Filed 5/8/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION EIGHT


FORD MOTOR WARRANTY                  B277725
CASES
______________________________
FORD MOTOR COMPANY,                  JCCP No. 4856

               Petitioner,

       v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

               Respondent;

JOSE LUIS AGUILAR et al.,

         Real Parties in Interest.


     ORIGINAL PROCEEDINGS in mandate. Kenneth R.
Freeman, Judge. Petition granted.
     Shook, Hardy & Bacon, Amir M. Nassihi, Paul B. La Scala
and Brian P. Ziska for Petitioner.
     No appearance for Respondent.
      Kiesel Law, Paul R. Kiesel, Jeffrey A. Koncius; O’Connor &
Mikhov, Steve Mikhov; Gieleghem Law Office, Neil Gieleghem;
Strategic Legal Practices, Payam Shahian and Jared V. Walder
for Real Parties in Interest.
              ____________________________________
                            SUMMARY
      Code of Civil Procedure section 404.1 governs the
conditions for coordination of civil actions.1 In February 2016, a
coordination motion judge found that a coordination proceeding
was appropriate for approximately 470 cases filed in nine
California counties. Six months later, the judge assigned as the
coordination trial judge for those cases, applying the same
statutory factors, refused to add to the coordination proceeding
467 substantively indistinguishable cases in the same counties,
most of which had been recently filed.
      In this writ proceeding, we conclude a trial judge’s order
declining to add cases to a coordination proceeding, like the
coordination motion judge’s original order, is subject to our
independent review. We further conclude the trial court erred in
refusing to add the cases to the proceeding. Accordingly, we
grant the writ petition.
       FACTUAL AND PROCEDURAL BACKGROUND
      In December 2015, Ford Motor Company filed a petition for
coordination of more than 775 cases in which plaintiffs in 44
counties across the state had sued Ford. The actions alleged Ford
breached warranties with respect to cars equipped with the
“DPS6 transmission” (Ford Fiesta model years 2011-2015 and
Ford Focus model years 2012-2015). Ford contended the cases

1    Further statutory references are to the Code of Civil
Procedure.



                                2
met the criteria for coordination described in section 404.1 and
court rules. Section 404.1 states:
      “Coordination of civil actions sharing a common question of
      fact or law is appropriate if one judge hearing all of the
      actions for all purposes in a selected site or sites will
      promote the ends of justice taking into account whether the
      common question of fact or law is predominating and
      significant to the litigation; the convenience of parties,
      witnesses, and counsel; the relative development of the
      actions and the work product of counsel; the efficient
      utilization of judicial facilities and manpower; the calendar
      of the courts; the disadvantages of duplicative and
      inconsistent rulings, orders, or judgments; and, the
      likelihood of settlement of the actions without further
      litigation should coordination be denied.”
      By order dated February 4, 2016, the coordination motion
judge (Hon. Emilie Elias) found that a coordination proceeding
was “proper and would benefit the goals of the Coordinated
Cases” as to approximately 470 of the 775 cases, in nine (mostly
southern) of the 44 counties. Judge Kenneth R. Freeman was
designated the coordination trial judge, and the Second Appellate
District was selected as the Court of Appeal.
      Several plaintiffs sought a writ of mandate overturning the
coordination order, describing the coordinated cases as “simple
breach of warranty cases brought under California’s lemon law—
the Song-Beverly Consumer Warranty Act—that happen to have
a common defendant-manufacturer. . . .” We summarily denied
the writ petition on April 6, 2016.
      The coordination trial judge issued an order on April 27,
2016, staying the coordination proceeding until the initial status




                                 3
conference. In a letter from court counsel, we were advised the
stay is still in place and has not been modified.
       In May 2016, Ford filed a petition to add 467 similar cases,
most of which had been recently filed, to the coordination
proceeding. These “add-on” cases consisted of “(1) 408 recently
filed cases served around or after the time Ford identified actions
to include in its original Petition for Coordination filed on
December 7, 2015 to the present; (2) 50 cases Ford inadvertently
not included [sic] in the original petition; and (3) 9 cases
previously excluded from Ford’s original Petition due to a pre-
April 15, 2016 trial date, which trial dates have since been
continued.” (Ten days later, Ford withdrew 35 cases from the
add-on cases as having been “settled and/or dismissed or
otherwise should be withdrawn . . . .” As of March 7, 2017,
approximately 254 of the cases subject to the add-on petition had
been settled or dismissed.)
       Ford declared that all the add-on cases “assert a claim for
breach of warranty regarding the 2011-2015 model-year Ford
Fiesta and 2012-2015 model-year Ford Focus vehicles equipped
with the DPS6 transmission,” and were pending in one of the
nine counties identified in Judge Elias’s coordination order. Ford
asserted coordination was appropriate because the add-on cases
“involve similar allegations and the same named defendant,
Ford,” and coordination would advance the convenience of the
parties, witnesses and counsel, conserve judicial resources and
avoid the risk of duplicative or inconsistent rulings, orders, and
judgments.
       At an initial status conference on June 15, 2016, the court
continued the add-on motion to July 8, 2016, and ordered the
parties to file a joint report on case categories, a discovery plan,




