Dagher v. Ford Motor Co.

GREG DAGHER, Plaintiff and Appellant, v. FORD MOTOR COMPANY, Defendant and Respondent.

D072436

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

August 27, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2013-00046812-CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.

Rosner, Barry & Babbitt, Hallen D. Rosner, and Arlyn L. Escalante; Lemon Law Associates of California and Susan A. Yeck for Plaintiff and Appellant.

Wilson Turner Kosmo, Vickie E. Turner, Robert A Shields, Robert K. Dixon, and Mark A. Rein; Dykema Gossett, John M. Thomas, and Tamara A. Bush for Defendant and Respondent.

Greg Dagher asserted various claims against Ford Motor Company (Ford) arising from alleged defects in his Ford truck's diesel engine. Ford filed a motion for summary judgment, primarily arguing that Dagher's claims were barred by an earlier federal class action settlement under the doctrine of res judicata or claim preclusion. The trial court agreed, granted Ford's motion, and entered judgment accordingly.

Dagher appeals. He contends the doctrine of claim preclusion does not apply because (1) he was not a member of the earlier federal class action; (2) even if he were a member, he effectively opted out of the settlement; and (3) even if he did not opt out, it would be manifestly unjust and violate his due process rights to bind him to the settlement. We disagree and affirm the judgment.¹

FACTUAL AND PROCEDURAL BACKGROUND

In February 2009, Dagher purchased a used 2006 Ford F-350 truck with a Navistar PowerStroke six-liter diesel engine. A few months later, Dagher took the truck to a Ford dealership to diagnose and fix problems with the engine. The dealership serviced the engine's turbocharger and replaced its center housing. The cost of the work was covered by Ford's limited warranty, less a $100 deductible. Later, in 2010, Dagher sought further service from a different Ford dealership.

The Navistar diesel engine was the subject of several class action lawsuits, which were eventually transferred to a federal district court in Illinois for coordination. (See In re: Navistar Diesel Engine Products Liability Litigation (N.D.Ill., No. 11 C 2496, MDL No. 2223) (Navistar).) After substantial litigation, the class action plaintiffs and Ford reached a settlement agreement. The settlement agreement provided for certification of a class of Ford truck owners, which it described in part as follows: "All entities and natural persons . . . who currently own or lease (or who in the past owned or leased) a model year 2003-2007 non-ambulance Ford vehicle sold or leased in the United States and equipped with a 6.0-liter PowerStroke diesel engine that received one or more repairs covered by Ford's New Vehicle Limited Warranty during the vehicle's first five years in service or 100,000 miles, whichever comes first, to . . . the turbocharger." It also provided for certain monetary relief to the class in exchange for the release of all claims, known or unknown, against Ford. Ford agreed to pay for a notice program by a claims administrator to potential class members based on a list provided by R.L. Polk & Co. The settlement agreement provided that any class member who wanted to be excluded from the settlement had to provide notice including the member's contact information and the make, model, year, and vehicle identification number (VIN) for each vehicle to be excluded.

The federal district court preliminarily approved the settlement agreement, provisionally certified the proposed class, and ordered Ford to provide notice to each original and subsequent purchaser of a class vehicle for whom Ford could reasonably obtain an address. The court adopted the settlement agreement's requirements for exclusion. The court stated, "Any Settlement Class Member who fails to submit a timely and complete Request for Exclusion to the required address, or communicates his, her or its intentions regarding membership in the Settlement Class in an ambiguous manner, shall be subject to and bound by all proceedings, orders, and judgments of this Court pertaining to the Settlement Class pursuant to the Settlement Agreement unless determined otherwise by the Court. Any communications from Settlement Class Members (whether styled as an exclusion request, an objection, or a comment) as to which it is not readily apparent whether the Settlement Class Member meant to request an exclusion from the Class will be evaluated jointly by counsel for the Parties, who will make a good-faith evaluation if possible. Any uncertainties about whether a Settlement Class Member requested to exclude himself/herself from the Settlement Class will be resolved by the Court."

Dagher consulted an attorney, who submitted a timely exclusion request on his behalf. Dagher's request referenced the Navistar litigation and stated, "Please be advised that I request to be excluded as a class member and[/]or from any class settlement in the above referenced action or any class action involving the Ford 6.0 liter diesel engine." Dagher provided his name and identified a 2006 Ford F-350 King Ranch truck. Dagher also provided a VIN number, but it was incorrect. Dagher and his attorney signed the exclusion request. In a cover letter, Dagher's attorney requested that the claims administrator advise her immediately "if this request does not effectively exclude my client from the subject class settlement or is not sufficient for my client to retain any and all individual claims against Ford arising from the 6.0 liter engine."

Following a fairness hearing, the federal district court found, among other things, that "[i]ndividual notice was given to all members of the settlement class known and reasonably identifiable, in conformity with the requirements of Federal Rule of Civil Procedure 23(c)(2) and due process." The court certified the class described in the settlement agreement, "approve[d] the proposed settlement and dismisse[d] with prejudice the claims of all class members who did not opt out of the settlement class in a valid and timely manner." The court's order identified the settlement class members "who excluded themselves" in an exhibit. The exhibit did not list Dagher or his vehicle.²

Meanwhile, after Dagher had submitted his exclusion request but before the federal district court approved the settlement, Dagher filed this lawsuit. After a number of years of litigation that we need not recount here, including an appeal to this court (see Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905), Ford filed its motion for summary judgment. It primarily argued that Dagher's claims were barred by the Navistar class action settlement and judgment under the doctrine of res judicata or claim preclusion. Ford relied on the Navistar judgment and service records for Dagher's Ford truck, as well as Dagher's admissions in his operative complaint that he was a "putative class member[]" of the Navistar class and he "did not delay in bringing [an] individual action because it was not until a settlement was approved and notice of the settlement was provided that they were able to evaluate whether they wanted to request exclusion from that class."

Dagher opposed. He argued that Ford had not shown he was a member of the Navistar class and, even if he were a member, his due process rights were violated because Ford did not send him individual notice of the class action settlement and because his exclusion request should have been sufficient to remove him from the class.³

Following oral argument, the trial court granted Ford's motion. It found that Dagher was a party to the Navistar litigation through his membership in the settlement class, that Dagher could not collaterally attack the notice and exclusion determinations of the Navistar court, and that all of Dagher's claims were barred by the Navistar settlement and judgment. The court entered judgment accordingly, and Dagher appeals.

DISCUSSION

ISummary Judgment Standards

"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).) A defendant moving for summary judgment on an affirmative defense has "the initial burden of showing that the undisputed facts support each element of the defense. [Citation.] It 'must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, [it] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.' [Citation.] If a defendant fails to meet this initial burden, its motion should be denied regardless of the plaintiff's evidentiary showing in opposition." (Orange County Water Dist., supra, 14 Cal.App.5th at pp. 388-389; accord, Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468.)

If the defendant "carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) "The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).)

"We review...