Judge: Theresa M. Traber, Case: 21STCV31373, Date: 2025-05-19 Tentative Ruling

Case Number: 21STCV31373    Hearing Date: May 19, 2025    Dept: 47

ANTONIO MADRAGON ESPINOZA, et al. vs AMERICAN HONDA MOTOR CO., INC, Case No. 21STCV31373

TENTATIVE RULINGS ON MOTIONS IN LIMINE

PLAINTIFFS’ MIL # 1 – seeking order excluding evidence and argument regarding any marketing or advertising by Plaintiffs’ attorneys.

TENTATIVE RULING:  GRANTED, as such matters are not relevant to any claim or defense and are potentially prejudicial and, thus, should be excluded under Evidence Code § 352. 

Even assuming Plaintiffs learned about the protections provided to consumers under the Song-Beverly Act via attorney advertising, Defendant has not explained why this is relevant to any claim or defense in this action or how such information negatively impacts on Plaintiffs’ credibility.  Although it contends that attorney advertising is relevant to “when and how Plaintiff determined their vehicle contained nonconformities and when they decided to file the instant lawsuit,” Defendant fails to connect these issues to any element of the claims or to any legitimate defenses that have been asserted in opposition. 

Turning to the voir dire issue, the Court concludes that questioning about attorney advertising is not proper.  To the extent the issue is one of the prominence or notoriety of Plaintiffs’ counsel through their advertising, the jury selection process will include the introduction of all counsel and parties to prospective jurors who will be asked by the Court if they have ever heard of or know any of the parties, lawyers or law firms and, if so, how they came to hear of or know any of them.  If any jurors indicate they are familiar with Plaintiffs’ law firm because of advertising, the Court may inquire into any prior impressions these potential jurors have of any of the lawyers, but this questioning is likely to be conducted out of the earshot of other jurors, because of the potentially prejudicial impact of negative views espoused by any individual jurors. 

PLAINTIFFS’ MIL # 2:  seeking order excluding evidence and argument regarding Plaintiff’s ability to recover attorney’s fees, suggestions that the litigation is attorney-driven, or otherwise attacking or criticizing Plaintiffs’ counsel.

TENTATIVE RULING:  GRANTED, as such matters are not relevant to any claim or defense and are potentially prejudicial and, thus, should be excluded under Evidence Code § 352. 

In arguing the impropriety of mentioning fees in the jury’s presence, Plaintiffs rely in part on the Ninth Circuit ruling in Brooks v. Cook (9th Cir. 1991) 938 F.2d 1048, where the appellate court held that it was error for the trial court to inform the jury in a federal civil rights case about the availability of attorneys’ fees under 42 U.S.C. § 1988 and to allow defense counsel to comment on § 1988 in closing argument “for the purpose of attacking [the plaintiff’s] motives.”  (Id., at p. 1053.)  The Brooks court found error both because the availability of attorneys’ fees was irrelevant to the liability and damages issues to be resolved by the jury and because the defendants’ attempt to use the fees provision against the plaintiff  “could result in prejudice to the plaintiff and undermine the public policies behind § 1988,” including that the “recovery of attorneys' fees helps to eliminate financial barriers to the vindication of constitutional rights” and helps to “stimulate voluntary compliance with the law.”  (Id., at p. 1051.)   

Defendant attempts to distinguish Brooks by focusing on the civil rights issues at issue there and by arguing that the same public policy considerations are not applicable here.  (Opp., p. 5.)  While this action is not of constitutional stature, the same kinds of policy considerations motivated our Legislature when it included a prevailing party provision in the Song-Beverly Act.  Indeed, our Supreme Court recognized in Murillo v. Fleetwood Enterprises, Inc.(1998) 17 Cal. 4th 985, that because “the prospect of having to pay attorney fees even if one wins a lawsuit can serve as a powerful disincentive to the unfortunate purchaser of a malfunctioning automobile,” the Legislature enacted the attorneys’ fees provision in the Song-Beverly Act to “provide[ ] injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.”  (Id., at p. 994; see also Wohlgemuth v. Caterpillar Inc (2012) 207 Cal. App. 4th 1252, 1262 (“[T]he provision for recovery of costs and attorney fees in [Civil Code] section 1794(d) is an important aspect of this consumer protection, and without it many would not be financially able to pursue a remedy”). 

