JUDGE GRANTS SUMMARY JUDGMENT,
DENIES SIGNER RIGHT TO TRIAL
In keeping with the bizarre nature of my experiences at the hands of General Motors in recent years, the 2009 outcome of the legal action I filed in 2007 was characteristically unbelievable. In this yet one more mysterious and extremely unusual damaging event, the shocking dismissal and accompanying denial of my right to a jury trial prompts one to again ask, “What are the odds?”
From the February 21, 2007 filing date, the case continued 27 months and cost me hundreds of thousands of dollars of legal fees, as well as considerable stress, in preparation. In that time, in addition to the changing of judges in the case, my attorneys also changed. After writing the original complaint on my behalf in 2007, the attorney partner in the out-of-state law firm turned the case over to a member of the firm’s litigation department. A junior attorney assisted on the case from the beginning and continued with the litigation activities. In May 2008, the law firm terminated the litigation attorney, and then the junior attorney resigned a short time later. As it was necessary to have a California attorney file actions with the court, from the beginning I had also retained a dealer-specialist California attorney to file documents with the court.
When the out-of-state attorneys handling the case left the firm, I was faced with the decision to either allow the case to be assigned to yet another attorney in the same firm, find another law firm to continue the litigation with the accompanying time and expense of educating the new attorney(s), or allow the California attorney who had been doing the filings to carry the case to conclusion. That attorney assured me he could handle the case even though litigation was not his specialty. While no option was ideal, I chose to go forward with the California attorney in order to maintain continuity.
Following are the Eight Causes of Action (Counts) against GM and GMAC, all upheld by the first judge after GM’s and GMAC’s Demurrer attempt:
Count I–Breach of Contract (Buick) against GM
Count II–Breach of the Implied Covenant of Good Faith and Fair Dealing (Buick) against GM
Count III–Breach of Contract (Cadillac) against GM
Count IV–Breach of the Implied Covenant of Good Faith and Fair Dealing (Cadillac) against GM
Count V–Promissory Estoppel against GM
Count VI–Defamation against GM and GMAC
Count VII–Tortious Interference against GM
Count VIII–Tortious Interference against GMAC
Documentation, deposition credibility, and jury perception
As the case developed, documents were requested and produced by each party and provided to the other. Defendants GM and GMAC each had its own counsel. My documentation was extensive, detailed, and compelling, and included my notes of conversations with GM and GMAC employees over the years. This series of documentation provided a clear picture of events from the 1987 conception of the Fremont Auto Mall through all the events since, including my resolution proposal documents and discussions in October 2006. In contrast to mine, GM’s and GMAC’s document production consisted largely of documents I already had, and was conspicuously nearly totally void of internal documents concerning the Fremont Auto Mall, Newark, Pontiac-GMC denials, Buick/Olds trade attempts, inducements for me to sell, or any of the eerily-timed damaging events that I consider to be intentional harassment. One exception to this glaring document void is the April 13, 2005 internal e-mail sequence outlining the scheme to induce my exit. It seems that this document slipped through the screening process. It stands to reason that there would have been many relevant internal memos along the way, especially considering the frequent change of management. As such, it is quite apparent that certain documents were withheld from me or destroyed.
GM’s and GMAC’s attorneys deposed me for many days, and my attorney deposed six GM and GMAC employees. In depositions I was confident, in command of the facts, and my credibility was impeccable. Had I been allowed to present my case to a jury, I believe that I would have presented a very positive image. In contrast, in their depositions, GM and GMAC employees were frequently evasive, hesitant, and contradictory. Their credibility was often deplorable, with some statements even laughable in their absurdity. They all denied that their respective companies had any involvement in what clearly appeared to be intentional acts of harassment. As these suspicious statements made in depositions could later be presented to a jury, and most of the employees would most likely perform equally poorly on the witness stand, a jury would most likely take a very dim view.
My presentation to, and answering of, questions from the Fremont Planning Commissioners in August 2008 provides a preview of how I would appear to a jury. Transcripts from, and a link to, the webcast of the Planning Commission meeting were available in the 2008 section of the Dealership History, and can also be accessed here. The Commissioners’ chastising of GM over its actions with me gives insight on the likely reaction of a jury. It is important to note that the Commissioners’ obvious anger at GM was confined to their focus on the Fremont Auto Mall issue, and did not even take into account the multitude of other damaging actions GM imposed upon me. Inder Dosanjh, the dealer to whom GM awarded the franchises it took from me, can also be viewed in the webcast.
