The opinion
Filed 7/24/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
BARBER GROUP, INC., C095058
Plaintiff and Appellant, (Super. Ct. No. 34-2020-
80003479-CU-WM-GDS)
v.
NEW MOTOR VEHICLE BOARD,
Defendant and Respondent,
AMERICAN HONDA MOTOR CO., INC. et al.
Real Parties in Interest.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II and III of the Discussion.
1
APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Affirmed.
Law Offices of Gavin M. Hughes, Gavin M. Hughes, Robert A. Mayville, Jr.;
Clyde & Co. and Douglas J. Collodel for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General,
Kelsey Linnett and John T. McGlothlin, Deputy Attorneys General, for Defendant and
Respondent.
Nelson Mullins Riley & Scarborough, Shawtina F. Lewis, S. Keith Hutto and
Steven McFarland for Real Party in Interest American Honda Motor Co., Inc.
Alan Skobin for Real Party in Interest Galpinsfield Automotive, LLC.
Before a car manufacturer may establish a new car dealership in California, it must
notify all its existing brand dealers within 10 miles of the proposed new dealership. An
existing brand dealer that receives this notice may challenge the proposed establishment
of the new dealership in a “protest” before California’s New Motor Vehicle Board
(Board). In that hearing, the protesting dealer has the burden of proof to establish good
cause for the Board to disallow establishment of the new dealership. (Veh. Code, § 3066,
subd. (b).) 1 But in “any proceeding in which the reasonableness of a performance
standard . . . is an issue, the manufacturer . . . shall have the burden of proof.”
(§ 11713.13, subd. (g)(2).) Which rule governs when a dealer challenges the
reasonableness of manufacturer performance standards in an “establishment” protest?
This case calls upon us to answer that question.
Here, Barber Group, Inc., doing business as Barber Honda (Barber)—a car dealer
in Bakersfield, California—brought an establishment protest, challenging a decision by
American Honda Motor Co., Inc. (Honda) to open a new dealership about nine miles
1 Undesignated statutory references are to the Vehicle Code.
2
away. The Board overruled Barber’s protest, and the trial court denied Barber’s petition
for administrative mandate challenging the Board’s decision. On appeal, Barber argues
the Board prejudicially erred when it: (1) relied on Honda’s dealer performance
standards at the protest hearing without first deciding whether those standards were
reasonable (with Honda bearing the burden of proof on that question), contrary to section
11713.13, subdivision (g); (2) permitted the proposed new dealership to exercise a
peremptory challenge to an administrative law judge initially assigned to the protest
hearing, contrary to notions of fairness and the Board’s own order in the matter; and
(3) denied Barber’s request that it take official notice of the effects of the COVID-19
pandemic. We affirm.
BACKGROUND
Barber, the sole Honda dealer in the Bakersfield area for over 45 years, sits in an
“auto mall” where most major brands are represented, including Toyota, Honda’s
primary competitor. The nearest Honda dealership is approximately 67 miles away.
In October 2017, Honda informed Barber it intended to establish a new dealership
north of the City of Bakersfield, about 9.1 miles away from Barber, and 0.5 miles from a
second Toyota dealership in the area. Most people in the greater Bakersfield area live in
the space between the proposed site and Barber.
After Barber filed its protest to the establishment of the new dealership, an
administrative law judge (ALJ) heard evidence from 15 witnesses over 16 days between
September 2019 and January 2020. In June 2020, the ALJ issued a 43-page proposed
decision, concluding Barber failed to demonstrate good cause to disallow establishment
of the new Honda dealership.
Pertinent here, the ALJ found the proposed new dealership would “not materially
impact Barber,” because “sales will increase.” This was a reasonable inference, the ALJ
explained in part, because on three prior occasions in other parts of the country, after
Honda added a new dealership where there already were existing dealerships in a market,
3
five of the six prior existing dealerships had increased sales. Further, the ALJ reasoned,
the proposed new dealership would lead to “more advertising promoting the . . . Honda
brand in the market area” and “provide another option for customers to have their
vehicles serviced,” potentially influencing Toyota buyers to buy a Honda instead.
