Judge: Walter P. Schwarm, Case: 30-2020-01130663, Date: 2022-11-22 Tentative Ruling
Defendants’ (Suzuki Motor Corporation and Suzuki Motor of America, Inc.) Motion to Apply Virginia Law (Motion), filed on 8-12-22 under ROA No. 181, is GRANTED.
McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 87-88 (McCann), explains, “Recently, in Kearney, supra, 39 Cal.4th 95, 45 Cal.Rptr.3d 730, 137 P.3d 914, we summarized the mode of analysis called for by the governmental interest approach. ‘In brief outline, the governmental interest approach generally involves three steps. First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law “to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state” [citation] and then ultimately applies “the law of the state whose interest would be more impaired if its law were not applied.” ’ [Citation.]” McCann states, “Section 361 provides in full: ‘When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued.’ [¶] Section 361 thus creates a general rule that when a cause of action has arisen in another jurisdiction but cannot be maintained against a particular defendant in that jurisdiction because of the lapse of time, the action cannot be maintained against that defendant in a California court. The statute contains an exception, however, for a plaintiff ‘who has been a citizen of this State, and who has held the cause of action from the time it accrued.’ Past cases establish that this exception applies only where the plaintiff was a California citizen at the time the cause of action accrued, and does not extend to a plaintiff who became a citizen of California after the cause of action accrued but before the lawsuit in question was filed. [Citations.]” (Id., at p. 85.) McCann also provides, “For the reasons discussed more fully below, we conclude that the decision of the Court of Appeal should be reversed. As we explain, prior California choice-of-law decisions demonstrate that, contrary to the conclusion reached by the Court of Appeal, Oklahoma's interest in the application of its statute of repose applies as fully to out-of-state companies that design and construct improvements to real property in Oklahoma as to Oklahoma companies that design and construct such improvements. Further, although California has a legitimate interest in affording a remedy to a resident of California whose asbestos-related illness first manifests itself when the individual is a California resident, past California cases indicate that it is generally appropriate for a court to accord limited weight to California's interest in providing a remedy for a current California resident when the conduct of the defendant from whom recovery is sought occurred in another state, at a time when the plaintiff was present in (and, in the present situation, a resident of) that other state, and where that other state has its own substantive law, that differs from California law, governing the defendant's potential liability for the conduct that occurred within that state. Taking these factors into consideration, we conclude that Oklahoma's interest would be more impaired by the failure to apply its law in these circumstances than would be California's interest by the failure to apply its law, and thus that the law of Oklahoma, rather than the law of California, should apply to the issue presented here.” (Id., at p. 76.)
Defendants contend, “The Court, however, should not apply California law because the motorcycle at issue, all events giving rise to the lawsuit, and Hall, have no relationship to California. Indeed, Hall never stepped foot in California until he moved here in or around December 2019.” (Motion; 6:12-15.) Plaintiff’s (Erriton Hall) Opposition to Defendants’ Motion to Apply Virginia Law (Opposition), filed on 9-27-22 under ROA No. 200, responds, “It is true that the subject crash occurred in Virginia, and that Plaintiff thereafter sought initial emergency and other treatment there. However, lawsuits very often have multiple ‘proper’ venues. Such was the case with this lawsuit, with California being one of the proper options. And so, this complaint was filed here in February 2020 and has proceeded under California law ever since. Now, at this late hour, Defendants wish to apply Virginia law in hopes of eradicating Plaintiff’s case. They want punitive damages to be capped at an amount that California rejects, and they want a jury’s finding of any comparative fault of Plaintiff to be a complete bar to recovery. This improper and extremely prejudicial maneuver must be denied.” (Opposition; 5:14-21 (Italics in Opposition.).)
It does not appear that the parties dispute the following facts for the purpose of this Motion: (1) The accident at issue occurred in Virginia. (See also, Complaint (filed on 2-7-20 under ROA No. 2 at ¶¶ 9 and 10.); (2) Suzuki Motor Corporation (SMC) designed and manufactured the motorcycle Plaintiff was riding in Japan. (Foley Decl., ¶¶ 2 and 3, and Exhibit 1.); (3) SMC sold the motorcycle to American Suzuki Motorcycle Corporation (ASMC) in Japan. (Foley Decl., ¶ 4.); (4) On 5-26-05, ASMC sold the motorcycle to Reynolds Motorsports dba Triangle Cycles North in Virginia. (Foley Decl., ¶ 5.); (5) On 5-3-05, Triangle Cycles North sold the motorcycle to Larry and Donna Robertson in Virginia. (Tabak Decl., ¶ 4 and Exhibit 2.); (6) On 5-24-17, Larry and Donna Robertson sold the motorcycle to Plaintiff. (Tabak Decl., ¶ 5 and Exhibit 3.); (7) The accident occurred on 6-27-18 in Lynchburg, Virginia. (Complaint, ¶¶ 9 and 10.); (8) Plaintiff’s deposition occurred on 7-15-22, and Plaintiff testified that Plaintiff moved to California “. . . almost three years ago.” (Tabak Decl., ¶ 6 and Exhibit 4 (Plaintiff’s Depo.; 9:3-22.); (9) Before Plaintiff moved to California, Plaintiff had never visited California. (Plaintiff’s Depo.; 10:22-11:12.); (10) Plaintiff was a Virginia resident at the time of the accident, and that Plaintiff has resided in California during the pendency of this case. (Opposition; 8:9-12.)