In addition to the “60 Minutes” and “Michael Moore” comments made by City Council members as noted in the Dealership History, of the many Commissioner comments critical of the ways GM had abused me, ones made by Dan Lydon in his wrap-up summary were particular telling about the potential reaction of a jury:
“But something conjures up in my memory there was a famous ad for an exterminator in the Bay Area here, who was holding a wooden mallet behind his back and he was coaxing the fly or mouse or whatever in then clobber him. And, uh, I know we’re not sitting up here as a Commission to be the jury on Mr. Signer’s lawsuit, but it’s, if we were, I wouldn’t want to speculate on how we might respond to that.”
“We’d like to think that this city has been very appreciative of the input of General Motors, and I hate to see that relationship boil down to this and this kind of gamesmanship being played amongst the people attempting to do business here, those who have chosen to live here and be a part of this community, to be subject to that by people who are here for a few minutes as we look at life.”
Mr. Lydon’s reference to the “input of General Motors” refers to the assembly plant that GM built in Fremont in 1963, which then became “NUMMI” (New United Motor Manufacturing, Inc.) in 1983 when GM partnered with Toyota. GM subsequently withdrew from the operation upon its bankruptcy in 2009, which was followed by Toyota’s closing of the plant in March 2010.
Other factors of potential concern for GM and GMAC
In addition to the above issues, it seems that other factors would cause concern for GM and GMAC if the case went to trial. Among those likely concerns are the following:
- High plaintiff award percentage: Within the state, Alameda County juries award among the highest, if not the highest, percentage of decisions for plaintiffs, presumably driven by the very liberal demographic makeup of the County.
- David vs. Goliath – business size: In cases of big business versus the little guy, juries, especially liberal ones, normally favor David.
- David vs. Goliath – ethics and credibility: In this comparison, I believe I was Goliath, and would be favorably perceived as such by the jury. In contrast, the jury might see GM and GMAC as seriously lacking in these areas, and view some of their employees as white-collar thugs.
- Potentially high jury award: The jury award could very expensive for GM and GMAC, potentially well into eight figures ($10,000,000 to $99,999,999.) These monetary damages could result from:
- GM’s Fremont Auto Mall/Newark actions and resulting worthless facility.
- Lost profits resulting from GM’s decimation of Buick brand and GM’s repeated denials of Pontiac-GMC.
- Malicious actions by GM and GMAC.
- Punitive damages resulting from the defamation count against the companies. This subjective award could be substantial as it is largely based on jury anger at the defendants’ actions.
- Post-trial publicity: Publicity about GM’s and GMAC’s poor business decisions and unethical actions could be highly damaging to the public’s opinion of the two companies, as well as spur other similarly damaged GM dealers to take legal action.
- Legal precedent: The case could set legal precedent that could expose GM and GMAC to countless dealer claims for similar actions, with exposure potentially running into hundreds of millions of dollars. At a minimum, claims could be filed by:
- Any Buick and/or Pontiac dealer for whom GM denied the GMC truck franchise that it had designed to be combined with those two declining car lines.
- Any dealer who had invested in a new facility at an ill-advised location as dictated by GM.
- Any dealer targeted for exit by GM that had been harassed by it or GMAC.
In light of the above apparent concerns, it would seem that GM and GMAC would have liked to avoid a jury trial at nearly any cost. Toward that end, I see only two methods that GM and GMAC could use to prevent a jury trial: settlement, or dismissal on summary judgment. GM and GMAC knew that settlement with me would be very expensive, as they were aware of my high confidence in the merits of the case and accompanying expectation of a large jury award.
The Summary Judgment standard
As noted in the Dealership History, I have learned that a judge’s dismissal on a motion for summary judgment is extremely rare, estimated to be in the 3% to 10% range by legal experts with whom I have discussed the issue. Furthermore, it would seem that a case like mine with such a large number of elements of suspected wrongdoing would have an even lower than 3% chance of being blocked from trial. A statement on Wikopedia describes the high standard that must be met for a judge to justify dismissal on a motion for summary judgment:
“In order to defeat a motion for summary judgment, the non-moving party only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence. For example, if one side on a summary judgment motion can produce the evidence of “a dozen bishops”, and the other side only has the testimony of a known liar, then summary judgment is not appropriate. Deciding on the relative credibility of witnesses is a question for trial.”