                                 4
views on a protective order, and a proposed case management
plan. The court stated it needed to know how many of the cases
“are products liability cases versus Lemon Law cases.” One of
plaintiffs’ counsel responded that there were “Lemon Law, Song-
Beverly, warranty and fraud cases,” but “I don’t think there are
any product cases.” The chart prepared for the July 8, 2016
status conference confirmed there were no products liability cases
already under coordination or among the add-on cases. The
status conference set for July 8, 2016, was continued to July 29,
2016.
       The court issued a tentative ruling denying Ford’s petition
for coordination of the add-on cases. At the hearing, the court
summarized its reasoning this way:
       “All right. So here is the problem.
              “We have all these Lemon Law cases against Ford,
       and the Lemon Law cases are individual consideration
       cases. [¶] Has Ford had an opportunity to correct the
       defect? How many times has the car been taken to the
       dealer? Who is the defendant? Is it the dealer who failed
       to maintain or is it the Ford Motor Company that in some
       way created a defective vehicle, a lemon? [¶] So what you
       have is you have every case is different.
              “Yes, there can be one common protective order, but
       you don’t need a complex court for that.
              “And so because every case is different, the Court
       can’t manage these cases in the way that the complex
       courts generally manage.
              “If we have a series of cases that can be managed by
       the Court, cases with a common—for example, if this were
       a products liability case we could suspend any discovery on




                                5
      anything other than the specific defects and then Ford
      could have discovery in that one area. We could determine
      whether there was some sort of design defect in this
      transmission.
             “The Court commonly handles multiple plaintiff tort
      cases where the torts are all the same. [¶] The Court
      commonly handles class actions where, you know, you have
      CLRA claims, fraud claims, although fraud doesn’t
      generally work for class actions.
             “The point is Lemon Law cases are not amenable to
      complex management, because I can’t look at specific issues
      that I can solve. [¶] For example, where we have one
      motion or we take a bellwether, one case, and that could be
      applied to all the rest.
             “Instead we have cases with many, many different
      components that are not the same, different dealers,
      different repair histories, some with no repair histories.
             “There is no way to manage these cases. It would be
      like saying every single Lemon Law case against Ford
      should be in one court. And you would have one court. It’s
      the Ford court handling Lemon Law cases.
             “Then we would still need to worry about discovery
      which is individualized.
             “There is no legal issue that we can decide that will
      decide all of the cases.
             “In short, in my view these cases should not have
      even been coordinated in the first place.”
      The court also observed that Judge Elias’s ruling was “not
an issue here because Judge Elias’ ruling is complete. I have
these cases. [¶] The question is do I add more to them, because




                                6
as I see it . . . before the year is over I would have another
thousand cases. [¶] Then I would wind up doing nothing but
litigating these individual cases. [¶] . . . [¶] . . . [A]t this stage
I’m only concerned with whether I should add more of the same.
[¶] And also what I have in front of me is slightly different than
what Judge Elias had, because with Judge Elias there were
product liability cases included.”2
      Judge Freeman took the matter under submission and a
month later denied the petition, finding the criteria for
coordination under section 404.1 were not satisfied, and that the
cases were not complex under the rules of court. (Cal. Rules of
Court, rule 3.400.)3
       Judge Freeman found only one coordination criterion was
satisfied: the relative development of the actions and the work
product of counsel favored coordination, as the great majority of
the add-on cases were recently filed with no trial date, and in the
others no depositions or vehicle inspections had occurred. The
court found all the other factors weighed against coordination.
Specifically, the court concluded that:



2      The record does not show that the cases coordinated by
Judge Elias included product liability claims. According to the
petition for writ of mandate challenging the coordination order,
the cases were “simple breach of warranty cases brought under
California’s lemon law . . . .” As demonstrated in the caption, the
Judicial Council Coordination Proceeding designation for these
cases is “Ford Motor Warranty Cases,” thus making clear these
cases all involve claimed breaches of warranty.

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



                                   7
        First, “litigating issues regarding the defective
transmissions will inherently be heavily individualized as to each
individual vehicle, and would not be a predominating fact
significant to this litigation. To the contrary, the Court would be
required to consider, among other factors, the specific design or
manufacturing problem with each vehicle and any
representations made by the Defendant (as well as the dealer)
leading up to the purchase of each vehicle.”
        Second, “there would be great inconvenience to counsel,
parties, and witnesses in having to travel from different counties
to litigate their claims in Los Angeles (especially given that a
large number of the cases originated in San Diego, Riverside, and
San Bernardino).”
        Third, “[i]t would not be more convenient to have all of
these cases coordinated before a single trial judge, as it would not
make efficient use of judicial facilities and manpower.”
        Fourth, “[t]here is not a significant risk that there would be
duplicative and inconsistent rulings regarding Ford’s liability if
individual cases were allowed to go forward outside of the
coordination process (again, given the issues specific to each
vehicle and to each filed case).”
        Fifth, “the Court is not persuaded that settlement would be
more likely in a coordinated proceeding than if the cases were
individually allowed to proceed.”
        Finally, the court stated that it could not “make the finding
that the cases are all ‘complex’ under [rule] 3.400. It is not at all
apparent that the cases would require numerous pretrial motions
raising difficult or novel legal issues with respect to the model
year transmissions.”