Initially, the Opposition contends that the Motion is untimely because “. . . Defendants were required to bring the instant motion at the commencement of the litigation, not years into it.” (Opposition; 6:26-7:1.)
Chen v. Los Angeles Truck Centers, LLC (2019) 7 Cal.5th 862, 867 (Chen), states, “As the forum state, California will apply its own law ‘unless a party litigant timely invokes the law of a foreign state.’ [Citations.]” “In short, given the importance of determining the choice of law early on in a case — to enable trial courts to manage proceedings in an orderly and efficient fashion — we conclude that circumstances in which trial courts are required to revisit a choice of law determination, if any, should be the exception and not the rule.” (Id., at p. 870; Italics in Chen.)
Applera Corporation v. MP Biomedicals, LLC (2009) 173 Cal.App.4th 769, 790-791 (Applera), states, “The question here, however, is whether the court was required to award attorney fees based on the contract’s selection of substantive Swiss law, when the court was first requested to apply such law in postjudgment proceedings—which brings us to defendant’s waiver, forfeiture, and judicial estoppel arguments. [¶] Although defendant posits three separate doctrines to deny the application of Swiss law, each doctrine depends on the same facts—plaintiff’s failure to announce its reliance on Swiss law until it moved postjudgment for an award of attorney fees. ‘Over the years, cases have used the word [waiver] loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. “[T]he terms ‘waiver’ and ‘forfeiture’ have long been used interchangeably. The United States Supreme Court recently observed, however: ‘Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a known right.” ’ ” ’ [Citation.] [¶] In the language of the ‘waiver’ doctrine, defendant asserts plaintiff’s delay in announcing reliance on Swiss law amounted to the intentional relinquishment of a known right after knowledge of the facts. [Citation.] Phrased as a ‘forfeiture,’ defendant contends the assertion of Swiss law was not timely. [Citation.] And phrased as a judicial estoppel, defendant argues plaintiff is precluded from obtaining an advantage by relying on California law for its breach of contract case—then seeking a second advantage by asserting Swiss law for its attorney fees claim. [Citation.] [¶] Absent an express waiver of the contractual provision, the application of the waiver and judicial estoppel doctrines require a showing of prejudice.” “Citing Hurtado v. Superior Court (1974) 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666, defendant claims plaintiff forfeited the right to rely on Swiss law by failing to ‘timely invoke’ Swiss law. (Id. at p. 581 [‘generally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state’].) But Hurtado, which analyzed a conflict of law dispute in a wrongful death action involving Mexican citizens, offers no guidance in the instant case. [Citation.] Hurtado does not discuss or define the point of time at which the invocation of foreign law becomes untimely. In the absence of any showing that the invocation of a Swiss rule of decision would have made any difference in the outcome had it been invoked earlier, the invocation, at the time the Swiss rule did make a difference, was timely. Hurtado is similarly unhelpful with regard to the choice of Swiss law as the substantive rule of decision. Hurtado applied a ‘governmental interest approach’ to decide a choice of law issue in a tort action, not involving an agreement by the parties that chose the rule to apply. [Citation.] In contrast, Nedlloyd, supra, 3 Cal.4th 459, 11 Cal.Rptr.2d 330, 834 P.2d 1148, provides the appropriate guidance where, as here, the issue is the enforcement of the law chosen by the parties as the rule of decision.” (Id., at pp. 792, footnote 10; Italics in Applera.)
Here, Defendants were clearly aware that there was a choice-of-law issue regarding the application of Virginia law or California law because the Complaint alleges that the accident occurred in Virginia. Although Defendants were aware of the choice-of-law issue, Plaintiff has not demonstrated how the invocation of Virginia law would have made any difference in the outcome of prior proceedings had Defendants invoked it earlier in the proceedings. Therefore, the court finds that the Motion is timely, and will apply the governmental interest approach.