Just as in Brooks, the Court finds here that the availability of fees for a prevailing plaintiff is wholly irrelevant to any issue to be decided by the jury and that any effort by defendant to use the fee provision against Plaintiffs in the manner suggested would undermine the public policies embodied in that provision and cause potential prejudice to Plaintiffs.  In addition, simple arguments about a plaintiff’s lawyer’s incentive to recover fees will not provide the jury with the many considerations used by the Court to determine what fees are reasonable and to exercise its discretion to award attorneys’ fees in a particular case.  Thus, under Evidence Code § 352, evidence of attorneys’ fees must be excluded not only because of its likely prejudicial impact on Plaintiffs’ case but also because informing the jury of the availability of a fee award would be misleading and would require an undue consumption of time to explain how the fee provision is applied in a particular action.

Defendant raises several other arguments in opposition. It posits that, because Plaintiffs’ counsel may advance closing arguments about the need for civil penalties where the manufacturer declines repurchase that are contrary to the law, Defendant must be able to counter these arguments by showing that a refusal to repurchase may involve considerations about Plaintiffs’ right to attorneys’ fees under the statute.  If Defendant wants a ruling barring an improper argument, it should have submitted a motion in limine to address that. The hypothetical possibility that Plaintiffs may make an improper closing argument is not a basis for admitting evidence about attorneys’ fees despite its irrelevance and prejudicial impact.  To the extent Defendant is seeking to ensure that the jury is properly instructed on the standards for imposing a civil penalty, it should make that argument directly, rather than by seeking to admit evidence that is not admissible under that standard. (See CACI 3244.) 

Defendant also cites to federal cases other than Brooks which address instructions to the jury about attorneys’ fees available under federal statutes not at issue in this case, but the Court does not find these to be persuasive.  Contrary to the rulings in these federal cases, under California law, jurors are instructed that they may not “consider, or include as part of any award, attorney fees or expenses that the parties incurred in bringing or defending this lawsuit.”  (CACI 3964.)  The directions for use teach that this instruction is “intended to prevent jurors from improperly factoring attorney fees into their damage award,” but should not be used to instruct the jury in cases where the availability of attorney fees constitute a jury issue.  Here, there is no basis for the contention that the jury in this case will resolve any aspect of the fees issue, so the general rule excluding any mention or consideration of fees should govern this trial.

PLAINTIFFS’ MIL # 3:  seeking order prohibiting argument or testimony that Defendant conformed the vehicle within a reasonable number of repair attempts because Defendant repaired a particular component. 

TENTATIVE RULING:  DENIED. 

Plaintiffs have failed to identify any evidence they seek to exclude.  What is more, it appears to the Court that the crux of Plaintiff’s motion is not to prohibit the introduction of any evidence but rather to restrict the arguments that might be made about the controlling law and how it applies to the facts.  While the Court would be inclined to restrict the parties from arguing that the Court’s jury instructions mean something other than what the law requires, a decision about that issue is premature and should be reserved to when the Court finalizes the jury instructions based on the evidence admitted at trial and makes decisions about proper closing arguments to the jury.  The Court cautions the parties that neither voir dire nor opening statements are vehicles for counsel to advocate for their interpretation of the law, so both parties must avoid presenting any argument about their views of how the law applies to the facts in the case, except to say broadly what Plaintiffs or Defendant believe the evidence will show or not show about whether Plaintiff’s vehicle had “defects that were covered by the warranty and that substantially impaired its use, value or safety” and whether the evidence will show or not show that Defendant “failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so.”  (CACI 3201.)  If the parties want the Court to resolve the legal debate their briefs present before the end of trial, the Court is open to setting a hearing for doing so. 

PLAINTIFFS’ MIL # 4:  seeking order prohibiting argument or testimony that Plaintiff did not make sufficient efforts to ask Defendant to repurchase or replace the vehicle and seeking a special jury instruction explaining that while a manufacturer has an affirmative duty to replace a vehicle or pay restitution to the buyer, the buyer has no duty to promptly seek a repurchase or replacement of the vehicle. 

TENTATIVE RULING:  GRANTED IN PART and DENIED IN PART.

