099; Alvard

Polk
, supra , 37 F.3d at pp. 100 5

– 1 006, 101 3

– 1 014.) We agree that , given the
evidence of changed m arket forces during the timeframe of the alleged conspiracy

— including the harmonization of safety and environmental stand ards
, the weakening of
the Canadian dollar , and the recent spike in gray market exports

— the issue of export
sales was a ― timely and nat ural one[] within the industry.‖ ( Biljac
, supra , 218 Cal.App.3d at p. 143 0.) However, we believe the evidence in this case goes significantly beyond the benign exchange of information on a common industry problem permitte d under the antitrust laws . Indeed, this is not a situation where the export issue was part of a general i ndustry discussion covering a large number of topics. ( Biljac
, supra , 218 Cal.App.3d at p. 1433.) Instead, the evidence shows a series of communications and meetings the sole purpose of which was, as plaintiffs47

put it
, ―to figure out an industry solution to stamp out the export problem.‖ 23 In
addition , the record is clear that the partic i pants were aware of the legal problems inherent in concerted activity among the manufacturers . Yet they met and discussed working together on restrict ing export s anyway. Under these circumstances, we believe that the evidence of telephone and in

- person meetings among the alleged co

conspirators proffered by the plaintiffs could be viewed as tending to exclude the possibility that the manufacturer s acted independently rather than collusively with respect to exports. (See Aguilar
, supra , 25 Cal.4th at p. 852.) Moreover, o ur conclusion is not altered by Ford ‘s additional claim that agreeing to meet with competitors to discuss the possibility of an industry

- wide
solution does not make it more likely than not that the individual action s subsequently taken by the manufacturers to restrict exports were the result of an illegal agreement , especially where the evidence shows that no industry

- wide solution was ever implemented

. As discussed above, we do not believe the fact that

no common re s ponse to the export problem was ever adopted by the manufacturers precludes a finding of conspiracy. As for the argument that agreeing to meet is different than agreeing to conspire, that is, of course, true. However, agreeing to meet extensively on the sole topic of how best to restrict exports as an industry certainly raises a plausible inference that the alleged co

- conspirators had all previously agreed to h old the line together on expo rt sales
, and were thus willing to

23 Indeed, this is the position that was initially articulated by the trial court, which stated during the summary judgment hearings below: ―You can‘t satisfy your burden by showing that there was an opportunity to meet. You can‘t satisfy your burden to show that they simply met without regard to regarding [sic] anything. So the type of evidence you usually see that there was a convention and they all went to the convention, and they all had dinners together and the like; not enough. [¶] What you have here is a serie s of communications where it is clear what the topic of the communications would be, and I think there is admissible evidence as to each of the defendants here that they participated to some extent in communications with each other where the topic of the p roblem that they all shared was discussed. So that‘s different than saying, well, they had lunch at the American Bankers Association.‖48

explore together in detail the most effective means of implementing that anti

competitive pac t

. Thus, th e meeting evidence might be sufficient, in and of itself, to defeat Ford Canada‘s summary judgment motion. Ultimate ly, however, we need not decide whether this evidence, standing alone , is sufficient to persuade a trier of fact
that unlawful conspiracy among the automobile manufa cturers i s ― more likely ‖ than permissible competition
, because the record contains additional evidence supporting the existence on an illegal agreement to restrict Canadian exports

. ( See Aguilar
, supra , 25 Cal.4th at p. 852.)
2. Possible Direct Evidence of Agreement For instance, a s discussed a t length above, Pierre Millette‘ s conclus ion after participating in the May 15, 2001
, CADA meeting

— as well as a number o f previous meetings and calls

— was that there was ―general support for the approach‖ of trying to keep Canadian vehicles in Canada. Moreover , when asked if there was an agreement among the manufacturers ―to work together to keep vehicles in Canada,‖ Millette responded that it wasn‘t an ―agreement,‖ but was instead ―simply a concept that there was some consensus on from everyone at the meeting.‖ We believe t hat
this evidence

— that one of the key alleged co

- conspirato rs thought that there was a ―consensus ‖ among all of the meeting participants to work toget her to keep Canadian vehicles from crossing the border