                                  8
       Thus, the court determined “that, on balance, the criteria
under [section] 404.1 are not satisfied, and that coordination of
the add-on cases is not appropriate.”
       Three weeks later, Ford filed a petition for writ of mandate
directing the trial court to vacate its ruling and to grant the add-
on petition, or in the alternative, to reconsider the add-on petition
consistent with the coordination rules and other legal authorities.
       We directed real parties in interest to file a preliminary
response to the petition and permitted Ford to file a reply. We
then issued an alternative writ, directing the trial court either to
vacate its order and enter a new order granting Ford’s petition, or
to show cause before this court why a peremptory writ requiring
the court to do so should not issue.
       The trial court declined to comply with the alternative writ.
A letter from court counsel stated: “The cases in the granted
original coordination petition were coordinated based upon
causes of action against Ford alleging product liability and design
defect issues, which was appropriate for coordination. However,
the appropriate cases were mixed in with standard ‘Lemon Law’
cases that were based upon individual dealer’s alleged failing to
fix specific problems after a reasonable number of tries. Such
cases achieve no benefit from coordination because individual
issues predominate; each rises and falls on a particular dealer’s
ability to correct a particular problem.”4 Counsel further stated



4     We are perplexed by the trial court’s statement that the
coordinated cases include product liability claims, as the record
and the parties’ briefs demonstrate that is not the case; and also
by the trial court’s statement that product liability cases are
appropriate for coordination but lemon law cases are not. Both



                                 9
the trial court believed it would be helpful if the parties briefed
the issue of the court’s discretion to deny an add-on petition in
these circumstances, and requested that we publish our opinion
to provide guidance to the coordinating court.
       Real parties in interest then filed a written return to the
petition, and Ford filed its traverse.
                            DISCUSSION
1.     The Governing Legal Principles
       Section 404 governs a petition for coordination, and
requires it to be supported by a declaration “stating facts showing
that the actions are complex, as defined by the Judicial Council[5]
and that the actions meet the standards specified in Section
404.1.” The Chairperson of the Judicial Council then assigns, or
authorizes the assignment of, a coordination motion judge “to
determine whether the actions are complex, and if so, whether
coordination of the actions is appropriate . . . .” (§ 404.)
      The coordination standards specified in section 404.1 have
been recited above. The same coordination standards apply to a
decision whether to grant a request to coordinate an additional
action. Section 404.4 provides in pertinent part that: “[t]he
presiding judge of any court in which there is pending an action
sharing a common question of fact or law with actions
coordinated pursuant to Section 404, on the . . . motion of any

product liability and lemon law cases involve defective products
with common issues, as discussed more fully below.

5     Rule 3.400 defines a complex case as “an action that
requires exceptional judicial management to avoid placing
unnecessary burdens on the court or the litigants and to expedite
the case, keep costs reasonable, and promote effective decision
making by the court, the parties, and counsel.” (Rule 3.400(a).)



                                10
party supported by an affidavit stating facts showing that the
action meets the standards specified in Section 404.1 . . . may
request the judge assigned to hear the coordinated actions for an
order coordinating the action. Coordination of the action shall be
determined under the standards specified in Section 404.1.”
      Similarly, rule 3.501 defines an “[a]dd-on case” as “an
action that is proposed for coordination, under . . . section 404.4,
with actions previously ordered coordinated.” (Rule 3.501(2).)
Rule 3.521 governs the contents of petitions for coordination,
including “a request that a coordination trial judge make such a
determination concerning an add-on case . . . .” (Rule 3.521(a).)
Such petitions must be supported by a memorandum and
declarations showing “[t]he facts relied on to show that each
included action meets the coordination standards specified in . . .
section 404.1 . . . .” (Rule 3.521(a)(7).)
      Rule 3.544 governs add-on cases, specifying that requests
to coordinate add-on cases must comply with the requirements of
the rules governing an original petition for coordination. (Rule
3.544(a).) Rule 3.544 also specifies that, “[i]n deciding the
request to coordinate, the court must consider the relative
development of the actions and the work product of counsel, in
addition to any other relevant matter.” (Rule 3.544(c).)
      Also pertinent to our decision in this case is McGhan
Medical Corp. v. Superior Court (1992) 11 Cal.App.4th 804
(McGhan). In McGhan, the petitioners sought—and obtained—
reversal of a superior court order denying coordination. McGhan
involved a petition for coordination of at least 300 separate cases,
pending in over 20 California counties, with “additional cases . . .
being filed almost daily.” (Id. at p. 807.) The complaints sought
damages for personal injuries sustained by women who had




                                 11
breast implants. The defendants were “various manufacturers of
the implant devices, producers of implant materials, and
physicians who prescribed or administered the implants.” (Ibid.)
Some cases involved multiple plaintiffs, and most “join[ed] either
several or numerous defendants,” so that “the number of parties
involved must run in the thousands.” (Ibid.)
      The trial court in McGhan denied the coordination petition
on the ground that “common question[s] of fact or law” (§ 404.1)
did not predominate, “ ‘in that the cases involve different
implants, different designs, different warnings, different
defendants, different theories of defect, different modes of failure,
and different injuries.’ ”6 (McGhan, supra, 11 Cal.App.4th at p.
808.)
      The Court of Appeal reversed the trial court’s order,
remanding the case with instructions to order all the cases


6     The trial court in McGhan further explained that while
there were certain common issues, “ ‘the differences among the
cases and the sheer number of them, presently pending around
the state and those yet to be filed, are such that coordination
would be impractical and would result in unnecessary delay of
discovery and of trial. [¶] The unmanageability of this large
number of cases would provide none of the economies of scale
which are the goals of coordination. [¶] . . . [¶] Additionally, . . .
coordination would inconvenience the plaintiffs, their counsel,
defendant health care providers and witnesses by requiring them
to travel to a selected site or sites to process their cases; would
tax judicial resources by sending hundreds, and possibly a
thousand cases, to one county, and any possibility of duplicate
and inconsistent rulings, orders, or judgments can easily be
addressed and minimized by the relatively few judges hearing the
breast implant cases filed in the various California courts.’ ”
(McGhan, supra, 11 Cal.App.4th at p. 808, fn. 2.)