Relevant Law of California and Virginia:
The parties do not appear to dispute that the relevant law pertains to the issues of contributory negligence and punitive damages.
In California, Li v. Yellow Cab Company (1975) 13 Cal.3d 804, 812-813 (Li), states, “We are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the doctrine rendering contributory negligence a complete bar to recovery—and that it should be replaced in this state by a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.” (Footnote 6a omitted.) In Virginia, Al Britton v. Commonwealth (2021) 299 Va. 392, 411 (Al Britton), states, “If that were true, it would truncate the appeal and result in a summary affirmance because contributory negligence, when proven, is an absolute bar to recovery on a simple negligence claim.” [Citation.]” Evans v. Naaco Materials Handling Group, Inc. (2018) 295 Va. 235, 246 (Evans), states, “Virginia has not adopted a strict liability regime for products liability. When alleging that a product suffered from a design defect, a plaintiff may proceed under a theory of implied warranty of merchantability or under a theory of negligence. Negligence is the failure to exercise ‘that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another.’ [Citations.]”
As to punitive damages, Civil Code section 3294 does not limit punitive damages in California. In Virginia, VA Code Ann. § 8.01-38.1, states, “In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.”
The above authority identifies the differences in the relevant law in California and Virginia as to the issues of contributory negligence and punitive damages.
True Conflict:
The court finds that there is a true conflict between California law and Virginia law as to the contributory negligence issue. In Virginia, contributory negligence is a complete defense to a negligence cause of action.
The court also finds that there is a true conflict between California law and Virginia law as to punitive damages. California does not place a statutory limit on punitive damages. Virginia places a statutory limit on punitive damages.
Impairment:
The Motion states, “Virginia’s interests would be severely impaired if its law were not applied in this case because Virginia has a strong interest in determining the consequences of the distribution, sale, and operation of the vehicle and vehicle operation within its borders—including an interest in determining the consequences of conduct that caused the Lynchburg Police Department to ticket Hall for the reckless driving he pled guilty to. [¶] In contrast, California has no interest in regulating conduct alleged to have caused injury in Virginia.” (Motion, 14:8-14.)
The Opposition states, “Defendants would face no prejudice if their motion were denied. They have proceeded in this case for over two years under California law. In fact, they have benefited from California law: They have brought successful motions for their counsel to be admitted pro hac vice, and have brought a motion for terminating and other sanctions against Plaintiff and his counsel (while the motion was unsuccessful, they nevertheless enjoyed the provisions of C.C.P. § 128.7 in their attempt to fully dismiss this case).” (Opposition, 13:3-8.)
The Opposition provides the declaration of Travis E. Davis which states in relevant part, “. . . [¶] 3. The motorcycle which is the subject of this action is stored in Irwindale, California— approximately 25 miles north of Suzuki Motor of America, Inc’s corporate office. The parties have inspected the motorcycle with their consulting experts. Plaintiff’s retained expert consultants reside in California. [¶] 4. The Plaintiff, Mr. Hall, has resided in California since December 2019. [¶] 5. Mr. Hall has treated extensively with California physicians since the inception of this action. [¶] 6. On August 31, 2022, Defendants had Mr. Hall physically examined by a California expert witness doctor for the defense, pursuant to C.C.P. § 2032.020. The examination occurred in Los Angeles, California.”
The court finds that Virginia’s interest would be more impaired if the court subordinated Virginia’s interest in the application of its law than the failure of California to apply its law. The parties do not dispute that Plaintiff was a resident of Virginia at the time of the collision in Virginia. The sales of the motorcycle occurred in Virginia. Although there is the evidence does not demonstrate that Plaintiff moved to California for the purpose of applying California law to this action, the court gives limited weight to Plaintiff’s current status as a California resident because Plaintiff was a resident of Virginia at the time of the collision. Virginia has a strong interest in regulating conduct that occurs within Virginia. (McCann, supra, 48 Cal.4th at pp. 97-98.) This action is primarily a product liability action arising out of the sale and purchase of a motorcycle in Virginia. Plaintiff’s treatment in California does not appear material because the Motion does not seek to preclude evidence of Plaintiff’s treatment in California. Even though Plaintiff may have treated in California, this treatment does not overcome Virginia’ strong interest in the application of its laws in determining the consequences and operation of motorcycles sold and purchased within Virginia. The court finds that Virginia’s interest would be more impaired by the failure to apply its law to these circumstances that would be California’s interest in failing to apply its law. Thus, the court finds that Virginia law should apply to this action.
