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, 

§§ 167201–6728) and the Unfair Competition Law (Bus. & Prof. Code, §§ 17200–

17210). Specifically, the plaintiffs allege that the defendant manufacturers and 

associations conspired to keep lower-priced, yet virtually identical, new cars from 

being exported from Canada to the United States, thereby keeping new vehicle prices 

in California higher than they would have been in a properly competitive market. 

After years of litigation, the trial court granted summary judgment in favor of the two

remaining defendants in the case—Ford Motor Company (Ford U.S.) and its 

subsidiary, Ford Motor Company of Canada, Ltd. (Ford Canada) (collectively, 

Ford)—concluding that the plaintiffs had failed to produce sufficient evidence of an 

actual agreement among Ford and the other manufacturers to restrict the export of 

new vehicles from Canada to the United States. 
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 improperly 

excluded certain direct evidence of the alleged conspiracy. Based on our de novo 

review of this matter, we conclude that summary judgment was appropriately granted

to Ford U.S. However, we agree with the plaintiffs that the admissible evidence 

presented was sufficient to demonstrate the existence of a material fact as to whether 

Ford Canada participated in an illegal agreement to restrict the export of automobiles 

from Canada to the United States in violation of the Cartwright Act.1 We therefore 

reverse the trial court‘s grant of summary judgment in favor of Ford Canada.

I. BACKGROUND

A. Preliminary Matters

This litigation began over a decade ago when, in early 2003, more than a 

dozen different lawsuits were filed in California against various automobile 

manufacturers and trade associations, each alleging state law causes of action for 

antitrust conspiracy and unfair business practices and each filed as a class action on 

behalf of individuals who purchased or leased new vehicles in California that were 

manufactured or distributed within a certain period of time by one of the named 

defendants. The lawsuits were eventually coordinated into this proceeding. (In re 

Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 106 (Automobile 

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

 

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‘ unfair 

competition claim. 
3

amended class action complaint, the operative pleading in this matter.2 In addition to 

Ford, the class action complaint named numerous other automobile manufacturers as 

defendants.3 Also designated as defendants were the Canadian Automobile Dealers 

Association (CADA)—a trade organization that represents, promotes, and protects 

the interests of franchised automobile dealers in Canada—and the National 

Automobile Dealers Association (NADA), CADA‘s United States counterpart. (See 

ibid.) All told, the manufacturer defendants accounted for approximately 88 percent 

of automobile sales in the U.S. and Canada from 2001 to 2003. Sales by Ford, 

General Motors, and Chrysler—sometimes referred to as the ―Big 3‖—constituted 

approximately 67 percent of that market. 

As indicated above, the complaint alleges that the defendant automobile 

manufacturers and dealer associations violated state antitrust and unfair competition 

laws by conspiring to restrict the movement of lower-priced Canadian vehicles into 

the U.S. market, thereby avoiding downward pressure on new vehicle prices in the 

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

 

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 588 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 Corporation (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 Canada); 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 Crewcab 4x4 DRW Lariat could be imported from Canada and sold at a 

price $8,265 less than its United States counterpart ($29,569 as opposed to $37,834). 

Maintenance of this two-tiered pricing system required the continued segregation of 

the Canadian and U.S. automobile markets. 

Beginning in the 1990‘s, however, trade policy between the United States and 

Canada made exporting simpler and less expensive. Moreover, after the safety and 

environmental regulations governing new vehicles sold in the United States and 

Canada were harmonized between 1998 and 2000, the vehicles sold in the two 

countries became virtually identical.4 Then, from at least 2001 through 2003, the 

currency exchange rate differential between the strong United States dollar and the 

cheaper Canadian dollar made export sales increasingly attractive. (See In re New 

Motor Vehicles Can. Export Anti. Lit. (1st Cir. 2008) 522 F.3d 6, 9–10.) Faced with 

this particularly advantageous arbitrage opportunity,

5 exporters began buying more 

and more Canadian vehicles and selling them in the United States to franchised 

dealers, dealers of another brand, independent dealers, and used car dealers. This 

created a discount distribution channel, or ―gray market‖ for Canadian vehicles in the 

United States.

6

 

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 Cal.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 gray 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. imported 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 doing

their part to stamp out Canadian exports, rather than taking the profits available by 

permitting their Canadian dealers to sell Canadian cars freely into the U.S. market. 

According to the plaintiffs, this alleged conspiracy was created and implemented 

through a series of meetings and conference calls among the defendant 

manufacturers. These contacts were facilitated by a number of trade associations, 

including: CADA; the Canadian Vehicle Manufacturers‘ Association (CVMA), 

which represented the ―key or leading‖ automobile manufacturers in Canada, 

including Ford Canada, Chrysler Canada, and GM Canada; and the Association of 

International Automobile Manufacturers of Canada (AIAMC), which represented 

international manufacturers such as Honda Canada, Toyota Canada, Nissan Canada,

BMW Canada, and Volkswagen Canada. 

The plaintiffs further contend that the manufacturers used a variety of different 

tools to discourage the export of new Canadian vehicles to the United States, thereby

furthering the goals of their conspiracy. By the late 1980‘s, for example, Ford had 

modified its Canadian dealer franchise agreements (generally Franchise Agreements) 

to forbid export sales. The Franchise Agreements of other manufacturers contained

similar provisions. In addition, manufacturers created and frequently updated

―blacklists‖ of entities known to export vehicles for resale so that their Canadian 

dealers could consult the lists and refrain from selling to those entities. Additionally, 

the manufacturers began tracking every vehicle‘s unique Vehicle Identification 

Number (VIN) to determine which new vehicles made for sale in Canada had 

actually been exported to the United States. Once an exported vehicle was traced 

back to the particular dealer who made the export sale, many Franchise Agreements 

allowed for the imposition of ―chargebacks,‖ substantial fines (often in the thousands 

 

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 

termination of dealers engaged in the export trade. Ford, for example, initiated 

successful termination proceedings against a dealer that had a high incidence of 

export sales in 1999 and 2000. 

Some manufacturers also required their Canadian dealers to include ―no 

export‖ clauses in their sales agreements, under which buyers, themselves, could be 

required to pay a penalty if the purchased vehicle was transferred to the United States 

within a designated period of time. Moreover, Canadian dealers were required to 

conduct a ―due diligence‖ investigation of every buyer to identify potential exporters. 

If a Canadian car arrived in the United States despite the erection of these substantial 

barriers to export, manufacturers voided warranties for the repair of new vehicles 

exported from Canada, declined to provide information regarding recalls, and 

withheld certificates of origin from exporters. Distribution controls were also placed 

on the parts used to convert odometers from kilometers to miles. 

Although the cross-border sale of used vehicles began to skyrocket in 1999 

and 2000 and continued at very high levels throughout the alleged conspiracy period, 

plaintiffs presented evidence that the manufacturers‘ multi-faceted attempt to restrict 

the export of new vehicles from Canada to the United States proved effective. In 

fact, export sales of new vehicles actually decreased during the alleged conspiracy

period, despite circumstances amounting to a ―perfect storm‖ for cross-border 

arbitrage. (Cf. In re New Motor Vehicles Can. Export Anti. Lit., supra, 522 F.3d at 

p. 10.) The plaintiffs maintain that cutting off this discount distribution channel

allowed the defendant automobile manufacturers to sell or lease new cars in 

California, and indeed throughout the United States, at artificially inflated prices. 