                                 12
coordinated and, as discussed post, expressly rejecting the trial
court’s assessment of several of the section 404.1 coordination
standards. (McGhan, supra, 11 Cal.App.4th at pp. 812-814.)
2.     The Standard of Review
       The McGhan case establishes that our review of the trial
court’s order denying coordination of the add-on cases is de novo.
       In McGhan, the court explained, at considerable length,
that plenary review of the coordination motion judge’s order
denying coordination was appropriate. (McGhan, supra, 11
Cal.App.4th at pp. 808-811.) We will not reiterate that
discussion, except to commend its analysis and note our
agreement with its conclusions, namely: “The specific
discretionary call in this case was the ultimate conclusion that
the benefit to be derived by coordination was outweighed by
complications and problems the judge anticipated would result
from attempted coordination. This decision, we apprehend, is one
not necessarily made better by a trial court judge than by an
appellate tribunal. . . . [T]his is a decision which requires the
‘exercise [of] judgment about the values that animate legal
principles,’ and hence ‘ “the concerns of judicial administration . .
. favor the appellate court, and the question should be classified
as one of law and reviewed de novo.” ’ ” (Id. at p. 811.)
       Here, real parties in interest point out this case is in a
different posture, and contend we should review the trial court’s
decision for abuse of discretion. They point to McGhan’s
observation that, “[o]nce coordination is established and
commenced, the then rulings of the coordinating judge will most
likely not be the mixed bag of law and fact . . . . They will be
administrative rulings in the process of the hands-on control of
specific cases by a trial judge. We would expect that such rulings




                                 13
would be reviewable only upon a basis of according substantial
deference to the trial court’s opinions.” (McGhan, supra, 11
Cal.App.4th at p. 814.)
       We do not disagree with that principle. But we do not
consider a ruling on an add-on petition to be within McGhan’s
contemplation when it referred to “administrative rulings in the
process of the hands-on control of specific cases . . . .” (McGhan,
supra, 11 Cal.App.4th at p. 814.) On the contrary, as real parties
in interest themselves insist, the same section 404.1 coordination
standards apply to add-on cases as apply in an original
coordination petition. No reason appears for us to apply a
different standard of review to the denial of an add-on petition
than the standard of review that applies to the denial of an
original coordination petition.
3.     This Case
       Ford’s writ petition contends the add-on cases asserted
“substantively identical claims for breach of warranty related to
the DPS6 transmission” as were asserted in the cases Judge Elias
determined should be coordinated, and were pending in the same
counties. Ford contends Judge Elias would have coordinated the
add-on cases if they had been included in Ford’s original petition,
and Judge Freeman “instead conducted [his] own reconsideration
of Judge Elias’s February 4, 2016 Order,” and “failed to apply the
correct legal calculus . . . .”
       Real parties in interest, on the other hand, contend that
Judge Elias’s order “is simply not at issue”; appellate review
“must focus solely on [Judge Freeman’s] written order,” not on his
comments from the bench during the hearing; and his ruling
denying coordination of the add-on cases “correctly applied . . .
controlling law.”




                                14
       We agree with Ford that the trial court erred in refusing to
coordinate the add-on cases.
       a.    The inconsistent rulings
       We agree with real parties in interest on one point: as a
general matter, in deciding whether to add cases to a
coordination proceeding, courts are to apply the standards
specified in section 404.1. That much is clear from the face of the
statutes and rules we recited in part 1, ante. But in addition, as
Ford points out, in considering add-on cases, rule 3.544(c)
expressly requires the court to consider one of the section 404.1
factors—“the relative development of the actions and the work
product of counsel.” This suggests the primacy of that factor in
determining the propriety of adding a case or cases to a
coordination proceeding.
       That primacy makes a good deal of sense where the
proposed add-on cases have no meaningful differences from the
cases already being coordinated. Where the cases are
substantively alike, most other coordination standards—that is,
the common question of law or fact predominating; efficient
utilization of judicial facilities and manpower; the disadvantages
of duplicative and inconsistent rulings—are unlikely to be
different from those existing when the original coordination order
was made. On the other hand, counsel may have devoted
extensive resources in discovery and other trial preparation in
some or many of the add-on cases, and those cases may have trial
dates. Adding such cases to the coordination proceeding may
result in costly duplication of efforts and delay in resolution of
those cases.
       Here, the proposed add-on cases are substantively no
different than those in the original coordination order. On the