The ALJ also found that “Honda’s brand [was] not adequately represented in the
Bakersfield Metro” area. Barber was “not capturing the available opportunity” to sell
Hondas, making the dealership “one of . . . Honda’s worst performers in California.” The
ALJ rejected any suggestion by Barber that Honda had the burden to prove the
reasonableness of any performance standards ostensibly undergirding these findings,
explaining that “the burden is on Barber . . . and [s]ection 11713.13[, subdivision ](g) is
inapplicable here because that section applies” when “measuring the performance of an
individual dealer, which is not an issue in this case.”
After the Board adopted the ALJ’s proposed decision as its own ruling, Barber
challenged the decision in a petition for writ of administrative mandate, which the trial
court denied. Barber timely appealed. Barber’s opening brief was filed on October 7,
2022. The case became fully briefed on February 6, 2023, and was assigned to this panel
shortly thereafter.
DISCUSSION
I
Dealer Protests & Performance Standards
Barber argues the Board erred when it relied on Honda’s dealer performance
standards in rejecting Barber’s establishment protest without first determining the
reasonableness of the standards, with Honda bearing the burden of proof on that question.
The Board does not dispute it considered Honda’s dealer performance standards. Rather,
it contends section 11713.13, subdivision (g) did not apply to Barber’s establishment
protest. We agree with the Board.
4
When analyzing the respective texts of relevant statutes, the “ ‘ “court must, where
reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and
construe them to give force and effect to all of their provisions.” ’ ” (State Dept. of
Public Health v. Superior Court (2015) 60 Cal.4th 940, 955 (Public Health).) The
statutory considerations found within section 3066, subdivision (b) and the considerations
found within section 11713.13, subdivision (g) conflict in the context of establishment
protests. We must harmonize the conflicting statutes to the extent we can “and thus one
must be interpreted as providing an exception to the other.” (Public Health, at p. 956.)
Here, the more specific establishment protest statutory scheme provides an exception to
the performance standards statutory scheme.
A. Standard of Review
The parties agree this mandamus appeal is governed by Code of Civil Procedure
section 1094.5, subdivision (b), which frames the relevant inquiry as whether the Board
“has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion. Abuse of discretion is established
if the [Board] has not proceeded in the manner required by law, the order or decision is
not supported by the findings, or the findings are not supported by the evidence.” (Code
Civ. Proc., § 1094.5, subd. (b).)
Where, as here, the relevant facts are undisputed, and the appellant’s claim an
agency failed to proceed in a manner required by law concerns the interpretation of a
statute, the standard of review is de novo. (Christensen v. Lightbourne (2017) 15
Cal.App.5th 1239, 1251.) We review without reference to the trial court’s decision.
(McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1786.)
B. Legislative Background
1. Existing Car Dealer Protests
Concerns about the disparity in bargaining power between car manufacturers and
car dealers in California prompted the Legislature “ ‘ “to enact legislation to protect retail
5
car dealers from perceived abusive and oppressive acts by the manufacturers.” ’ ”
(Subaru of America, Inc. v. Putnam Automotive, Inc. (2021) 60 Cal.App.5th 829, 836.)
In that regard, and in order to prevent “undue control” of car dealers by manufacturers,
section 3000 et seq. and section 11700 et seq. “ ‘establish a statutory scheme
regulating’ ” this relationship. (Subaru, at p. 843; § 3000, as amended by Stats. 1973, ch.
996, § 1 [legislation “necessary . . . to avoid undue control of the independent new motor
vehicle dealer by the vehicle manufacturer”].)
In 1973, the Legislature empowered the Board to adjudicate certain disputes
between manufacturers and dealers, including disputes regarding the establishment of
new dealerships in California. (Mazda Motor of America, Inc. v. New Motor Vehicle Bd.
(2003) 110 Cal.App.4th 1451, 1458.) Now, before a manufacturer may establish a new
dealership in California, it must notify the Board and each existing dealer of the “same
line-make” (i.e., the same brand) within 10 miles of the potential new dealership.