Thus, according to the plaintiffs, class members paid more to buy or lease new 

vehicles during the conspiracy period than they would have in the absence of 

defendants‘ illegal agreement to restrict exports. The plaintiffs‘ expert estimates

total class damages at $1.073 billion. 
7

During 2004 and into 2005, the trial court considered a number of preliminary 

motions filed by the defendants, including motions contesting personal jurisdiction 

and demurrers to the consolidated complaint. For example, the trial court concluded 

that it lacked personal jurisdiction over four of the nonresident defendants—Honda 

Japan, Volkswagen AG, Nissan Japan, and CADA—and thus granted their motions 

to quash service of summons. (In re Automobile Antitrust Cases, supra, 135 

Cal.App.4th at p. 105.) We subsequently affirmed this determination on appeal. 

(Ibid.) 

In addition, a similar lawsuit had been filed in federal court against many of 

the same defendants, alleging violation of federal antitrust laws. (See In re New 

Motor Vehicles Canadian Export (D. Me. 2004) 307 F.Supp.2d 136, 137–138 (the 

federal multidistrict litigation or MDL).) Parallel cases were also pending in a 

number of other state courts. In June 2004, the trial court issued an order, after 

consultation with Judge Hornby—the judge in the federal MDL—coordinating 

discovery among this action, the federal action, and other state actions. 

The plaintiffs filed their motion for class certification in the instant matter in 

the Spring of 2005. Proceedings were stayed, however, while the parties conducted 

extensive coordinated discovery and litigated their class certification motion in the 

federal MDL.

7 Ultimately, in May 2009, the trial court granted plaintiffs‘ motion for 

class certification in this proceeding. The court defined the class generally as: ―All 

persons and entities residing in California on the date notice is first published, who 

 

7 Although Judge Hornby certified a nationwide injunctive class and exemplar state 

damage classes (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 class 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 manufactured or distributed by a defendant, 

from an authorized dealer located in California, during the period January 1, 2001 

through April 30, 2003, for their own use.‖ We later denied defendant‘s petition for 

writ of mandate seeking review of the class certification order. (General Motors of 

Canada, Ltd. v. Superior Court (Aug. 13, 2009, A125424) [nonpub. order].) 

In the interim, Judge Hornby issued an opinion on July 2, 2009, in the federal 

MDL action, addressing the viability of the remaining state law damage claims. (In 

re New Motor Vehicles Canadian Export Litig., supra, 632 F.Supp.2d at pp. 42, 44–

45.) Before the federal court were summary judgment motions from each of the 

remaining manufacturer defendants challenging the existence of a conspiracy and a 

joint summary judgment motion arguing lack of evidence of antitrust impact. (Id. at 

p. 45.) With respect to the conspiracy issue, Judge Hornby concluded that there ―is 

probably enough evidence to reach a jury on whether the manufacturers had an 

illegal horizontal agreement.‖ (Id. at p. 47.) Of particular interest here, the judge 

opined that this conclusion ―is easiest for Ford and Chrysler; it is somewhat closer 

for GM because of disclaimer statements it made; it is closest of all for the Honda

and Nissan entities because for them the evidence is almost entirely circumstantial.‖

(Ibid., fns. omitted.) In the end, however, Judge Hornby did not finally decide the 

issue, because he concluded that the manufacturers were entitled to summary 

judgment on the issue of antitrust impact.8 (Id. at p. 45.) 

While this litigation progressed in both state and federal courts, Toyota 

reportedly agreed to settle. Additionally, in 2009, both GM and DaimlerChrysler 

declared bankruptcy, effectively removing them from the case. Following these 

 

8 The parties disagree as to the import of Judge Hornby‘s conspiracy discussion. 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 independent action.

9 Specifically, 

Ford advanced evidence that it had been independently combating the problem of 

what it termed ―gray market exports‖ for decades prior to the designated conspiracy 

period and continued to do so during that period for the same legitimate business 

reason—that is, to preserve the integrity of its dealer distribution system. Given this 

non-conspiratorial explanation for its enforcement of export restraints, Ford argued 

that its conduct was as consistent with permissible competition as it was with 

unlawful conspiracy. Thus, summary judgment in its favor was appropriate. In 

addition, although Ford conceded that it had attended a number of meetings with 

other manufacturers during the conspiracy period at which possible joint action to 

combat the export problem was discussed, it asserted that no such joint action was 

ever taken as a result of those meetings. Indeed, Ford claimed that its actions to stop 

exports after these industry meetings clearly differed from the methods used by its 

competitors to combat exports, making it ―impossible‖ for the plaintiffs to establish 

any kind of conspiracy among the defendants.

In opposition to Ford‘s summary judgment motion, the plaintiffs contended 

that they had produced documentary and testimonial evidence showing that the 

defendants made a conscious commitment to a common scheme—the restraint of 

 

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

Canadian new vehicle exports to the United States—and thus summary judgment 

was inappropriate. Further, the plaintiffs suggested that the manufacturers‘ claimed 

―legitimate business reason‖ for their export restraints was likely pretextual given the 

economic realities of the situation. Specifically, according to plaintiffs‘ expert, 

absent an agreement among the manufacturers to block exports, all defendant 

manufacturers facing competition from Canadian exports would have maximized 

profits by lowering list prices in the United States rather than losing U.S. sales to 

competitors‘ Canadian exports. Finally, the plaintiffs‘ argued that it was irrelevant 

that the manufacturers did not impose the exact same export restrictions during the 

alleged conspiracy period. Rather, evidence that all of the manufacturers imposed 

some form of restraint during the relevant timeframe and that none chose to abandon 

their export controls in favor of quick profits was sufficient evidence of parallel 

conduct. 

C. The Summary Judgment Hearings and Decisions

The trial court ultimately held a number of hearings on the four summary 

judgment motions before it which argued lack of an actionable conspiracy. After 

hearing on January 18, 2011, the trial court granted summary judgment motions in 

favor of Nissan USA and Honda. In particular, the trial court concluded that the 

evidence produced by the two manufacturers—including evidence of a legitimate 

business purpose for the challenged conduct, denials of wrongful behavior, and 

evidence of refusal to participate in meetings that might possibly have been viewed 

as conspiratorial—was sufficient to shift the burden to the plaintiffs to produce 

evidence of an issue of material fact regarding the existence of the alleged 

conspiracy. Although the trial court acknowledged that such a conspiracy was ―in 

the economic self-interest of each of the defendants, perhaps,‖ it did not find this fact 

probative of the existence of an impermissible agreement among the parties, which it 

deemed ―the heart‖ of any Cartwright Act claim. Nor did it find evidence of shared 

warranty policies or of the ―stepping up‖ of anti-export activities after the date of the 

alleged conspiracy particularly relevant to the existence of an actionable agreement. 
11

In sum, since the evidence submitted by the plaintiffs was ―not sufficient to raise a 

plausible inference that either Honda or Nissan USA entered into an agreement with 

any competitor to restrict export sales from Canada,‖ the trial court granted both 

parties‘ summary judgment motions.