                                15
record before us, we find no basis to conclude that adding them to
the coordination proceeding will result in delay or duplication of
effort. The coordinated proceeding has been stayed since
April 27, 2016, so there is no risk that new counsel representing
plaintiffs in the add-on cases will seek to depose witnesses whose
depositions were already taken. The add-on cases had been
recently filed or had previously set trial dates vacated. If any of
the add-on cases has had a trial date set during the pendency of
this writ proceeding, or if other developments in any add-on case
renders such case unsuitable for coordination, then the
coordination trial judge may consider whether to exclude that
case from the coordination proceeding.
       Judge Elias concluded that coordination of the original 470
cases was “proper and would benefit the goals of the Coordinated
Cases . . . .” While her order was short and succinct, it indicates
the judge “read and reviewed all of the papers”; “heard the
concerns of [Ford] that it is more efficient and cost effective to
have all of the cases in front of one judge”; and “also heard the
points made by the Plaintiffs that it would not be fair to require
plaintiffs in small counties and with few cases to have to travel to
Los Angeles or other large Metropolitan areas to have their
matters adjudicated.” We necessarily presume that the
conclusion of the coordination motion judge—the judge
specifically designated “to determine whether coordination is
appropriate” (rule 3.501(7))—was based on evaluation of the
requisite section 404.1 factors.
       Six months later, Judge Freeman concluded, applying the
same section 404.1 factors, that none of them supported
coordination of additional, substantively indistinguishable cases,




                                 16
except for the factor given primacy in rule 3.544(c): the fact they
were recently filed.
      We find it difficult to avoid the conclusion that Judge
Freeman’s order was a direct repudiation of the coordination
motion judge’s (Judge Elias’s) order. Real parties in interest
assert that “disagreement with the original coordination order
was never a basis for [Judge Freeman’s] actual order . . . .” We
believe otherwise. Judge Freeman’s tentative decision was to
deny coordination of the add-on cases. His statement from the
bench, after summarizing his view of the matter, was that: “In
short, in my view these cases should not have even been
coordinated in the first place,” and “at this stage I’m only
concerned with whether I should add more of the same.” His
final written decision was exactly the same as his tentative
decision. We cannot view his statement as “an isolated comment
from the bench” that is without significance.
      The way we see it, after the duly-assigned coordination
motion judge determined the cases in the original petition were
complex and coordination was appropriate, the judge who was
subsequently assigned to handle the coordinated proceedings
instead rejected the determination that coordination was proper.
We cannot countenance the implicit reversal of a decision by the
duly-assigned coordination motion judge, particularly since a
mandamus petition challenging that decision was filed (as
expressly permitted by section 404.6) and denied. Thus, the
coordination proceeding was duly established.
      As is apparent, the coordination statutes and rules
expressly contemplate add-on cases. Unless there is some
distinction between the coordinated cases and the add-on cases—
and none has been suggested here—we are unable to see any




                                17
basis for the coordination trial judge’s refusal to add cases to the
coordination proceeding. Yet that is precisely what has been
done.
      We realize, of course, that there are circumstances where
the addition of a substantively similar case would be properly
rejected by the coordination trial judge—such as if the case is
ready for trial, or some other feature distinguishes it from the
cases in the coordination proceeding. But the coordination
statutes and rules simply do not contemplate a decision by the
coordination trial judge to constrict a duly-constituted
coordination proceeding by refusing to include “more of the
same.”7
       b.     The “complex case” issue
       At its core, the trial court’s refusal to coordinate the add-on
cases appears to lie in its belief that lemon law cases are not
complex cases within the meaning of rule 3.400. At the hearing,
the court stated that it “can’t manage these cases in the way that
the complex courts generally manage,” and “[t]he point is Lemon
Law cases are not amenable to complex management,” and
“[t]here is no way to manage these cases.” Likewise, in its
written ruling the court stated it “cannot make the finding that
the cases are all ‘complex’ under [rule] 3.400.”
       First, it is not the province of the coordination trial judge to
determine that add-on cases that are substantively


7     Rule 3.542 provides a pertinent analogy. That rule allows
the coordination trial judge to remand a coordinated action to the
court in which it was originally pending, but “[n]o action . . . may
be remanded over the objection of any party unless the evidence
demonstrates a material change in the circumstances that are
relevant to the criteria for coordination under . . . section 404.1.”



                                  18
indistinguishable from cases already subject to coordination are
not complex cases. Section 404 authorizes the coordination
motion judge—Judge Elias—“to determine whether the actions
are complex, and if so, whether coordination of the actions is
appropriate . . . .” In the context of a request for coordination of
add-on cases, the statutes and rules do not contemplate a further
determination of whether the add-on actions themselves are
complex. The only criteria to be applied are the coordination
standards specified in section 404.1. (See § 404.4 [“Coordination
of the action shall be determined under the standards specified in
Section 404.1.”].)
       Second, we are compelled to point out the trial court’s
apparent misunderstanding of the nature of the coordinated
actions and those proposed to be added. As noted earlier, Judge
Freeman and court counsel have asserted that the cases before
Judge Elias included product liability cases as well as lemon law
cases, and took the view that the former are amenable to
coordination while the latter are not. The court’s position has
two flaws.
       The first flaw is factual. As described above in the Factual
and Procedural Background, the record does not support the
assertion that the cases before Judge Elias included product
liability cases. Indeed, at the hearing before Judge Elias,
plaintiff’s counsel, arguing against coordination, made that clear:
“The fact is they are individual cases. The issues are going to be
individual. [¶] And the claim is a Song-Beverly Consumer
Warranty Act claim, not a product liability claim involving a
transmission but individual Song-Beverly claims . . . .”
       The second flaw is more significant. We see no basis for
concluding that, while product liability cases are suitable for




