The Coordination Order Called For Extensive Discovery Coordination Among The Federal And State Court Actions Such That Costs Incurred For Depositions Noticed In The Federal Proceeding Were Incurred In The California Proceeding.
1921 Model T Ford
In In re Automobile Antitrust Cases I and II, Case No. A152893 (1st Dist., Div. 4 Sept. 25, 2019) (unpublished), a number of automobile manufacturers and dealer associations were sued under the Cartwright Act (Bus. & Prof. Code, §§ 16720-16728) and the unfair competition law (Bus. & Prof. Code, §§ 17200-17210). Multiple lawsuits were filed in California and a similar lawsuit against many of the same defendants in federal court. Parallel cases were also pending in a number of other state courts.
The allegations were that defendants had conspired to keep new vehicle prices higher than they would have been in a properly competitive market by preventing new, virtually identical, lower priced cars from being exported to the U.S. from Canada.
The California lawsuits were coordinated into one proceeding, and discovery was coordinated among the California, federal, and other state actions under a June 2004 discovery coordination order which provided detailed provisions governing the taking and use of discovery in the separate proceedings – with the federal proceeding being “the lead case for discovery and discovery-related pretrial scheduling.”
After prevailing on summary judgment in federal court in July 2009, Ford Motor Company (Ford U.S.) and Ford Motor Company of Canada, Ltd. (Ford Canada), along with other defendants, were denied their requests for costs awards. The denial was based on federal case law, under Fed. R. Civ. P., Rule 54, that allows a district to deny costs awards to a prevailing party if the case “ ‘presented a close question that required considered balancing[.]’ ”
However, Ford U.S. and Ford Canada (the two remaining defendants) got another bite at the apple after each separately prevailed on summary judgment in the California proceeding in November 2011 – resulting in a 2012 costs award of $199,464.98 with only a $1,625 reduction for disallowed costs included in the joint request.
Plaintiffs appealed the judgments and separately appealed the costs award. In July 2016, judgment was reversed and remanded as to Ford Canada. Judgment in favor of Ford U.S. was affirmed on appeal. Plaintiffs then moved to dismiss the cost order appeal as moot, and the 1/4 DCA granted the motion.
On remand, Ford U.S. moved, once again, for a costs award as a prevailing party. In addition to the previous jointly awarded $199,464.98, Ford U.S. sought to recover interest on that amount from the date of the 2012 costs order. The trial court granted the costs award request (the 2017 cost order), but denied the request for interest.
Plaintiffs appealed – contending the deposition costs were not recoverable because they were incurred in the federal proceeding, and that any costs award should be apportioned between Ford U.S. and Ford Canada. They further argued that if any deposition costs were allowed, they should be apportioned among the seven separate cases that made use of the discovery taken. Finally, Plaintiffs argued that some depositions taken were not reasonably necessary to Ford U.S.’s defense in the California proceeding.
The 1/4 DCA disagreed and affirmed Ford U.S.’s costs award.
It found that in light of the coordination order in the related actions, the costs of conducting discovery could not be characterized as having been incurred in just one action and not in the others, and were therefore absolutely recoverable. Ford U.S. was entitled to recover these costs “as a matter of right” under Code Civ. Proc. section 1032.
As to apportionment, the 1/4 DCA found no abuse of discretion. It found reasonable the trial court’s resolutions that there were not “seven separate cases of equal dignity and equal work,” and that there was only a “singular conspiracy” at the core of each of the actions – meaning what any plaintiff knew about that conspiracy was relevant and had impact in the other actions. Likewise, the 1/4 DCA found no abuse in discretion as to lack of apportionment between Ford U.S. and Ford Canada – that the evidentiary showing was that Ford U.S. had reasonably incurred the costs awarded, and that the depositions taken were reasonably necessary to Ford U.S.’s defense.
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