The trial court next turned to the summary judgment motions of Ford and GM 

Canada. At a hearing on January 24, 2011, the court discussed its tentative decision 

to deny the summary judgment motions of both manufacturers. As with Honda and 

Nissan USA, the trial court concluded that the evidence produced by Ford and GM 

Canada—including evidence of a legitimate business purpose behind the conduct at 

issue, denials of any wrongful behavior, and refusals to participate in certain joint 

export activities—was sufficient to shift the burden to the plaintiffs to establish an 

issue of material fact regarding the existence of the alleged conspiracy. In the case of 

Ford and GM Canada, however, the trial court initially believed that the plaintiffs 

had satisfied their burden, creating a material issue of fact with respect to the 

existence of an unlawful agreement to restrict exports in violation of the Cartwright 

Act. As the court framed the issue, the crucial question was whether the 

manufacturers acted independently to restrict exports or whether they agreed ―to take 

steps in concert to reduce the flow of cars.‖ 

In response, Ford first maintained that there was no evidence that Ford U.S. 

―conspired with anyone in Canada to do anything.‖ Ford further asserted that, with 

respect to Ford Canada, the evidence established, at most, that the manufacturer 

attended meetings and conference calls at which possible solutions to the export 

problem were discussed. But, according to Ford, no agreement with respect to any 

particular joint course of action was ever reached. Rather, Ford strenuously claimed, 

the evidence established that it had been taking unilateral action to curb exports for 

15 years, and there was no evidence that its actions changed in any way during the 

period of the alleged conspiracy. GM Canada made similar arguments, stressing its 

repeated refusals, when asked, to engage in meetings or any kind of joint activity. 
12

After argument, the trial court directed the plaintiffs to submit a summary of their 

conspiracy evidence. 

While these summary judgment proceedings were pending, however, GM 

Canada agreed to settle its four remaining state court actions, including this

California proceeding. This left Ford U.S. and Ford Canada as the sole remaining 

defendants in the case. At the continued hearing on May 10, 2011, the plaintiffs 

reviewed the evidence they believed supported the existence of an unlawful 

agreement to restrain exports. Ford then challenged the plaintiffs‘ evidence and 

conclusions. In the end, the trial court authorized certain additional filings and 

indicated that it would take the matter under submission as of July 8, 2011. 

Thereafter, by order dated November 4, 2011, the trial court granted the 

summary judgments motions of both Ford U.S. and Ford Canada.10 Specifically, the 

trial court found that the evidence produced by the two manufacturers was sufficient 

under Aguilar, supra, 25 Cal.4th 826, to shift the burden to the plaintiffs to produce 

evidence of an issue of material fact regarding the existence of the alleged 

conspiracy. However, contrary to its earlier tentative ruling, the trial court now 

determined that the plaintiffs had failed to satisfy this burden. 

In particular, the trial court concluded that while Ford ―met at different times 

with other alleged co-conspirators and discussed their common problem of the 

importation of cars from Canada to the United States, . . . such discussion of a 

common problem by itself is not a violation of the Cartwright Act.‖ Further, the trial 

court opined that, where there was insufficient evidence of an agreement, evidence 

that information was exchanged among alleged co-conspirators, or that some alleged 

co-conspirators ―stepped up‖ their efforts to restrict exports after the start of the 

alleged conspiracy period, was not enough to carry plaintiffs‘ burden. Finally, the 

 

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 evidence presented by the plaintiffs regarding the alleged 

co-conspirators‘ motive and economic interest to conspire was insufficient, standing 

alone, to satisfy the plaintiffs‘ burden of production. In sum, under Aguilar, ―[t]here 

was no evidence to support a conclusion that it was more likely than not that [Ford 

U.S.] and/or Ford Canada entered into an agreement with any other alleged coconspirator.‖ 

Final judgment was entered with respect to Ford U.S. on January 9, 2012, and 

with respect to Ford Canada on January 13, 2012. The plaintiffs‘ timely notice of 

appeal again brought the matter before this court. 

II. EVIDENTIARY ISSUES

We first address the plaintiffs‘ challenge to two evidentiary rulings made by 

the trial court in connection with the summary judgment motion here at issue. 

Specifically, the plaintiffs contend that, in making its summary judgment 

determination, the trial court erred in refusing to consider on hearsay grounds certain 

deposition testimony of Pierre Millette, general counsel for Toyota Canada, 

regarding a May 15, 2001, CADA meeting, as well as the minutes of that meeting 

that were prepared by a CADA employee. The hearsay rule is easily articulated: 

Hearsay evidence is ―evidence of a statement that was made other than by a witness 

while testifying at the hearing and that is offered to prove the truth of the matter 

stated.‖ (Evid. Code, § 1200, subd. (a).) It is generally inadmissible, absent a 

recognized exception to the rule. (Id., § 1200, subd. (b); see also People v. Seumanu

(2015) 61 Cal.4th 1293, 1307 (Seumanu) [―  ̳[h]earsay is generally excluded because 

the out-of-court declarant is not under oath and cannot be cross-examined to test 

perception, memory, clarity of expression, and veracity, and because the jury (or 

other trier of fact) is unable to observe the declarant‘s demeanor‘ ‖].)

Of course, when dealing with the hearsay rule, the devil is in the details of its 

application to the facts of a particular case. As we review the trial court‘s treatment 

of the alleged hearsay in this matter, we note that there is some dispute regarding our 

standard of review for such determinations. ―[T]he weight of authority holds that an 
14

appellate court reviews a court‘s final rulings on evidentiary objections by applying 

an abuse of discretion standard.‖ (Carnes v. Superior Court (2005) 126 Cal.App.4th 

688, 694 (Carnes); see also Serri v. Santa Clara University (2014) 226 Cal.App.4th 

830, 852.) However, in Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid), our high 

court acknowledged the argument that a different rule should apply when evidentiary 

rulings are made in the context of a summary judgment motion: ―  ̳Because 

summary judgment is decided entirely on the papers, and presents only a question of 

law, it affords very few occasions, if any, for truly discretionary rulings on questions 

of evidence. Nor is the trial court often, if ever, in a better position than a reviewing 

court to weigh the discretionary factors.‘ ‖ (Id. at p. 535, quoting the appellate court

opinion). Ultimately, the Reid Court concluded that it ―need not decide generally 

whether a trial court‘s rulings on evidentiary objections based on papers alone in 

summary judgment proceedings are reviewed for abuse of discretion or reviewed de 

novo.‖ (Ibid.; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 

255, fn. 4 (Nazir) [observing that the standard of review is unsettled].) 

Similarly, we will not here resolve this outstanding issue, as our conclusions

are sound under either theory. (See In re R.T. (2015) 232 Cal.App.4th 1284, 1301 [a 

court abuses its discretion when it applies an incorrect legal standard]; Shaw v. 

County of Santa Cruz (2008) 170 Cal.App.4th 229, 281 [an evidentiary ruling that 

―  ̳ ―transgresses the confines of the applicable principles of law‖ ‘ ‖ is an abuse of 

discretion].) With respect to the consequences of our evidentiary review, however, 

we will follow the tenet—correctly pointed out by both parties—that the erroneous 

exclusion of evidence by the trial court is not grounds for reversal unless we also 

determine that the error was prejudicial. (Evid. Code, § 354, subd. (a) [judgment 

shall not be reversed due to the erroneous exclusion of evidence unless the error 

resulted in a miscarriage of justice]; see also Cal. Const., art. VI, § 13 [same]; 

Carnes, supra, 126 Cal.App.4th at p. 694 [citing the constitutional provision].) Thus, 

the plaintiffs must demonstrate that, absent the error, ―a different result would have 

been probable.‖ (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 
15

1298, 1317 (Pannu).) With these standards in mind, we turn to the particular 

evidence excluded by the trial court in this case.