                                 19
coordination, lemon law cases are not. Both product liability and
lemon law cases involve defects. The defect in a product liability
case may be in design or manufacture, while in lemon law cases,
the defect is described in terms of a departure from warranty
that substantially impairs the use, value or safety of the car.
Certainly the latter cases raise individual issues, but so do
product liability cases. Just as in the asbestos cases and the
breast implant cases in McGhan, a great deal of efficiency can be
accomplished by coordinating lemon law cases, as we discuss,
post, despite individual issues relating to repair histories. At oral
argument, real parties in interest were unable to explain why it
was beneficial to coordinate the asbestos and breast implant
cases, but not these lemon law cases. In short, product liability
cases filed by many individual plaintiffs are recognized as
complex, and there is no reason why multiple-plaintiff lemon law
cases should be treated differently.
       We also note the coordination trial judge gave only one
reason for concluding the add-on cases were not complex under
rule 3.400: that “[i]t is not at all apparent that the cases would
require numerous pretrial motions raising difficult or novel legal
issues with respect to the model year transmissions.” The reason
cited by the court is only one of five factors, “among other things,”
that a court must consider in deciding whether an action is a
complex case. (Rule 3.400(b).) It is not a necessary factor. (See
Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 835, fn. 8
[rejecting the notion that coordinated actions must necessarily be
“difficult or novel”; “The coordinated actions with which we are
here concerned are ‘complex’ within the meaning of this rule only
because of the large number of represented parties in related
actions pending in different counties.”].)




                                 20
       In sum, the determination whether cases are complex was
a determination for the coordination motion judge. That finding
was made, and was clearly proper. The coordination trial judge
is not at liberty to make a contrary finding with respect to
substantively indistinguishable add-on cases.
       c.     The section 404.1 standards
       Even if we ignore the inconsistency between the order
establishing the coordination proceeding and Judge Freeman’s
order, we would conclude the latter cannot stand. The section
404.1 coordination standards, properly applied, plainly favor
coordination of the add-on cases.
              i.    The common questions of fact or law
       As the trial court acknowledged, all the add-on cases (like
the coordinated cases), are “Lemon Law” cases that “deal with
defects in the transmissions of the identified model-year Ford
Fiesta and Ford Focus vehicles.” Nonetheless, the court found
this factor “weigh[ed] against coordinating the cases,” because
“litigating issues regarding the defective transmissions will
inherently be heavily individualized as to each individual vehicle,
and would not be a predominating fact significant to this
litigation.” As discussed below, even real parties in interest
concede there are common discovery issues involving the design
and modification of the transmission and Ford’s repurchase
policies and procedures.
       Ford’s original coordination petition emphasized the
coordination of pretrial motion practice, written discovery and
common depositions. Perhaps more significantly, real parties’
own position in the June 15, 2016 joint initial status conference
report in the coordination proceeding, while proposing a “dual-




                                21
track approach” for discovery on non-common issues, confirms
the importance of common issue discovery.
       For example, real parties in interest pointed out that each
plaintiff may recover treble damages by showing Ford willfully
failed to comply with its statutory obligation to replace or
repurchase a vehicle, and relevant factors in assessing willfulness
“include the existence and contents of Ford’s repurchase policies
and Ford’s knowledge of unrepairable defects. . . . Consequently,
each included action requires discovery into ‘common’ issues such
as the design and modification of the dual-clutch transmission,
Ford’s knowledge of defects with the dual-clutch transmission,
and Ford’s repurchase policies and procedures.” (Italics added.)
       “Common issue discovery,” real parties in interest stated,
“should be divided into two phases,” the first geared toward
immediate production of material that Ford has already produced
“plus routine foundational matters such as database locations,
custodians, search terms, and document retention policies,” and
the second phase targeting “subject matter, data sources, time
frames, and witnesses not included in Ford’s initial production.”
The initial phase of discovery, according to real parties in
interest, “will focus on the design, testing, implementation,
failure and modification of the dual-clutch transmission and is
anticipated to comprise the more than two-million pages of
documents Ford has already . . . produced in . . . federal class
actions.”
       Real parties in interest further proposed that a global
protective order be presented to the court, followed by Ford’s
production of its document retention policies, the documents
produced in the class action cases, a privilege log and all
documents Ford was ordered to produce in any individual action




                                22
before the coordination stay. Real parties in interest proposed
further details concerning common issue discovery on the dual-
clutch transmission, as well as on Ford’s “internal policies
regarding vehicle repurchases and lemon law compliance as well
as the policies, training materials, scripts, organization charts,
and related materials” governing a specified Ford subsidiary.
      Ford’s views on discovery and the scope of the proposed
protective order were significantly different,8 but the controlling
point is clear: the cases are ripe for coordination on discovery
and related pretrial matters. A “continued” joint initial status
conference report for the July 8, 2016 hearing included charts
prepared by plaintiffs “categorizing cases by alleged defect and
causes of action,” as well as materials further reflecting the
parties’ respective positions on discovery, a proposed protective
order and a case management plan.
      All this clearly demonstrates the benefits of early
coordination of discovery and motion practice—benefits that are
in no way negated by the court’s concern over litigation that is
“heavily individualized as to each vehicle.” (See McGhan, supra,

8      Among other things, Ford proposed production of all
vehicle-specific documents and plaintiff-specific information
before plaintiffs conduct liability and damages discovery.
Providing such information “at the outset will permit the parties
and the Court to properly identify relevant subcategories of cases,
promote early settlement or other disposition of cases, limit the
need for individualized discovery as to each Plaintiff, and
otherwise permit orderly and efficient discovery. For example, to
the extent numerous Plaintiffs’ vehicles were repaired at a single
third-party facility, the parties would be able to seek production
of relevant repair records for multiple Plaintiffs through a single
subpoena rather than in multiple, intermittent requests, thereby
limiting the burden on those third parties.”