(§ 3062, subd. (a)(1); § 507 [“The ‘relevant market area’ is any area within a radius of 10
miles from the site of a potential new dealership”].) An existing dealer that receives this
notice “may file with the board a protest to the proposed dealership establishment.”
(§ 3062, subd. (a)(1).)
If a protest is filed, there must be an evidentiary hearing to determine whether
“there is good cause for not permitting the establishment of the proposed dealership.”
(§ 3062, subd. (a)(1).) In that hearing, the Board must consider “existing circumstances,
including, but not limited to”: (a) the permanency of the existing dealer’s investment; (b)
the effect “on the retail motor vehicle business and the consuming public in the relevant
market area”; (c) whether establishment of a new dealership is “injurious” to the public
welfare; (d) whether the manufacturer’s existing dealers of the same brand “in the
relevant market area” of the potential new dealership are providing “adequate
competition and convenient consumer care” for the manufacturer’s vehicles “in the
market area, which shall include the adequacy of motor vehicle sales and service
6
facilities, equipment, supply of vehicle parts, and qualified service personnel”; and (e)
whether establishment of a new dealership “would increase competition and therefore be
in the public interest.” (§ 3063.)
At the establishment protest hearing, the dealer has the burden of proof to show
good cause to disallow establishment of the new dealership. (§ 3066, subd. (b).) By
contrast, if a manufacturer seeks to end its relationship with an existing dealer, and that
dealer files a termination protest, the manufacturer has the burden of proof to show good
cause for ending the franchise relationship. (Ibid.; see § 3060, subd. (a).) In such a
termination protest, the Board must consider “existing circumstances, including, but not
limited to”: (a) the amount of business transacted by the dealer, as compared to the
business available to the dealer; (b) investment necessarily made and obligations incurred
by the dealer in connection with the franchise arrangement with the manufacturer; (c) the
permanency of that investment; (d) whether termination will be “injurious or beneficial”
to the public welfare; (e) whether the dealer has adequate motor vehicle sales and service
facilities, equipment, vehicle parts, and qualified service personnel to reasonably provide
for the needs of the consumers for the motor vehicles handled by the dealer and has been
and is rendering adequate services to the public; (f) whether the dealer fails to fulfill the
warranty obligations of the manufacturer to be performed by the dealer; and (g) the extent
of the dealer’s failure to comply with the terms of the franchise. (§ 3061.)
2. Performance Standards
Decades after enactment of section 3066’s text identifying the holder of the
respective burden of proof depending on the type of dealer protest at issue, the
Legislature in 2013 made it unlawful for a manufacturer to “[e]stablish or maintain a
performance standard, sales objective, or program for measuring a dealer’s sales, service,
or customer service performance that may materially affect the dealer, including . . . the
dealer’s right to payment under any incentive or reimbursement program” unless the
performance standard “is reasonable” in light of various enumerated circumstances. (§
7
11713.13, subd. (g)(1)(A), as amended by Stats. 2013, ch. 512, § 19, eff. Jan. 1, 2014.)
Section 11713.13, subdivision (g)(2) declares: “In any proceeding in which the
reasonableness of a performance standard, sales objective, or program for measuring
dealership sales, service, or customer service performance is an issue, the manufacturer .
. . shall have the burden of proof.” (Italics added.)
C. Forums for Resolution of Dealer-Manufacturer Disputes
“[N]ot every . . . dispute” between dealers and manufacturers “is within the
province of the Board.” (Mazda Motor of America, Inc. v. New Motor Vehicle Bd.,
supra, 110 Cal.App.4th at p. 1456.) The Board’s jurisdiction is “limited by its statutory
authorization”—specifically, section 3050, subdivision (c) and section 3050, subdivision
(d). (Mazda Motor, at pp. 1457-1458.) And the Board’s jurisdiction to hear certain
dealer protests “does not preclude a civil action when the facts show unreasonable
conduct by the [manufacturer] in violation of other statutes and general contract law.”
(Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221
Cal.App.4th 867, 879; § 3050, subd. (e) [“Notwithstanding subdivisions (b), (c), and (d),
the courts have jurisdiction over all common law and statutory claims originally
cognizable in the courts”].)