A. The Millette Deposition Testimony

During his March 2007 deposition, Pierre Millette of Toyota Canada was 

questioned about the May 15, 2001, CADA meeting which he attended along with 

representatives of Ford Canada, AIAMC, CVMA, GM Canada, Chrysler Canada, 

CADA, and various local dealer associations. Both Ford and Ford Canada objected 

on hearsay grounds to the following colloquy between counsel for the plaintiffs and 

Millette: ―Q. Did CADA indicate that they would not support dealers who were 

involved in regular exporting of vehicles from Canada to the United States? [¶] 

[Objection.] [¶] A. I can remember comments being made that everyone supported 

the concept of trying to keep the vehicles in Canada, but who said what, on a general 

basis, I can‘t help you there. [¶] [Answer read back.] [¶] And that was your 

understanding that there was a general consensus that the vehicles would be kept in 

Canada, not be exported from Canada to the United States? [¶] [Objection.] [¶] A. 

There was general support for the approach.‖ 

Later in the deposition, counsel for Ford elicited this additional testimony 

from Millette, which it now also claims is inadmissible hearsay: ―Q. Okay. Was 

there any agreement, at that meeting or any time, to work together to keep vehicles in 

Canada? [¶] A. I think that would be characterizing it as a little more than what it 

was. It wasn‘t an agreement. It was simply a concept that there was some consensus 

on from everyone at the meeting.‖ As Ford correctly notes, this discussion was 

immediately followed by an additional exchange to which no objection has been 

lodged. Specifically Ford‘s attorney queried: ―Just to be clear in my question, did 

the participants in the meeting ever agree to work together to keep vehicles in 

Canada?‖ Millette responded: ―No, absolutely not.‖ 

At the summary judgment hearing on January 24, 2011, after reference by GM 

Canada to Millette‘s statements, the trial court responded: ―I intentionally left out 

references to Mr. Millette. I still haven‘t sorted out in my mind to what extent, 
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, plaintiffs‘ counsel and the trial court had an extended 

discussion regarding the admissibility of the Millette testimony. According to 

counsel for the plaintiffs, the hearsay rule was not implicated by the deposition 

testimony because ―there are no other out-of-court statements here with the exception 

of Mr. Millette‘s testimony itself. There‘s no other—he is a percipient witness at a 

meeting. He perceives what happens at the meeting. He takes away an 

understanding of that. He is competent to testify about what he perceived at the 

meeting, that where before there wasn‘t a consensus and now there was, there was a 

consensus to keep the cars in Canada, to paraphrase Mr. Millette. He‘s not reporting 

about anything anyone else said.‖ Again, the trial court seemed to agree, stating: 

―Well, that‘s what I think—my present view of that is that he is giving his 

understanding of what happened and that this is not hearsay.‖ Nevertheless, when 

the trial court issued its written ruling on Ford‘s evidentiary objections in connection

with its grant of summary judgment, the court sustained Ford‘s hearsay objections to 

both of the Millette deposition excerpts. 

Initially, in considering the potential hearsay nature of the Millette statements, 

we note that Ford is not arguing that the challenged testimony is inadmissible 

hearsay because it is out-of-court deposition testimony. And, indeed, pursuant to 

section 2025.620 of the Code of Civil Procedure (section 2025.620), ―[a]t the trial or 

any other hearing in the action, any part or all of a deposition may be used against 

any party who was present or represented at the taking of the deposition . . . so far as 

admissible under the rules of evidence applied as though the deponent were then 

present and testifying as a witness . . . .‖ (See id., subd. (c)(1) [deposition testimony 
17

may be used ―for any purpose‖ where deponent resides more than 150 miles from the 

place of the trial]; see also Code Civ. Proc., § 437c, subd. (b)(1) [listing depositions 

among the documentation appropriate for use in support of a summary judgment 

motion].) Moreover, in accordance with section 1291 of the Evidence Code (section 

1291), ―former testimony is not made inadmissible by the hearsay rule if the 

declarant is unavailable as a witness and: [¶] . . . [¶] [t]he party against whom the 

former testimony is offered was a party to the action or proceeding in which the 

testimony was given and had the right and opportunity to cross-examine the declarant 

with an interest and motive similar to that which he has at the hearing.‖ (Evid. Code,

§ 1291, subd. (a)(2).) As with section 2025.620 testimony, however, the 

admissibility of former testimony under section 1291 is generally ―subject to the 

same limitations and objections as though the declarant were testifying at the 

hearing.‖ (Evid. Code, § 1291, subd. (b).) Thus, the question before us is whether 

Millette‘s testimony would constitute inadmissible hearsay if he were testifying as a 

witness in court.

Ford argues that the Millette statements at issue are indeed inadmissible on 

this basis because they ―conveyed‖ hearsay. Specifically, according to Ford, when 

the testimony is read in context, it is ―clear Millette was describing statements made 

by the other participants in the meeting.‖ Ford contends that these out-of-court 

statements of other declarants are hearsay, and no exception to the hearsay rule has 

been offered justifying their admission. We disagree. None of the challenged 

testimony purported to recount ―a statement,‖ let alone to prove what was ―stated.‖11

Millette was not reporting particular statements made by particular participants. 

Rather, he was simply recounting generally his impressions and conclusions based on 

 

11 On appeal, plaintiffs do not challenge 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 prejudicial such that it provides grounds for reversal of the court‘s grant of 

summary judgment in favor of Ford. (See Evid. Code, § 354, subd. (a); see also 

Carnes, supra, 126 Cal.App.4th at p. 694.) As stated above, to make a finding 

regarding prejudice we must determine whether, absent the error, ―  ̳a different result 

would have been probable.‘ ‖ (Pannu, supra, 191 Cal.App.4th at p. 1317.) In our 

view, this determination rests on two separate lines of inquiry. First, we must 

consider whether the Millette statements—improperly excluded on hearsay 

grounds—are otherwise admissible. Next, if they are admissible, we must resolve 

whether it is reasonably probable that their admission would have changed the 

outcome.

With respect to the admissibility of Millette‘s statements, the plaintiffs argue 

that the testimony is admissible nonhearsay because it was based on his ―personal 

knowledge, which he gained from having participated in the May 15, 2001 meeting 

(and other conspiratorial meetings) on behalf of Toyota, alongside executives from 

Ford, GM, Chrysler and CADA.‖ While this makes him competent to testify as to 

 

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 for 

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 in 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 nonhearsay. (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 absolutely 

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 does not necessarily make admissible his inferences 

drawn from those facts. Rather, ―[t]he opinion rule, which often rejects testimony of 

a competent witness because of the form in which the testimony is given, is distinct 

from the knowledge rule, which lays down a requirement of competency of witnesses. 

A witness is not competent to testify on a matter—either as to facts or opinions—if 

the witness lacks personal knowledge of it.‖ (1 Witkin, Cal. Evidence (5th ed. 2012) 

Opinion Evidence, § 1, p. 608.) Thus, plaintiffs‘ argument does not go far enough, 

on its own, to justify the admission of the Millette statements. 

Instead, we believe that the challenged deposition 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 this 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 

reference 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 before 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 prejudice 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 understanding 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 Ready 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 clear understanding of the witness‘s 

testimony (Evid. Code, § 800, subd. (b)), ―i.e., where the concrete observations on 

which the opinion is based cannot otherwise be conveyed.‖ [Citation.]‘ [Citation.] 