                                 23
11 Cal.App.4th at pp. 808, 811 [rejecting coordination motion
judge’s conclusion that common questions did not predominate
because breast implant cases involved “ ‘different implants,
different designs, different warnings, different defendants,
different theories of defect, different modes of failure, and
different injuries’ ”].) As in McGhan, while “all determinations as
to whether to coordinate a case are but best estimates” (id. at p.
813), it seems obvious that “the preparation for trial in terms of
depositions, interrogatories, admissions, collection of physical
data, etc., will be better achieved if done in a coordinated
manner” (id. at p. 814).
             ii.    Convenience of parties, witnesses
                     and counsel
       The trial court’s finding that the convenience factor
weighed against coordination of the add-on cases is similarly
flawed. The court merely found that traveling from other
counties to Los Angeles would be a “great inconvenience” to
counsel, parties, and witnesses. But with today’s technology,
there is no reason why counsel, parties and witnesses should
have to travel frequently to Los Angeles. The complex courts in
Los Angeles have used electronic filing and email for years now,
pretrial and post-trial court appearances may be made by
telephone or video using CourtCall, and many judges accept
conference calls to informally resolve discovery disputes. Counsel
and the court may take advantage of technology to devise means
to coordinate discovery and other pretrial practice so as to avoid
“great inconvenience.” (See Tech Tips From the Bench: An
Interview with Hon. Emilie Elias, ABTL Report Los Angeles,
Summer 2015 <http://www.abtl.org/report/la/abtlla_
summer2015.pdf>[as of May 8, 2017].) The Judicial Council




                                24
recommends the court consider the use of a website for
coordinated complex cases, with the parties responsible for its
maintenance and cost. The Judicial Council has described at
length many other uses of technology to manage discovery,
pretrial and trial of complex cases. (Judicial Council of Cal.,
Deskbook on the Management of Complex Civil Litigation (2016),
§§ 3.90-3.99 (Deskbook).)
       As McGhan observed 25 years ago: “That [the coordinating
judge] probably will elect to centralize and coordinate discovery
and motion practice does not require burdensome travel. There
is no reason why the coordinating judge cannot prescribe special
rules by which discovery materials are lodged in a document
center available to all counsel in their offices through computer
networking . . . .” (McGhan, supra, 11 Cal.App.4th at p. 813.)
The same is true today in spades.9
             iii. Efficient utilization of judicial facilities
                  and manpower; the calendar of the courts
      The trial court’s analysis of the efficiency factor consisted of
the single statement that coordination before a single judge

9     Real parties in interest contend that coordinated
proceedings “take much longer to resolve than individual Lemon
Law cases,” and this delay is “highly prejudicial to the individual
plaintiffs who rely on their vehicles in their daily lives.” The trial
court made no mention of delay as a justification for its ruling.
(See McGhan, supra, 11 Cal.App.4th at p. 813 [acknowledging
that some delay in certain cases might be experienced, but
viewing “this potential detriment to the few to be a modest price
to pay for the efficiency to be gained by the majority of cases
through coordination”]; ibid. [“One of the purposes . . . of a
centralized coordinating authority is to vest in one administrator
the power to organize the litigation in an efficient and equitable
manner, for the benefit of all.”].)



                                 25
“would not make efficient use of judicial facilities and
manpower.”
       Coordination does not mean that all the cases must be tried
in one forum. Ford proposed that up to ten cases per side be
selected for bellwether trials. A fair and efficient trial structure
is needed for complex cases that involve numerous parties and
issues. The Judicial Council has suggested that counsel and the
court consider “the trial of one or more test cases, with
appropriate provision being made concerning the res judicata or
collateral estoppel effects of a judgment on plaintiffs and
defendants.” (Deskbook, supra, § 2.61.) In addition to deciding
which case or cases to try first, coordination will enable the
parties to consider stipulations of facts that need not be proven
and other procedures to expedite the presentation of evidence, to
obtain rulings on motions in limine, and to develop jury
questionnaires, jury instructions, special verdicts and
interrogatories that may be used in future trials. (Ibid.)
       McGhan pointed this out, stating: “That these cases may
be coordinated does not mean they need be tried in one forum; it
does not even indicate that ultimate trial of the cases need be
unified.” (McGhan, supra, 11 Cal.App.4th at p. 813.) Further,
“the procedures which may be utilized by the coordinating judge
are flexible indeed.” (Id. at p. 812.) McGhan pointed out the
rules would permit the coordination trial judge to order any issue
or defense tried separately; order hearings conducted at various
sites in the state to provide convenience to witnesses, parties and
counsel; “prescribe all manner of pretrial discovery devices
designed to aid the litigation”; sever cases or claims and transfer
them back to their original venue; and try specific issues
separately. (Ibid.) The coordination trial judge is vested with