— could be viewed as highly proba tive of conspiracy. Indeed, based on these comments, which the trial court expressly
refused to consi d er , a reasonable juror could conclude that Ford Canada and the other alleged co

- conspirators ―  ̳ ―had a conscious commitment to a common scheme designed to achieve an unlawf ul objective‖ ‘ ‖ ( Biljac
, supra , 218 Cal.App.3d at

pp. 142 5

– 1 426.) In other words, the trier of fact could find that each member of the group had committed to do its part to restrain Canadian new vehicle exports to the
United States
, thereby cutting off a burgeoning discount channel of distribution. (Cf.
General Motors
, supra , 384 U.S. at p. 144 [― General Motors sought to elicit from all the dealers agreements, substantially interrelated and interdependent, that none of
them would do business with the discounters. These agreements were hammered out49

in meetings

. . . and in telephon e conversations . . .

. It was acknowledged from the beginning that substantial unanimity would be essential if the ag reements were to be forthcoming ‖].) Of course, we recognize that Mr. Millette‘s comments are subject to interpretation and are at least potentially contrary to other of his statements contained
in the record. Indeed, for its part, Ford argues that the Millette testimony is not direct evidence of conspira cy proving , at most, only that all of the manufacturers viewed Canadian exports as a problem. However, as our Supreme Court recently reiterated: ―  ̳[T]he task of disambiguating ambiguous utterances is for trial, not for summary judgment.‘ ‖ ( Reid
, supra , 50 Cal.4th at p. 541 ; see also ibid . [ ―[d]etermining the weight of . . . ambiguous remarks is a role reserved for the jury‖ ].) Put another way, in ruling on a motion for summary judgment, ―the co urt may not weigh the plaintiff‘ s evidence or in ferences a gainst the defendants‘ as though it were sitting as the trier of
fact.‖ ( Aguilar
, supra , 25 Cal.A pp.4th at p. 856; see also Monsanto , supra , 465 U.S. at pp. 76 7

– 7 68 & fn. 12 [―[t]he choice between two reasonable interpretations of the testimony was proper ly left for the jury ‖ ].) For our purposes, then, it is sufficient to conclude that if present ed with the Millette testimony

— especially in the context of the meeting evidence discussed
above

— a reasonable juror could find an unlawful conspiracy to restrict Canadian exports more likely than not. (See Aguilar
, supra , 25 Cal.4th at p. 852.) Further, we need not determine whether the deposition testimony is best characterized as direct or circumstantial evidence of the alleged conspiracy because we conclude that
, regardless, it is evidence that tends to exclude the possibility that the alleged co

conspirators acted independently rather than collusively. (See ibid. ) Thus, it is sufficient to support reversal of the trial court‘s summary judgment de cision in favor
of Ford Canada. 24

24 Altho u g h we do not consider it in reaching our decision, we note that there is other potential direct evidence of con spiracy in the record that the trial court excluded on hearsay grounds, a decision not challenged by plaintiffs for purposes of this summary50

3. Evidence of Actions Taken to Further Alleged Conspiracy In addition to the materials detailed above, several other categories of evidence presented by the plaintiffs

— while perhaps not sufficient in and of themselves to send the issue of conspiracy to a jury

— do tend to lend further support the plaintiff‘s theory of the case. For instance, the uncontested evidence shows that all of the manufacturers continued to enforce export restrictions in the wake of the May 15,
2001 , CADA meeting, with many ―stepping up‖ the ir export efforts. In June 2001, Ford Canada generated a list of Export Sales Policy Actions, including ―[o]ng o ing dialogue with industry contacts to share  ̳best practices.‘ ‖ Thereafter, i n August 2001, Ford Ca nada requested that its regional ma n agers contact dealers
, informing
them that continued export sales would ―result in restricted allocations of high demand products for Canadian Dealers and increased pressure to increa se prices.‖
F urther , they were to in dicate that such sales could lead to termination, chargebacks, and suspension from dealer incentive programs. Finally, the managers were
instructed to assure the dealers that ―[t]he company will share best practices volunteered by you and your fellow Dealers in preventing export sales as well as working with CADA and other vehicle manufacturers on an industry