Such a situation may arise when a witness‘s impression of what he or she observes 

regarding the appearance and 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. [Citations.] 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, 130–131

(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 though 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) 115 Cal.App.3d 995, 1001 (Angelus 

Chevrolet).) Thus, for example, ―a lay witness may express an opinion that a person 

was  ̳drunk‘ [citation], or that people engaged 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 Werdegar‘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 pp. 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 pp. 1304, 1309–1310.) In particular, Iuli described a pretrial encounter he had 

when he, Tautai, and Ropati were together in a holding cell. Iuli testified that Ropati 

―asked him and 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 Iuli 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 Seumanu 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 percipient witness to the May 15, 2001,

meeting, and his opinion was based on personal knowledge gleaned from his own 

participation 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. 1309–1311.) Further, it is quite likely that his conclusions were based, at least in 

part, on observations regarding the appearance and demeanor of other meeting 

participants and rested on the ―  ̳subtle or complex interactions‘ ‖ among them. 

(DeHoyos, supra, 57 Cal.4th at pp. 130–131; 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 were 
22

difficult to put in words‖]; Angelus Chevrolet, supra, 115 Cal.App.3d at p. 1001.) 

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 the concrete observations on which his opinion was based likely could not 

otherwise be conveyed. (See DeHoyos, supra, 57 Cal.4th at pp. 130–131.) Under 

such circumstances, he was testifying at the ―  ̳lowest possible level of abstraction.‘ ‖ 

(Angelus Chevrolet, 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 reaching a consensus to restrict exports. (See DeHoyos, supra, 57

Cal.4th at pp. 130–131.) His challenged testimony is therefore properly admissible 

in accordance with section 800.14 

Having determined that the testimony at issue is admissible, we next consider 

the second prong of our prejudice analysis: whether consideration of that evidence, 

in conjunction with the other admissible evidence presented by the plaintiffs, would 

likely have led to a different outcome. We believe that, with respect to Ford 

Canada‘s summary judgment 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 sufficient admissible evidence of an 

illegal agreement to restrict Canadian exports. Unsurprisingly, there is no 

unambiguous evidence of such an agreement in the record before us. However, Mr. 

Millette‘s statements are 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, based 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 the 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 May 2001 Meeting

After the May 15, 2001, meeting discussed in the Millette testimony, Melissa 

Clark—a CADA employee who attended the meeting—drafted minutes based on her 

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

―Export 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. According to the minutes, 

after a CADA representative articulated the meeting objective of ―developing a 

strategy to solve the industry problem of export sales,‖ the meeting participants 

discussed the pros and cons of various ways they could work together to make export 

restraints more effective. The minutes also include a laundry list of proposed followup 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 connection with its summary judgment motion, Ford objected to the 

admission of the Export Sales Meeting minutes on hearsay grounds and to certain 

statements of CADA representatives memorialized in those minutes as multiple 

hearsay. In response, the plaintiffs argued that the minutes were admissible under 

numerous exceptions to the hearsay rule, including the business record exception

(Evid. Code, § 1271), the exception for adoptive admissions (Evid. Code, § 1221), 

and the co-conspirator exception (Evid. Code, § 1223). In the end, however, the trial 

court sustained Ford‘s hearsay objection. On appeal, the plaintiffs renew their 
24

argument that the meeting minutes are properly admissible, both as a business 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 admissions expressed in section 1221  ̳ ―is that the hearsay declaration is 

in effect repeated by the party; his conduct is intended by him to express the same 

proposition as 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. According 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 

accuracy of the meeting minutes. Presumably, had he seen any errors, he would have 
25

corrected them. (Osuna, supra, 70 Cal.2d at p. 765.) Thus, the minutes were 

admissible against Ford Canada as an adoptive admission and were erroneously 

excluded by the trial court.

On appeal, Ford does not challenge the plaintiffs‘ characterization of the 

meeting minutes as adoptive admissions. Instead, it argues 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 participants never adopted any of the 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 

particularly 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 official 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 

possible anti-competitive nature of their pursuits; and requests that confidentiality be 

maintained. However, ultimately, we need not decide the issue of prejudice 

because—irrespective 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, we need not determine

whether that exclusion was prejudicial.

Having resolved these preliminary matters, we turn now to the sufficiency of

the plaintiffs‘ conspiracy evidence.
26

III. SUMMARY JUDGMENT ON EXISTENCE OF AGREEMENT

A. Analytical Framework and Standard of Review

The standards for granting 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.‖ (Code Civ. Proc., 

§ 437c, subd. (c).) When, as here, defendants move for summary judgment, they can 

―meet their burden by demonstrating that  ̳a cause of action has no merit,‘ which they 

can do by showing that  ̳[o]ne or more elements of the cause of action cannot be 

separately established . . . .‘ [Citations.] Once defendants meet this burden, the 

burden shifts to plaintiff to show the existence of a triable issue of material fact.‖ 

(Nazir, supra, 178 Cal.App.4th at p. 253.) The initial burden of a defendant moving 

for summary judgment is a ―burden of production to make a prima facie showing of 

the nonexistence of any triable issue.‖ (Aguilar, supra, 25 Cal.4th 826, 850.) Thus, 

such a defendant is only required to present some evidence creating a rebuttable 

presumption that no material fact issue exists before the burden shifts to the plaintiff 

opposing the motion. (Id. at pp. 850–851.) 

Our review of an order granting summary judgment is de novo. Under such 

circumstances, the 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 judge 

reached the right result . . . whatever path he might have taken to get there.‖ 

(Carnes, supra, 126 Cal.App.4th at p. 694.) 

In undertaking our analysis, we ―  ̳accept as true the facts . . . in the evidence 

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, 

disregard any evidence to which objections have been made and sustained. (Guz v. 

Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz); Code Civ. Proc., § 437c, 
27

subds. (b)(5), (c) & (d).) Finally, as an overarching principle, 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 antitrust actions 

for unlawful conspiracy. (Id. at p. 843.) In Aguilar, plaintiffs 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 cleanerburning] gasoline and to raise its price.‖ (Id. at pp. 837–839.) While concluding that 

summary judgment was appropriate on the facts before it, the Aguilar court clarified

―the law that courts must apply in ruling on motions for summary judgment, both in 

actions generally and specifically in antitrust actions for unlawful conspiracy.‖ (Id. 

at pp. 842–843.) 

With respect to antitrust conspiracy cases in particular, the Aguilar court—

after reviewing recent state and federal law on the subject15—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 more 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 plaintiff 

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

exclude, 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 might 

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 and circumstantial evidence. ―  ̳ ―[D]irect evidence‖ ‘ means evidence that

directly proves a fact, without an inference or presumption, and which in itself, if true, 

conclusively establishes that fact.‖ (Biljac, supra, 218 Cal.App.3d at p. 1430 [quoting 

Evid. Code, § 410].) An inference, in contrast, is ―  ̳ ―a deduction of fact that may 

logically and reasonably 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, 1529, 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, supra, 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, it 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. 856–857.) 
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 

the 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, 142–143 (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 where General Motors 

worked with a number of its dealers and local 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. 130–131, 134–138.) In rejecting the trial 

court‘s conclusion that each alleged 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 AlvordPolk, 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. 142–143.) Rather, to maintain an actionable 

antitrust claim, ―[c]ircumstances must reveal  ̳a unity of 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 put it in the context of a Cartwright Act claim, all that is required from 

an antitrust plaintiff is ―  ̳direct or circumstantial evidence that reasonably tends to 

prove that the [defendant] and others ―had a conscious commitment to a common 

scheme designed to achieve an unlawful objective.‖ ‘ ‖ (Biljac, supra, 218 

Cal.App.3d at pp. 1425–1426, quoting Monsanto, supra, 465 U.S. at p. 764.) 