In my case, there was extensive dispute of material facts, but the judge’s dismissal prevented a jury from deciding the “relative credibility of the witnesses.” As discussed above, I believe that there would have been no question of who was credible and who was not. I have no doubt that GM’s and GMAC’s attorneys were well aware of, and greatly concerned about, the serious credibility imbalance.
Even if the judge felt that there was insufficient evidence of wrongdoing or liability on the various causes of action (my attorney and I strongly believed there was extensive evidence,) only one element of the law must be in question for the case to go forward. Regarding the Implied Covenant of Good Faith and Fair Dealing, if there was anything whatsoever that GM or GMAC had done in the entire history that could possibly be considered unfair and/or not in good faith, the case must go to a jury to decide. In my case, it seems obvious that there were numerous instances of gross unfairness and bad faith, an observation that would seemingly be shared by anybody with at least a minimal amount of common sense and moral character.
The Implied Covenant of Good Faith and Fair Dealing
An example of a jury award based on the Implied Covenant is that of Person Ford of LaVerne, California. In 2006, the dealership’s owner won a jury award of $12,250,506 solely on the Implied Covenant of Good Faith and Fair Dealing. In other words, the jury simply felt that what Ford Motor Company had done wasn’t fair and/or in good faith. It was ruled that Ford violated no other specific statutes or agreements. Ford appealed the decision and lost, then appealed to the California Supreme Court, which upheld the decision.
In 1988 and 1992, two neighboring Ford dealerships moved closer to Person Ford, actions that Person challenged with Ford Motor Company. In 1993, Person and Ford settled with an agreement that Person could relocate to a site in neighboring Rancho Cucamonga near a new freeway that was planned to be built, with the move being timed with the completion of the freeway. In 1999, with the new freeway still not completed, Ford Motor Company formulated a secret plan that Person Ford would be merged with another dealership and Person Ford would disappear. In 2001, citing a new market study it had performed, Ford informed Person that it was terminating its agreement to allow the dealership to relocate near the new freeway, but would allow Person Ford to remain in business in its current location.
Person sued Ford for terminating the agreement to support the relocation. The case was presented to a jury on theories of breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory fraud. Person contended that Ford had falsified the 2001 market study in order to support its plan to phase out the dealership. In its verdict, the jury determined that Ford Motor Company had not breached a contract, nor had it made any false promises. However, it determined that Ford had breached the Implied Covenant of Good Faith and Fair Dealing. As such, the jury awarded Person $12,250,506, which consisted of $2,675,906 for “past economic loss, including lost profits” and $9,574,600 for “future economic loss, including lost profits” as a result of not being able to relocate to Ranch Cucamonga. Ford appealed the decision, which led to the June 2008 upholding of the original verdict. Ford subsequently appealed to the California Supreme Court, which declined to hear the case, thus leaving the original verdict to stand. The appellate court statement for Person Ford vs. Ford Motor Company explains the court’s position.
To reiterate, the Person award was thus based simply on the fact that what Ford had done was not fair and/or in good faith. My judge didn’t even allow me to present the extensive evidence I had. Furthermore, Ford is a full-line franchise with a wide-array of cars and trucks, similar to a Buick-Pontiac-GMC franchise. So, unlike my situation without Pontiac-GMC, Ford’s large product portfolio gave Mr. Person a reasonable profit opportunity in his current facility both before and after Ford’s actions regarding the new facility. Similar to GM’s sales mix, Ford’s sales were dominated by trucks, with around 70% of sales in that segment and about 30% in cars. Furthermore, Mr. Person was not forced to waste millions of dollars on what would become a worthless new facility, nor did he suffer any acts of harassment. Yet he won a sizeable award; and I was denied a trial. It should be noted that the Person case had nothing to do with my October 2006 resolution proposal, nor in my decision to file suit immediately following the January 23, 2007 GM “claims have no merit” letter. I first learned of the Person case by way of a magazine article in February 2007.
GM files Motion for Summary Judgment in attempt to dismiss Signer case
A new judge was assigned to my case in August 2008 when the original judge retired. In February 2009, GM and GMAC filed a Motion for Summary Judgment with the court in my case against them. This motion asked that the court dismiss all eight causes of action before the 10-day trial scheduled to begin July 20, 2009. After the motion was filed, my attorney then had until May 5, 2009, to file an opposition. A hearing to consider the motion was scheduled for May 21.
