# Archibald v. Cinerama Hawaiian Hotels, Inc.

> California Court of Appeal · September 6, 1977 · 73 Cal. App. 3d 152

URL: https://www.frixlaw.com/law-library/cases/9728288

## Case

- **Full name:** MARYBELLE ARCHIBALD, Plaintiff and Appellant, v. CINERAMA HAWAIIAN HOTELS, INC., Et Al., Defendants and Respondents
- **Court:** California Court of Appeal
- **Decided:** September 6, 1977
- **Citations:** 73 Cal. App. 3d 152; 140 Cal. Rptr. 599; 1977 Cal. App. LEXIS 1807
- **Precedential status:** Published
- **Opinion:** Concurrence by Friedman
- **Judges:** Regan, Friedman
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by Koire v. Metro Car Wash, 40 Cal. 3d 24 (1985).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9728288

## Opinion text

FRIEDMAN, Acting P. J.
I concur, but have a somewhat divergent view touching the second count of the complaint. That count alleges a conspiracy to charge a higher level of hotel rates to mainland tourists than to “Kamaainas.” The negation of civil conspiracy as an independent tort does not quite obliterate the complaint’s second count. Conspiracy is nothing but a pejorative term for a contract or agreement. The conspiracy charged against defendants in the second count of the complaint is nothing other than concerted price-rigging, a contract in restraint of competition.
Persons injured by such a contract might conceivably pursue a common law tort action on a theory of intentional deprivation of prospective economic advantage. (See Buckaloo v. Johnson, 14 Cal.3d 815, 822-823 [ 122 Cal.Rptr. 745 , 537 P.2d 865 ]; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, §§ 392-393; Prosser on Torts (4th ed.) pp. 949-962.) In view of the heavy accretion of federal and state antitrust laws, the viability of a common law tort action is dubious. This particular tort lies within the flow of interstate commerce, within the ambit of federal antitrust legislation and within the domain of the federal courts.
This is the second appeal in this class action. The first (which turned on a forum non conveniens issue) was fully and fairly presented as a *162 battle over venue. (See Archibald v. Cinerama Hotels, 15 Cal.3d 853 [ 126 Cal.Rptr. 811 , 544 P.2d 947 ].) The present appeal “on the merits” of the pleading is a scarcely concealed battle over venue, an attempt by the class plaintiffs to keep the lawsuit in the California state courts and an attempt by defendants to move it anywhere but California. Some enigmatic tactical purpose has motivated the defense to debate the pleading in terms of the common law “innkeeper” verbiage selected by plaintiffs rather than to unmask it as a charge of violating the federal antitrust laws by restraint of competition in interstate commerce.
Plaintiffs, at any rate, must lose this disguised battle over venue. A class of plaintiffs may maintain a civil damage action for violation of the federal antitrust statutes. (See 6 A.L.R. Fed., pp. 19-60.) As a civil damage action alleging restraint of competition in interstate commerce, the second count lies within the exclusive subject-matter jurisdiction of the federal courts. (General. Investment Co. v. Lake Shore & M. S. R. Co., 260 U.S. 261, 286-287 [ 67 L.Ed. 244, 259-260 , 43 S.Ct. 106 ]; Miller v. Granados, 529 F.2d 393, 395 .) It is outside the subject-matter jurisdiction of the California courts. Although defendants have not challenged state court jurisdiction, they may not consent to it.
A petition for a rehearing was denied September 28, 1977, and appellant’s petition for a hearing by the Supreme Court was denied November 3, 1977.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728288. Public record. Not legal advice.