Among the statutory claims a dealer may bring “directly in any court of competent
jurisdiction” (§ 3050, subd. (e)) is a claim concerning rights enumerated in sections
11713.3 and 11713.13. (See Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A., supra, 221 Cal.App.4th at p. 879 [the Board’s jurisdiction to decide some
matters “does not preempt or limit a dealers’ section 11713.3 . . . rights”].) In addition to
civil actions, some disputes between manufacturers and dealers that do not go to the
Board also may be resolved in arbitration. (See Subaru of America, Inc. v. Putnam
Automotive, Inc., supra, 60 Cal.App.5th at pp. 845-846 [explaining that former §
11713.3, subd. (g) permitted arbitration “in any circumstance” and that—after a 2011
8
amendment—the current version of § 11713.3, subd. (g) permits arbitration if all parties
consent in writing].)
D. Ascertainment of Legislative Intent
When interpreting a statute, courts must “ ‘ “determine the Legislature’s intent so
as to effectuate the law’s purpose. We first examine the statutory language, giving it a
plain and commonsense meaning. We do not examine that language in isolation, but in
the context of the statutory framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment. If the language is clear,
courts must generally follow its plain meaning unless a literal interpretation would result
in absurd consequences the Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.” [Citation.] “Furthermore, we
consider portions of a statute in the context of the entire statute and the statutory scheme
of which it is a part, giving significance to every word, phrase, sentence, and part of an
act in pursuance of the legislative purpose.” ’ ” (City of San Jose v. Superior Court
(2017) 2 Cal.5th 608, 616-617.)
Where reasonably possible, a court must harmonize potentially inconsistent
statutes to give force and effect to all the provisions. But this requirement “is not a
license to redraft the statutes to strike a compromise that the Legislature did not reach.”
(Public Health, supra, 60 Cal.4th at pp. 955-956.)
E. Analysis
When it comes to an establishment protest, the two statutory schemes at issue here
are irreconcilable.
Section 3066, subdivision (b) declares that in “a hearing on a protest . . . the
[manufacturer] shall have the burden of proof to establish that there is good cause to . . .
terminate . . . a [dealership],” and the dealer “shall have the burden of proof to establish
that there is good cause not to . . . establish[ ] an additional motor vehicle dealership”
9
(§ 3066, subd. (b).) Section 3063 lists the five existing circumstances the Board must
consider, but is not limited to considering, when determining whether there is good cause
not to establish a new dealership. (§ 3063.) Section 11713.13, subdivision (g)(2)
declares that in “any proceeding in which the reasonableness of a performance standard .
. . is an issue, the manufacturer . . . shall have the burden of proof.” (Italics added.)
Because the dealer has the burden of proof in an establishment protest, and the
manufacturer has the burden of proof in “any proceeding in which the reasonableness of a
performance standard” is an issue, the statutes are irreconcilable when a dealer challenges
the reasonableness of a manufacturer’s performance standards in an establishment
protest.
Barber maintains we can harmonize the two statutes by construing the statutes as
imposing “more than one” burden of proof in this scenario. “Barber had the burden to
show there was good cause to prevent the establishment of an additional Honda
franchise,” Barber says, but Honda had the “burden to show . . . its performance
standards were reasonable in light of all existing circumstances when it offered these
standards as evidence.” Such harmonization is impermissible, because it in effect
rewrites both statutes by striking a compromise the Legislature did not reach. (Public
Health, supra, 60 Cal.4th at pp. 955-956; id. at p. 958 [the proposed harmonization
impermissibly “result[ed] in a . . . scheme . . . inconsistent with the requirements of either
statute”].)
Under Barber’s theory, the words “as to that issue” would be added to the end of
section 11713.13, subdivision (g)(2), so that the statute would read, in relevant part: “In
any proceeding in which the reasonableness of a performance standard . . . is an issue, the
manufacturer . . . shall have the burden of proof as to that issue.” (Cf. Evid. Code, § 550,
subd. (b) [“The burden of producing evidence as to a particular fact is initially on the
party with the burden of proof as to that fact” (italics added)].)