Timeliness:
Defendants’ Supplemental Brief (DSupp.), filed on 10-25-22 under ROA No. 232, states, “Hall cannot establish he would have benefited from Virginia law had it been applied earlier. Virginia law is not substantively favorable to Hall. Just the opposite; hence why he moved to California 18 months after the crash, and filed his lawsuit here three months after that.” (DSupp.; 5:14-16.)
Plaintiff’s Supplemental Brief (PSupp.), filed on 11-1-22 under ROA No. 247, responds, “Defendants unreasonably delayed in bringing their motion, and it will result in extreme prejudice to Plaintiff if granted. This Court has the authority under the equitable doctrine of laches to deny the motion.” (PSupp; 2:22-24.) Plaintiffs also asserts, “Should Defendants’ motion be granted, California law on product liability would be replaced with Virginia’s law. And Defendants have already taken advantage of California product liability law.” (PSupp.; 4:20-22 (Emphasis in PSupp.).) In terms of prejudice, the PSupp. states, “Plaintiff has already set forth the extreme prejudice he will face should this motion be granted—he has diligently prepared his case for trial of a products liability case under California law for well over two years. He has conducted discovery (written responses, deposition, and vehicle inspection) with California law in mind, and has prepared his expert witnesses for the same. He is ready to proceed to trial under California law. Application of Virginia law will eviscerate his litigation work.” (PSupp.; 2:9-14.)
Plaintiff has presented evidence that Defendants relied on California law in pursuing their motion pursuant to Code of Civil Procedure section 128.7. (Defendant’s Motion for Sanctions Against Plaintiff and Plaintiff’s Counsel Pursuant to Code of Civil Procedure Section 128.7 (Motion for Sanctions) filed on 2-8-21 under ROA No. 72; 5:10-23.) Specifically, the Motion for Sanctions reflects that Defendants relied on CACI instructions to support to support their contention that Plaintiff’s claim lacked legal merit. (Motion for Sanctions; 5:10-18.) Plaintiff has also produced the following evidence: (1) On 3-24-21, Defendants were aware that Plaintiff was charged with violating Virginia Code 46.2-853 by way of Plaintiff’s responses to form interrogatories. (Davis Decl., ¶ 3 and Exhibit 1.); Defendants were aware the collision occurred in Virginia. (Davis Decl., ¶ 4 and Exhibit 2.); (3) Defendants were aware that the subject motorcycle was purchased in Virginia. (Davis Decl., ¶ 4 and Exhibit 2.); (4) On May 27, 2021, Defendants were aware that the subject motorcycle had a Virginia license plate number by way of Plaintiff’s responses to form interrogatories. (Davis Decl., ¶ 5 and Exhibit 3.); and (5) On 5-29-21, Defendants were aware that Plaintiff was residing in Orange, CA starting in December of 2019, and had previously resided in Lynchburg, Virginia by way of Plaintiff’s responses to Form Interrogatories. (Davis Decl., ¶ 6 and Exhibit 4.)
Plaintiff has provided sufficient evidence to demonstrate that Defendants were aware of facts to support bringing this Motion well before 8-12-22. Plaintiff’s evidence, however, does not sufficiently demonstrate prejudice that application of Virginia law is unfair other than Plaintiff’s expectation that California law would apply. Just like Defendants, Plaintiff was aware that the subject collision occurred in Virginia, that Plaintiff was a Virginia resident at the time of the collision, that Plaintiff bought the subject motorcycle in Virginia, and that the subject motorcycle was registered in Virginia at the time of the collision. The PSupp. does not sufficiently describe how the application of Virginia law has eviscerated Plaintiff’s pretrial litigation work. The PSupp. does not explain why Plaintiff cannot use this pretrial litigation work if Virginia law applies to this action.
The court recognizes that Defendants relied on substantive California law in their Motion for Sanction to demonstrate that Plaintiff’s claims lacked legal merit. Plaintiff has not demonstrated, however, that Defendants gained some unfair advantage by relying upon California law in their Motion for Sanctions. For example, in Applera, the trial proceeded under California law, but the motion for attorney fees proceeded under Swiss law. (Applera, supra, 173 Cal.App.4th at p. 792.
Thus, the court finds that Plaintiff has not sufficiently shown prejudice as required by Applera by the application of Virginia law to this action.
The court DENIES Plaintiff’s Request of Judicial Notice, filed on 9-27-22 under ROA No. 201, as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)
Based on the above, the court GRANTS Defendants’ (Suzuki Motor Corporation and Suzuki Motor of America, Inc.) Motion to Apply Virginia Law filed on 8-12-22 under ROA No. 181.
Defendants are to give notice.