In attempting to prove unlawful conspiracy, one type of evidence antitrust 

plaintiffs often present—as the plaintiffs do here—is evidence that the alleged coconspirators met and shared 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 that trade or business and to 

produce uniformity of price and trade practice.‘ ‖ (Biljac, supra, 218 Cal.App.3d at 

p. 1430, quoting Maple Flooring Assn. v. United States (1925) 268 U.S. 563, 582

(Maple Flooring).) Moreover, trade 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, quoting 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 manipulate variable interest rates on certain loans. (Biljac, supra, 218 

Cal.App.3d at p. 1415.) In support of their position, the Biljac plaintiffs pointed to 
31

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 industry discussions of this 

nature ―without proof of agreement or concerted action to manipulate the . . . market 

with such information.‖ (Ibid.) Put another way, the Biljac plaintiffs‘ proof failed

because ―further inferences‖ were required ―to conclude that any agreement or 

consensus came out of those discussions.‖ (Ibid.; see Aguilar, supra, 25 Cal.4th at 

pp. 839–840, 862–863 [concluding that the gathering 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 misused 

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 would maximize their own individual profits‖ ]; see also In re Citric 

Acid Litigation (9th Cir. 1999) 191 F.3d 1090, 1097–1099 [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. 1005–1006, 

1013–1014 [evidence insufficient 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. Superior Court (2003) 114 Cal.App.4th 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 sparingly 
32

in complex antitrust litigation where motive and intent play leading roles, the proof is 

largely in the hands of the alleged conspirators, and hostile 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.4th 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 instant 

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 triable 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 

whether it is more likely than not—on the evidence presented—that Ford U.S. 

entered into an illegal agreement with any other alleged co-conspirator 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 antitrust laws. (See 

Copperweld Corp. v. Independence Tube Corp. (1984) 467 U.S. 752, 769–771

(Copperweld); Freeman v. San Diego Association of Realtors (1999) 77 Cal.App.4th 

171, 189.) As the United States Supreme Court explained in Copperweld: ―[T]he 

coordinated 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 common, 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 driver. With 
33

or without a formal  ̳agreement,‘ the subsidiary acts for the benefit of the parent, its 

sole shareholder. If a parent and 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 justification 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 plaintiffs 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 States proves nothing more than unilateral action by Ford in response to a 

perceived threat. 

Nevertheless, in an attempt to meet their burden under Aguilar, plaintiffs point 

first to a collection of materials prepared in advance of a November 2001 meeting 

between 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 Summit,‖ 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 

from their U.S. dealers regarding unfair competition from Canadian exports being 

sold as ―new‖ within their franchise areas. The issue was particularly contentious 

with respect to Thunderbirds, a ―high-profile, high-margin vehicle.‖ In addition, 

Canadian brokering was problematic for Ford U.S. because it was costing them 

money. Indeed, according 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 suggested 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 character 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 dealer who sold it, and then re-report the 

sale using the appropriate U.S. dealer code. None of the proposed action items, 

however, suggested or required the involvement of any other manufacturer; nor did

any of the agenda materials mentioned above discuss coordination with competitors. 

Indeed, plaintiffs conceded as much below, but argued that the documents show that 

Ford U.S. exercised ―a modicum of control‖ and directed Ford Canada on the issue 

of exports. To the contrary, we view these materials as revealing 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 Canada 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 for 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].)

The 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 

allowed the manufacturer to sell its U.S. vehicles at a premium. The evidence does 

reveal that Ford U.S. possessed a motive to conspire. Reportedly, for instance, the 

consensus at the November 2001 Canadian Brokering Summit was that between 500 

and 700 Ford 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. Indeed, in considering the situation, Bill Glick, a Ford U.S. 

executive, opined: ―There 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 actions 
35

after the November 2001 meeting which included: redefining ―new vehicle‖ as 

having less than a certain number of miles; working toward eliminating the Canadian 

tax rebate (GST) for exported vehicles; rewriting buyer orders to be cancelable if the 

buyer is determined to be a broker; 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 investigating 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, although the evidence may show that 

Ford U.S had motive 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, nothing in the Canadian Brokering Summit materials ―tends to 

exclude‖ the possibility that Ford U.S. was acting independently and in its own selfinterest, 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 claim are evidence 

that Ford U.S. ―was involved with and approved of communications 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 establishing antitrust liability.
36

been receiving 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 dissemination of 

industry information from Honda 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 

individual 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 written by Bill Glick. In that 

document, Bill Glick stated: ―[P]lease note that Dave Kelleher [an in-house attorney 

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 

court that 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 an industry-wide solution to the Canadian export problem—there is 

no indication here that Ford U.S.‘s competitors were even willing to talk about these 
37

issues. Under such circumstances, there is simply no evidence, or even inference, 

from which a reasonable jury 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.App.3d at pp. 1425–1426; see also In re TFT-LCD (Flat 

Panel) Antitrust Litigation (N.D. Cal. 2008) 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].) This single email, then, is manifestly not enough to 

raise a triable 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 respect 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 to Ford Canada, however, is 

less straightforward. Indeed, the record in this matter—including deposition 

testimony, declarations, expert opinions, interrogatories, requests for admission, and 

related document production—is factually complex and fills more than 26,000 pages. 

Because we need only identify evidence sufficient to establish the existence of one 

issue of material fact in order to reverse the trial court‘s grant of summary judgment

in favor of Ford Canada, however, we need not engage in an exhaustive recitation of 

all of the potentially relevant evidence presented below. 

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 failed to make the prima facie showing necessary 

for application of the co-conspirator 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 two pieces of evidence discussed above, we will not consider the 

remainder of the excluded materials in reaching our decision. (Biljac, supra, 218 

Cal.App.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 objections have been made 

and sustained must be disregarded on review of summary judgment].) Finally, since 

the plaintiffs have not contested the trial court‘s conclusion that Ford Canada met its 

initial burden of production, making—through general denials of wrongdoing; proof 

of prior consistent conduct; and evidence of independent business reasons for its 

actions—a prima facie showing of the absence of any conspiracy, we will not here 

revisit that determination.

Rather, we are left solely with the question of whether the plaintiffs have 

carried the burden of production, as shifted onto their shoulders, to make a prima 

facie showing of the presence of an illegal agreement among the named defendants to

curb Canadian 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 evidence in an amount sufficient to defeat Ford Canada‘s bid for summary 

judgment.

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 negates 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 going to keep doing this and now 
39

agreement not to stop doing what you previously may have had the ability to do on 

your own is sufficient for 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 who 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 decline 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 reason 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 among 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 restraint 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 by 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. (See also General Motors, supra, 384 U.S. at p. 140 [noting that 

whatever 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 argument can be made that industry conditions changed 

significantly at or around the time of the alleged conspiracy. Here, evidence exists 

from which a reasonable jury could conclude that segregating the Canadian and 

American automobile markets was becoming increasingly difficult by the end of the 

last century. Specifically, in 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 1983, 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.‖ Under such circumstances, it appears that the ―export 

problem‖ during this timeframe was smaller and often involved particularly 

desirable, or ―hot‖ cars.