10
And the proposed harmonization Barber argues for would add the words, “except
when the reasonableness of a performance standard is an issue” to section 3066,
subdivision (b), so that the statute would read, in relevant part: “The [dealer] shall have
the burden of proof to establish that there is good cause not to enter into a franchise
establishing an additional motor vehicle dealership or relocating an existing motor
vehicle dealership except when the reasonableness of a performance standard is an
issue.”
Because it is not “ ‘reasonably possible’ to harmonize these statutes ‘without
distorting their apparent meaning,’ ” we must decide which of the statutory schemes
“must be treated as an exception” to the other. (Public Health, supra, 60 Cal.4th at p.
960.) In such a case, “ ‘more specific provisions take precedence over more general
ones,’ ” even if the more general provisions were enacted later. (Ibid.)
Here, the establishment protest statutory scheme is more specific, as it
“demonstrates that the Legislature thought carefully and specifically about the
importance of” (Public Health, supra, 60 Cal.4th at p. 961) existing dealer objections to
the establishment of new dealerships nearby, and concluded existing dealers are
“adequately protected” (ibid.) by being permitted to bring a protest to the Board, at which
the dealer bears the burden of proof on five enumerated circumstances and any other
circumstance the Board might consider (§§ 3063, 3066, subd. (b)).
Legislative history supports this conclusion. The legislative history of section
11713.13, subdivision (g) reflects an intent to amplify existing law (found in sections
11713.3 and 11713.13) making it unlawful for a manufacturer to “take specified actions
against a . . . dealer.” (Sen. Com. on Judiciary, analysis of Sen. Bill No. 155 (2013-2014
Reg. Sess.) as amended Apr. 22, 2013, pp. 4-5, italics added; Sen. Rules Com., Off. of
Sen. Floor Analyses, analysis of Sen. Bill No. 155 (2013-2014 Reg. Sess.) as amended
Sept. 6, 2013, p. 5, italics added.) The establishment of a new dealership is not an action
“against” a dealer, because a new dealership does not necessarily harm an existing dealer,
11
and may even help it. Indeed, the ALJ found (and Barber does not dispute in this appeal)
that on three specific prior occasions when a new Honda dealership was added to a
market, five of six existing Honda dealers had increased sales.
In 2019, the Legislature added section 3065.3, permitting dealers to file a protest
with the Board for determination of whether a manufacturer has established or
maintained a performance standard inconsistent with section 11713.13, subdivision (g).
(Stats. 2019, ch. 796, § 14.) Legislative history reflects it was the Legislature’s
understanding that, prior to the 2019 enactment, dealers could challenge the
reasonableness of manufacturer performance standards at the Board only when “bringing
a protest as a result of a termination.” (Assem. Com. on Transportation, analysis of
Assem. Bill No. 179 (2019-2020 Reg. Sess.) as introduced Jan. 9, 2019, p. 7 [“dealers
cannot protest these performance standards to the [Board] unless they are . . . bringing a
protest as a result of a termination”].) By contrast, a committee analysis explained, the
proposed legislation would permit dealers to bring such challenges “at any time, not just
when the failure to meet a prohibited performance standard costs them their business.”
(Ibid.)
This understanding of the scope of dealer protests at the time the Legislature was
considering adding section 3065.3 is consistent with the 2013 legislative history (a
termination is clearly an action “against” a dealer) and necessarily excludes establishment
protests as forums for challenging the reasonableness of a manufacturer’s performance
standards. (See Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 237-239
[explaining the Legislature’s views of prior legislation, including views expressed in
committee reports and analyses, is entitled to consideration by the courts when
ascertaining legislative intent behind the prior legislation].) 2
2 In their appellate briefing and at oral argument, the parties disputed how, if at all,
section 3065.3 indicates whether the Board currently has or ever had jurisdiction to
12
Other aspects of the statutory schemes point in the same direction. One factor the
Board must consider in a “termination” protest, where the manufacturer has the burden of
proof, is the amount of business transacted by the dealer “as compared to the business
available to the [dealer].” (§ 3061, subd. (a).) To the extent performance standards
undergird a manufacturer’s contention regarding “business available” to an individual
dealer, it makes sense that (1) the reasonableness of those standards is subject to
challenge in a termination proceeding, and (2) the manufacturer has the burden to prove
reasonableness.