- wide approach to deter export sales

. ‖ (Italics added.) There is als o evidence that Ford Canada actually red uced vehicle allocations, provided blacklists of known exporters to its

judgment motion. For instance, a draft letter by a senior executive at Chrysler Canada dated April 2002 to ―All D aimlerChrysler Canada Retailers‖ states: ― We have joined forces with the other manufacturers (with CVMA and AIAMC) and have met with CADA officials to explore additional deterrents to the export activity.‖ (Italics added.) In addition, an internal email from Pierre Millette to others at Toyota Canada describes an April 2002 meeting among representatives of CADA, various manufacturers, and dealers as follows: ―GM was not present but had advised they were supportive of joint action. They are involved in a lawsuit with one of the biggest exporters and one of the allegations is an industry conspiracy to stop exports which makes their participation in the conspiracy (all present agreed there was nothing illegal with what was being done) to stop exports a pro blem

. ‖ (Italics added.)51

dealers, circulated best practices, imposed chargebacks, and initiated dealer termination proceedings during t his timeframe. Other manufacturers followed suit, each relying on the ex port restrictions they found most effective for their particular situation . Chrysler Canada, for instance, issued chargebacks , maintained a blacklist of know n or suspected exporters, and supplied its dealers with a list of due diligence ―checkpoints‖ to b e employed to uncover exporters. It began refusing to h onor warranties beginning in 2002. GM Canada issued chargebacks; enhanced its best practices list; and strengthened its Franchise Agreement to allow for penalties on, and termination of
, exporting de alers. Toyota Canada had an online blac klist of suspected exporters, issued chargebacks
, and monitored the availability of replacement speedometers. H onda Canada stopped honoring warranties in 1998 for gray market vehicles. During the period of the
alle ged consp iracy, it maintained a due diligence checklist , issued chargebacks, and reduced vehicle allocations to exporting dealers. Thus, the manufacturers consistently enforced export restraints during the timeframe of the alleged conspiracy, and there is no evidenc e in the record that any manufacturer broke ranks during this period and decided to collect the easy profi ts available to it from allowi ng
gray market sales. Although insufficient standing on its own, such parallel conduct can be probative evid ence of unlawful collusion. ( Apex Oil Co. v. Di Mauro (2 d Cir. 1987) 822 F.2d 246, 253 .) An agreement among competitors , howe ver ―  ̳ may be inferred on the basis of conscious parallelism, when such interdependent conduct is accompanied by
circumstan tial evidence and plus factors.‘ ‖ ( Mayor and Council of Baltimore v. Citigroup (2d Cir. 2013) 709 F.3d 129, 136 ( Citigroup )

. ) These plus factors i nclude things such as: ― a common motive to conspire, evidence that shows that the parallel acts were against th e apparent individual economic self

- interest of the alleged conspirators, and evidence of a high leve l of inter firm communications.‖ ( Ibid .)
Here , the alleged co

- conspir ators continued to meet and otherwise communicate regarding the export issue during t he alleged conspiracy period

. An additional52

conference call on export sales was held on May 28, 2001. Representatives of Ford
Canada met with CADA in Febr uary 2002 to discuss export s. Toyota Canada met
with CADA in March 2002 with respect to similar con cerns. Two other CADA

sponsored industry meeting s on the t opic of export sales w ere held in April and
November 2002. Thus, there was a high level of interfirm communication. In addition, the plaintiff s presented evidence that the alleged co

- conspirators
sh ared information throughout the alleged conspiracy period. For example, i n March 2001, Ford Canada obtained a copy of Chrysler Canada‘s blacklist and added the
names to Ford‘s blacklist. During the May 28, 2001
, conference call
, Norm St ewart explained Ford Canada‘s process for tracking exports through VIN ‘ s and suggested that the industry could undertake a similar analysis. In March 2002, GM Canada was in possession of export volume data pertaining t o both Ford and Chrysler. Further, a s stated above, in June 2001, Ford Canada espoused ―[o]ng o ing dialogue with industry contacts to share  ̳ best practices.‘ ‖ It sent a copy of its best pract ices to CADA in
March 2002. However, Ford‘s own expert testified that enforcing export restraints

w as a difficult and expensive thing to do and that sh aring know

- how with a rival that would reduce its export costs or help protect its dealer network would not be in Ford‘s unilateral self