In addition, while manufacturers, including Ford Canada, employed certain 

export restraints to address the issue, evidence presented suggests that those controls 

were based, at least in part, on legitimate customer satisfaction and legal concerns 

that no longer existed 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. In 1986, GM stated that the importation of gray market 

vehicles made it difficult to administer safety recalls and vehicle warranties and led 

to ―some customer dissatisfaction.‖ In 1988, Honda noted 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 Canadian and U.S. markets occurred and a favorable exchange 

rate for arbitrage was available. As 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 the United States.19 No longer 

primarily an issue of customer dissatisfaction, it became more clearly 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 shows that this very thing happened to Ford Canada 

immediately prior to the alleged conspiracy period. Specifically, Ford Canada was 

approached in 1999 by an alleged rental car dealer seeking to buy 1,300 automobiles. 

Suspicious that the company was actually buying the vehicles for export, Ford

Canada declined the transaction. However—as reported to Ford U.S. by two 

different Ford Canada executives—GM Canada and Chrysler Canada subsequently 

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 

existence as early as 1999.20 At 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 1999, 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 Canada 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 suggests that Ford Canada‘s adherence to its export policies 

cost it millions of dollars in profits and significant market share because its vehicles 

were viewed as interchangeable with the vehicles of other manufacturers for gray

market purposes. Indeed, Ford Canada acknowledged 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. Construing all of this evidence in the light most favorable to the 

plaintiffs, a plausible inference exists that—whatever Ford Canada‘s previous 

policies or ―compromises‖ regarding export sales—a substantial, and seemingly 

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 fact 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 available 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 ways 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 agreement to restrain Canadian exports.‖ (In re 

New Motor Vehicles 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 explicitly or implicitly, to do your part to 
43

further them‖].) Thus, we are not persuaded that the lack of evidence of an adopted 

industry-wide ―solution‖ necessarily undercuts the plaintiffs‘ 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 necessarily evidence of an agreement to do so. The 

evidence that the plaintiffs themselves present shows that manufacturers were facing 

an entirely 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 seems 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 behavior, 

documentation 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 exclude 

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 express purpose of which 

 

21 Citing Continental Ore, plaintiffs 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, the 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 the export 

problem among themselves. In addition, during this timeframe, individual 

manufacturers conferred regarding the possibility of working together to address 

unauthorized export sales. For instance, Toyota Canada asked a representative of 

Honda Canada (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 Canada and Chrysler Canada to the same effect. Indeed, 

a representative of Ford Canada called Miller in an attempt to persuade him to work 

together on the export issue, 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 Counsel for Ford Canada, sent a 

message via facsimile 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 unauthorized 

export sales‖ (italics added). On October 27, 2000, Stewart participated 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 

organized 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 scheduled 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 

(Millette), the CVMA (Adams), and the AIAMC (Biggs) attended a ―pre-meeting‖

on May 15 to discuss the issues that they anticipated would be raised at this CADAsponsored event. These same individuals—along with additional representatives of 

the AIAMC (Hodges and Watkins) and Chrysler Canada (LeBlanc), representatives 

from CADA (Little, Gauthier, Ryan, Riccoboni, and Clark) and representatives of 

certain regional dealer associations—then attended the actual meeting in CADA‘s 

offices, which reportedly lasted from lunchtime until four or five o‘clock.

Minutes from the meeting, the admissibility of which was determined above, 

indicate that the meeting‘s objective, as articulated by CADA, was to develop ―a 

strategy to solve the industry problem of 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 instance, a representative of a regional 

dealer association indicated that no-export 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 with every customer; sophisticated 

export brokers would likely find ways to circumvent the standard process; and 

customers were reported to resent being questioned regarding their purchase. 

Development of a shared database of known exporters, possibly maintained 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 development of a best practices list through 

dialogue with the dealers and lobbying the government for tax reform aimed at

combating 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 size 
46

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 rebates for gray market exports; (4) profiling 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-wide 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. perspective; 

and (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 

restrain 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. 839–840, 

862–863; In re Citric Acid Litigation, supra, 191 F.3d at pp. 1097–1099; AlvardPolk, supra, 37 F.3d at pp. 1005–1006, 1013–1014.) We agree that, given the 

evidence of changed market forces during the timeframe of the alleged conspiracy—

including the harmonization of safety and environmental standards, the weakening of 

the Canadian dollar, and the recent spike in gray market exports—the issue of export

sales was a ―timely and natural one[] within the industry.‖ (Biljac, supra, 218 

Cal.App.3d at p. 1430.) However, we believe the evidence in this case goes 

significantly beyond the benign exchange of information on a common industry 

problem permitted under the antitrust laws. Indeed, this is not a situation where the 

export issue was part of a general industry 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 plaintiffs 
47

put it, ―to figure out an industry solution to stamp out the export problem.‖23 In 

addition, the record is clear that the participants were aware of the legal problems 

inherent in concerted activity among the manufacturers. Yet they met and discussed 

working together on restricting exports anyway. Under these circumstances, we 

believe that the evidence of telephone and in-person meetings among the alleged coconspirators proffered by the plaintiffs could be viewed as tending to exclude the 

possibility that the manufacturers acted independently rather than collusively with 

respect to exports. (See Aguilar, supra, 25 Cal.4th at p. 852.)

Moreover, our 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 actions

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 response 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 hold the line together on export 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 series 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 problem 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 anticompetitive pact. Thus, the meeting evidence might be sufficient, in and of itself, to 

defeat Ford Canada‘s summary judgment motion. Ultimately, however, we need not 

decide whether this evidence, standing alone, is sufficient to persuade a trier of fact 

that unlawful conspiracy among the automobile manufacturers is ―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, as discussed at length above, Pierre Millette‘s conclusion after 

participating in the May 15, 2001, CADA meeting—as well as a number of 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 that 

this evidence—that one of the key alleged co-conspirators thought that there was a 

―consensus‖ among all of the meeting participants to work together to keep Canadian 

vehicles from crossing the border—could be viewed as highly probative of 

conspiracy. Indeed, based on these comments, which the trial court expressly 

refused to consider, 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 unlawful objective‖ ‘ ‖ (Biljac, supra, 218 Cal.App.3d at 

pp. 1425–1426.) 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 out 
49

in meetings . . . and in telephone conversations . . . . It was acknowledged from the 

beginning that substantial unanimity would be essential if the agreements 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 conspiracy 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 court may not weigh the plaintiff‘s 

evidence or inferences against the defendants‘ as though it were sitting as the trier of 

fact.‖ (Aguilar, supra, 25 Cal.App.4th at p. 856; see also Monsanto, supra, 465 U.S. 

at pp. 767–768 & fn. 12 [―[t]he choice between two reasonable interpretations of the 

testimony was properly left for the jury‖].)