But the Board is not required to consider a protesting dealer’s sales as compared to
the business available to that dealer in an establishment protest. Rather, the Board is
tasked with considering the circumstances of the broader “relevant market area.”
(§ 3063, subd. (b) [effect “on the retail motor vehicle business and the consuming public
in the relevant market area”]; id., subd. (d) [whether the manufacturer’s existing dealers
“in the relevant market area” of the potential new dealership are providing “adequate
competition and convenient consumer care” for the manufacturer’s vehicles].) The term
“market area” does not appear in section 3061, the statute enumerating dealer
“termination” factors. This makes sense because the focus of section 3063 is on a
adjudicate—in an establishment protest hearing—questions arising under section
11713.13, subdivision (g). In its proposed decision, the ALJ did not address the question
of the Board’s jurisdiction to adjudicate questions under section 11713.13, subdivision
(g), ruling only that the provision was “inapplicable” to Barber’s establishment protest.
Accordingly, because the Board—having adopted the ALJ’s proposed decision—did not
adjudicate the scope of its jurisdiction to decide section 11713.13, subdivision (g)
questions, we decline to do so in the first instance. (See People v. Chadd (1981) 28
Cal.3d 739, 746 [“We will not . . . adjudicate hypothetical claims or render purely
advisory opinions”].)
13
manufacturer’s overall sales and room for growth in the relevant market, rather than the
narrower question—in section 3061—of an individual dealer’s sales. 3
Accordingly, because the establishment protest statutory scheme provides an
exception to the performance standards statutory scheme, section 11713.13, subdivision
(g) was inapplicable in Barber’s section 3066, subdivision (b) protest. Thus, the Board
did not fail to proceed in the manner required by law to the extent it considered Honda’s
performance standards without first making explicit findings regarding the
reasonableness of those standards (with Honda bearing the burden of proof on that
question).
F. Barber’s Other Related Arguments 4
Barber argues the reasonableness of Honda’s dealer performance standards and the
question of whether the standards “are reliable evidence” are “existing circumstances”
the Board must consider under section 3063. But section 3063 is explicit about the five
existing circumstances the Board must take into consideration when deciding whether
good cause has been established to stop the establishment of a new dealership. Neither
the reasonableness of performance standards nor the reliability of those standards as
evidence are on that list. Accordingly, since the Board has discretion which
circumstances to consider, if any, beyond the five enumerated circumstances listed in
section 3063, this argument is unpersuasive.
3 As the Board contends, it is entirely plausible that establishment of a new dealership
will be proper even when existing dealers (or a sole dealer) in a market area exceed
manufacturer expectations.
4 We decline to address Barber’s forfeited arguments that are not presented under a
separate heading in the opening brief and/or raised for the first time in the reply brief.
(See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [failure to provide proper
headings forfeits issue discussed but not identified by a separate heading]; Sweetwater
Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th
970, 987 [generally, arguments raised for the first time in a reply brief are forfeited].)
14
Invoking nonprecedential decisions wherein the Board supposedly applied section
11713.13, subdivision (g) when performance standards were offered as evidence in
termination protests, 5 Barber contends there is no legitimate reason for the Board to treat
establishment protests differently. But as we explained above, there is such a reason:
section 3066, subdivision (b) and section 11713.13, subdivision (g)(2) are irreconcilable.
Barber contends the notion of “conflicting burdens of proof”—where “more than one
burden might exist within the same action”—present in “other legal contexts,” is relevant
here. But this contention seeks something impermissible: a rewriting of the statutes to
strike a compromise the Legislature did not reach.
Finally, as we conclude the Board did not fail to proceed in the manner required
by law, Barber’s argument the Board’s error was prejudicial is unpersuasive.
II
Peremptory Challenges
Barber contends the Board erred by permitting Honda’s proposed new dealer—
Galpinsfield Automotive, LLC (Galpinsfield)—to peremptorily challenge an ALJ
assigned to the protest hearing. We disagree. Board regulations in effect at the time
permitted Galpinsfield’s peremptory challenge to an ALJ.