- interest absent receipt of something in return

. In fact, s uch in formation sharing, in and of itself, was found sufficient to defeat summary judgment in Coca

- Cola
, supra , 2000 U.S. Dist. LEXIS 17089. In that case, the plaintiff alleged that the Coca

- Cola Company and its horizontal competitors, including Pepsi Cola and Cadbury Schweppes, were engaged in a conspiracy to exchange information about exporters and drive them out of business. ( Id. at *28.) Although there was no direct evidence of an express conspiracy to boycott exporters, there was circumstan tial evidence, including: (1) document ation
that Coca

- Cola and Pepsi exchanged information regarding exporters; (2) a request
from certain distributors that Coca

- Cola handle exports for Canada Dry in the same way it handled Coca

- Cola exports; (3) a memorandum indicating that Co ca

- Cola had provided Canada Dry with the names of three exporters; and (4) a report by Cadbury53

Beverages whi ch included information on Coca

- Cola exports. ( Id. at *2 9

– 3 0.) Rejecting Coca

- Cola‘s argument that this information sharing revealed only
―  ̳isolated contacts‘ that occurred after each manufacturer independently adopted its own [anti

- export] program in the pursuit of each licensors‘ independent economic interest, ‖ the trial court concluded that summary judgment was inappropriate because ―evidence of this concerted activity is more consistent with an impermissible purpose, an agreement to jointly combat the [exporting] competitors.‖ ( Id. at *31.) In sum, given the particular circumstances of this case, the parallel conduct

engag ed in by the manufactures during the alleged conspiracy period provide s additional support for the plaintiffs‘ claimed conspiracy

. 4. Evidence of Economic Motive to Conspire Finally, there is motive evidence in the record, suggest ing that the alleged co

c onspirators had no economic incentive to maintain or increase export restraints during the timeframe of the alleged conspiracy in the absence of an illegal agreement

. ( See Citigroup , supra , 709 F.3d at p. 136

. ) Although the econom ic analysis is complex a nd vigo rously disputed by Ford
, plaintiff s‘ expert Professor
Robert E. Hall , of Stanford University and the Hoover Institute, essentially maintains
that

— under the conditions prev ailing during the class period

— the unilateral imposition of export restraints by an automobile manufacturer would have been unprofitable because that manufacturer would lose the profits available to it from selling Canadian vehicles into the United States market. Although the manufacturer would profit from selling more higher

- priced American vehicles in the United States, the loss in p rofits would be greater than any gain because ―the gray

- market sales for
one manufacturer dis place the gray

- market sales of other manufacturers sufficiently
to more than offset the loss o f authorized sales in the U.S.‖ Thus, in Professor Hall‘s54

opinion, ―export restraints would not have been in place or enforced during the class period under unilateral action by the manufacturers.‖ 25 The plaintiff s arg ued below that such evidence made un lawful conspiracy ―more likely‖ than permissible competition and also showed the prete x t ual nature of the manufacturers‘ asserted justifications for the ir export restraints. The trial court, however, was not convinced that this evidence had any probative value. Indeed, during the hearings on the various summary judgment motions before it, the trial court at one point stated: ―I am mindful that the claimed conspiracy is in the
economic self

- interest of each of the defendants, perhaps. That alone doesn‘t do anything for you. That‘s not evidence, that‘s simply a perspective . And the fact that it would be in somebody‘s self

- interest to conspire doesn‘t mean that they did.‖ In its order granting summary judgment for Ford, the court acknowledged that
the plaintiffs had presented ―evidence of motive and economic interest to conspire‖ among the alleged co