                                 26
“whatever great breadth of discretion may be necessary and
appropriate to ease the transition through the judicial system of
the logjam of cases which gives rise to coordination.”10 (Ibid.)
             iv.   Other section 404.1 factors
      The trial court noted two other factors as weighing against
coordination of the add-on cases: “There is not a significant risk
that there would be duplicative and inconsistent rulings
regarding Ford’s liability” in the absence of coordination, “given
the issues specific to each vehicle and to each filed case[].” Once
again, this ignores “the disadvantages of duplicative and
inconsistent rulings” (§ 404.1) on discovery and other pretrial
matters that precede determinations of Ford’s liability.
      And finally, the court was “not persuaded that settlement
would be more likely in a coordinated proceeding than if the cases
were individually allowed to proceed.” According to a joint
supplemental report prepared for the July 29, 2016 hearing, at
least 219 of the originally coordinated cases had settled, and as of
March 7, 2017, approximately 254 of the cases subject to the add-
on petition had been settled or dismissed. We do not know if any

10     The trial court acknowledged that “the law permits us to do
that” (send cases back to the original courts for trial), but stated
it was “not economically feasible under our current operating
procedures” to send cases from the coordination judge’s courtroom
to the various trial courts in the Stanley Mosk Courthouse. We
do not understand this remark. The coordinated cases do not all
have to be tried in the Stanley Mosk Courthouse, or even in Los
Angeles Superior Court. The chart prepared for the July 8, 2016
status conference showed there were 79 cases pending in Los
Angeles Superior Court that Ford proposed to add to the
coordination proceeding. It would seem to be more economical for
those 79 cases to be coordinated in one courtroom, even if some
must be returned to their originally assigned courts for trial.



                                27
of these cases would have settled if the original coordination
petition had been denied, but we find no basis to conclude that
settlement would be more likely without coordination, which is
the standard specified by section 404.1. There are many ways by
which a coordination trial judge may serve as a catalyst for
settlement discussions without interfering with the steady
progress of the cases toward trial. (Deskbook, supra, §§ 2.90-
2.95.)
       d.     Conclusion
       The benefits of coordination of these lemon law cases
involving defective DPS6 transmissions is plain. The parties’
joint filings in the coordination proceeding demonstrate the
existence of common discovery issues, and it is incontrovertible
that coordinated management of discovery on those issues will
minimize the disadvantages of duplicative and inconsistent
rulings and promote the efficient utilization of judicial facilities
and manpower. These benefits are not unlike those that have
resulted from coordination of the Asbestos Litigation, where the
coordination motion judge found coordination appropriate
because the cases “as a group” were complex and involved
significant common pretrial issues that should be heard by a
single judge. That is the case here.
       We reiterate that we do not mean to restrict the court’s
discretion to determine that specific add-on cases are not suitable
for coordination.11 Nor do we in any way restrain the court’s


11     Real parties in interest tell us in their return that “most of
the add-on cases now have imminent trial dates.” Rule 3.521(d)
provides that “[t]he imminence of a trial in any action otherwise
appropriate for coordination may be a ground for summary denial
of a petition for coordination, in whole or in part.” Nothing we



                                 28
discretion to determine matters related to trial of the cases. We
say only that, absent some distinguishing feature, the court may
not reject a petition to coordinate substantively identical add-on
cases by redetermining the fundamental issue already decided by
the coordination motion judge: that lemon law cases involving
allegedly defective DPS6 transmissions, in the nine counties
subject to the coordination proceeding, are complex cases and are
appropriate for coordination. The court identified no
distinguishing feature in the add-on cases that would support the
court’s analysis of the section 404.1 coordination standards, and
we conclude that analysis was erroneous. Accordingly, we grant
Ford’s petition.
                           DISPOSITION
       The order to show cause is discharged. Let a peremptory
writ of mandate issue directing the trial court to vacate its
August 29, 2016 order denying Ford’s petition for coordination of
add-on cases, and enter a new and different order granting the
petition, subject only to the exclusion of any action based on an
imminent trial date or other distinguishing feature rendering the
action unsuitable for coordination. Ford shall recover its costs.



                              GRIMES, J.
      I CONCUR:

                  BIGELOW, P. J.



say here prevents the coordination trial judge from applying this
rule to any action in the add-on petition.




                                29
Ford Motor Company v. Superior Court
B277725


FLIER, J., Concurring


       Although I find procedural and substantive deficiencies in
Ford Motor Company’s (Ford’s) add-on petition, I concur in the
result. Because the coordinated proceeding was stayed shortly
after the original coordination order and remains stayed, the
“ ‘relative development of the actions and the work product of
counsel’ ” should have been the primary consideration in
evaluating Ford’s add-on petition (as the majority concludes).
(Maj. opn., ante, at p. 15, quoting Cal. Rules of Court,
rule 3.544(c).)
       In this case, the trial court concluded that the relative
development of the actions “weigh[ed] in favor of coordination,”
and the record supported that conclusion for most of the proposed
add-on cases. For that reason only, I concur that the add-on
cases should have been coordinated. Further, as the majority
states, the trial court retains “discretion to determine that
specific add-on cases are not suitable for coordination.” (Maj.
opn., ante, at p. 28.)



                       FLIER, J.




                                1