On May 5, 2009, my attorney filed our opposition to GM’s Motion for Summary Judgment. We were limited to 29 double-spaced pages, the equivalent to 14 ½ single spaced pages, to summarize the long egregious history of actions that my attorney estimated would take 10 days to present in trial. Appallingly, taking a position that was 180 degrees opposite of the original judge’s, on May 20 the new judge issued a tentative ruling dismissing each of the eight counts one by one, thus blocking me from presenting my case to a jury. A hearing on the Motion for Summary Judgment was held on May 21, at which time my attorney presented oral arguments for our position and against the judge’s tentative decision to dismiss the case. The judge subsequently maintained his position of dismissal. Due to the grossly improper nature of the dismissal, my attorney and I were both confident that we would prevail in an appeal that would allow the case to move forward to trial. However, GM filed bankruptcy on June 1, thus leaving the corporation few if any assets to pay a jury award. This fact, combined with the stress and expense of an appeal, caused me not to go forward. The dismissal of my case was finalized in August 2009. Words cannot describe the anger I hold regarding this disturbing deprivation of justice, the judge’s decision of which was made irrespective of GM’s financial condition.
It is an absolute travesty of justice that I would be prevented from even presenting my case to a jury. This astounding action was after 27 months, hundreds of thousands of dollars of attorney’s fees and related expenses, as well as considerable stress I endured in preparing the case in addition to the many years of unconscionable events that created the case. Making this action even more unbelievable is the fact that this was not just some routine lawsuit — GM had destroyed everything I had ever worked for in my life. Through its decimation of Buick and denying me GMC, it made my business non-viable and unsustainable, and its abandonment of the two other dealerships in Newark in favor of the Fremont Auto Mall further doomed the now empty multi-million dollar facility it virtually forced me to build in 1995. Adding to this engineering of my demise were the despicable costly and stressful acts of harassment. My attorney and I were shocked that I was denied my right to a trial. It is my understanding that Motions for Summary Judgment are rarely granted by courts, estimated by attorneys and other legal experts I have talked with to be between 3% and 10% of cases. One attorney said to me considering the judge’s dismissal of the egregious case, “Something’s wrong there.”
Other disturbing mysteries surrounding granting of Summary Judgment (dismissal)
- Judge’s last minute consideration of opposition filed by my attorney: As discussed in the Dealership History, on the due date of May 5, 2009, my attorney filed our 29-page opposition to GM’s Motion for Summary Judgment filed in February. On Monday, May 18, the court clerk called my attorney’s office to ask where our opposition was, to which my attorney responded that his office had submitted it on May 5 as required. The court clerk then searched and found it. At 11:09 AM on May 20, the day before the May 21 hearing on the Motion, my attorney e-mailed me the judge’s tentative ruling dismissing all eight causes of action, thus blocking me from presenting my case to a jury. Furthermore, it is unknown how much earlier the judge completed his writing. Assuming May 18 was the first time the judge had read our opposition, at the most he spent less than two days considering our position. As it is likely that he had other items on his agenda on May 18 and 19 that diverted his attention from my case, it could have been just a few hours that he spent considering my position.While it is unknown when the judge read and how much time the judge spent considering GM’s and GMAC’s position before reading my attorney’s opposition, the court had received defendants’ filings in early February. The judge’s tentative ruling was lengthy, clearly indicative of his spending considerable research and time in its writing. My attorney confirmed my observation of the extensive amount of time the judge had to have spent. This apparent time imbalance in consideration of positions is extremely disturbing; especially since I had virtually everything I had worked for in my life on the line.
- Judge’s liberal nature would seemingly cause him to not favor GM or GMAC: According to at least one local legal expert familiar with the case and the judge, the second judge in my case is known to be quite politically liberal. In view of this, the shocked legal expert commented that the judge would not favor GM. I responded that I agreed, which makes the summary judgment dismissal even more mysterious. Confirming the observation of the judge’s liberal leaning, public records show that the judge has made extensive contributions to the Democratic Party and its candidates. As with the plaintiff-friendly liberal Alameda County juries, and as indicated by the phrase “bleeding heart liberal,” it would follow that the more liberal the judge and/or jury, the more he or she would tend to grant every opportunity for the “little guy” to be heard.
In summary, a massive cloud of mystery hangs over the action of the judge. As with so many issues I have experienced, the question must be asked, “What are the odds?” that this extremely rare action could happen to a dealer that GM openly wanted to be gone.