For our purposes, then, it is sufficient to conclude that if presented 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 coconspirators acted independently rather than collusively. (See ibid.) Thus, it is 

sufficient to support reversal of the trial court‘s summary judgment decision in favor 

of Ford Canada.24

 

24 Although we do not consider it in reaching our decision, we note that there is other 

potential direct evidence of conspiracy in the record that the trial court excluded on 

hearsay grounds, a decision not challenged by plaintiffs for purposes of this summary 
50

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‖ their export efforts. In June 2001, 

Ford Canada generated a list of Export Sales Policy Actions, including ―[o]ngoing 

dialogue with industry contacts to share  ̳best practices.‘ ‖ Thereafter, in August 

2001, Ford Canada requested that its regional managers contact dealers, informing 

them that continued export sales would ―result in restricted allocations of high 

demand products for Canadian Dealers and increased pressure to increase prices.‖ 

Further, they were to indicate 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 also evidence that Ford Canada 

actually reduced 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 DaimlerChrysler 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 problem.‖ (Italics added.) 
51

dealers, circulated best practices, imposed chargebacks, and initiated dealer 

termination proceedings during this timeframe. 

Other manufacturers followed suit, each relying on the export restrictions they 

found most effective for their particular situation. Chrysler Canada, for instance, 

issued chargebacks, maintained a blacklist of known or suspected exporters, and 

supplied its dealers with a list of due diligence ―checkpoints‖ to be employed to 

uncover exporters. It began refusing to honor 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 dealers. 

Toyota Canada had an online blacklist of suspected exporters, issued chargebacks, 

and monitored the availability of replacement speedometers. Honda Canada stopped 

honoring warranties in 1998 for gray market vehicles. During the period of the 

alleged conspiracy, 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 evidence in the record that any manufacturer broke ranks 

during this period and decided to collect the easy profits available to it from allowing 

gray market sales. Although insufficient standing on its own, such parallel conduct 

can be probative evidence of unlawful collusion. (Apex Oil Co. v. DiMauro (2d Cir. 

1987) 822 F.2d 246, 253.)

An agreement among competitors, however ―  ̳may be inferred on the basis of 

conscious parallelism, when such interdependent conduct is accompanied by 

circumstantial evidence and plus factors.‘ ‖ (Mayor and Council of Baltimore v. 

Citigroup (2d Cir. 2013) 709 F.3d 129, 136 (Citigroup).) These plus factors include 

things such as: ―a common motive to conspire, evidence that shows that the parallel 

acts were against the apparent individual economic self-interest of the alleged 

conspirators, and evidence of a high level of interfirm communications.‖ (Ibid.) 

Here, the alleged co-conspirators continued to meet and otherwise communicate

regarding the export issue during the alleged conspiracy period. An additional 
52

conference call on export sales was held on May 28, 2001. Representatives of Ford 

Canada met with CADA in February 2002 to discuss exports. Toyota Canada met 

with CADA in March 2002 with respect to similar concerns. Two other CADAsponsored industry meetings on the topic of export sales were held in April and 

November 2002. Thus, there was a high level of interfirm communication. 

In addition, the plaintiffs presented evidence that the alleged co-conspirators

shared information throughout the alleged conspiracy period. For example, in 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 Stewart 

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 to both Ford and Chrysler. Further, as 

stated above, in June 2001, Ford Canada espoused ―[o]ngoing dialogue with industry 

contacts to share  ̳best practices.‘ ‖ It sent a copy of its best practices to CADA in 

March 2002. However, Ford‘s own expert testified that enforcing export restraints 

was a difficult and expensive thing to do and that sharing 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, such information 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 circumstantial evidence, including: (1) documentation 

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 Coca-Cola had 

provided Canada Dry with the names of three exporters; and (4) a report by Cadbury 
53

Beverages which included information on Coca-Cola exports. (Id. at *29–30.) 

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 

engaged in by the manufactures during the alleged conspiracy period provides 

additional support for the plaintiffs‘ claimed conspiracy.

4. Evidence of Economic Motive to Conspire

Finally, there is motive evidence in the record, suggesting that the alleged coconspirators 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 economic 

analysis is complex and vigorously disputed by Ford, plaintiffs‘ expert Professor

Robert E. Hall, of Stanford University and the Hoover Institute, essentially maintains 

that—under the conditions prevailing 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 profits would be greater than any gain because ―the gray-market sales for 

one manufacturer displace the gray-market sales of other manufacturers sufficiently 

to more than offset the loss of authorized sales in the U.S.‖ Thus, in Professor Hall‘s 
54

opinion, ―export restraints would not have been in place or enforced during the class 

period under unilateral action by the manufacturers.‖25 

The plaintiffs argued below that such evidence made unlawful conspiracy 

―more likely‖ than permissible competition and also showed the pretextual nature of 

the manufacturers‘ asserted justifications for their 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 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. Such evidence merely allows speculation about an unlawful 

conspiracy. Speculation, however, is not evidence‖]; see also Serfecz v. Jewel Food 

Stores (7th Cir. 1995) 67 F.3d 591, 600–601, 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 materials 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 the 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 prove conspiracy, we believe it is nevertheless a relevant 

consideration. 

Here, if believed (and again we acknowledge that its validity is the subject of 

intense debate), Hall‘s economic analysis posits that the auto manufacturers would 

not have continued 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. If 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 conspire does not exist in a vacuum. Rather, it merely further supports the 

meeting evidence discussed above, Millette‘s statements regarding the existence of a 

―consensus‖ to keep Canadian cars in Canada, and the manufacturers‘ parallel 

conduct in restricting exports.

In the end, this is, perhaps, as the trial court acknowledged, ―not an easy case.‖ 

Nevertheless, we are mindful of Justice Mosk‘s admonition 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 plaintiffs 

are entitled to their costs on appeal.
57

_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

RIVERA, J.
58

Automobile Antitrust Case A134913
59

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 Levens 
60

Alioto Law Firm

Theresa Driscoll Moore

Duane Morris

Paul S. Rosenlund

Blecher & Collins

Maxwell M. Bleecher

Harold Runkle Collins Jr.

Zwerling, Schachter & Zwerling

Robert S. Schachter

Dan Drachler

Joseph S. Tusa

Amamgbo & Associates

Donald Chidi Amamgbo

The Terrell Law Group

Reginald Von Terrell

Blumenthal & Nordrehaug 

Norman B. Blumenthal 

Morris & Associates

Stephen Bryan Morris

John Haslet Boone

Chimicles & Tikellis

Steven A. Schwartz

Glancy, Binkow & Goldberg

Susan Gilah Kupfer

Lionel Zevi Glancy

John F. Innelli

Schubert Jonckheer & Kolbe

Robert C. Schubert

Willem F. Jonckheer

Miranda Kolbe
61

Bramson, Plutzik, Mahler & Birkhaeuser

Alan Roth Plutzik

Kyle Loyd Crenshaw

Davis, Cowell & Bowe

Elizabeth Ann Lawrence

Philip F. Bowe

Finkelstein Thompson

Richard M. Volin

Rosemary Medellin Rivas

Green & Noblin 

Robert Stanley Green

Gordon-Creed Kelley Holl & Sugerman

Kevin John Holl 

James Dombroski

The Ekenna Law Firm

Chief Nnamdi Ekenna

Hagens, Berman, Sobol & Shapiro

Steve W. Berman

Anthony D. Shapiro

Elaine Teresa Byszewski

Hallisey & Johnson 

Jeremiah F. Hallisey

Gross Belsky Alonso

Terry Gross

The Mogin Law Firm

Daniel Jay Mogin

Lisa J. Frisella

Chad McManamy

Alexander Michael Schack

Lawrence Genaro Papale
62

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. Thomas
63

Automobile Antitrust Case A134913