- conspirators. Citing Aguilar
, however, the trial court concluded that ―[t]his evidence alone does not satisfy plaintiffs‘ burden of production.‖ (See Agu ilar
, supra , 25 Cal.4th at p. 864 [―We recognize that Aguilar did indeed present evidence that the petroleum companies may have possessed the motive, opportunity, and means to enter into an unlawful conspiracy. But that is all. And that is not enough. Such evidence merely allows speculation about an unlawful conspiracy. Specul ation, however, is not evidence ‖]; see also Serfecz v. Jewel Food
Stores (7th Cir. 1995) 67 F.3d 591, 60 0

– 6 01, quoted with approval in Aguilar
, supra ,

25 As mentioned above, Ford has filed a motion to exclude the opinions and testimony of Robert Hall in the trial court, along with voluminous supporting documentation. Plaintiffs, for their part, have responded with extensive mate rials of their own opposing Ford‘s motion. The trial court, however, has yet to take any action on Ford‘s motion to exclude, and thus the Hall reports submitted by plaintiffs in opposition to Ford‘s summary judgment motion remain ―evidence set forth in th e papers‖ to which no objection has been sustained by the trial court. (Code Civ. Proc., § 437c, subd. (c).) As such, they must be considered by the trial court

— and in this court‘s de novo review

— ―[i]n determining whether the papers show that there is no triable issue as to any material fact.‖ ( Ibid. ; see also Code Civ. Proc., § 437c, subd. (b)( 2).)55

25 Cal.4th at p. 865, fn. 32 [―[t]he mere existence of mutual economic advantage, by itself, does not tend to exclude the possibility of independent, legitimate action and supplies no basis for inferring a conspiracy ‖ ].) While we agree that motive evidence alone is insufficient to p rove conspiracy, we believe it is nevertheless a relevant
consideration.
Here , if believed (and again we acknowledge that it s validity is the subject of
intense debate ) , Hall‘s economic analysis posits that the auto manufacturers would
not have continue d to restrict exports during the alleged conspiracy period in the absence of an agreement that none of them would break ranks and reap the profits available in the export market

. I f true, this ―tends to exclude‖ the possibility that the alleged conspirators acted independently rather than collusively . ( See Aguilar
, supra , 25 Cal.4th at p. 852 .) Moreover, this evidence of potential economic motive

to co nspire does not e x ist in a vacuum . Rather, it merely further supports the meeting evidence di scussed above, Millette‘s statements regardi ng the existence of a ―consensus‖ to keep Canadian cars in Canada , and the manufacturers‘ parallel conduct in restricting exports

. In the end, t his is, perhaps, as the trial court acknow ledged, ―not an easy case .‖ Nevertheless, we are mindful of Justice Mosk‘s admon ition in Aguilar with respect to summary judgment motions in antitrust proceedings that ― although such motions should be denied when they should, they must be granted when they must.‖ ( Aguilar, supra , 25 Cal.4th at pp. 847, 852.) Viewing all of the evidence as a whole and in the light most favorable to the plaintiffs, we conclude that summary judgment
must be denied in this case because it should. Plaintiffs have produced sufficient
evidence to create a genuine issue of material fact as to whether Ford Canada and its competitors entered into an illegal conspiracy to restrict the export of lower

- priced
Canadian vehicles to the United States.56 IV. DISPOSITION The judgment of the trial court with respect to Ford U.S. is affirmed. The trial court‘s summary judgment in favor of Ford Canada, however, is reversed and the matter remanded for further proceedings consistent with this opinion

. The p laintiffs

are entitled to their costs on appeal.57 _________________________ REARDON, J.

We concur:

_________________________ RUVOLO, P. J.

_________________________ RIVERA, J.58

Automobile Antitrust Case A1 3 491359

Trial Court: San Francisco Superior Court
Trial Judge: Hon. Richard A. Kramer
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 Levens60 Alio to 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 Kolbe61 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 Papale62 Joseph M. Patane
Jeffrey Kenneth Perkins
Trump, Alioto, Trump & Prescott Mario Nunzio Alioto

Reich Radcliffe Marc Gene Reich

Counsel for Respondents: Latham & Watkins Margaret M. Zwisler Gregory G. Garre Jason L Daniels Michael E. Bern Katherine I Twomey Adam R. Thomas63

Automobile Antitrust Case A134913