The parties debate the legal standards as to the duties of the manufacturer and buyer in connection with initiating a repurchase or replacement process.  Plaintiffs argue that Lukather v. Gen. Motors, LLC (2010), 181 Cal. App. 4th 104, Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, and CACI 3201 and its instructions affirmatively hold that buyers have no duty to request a repurchase or replacement, that manufacturers bear an affirmative responsibility for offering these remedies, and that the Court should issue a special jury instruction reflecting these principles.  In addition, Plaintiffs urge the Court to bar admission of all evidence about whether Plaintiffs requested a buyback or replacement vehicle. In contrast, Defendant argue that the cases cited by Plaintiffs do not stand for the propositions they purport to establish and that whether Plaintiffs sought a remedy from Defendant is highly relevant to whether Defendant engaged in a willful violation so such evidence must be admitted at trial. 

The Court issues a split decision on this motion.  It is true, as Defendant argues, that the disputes in the cases on which Plaintiffs rely do not specifically raise the question of whether a buyer has an affirmative duty to seek a repurchase or replacement vehicle.  The issue in Krotin was whether a buyer seeking restitution or replacement under Civil Code § 1793.2(d)(2) must reject or revoke acceptance of the vehicle within a reasonable time after discovery of the defects, consistent with the standard under Commercial Code §§ 2607, subd. (3)(a), 2608, subd. (2). (Krotin v. Porsche Cars N. Am., Inc., supra, at pp. 301-302.)  Closer to the issue here, the court in Lukather rejected the manufacturer’s argument that its duty to repurchase or replace did not arise unless the buyer acted promptly to make a clear request for one remedy or the other.  (Lukather v. Gen. Motors, LLC, supra, at pp. 1049-1050.)  In both cases, the plaintiff buyers did make a request for restitution so that was not the issue.  That said, the principles and reasoning applied in these cases plainly support Plaintiffs’ position.  Both courts stated unequivocally that “the manufacturer has an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts,” and that “the [Song-Beverly] Act does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties.” (Id., at p. 1050 [quoting Krotin with approval].)  CACI 3201 also reflects these standards in that it recites no requirement that the buyer request a remedy but does impose liability where the manufacturer does “not promptly replace or buy back the vehicle.” (Judicial Council Of California Civil Jury Instruction 3201; see also Sources and Authorities [“[T]he only affirmative step the Act imposes on consumers is to ‘permit[] the manufacturer a reasonable opportunity to repair the vehicle’” (Oregel [v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094,]at p. 1103.)].)  In sum, the Court will instruct the jury with a special instruction informing them of the manufacturer’s affirmative duty and the lack of any obligation by the buyer to request a remedy. 

Turning to the evidentiary question, the Court rules in favor of Defendant, finding that evidence of whether Plaintiffs did or did not request a remedy is relevant to whether any violation by Defendant was willful. As the Court of Appeal explained in n Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174:  “[A] violation [of the Act] is not willful if the defendant's failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present. This might be the case, for example, if the manufacturer reasonably believed the product did conform to the warranty, or a reasonable number of repair attempts had not been made, or the buyer desired further repair rather than replacement or refund.”  (Ibid, at p. 185.)  While a defendant’s failure to investigate the repair history of a particular vehicle may not be vitiated by the lack of any repurchase request by the buyer, the latter is probative evidence about the defendant’s good faith and reasonable belief that no repurchase was necessary.  On the other side of the coin, a manufacturer’s refusal to offer repurchase in the face of the buyer’s repeated urgings may well support a finding that the manufacturer’s violation was willful. 

Lukather v. Gen. Motors, LLC, 181 Cal. App. 4th 1041, 1050, 104 Cal. Rptr. 3d 853, 860 (2010) do not specifically asquarely hold that  That there is no duty to request a buyback, however, they affirmatively date this principle in cases involving related tissue issues, such as whether a buyer has to promptly revoke a purchase contract in order to sue and whether a buyer should be held responsible when it tenders the car pro repair, but the dealer does not engage in any effective repair. Based on the principle discussed in Bowser and related case cases, the fourth goal that buyer does not have the affirmative duty to request a buyback, and that a manufacturer has a permit and an affirmative duty. , but the dealer does not engage in any effective repair. Based on the principle discussed in Bowser and related case cases, the fourth goal that buyer does not have the affirmative duty to request a buyback, and that a manufacturer has a permit and affirmative duty to offer a buyback. That said, evidence about whether a buyer did in factrequest a buyback (particularly when the manufacturer did nothing in response is admissible evidence to demonstrate the manufacturers will fall failure to offer a purchase.