A. Additional Background
Galpinsfield moved to intervene in Barber’s protest. By order dated December 27,
2017, an ALJ granted Galpinsfield’s motion. In that order, the ALJ explained that Barber
and Honda had “orally stipulated” seven days earlier “to permit Galpinsfield to
5 Government Code section 11425.60, subdivision (a) says a “decision may not be
expressly relied on as precedent unless it is designated as a precedent decision by the
agency.” Barber concedes the decisions are not precedential, but insists consideration of
the decisions “is relevant” here. The Board asks us to disregard the decisions as
nonprecedential, but also contends the decisions are inapposite to this matter because
they concerned termination protests. We need not consider the substance, or even
existence, of those decisions in order to reject this argument.
15
participate in these proceedings as an Intervenor subject to the terms stated herein.”
Accordingly, the ALJ ordered, Galpinsfield shall be permitted to present evidence at the
hearing, participate in the cross-examination of witnesses at the hearing, and participate
in settlement negotiations. The order went on to set conditions for Galpinsfield’s
“participation in the discovery process,” explaining, inter alia, that Galpinsfield’s
“discovery rights shall be supplemental to and not be duplicative of the discovery
conducted by” Honda.
In January 2019, Honda and Galpinsfield used their respective peremptory
challenges on two different ALJs. There is no dispute that, when the evidentiary hearing
began in September 2019, the Board’s regulations permitted any “party”—including an
intervenor—to exercise one peremptory challenge of the ALJ assigned to preside over an
establishment protest. (Former Cal. Code Regs., tit. 13, §§ 550, 551.12, subd. (b).) 6
B. Analysis
Barber contends Honda and Galpinsfield unfairly coordinated to eliminate the two
ALJs they believed were adverse to their legal positions. We reject this contention
unsupported by cites to the record. (Lewis v. County of Sacramento (2001) 93
Cal.App.4th 107, 113-114.) Similarly, we reject as unsupported the contention the Board
effectively denied Barber’s right to a peremptory challenge, because Honda and
Galpinsfield eliminated all other Board ALJs. (Ibid.) Further, we note Barber does not
argue it ever actually sought to exercise a peremptory challenge to the purportedly sole
remaining Board ALJ.
6 In December 2019, the Board changed its regulations (effective April 2020) so that an
intervenor no longer is considered a “party” to an action for the purposes of filing a
peremptory challenge to an assigned ALJ. (Cal. Code Regs. tit. 13, §§ 550, 551.12,
Register 2019, No. 51 (Dec. 20, 2019) Digest of New Regulations, p. 3.)
16
Barber contends the Board’s telephone logs, seemingly akin to trial court minutes,
reflect that during a telephone conference between the parties and an ALJ around the time
of the December 2017 order granting Galpinsfield’s motion to intervene, the ALJ stated
Galpinsfield’s “ ‘rights will be supplemental to’ ” Honda and that this statement
demonstrates the December 2017 order did not contemplate Galpinsfield’s right to a
peremptory challenge, “which was a right in addition to” Honda’s rights, “not
supplemental” to them.
This argument assumes without citation or explanation that “supplemental” has a
substantively different meaning than “in addition to.” (But see Merriam-Webster’s
Collegiate Dict. (11th ed. 2006) p. 1255, col. 2 [defining “supplement” as “something
that completes or makes an addition” (italics added)].) Regardless of Barber’s
understanding of the meaning of “supplemental,” we reject this contention because it
relies on a conflict in language between the telephone logs and the ALJ’s December 2017
order. The considered December 2017 written order, which referenced an earlier
telephone conference at which the parties stipulated to Galpinsfield’s intervenor status
subject to terms stated in the order, controls over the telephone logs. (Cf. People v. Smith
(1983) 33 Cal.3d 596, 599 [where there is an irreconcilable conflict in the record, “ ‘that
part of the record will prevail, which, because of its origin and nature or otherwise, is
entitled to greater credence’ ”]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th
229, 268 [written ruling supersedes judge’s oral comments, because a judicial officer
“retains inherent authority” to modify its decision “at any time before entry” of the
written ruling].)
The December 2017 order does not say that all of Galpinsfield’s rights as an
intervenor would be “supplemental to and not be duplicative of” Honda’s rights. It says
that Galpinsfield’s “discovery rights shall be supplemental to and not be duplicative of
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the discovery conducted by” Honda. (Italics added.) 7 A peremptory challenge is not a
discovery right.
In light of Board regulations that explicitly recognized an intervenor’s right to
exercise a peremptory challenge, Barber’s interpretation of the December 2017 order as
implicitly prohibiting that right is not persuasive. Also unpersuasive is Barber’s reliance
on a case discussing peremptory challenges to judicial officers under Code of Civil
Procedure section 170.6, an entirely distinct statutory scheme with important differences
in language. (Compare Code Civ. Proc., § 170.6, subd. (a)(4) [“only one motion for each
side may be made in any one action” (italics added)] with Cal. Code Regs., tit. 13, §
551.12, subd. (b) [“Each party . . . is entitled to one peremptory challenge” (italics
added)].)
III
Effects of the COVID-19 Pandemic on Existing Circumstances
Barber contends the Board erred by refusing to take official notice “of the
ongoing” COVID-19 pandemic and its “effect upon existing circumstances.” We
disagree. Barber has not shown the Board abused its discretion in denying Barber’s
request, which was filed after the evidentiary record closed.
A. Additional Background
The record in Barber’s protest closed in February 2020. In May 2020, Barber
requested the ALJ take notice of the effects of the COVID-19 pandemic, including the
decades-low rate of new car sales nationwide and the high unemployment rate in
California. The ALJ denied that request in the June 2020 proposed decision, observing
7 We decline to address Barber’s argument raised for the first time in the reply brief that
other regulations permitted the Board to preclude Galpinsfield from exercising a
peremptory challenge. (See Sweetwater Union High School Dist. v. Julian Union
Elementary School Dist., supra, 36 Cal.App.5th at p. 987.)
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the request implicated “a number of considerations and issues” such as (1) whether
Honda and Galpinsfield would be entitled to introduce evidence in response to any
evidence Barber submitted, and (2) whether the parties’ respective experts would need to
“update” their evidence that had already been submitted. As noted above, the Board
adopted in full the ALJ’s proposed decision.
B. Analysis
The parties agree Government Code section 11515 governs the Board’s denial of
Barber’s request for official notice of the COVID-19 pandemic. The statute provides in
relevant part: “In reaching a decision official notice may be taken, either before or after
submission of the case for decision, of any generally accepted technical or scientific
matter within the agency’s special field, and of any fact which may be judicially noticed
by the courts of this State.” (Gov. Code, § 11515, italics added.)
Barber argues that “[a]s a matter of law and public policy” the Board should have
taken “official notice of the ongoing [p]andemic” and its “effect upon existing
circumstances.” Barber acknowledges the Board had discretion to deny the motion, but
does not persuasively demonstrate how the Board abused that discretion when it denied
the motion—apparently out of concern for an undue consumption of time if the
evidentiary record were reopened. (Cf. Evid. Code, § 454, subd. (a)(2) [in determining
the propriety of taking judicial notice of a matter, Evid. Code, § 352 applies]; Evid. Code,
§ 352 [a court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will necessitate undue consumption of
time]; People v. Cross (2005) 127 Cal.App.4th 63, 73 [when conducting review under the
abuse of discretion standard, reviewing courts should ask if the challenged decision
exceeded the bounds of reason; “it is not sufficient to show facts affording an opportunity
for a difference of opinion”]; Lee v. Board of Civil Service Comrs. (1990) 221
Cal.App.3d 103, 108 [courts should presume an administrative agency “performed its
duties as required by law” and the challenging party has the “burden to demonstrate that
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the administrative proceedings were unfair or constituted an abuse of discretion”].)
Accordingly, this claim lacks merit.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the Board and real
parties in interest. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
KRAUSE, J.
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