Opposition Brief — Crown Oil Corp. v. Lapidus Popcorn, Inc.

Supreme Court, U.S.

rat FILED

0

ocT 3 1986

No. 86-287 JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

CROWN OIL CORPORATION;

GRANEX CORPORATION, U.S.A.

and PAN PACIFIC COMMODITIES,

Appellants,

Ve

LAPIDUS POPCORN, INC.,

Appellee.

BRIEF IN OPPOSITION TO MOTION

OF OIL COMPANY AMICI

FOR LEAVE TO FILE AMICUS BRIEF

FRANCIS O. SCARPULLA

Counsel of Record

SCARPULLA & SCARPULLA

A PROFESSIONAL CORPORATION

423 Washington Street

4th Floor

San Francisco, CA 94111

(415) 788-7210

[Additional Counsel Appear

on Signature Page]

Counsel for Appellee

Lapidus Popcorn, Inc.

No. 86-287

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

CROWN OIL CORPORATION ;

GRANEX CORPORATION, U.S.A.

ana PAN PACIFIC COMMODITIES,

Appellants,

V.

LAPIDUS POPCORN, INC.,

Appellee.

BRIEF IN OPPOSITION TO MOTION

OF OIL COMPANY AMICI

FOR LEAVE TO FILE AMICUS BRIEF

FRANCIS O. SCARPULLA

Counsel of Record

SCARPULLA & SCARPULLA

A PROFESSIONAL CORPORATION

423 Washington Street

4th Floor

San Francisco, CA 94111

(415) 788-721

[Additional Counsel Appear

on Signature Page]

Counsel for Appellee

Lapidus Popcorn, Inc.

Appellant, Lapidus Popcorn, Inc., pur-

Suant to Rule 36.3, objects to the motion of

the six oil company amici for leave to file

an amicus brief because: (1) the filing of

an amicus brief without obtaining the con-

sent is "not favored"; (2) the offered

amicus brief does not discuss the jurisdic-

tional question, which is the only issue now

before this Court; (3) amici did not address

a written request to the parties requesting

consent to file their brief; and (4) amici

have not stated that the appellants' juris-

dictional brief was inadequate. Thus,

amici's brief deals only with the merits of

the appeal itself and has nothing to do with

the jurisdictional issue.

As this Court knows, this appeal has

been taken from the overruling of a demurrer

in the California Superior Court, which

ruling was affirmed by the California Court

of Appeal. See, Crown Oil Corporation v.

Superior Court (1986) 177 Cal. Aop. 3d 604,

223 Cal. Rptr. 164.

As this Court also knows, the undisputed

facts of this case show that there was no

prior federal antitrust judgment that could

possibly conflict with this state-court

action. The federal case involved a settle-

ment of a disputed federal action with a

specific disclaimer of any antitrust lia-

bility. Significantly, none of the federal

plaintiffs was paid any cash, but merely

received so-called “script" for future

purchases of coconut oil. The cash payment

of some $2 million was reserved for the

federal plaintiffs' counsel. Additionally,

there was no evidence that the federal

direct-purchasing class member who resold

to Lapidus even participated in the federal

settlement fund. Therefore, as this action

is in its initial pleading stages and there

was no evidence of even a remote possiblity

of multiple liability, the appeal should be

dismissed.

Thus, aS amici have failed to address

this jurisdictional issue, Appellant

respectfully suggests that this motion to

file an amicus brief be denied.

Dated: September 30, 1986

FRANCIS O. SCARPULLA

STEPHEN V. SCARPULLA

SCARPULLA & SCARPULLA

A PROFESSIONAL CORPORATION

423 Washington Street

San Francisco, CA 94111

Telephone: (415) 788-7210

MARIO N. ALIOTO

LAW OFFICE OF MARIO N. ALIOTO

2280 Union Street

San Francisco, CA 94123

Telephone: (415) 563-7200

JOSEPH M. PATANE

LAW OFFICE OF JOSEPH M. PATANE

2280 Union Street

San Francisco, CA 94123

Telephone: (415) 563-7200

Counsel for Appellee

Lapidus Popcorn, Inc.

BY Frastu (0 Lull

ae . Scarpulfla

3.

PROOF OF SERVICE BY MAIL

I declare that I am employed in the

office of a member of the bar of this Court

at whose direction service of the attached

document wasS made,

I am over the age of 18 and not a party

to this action. My business address is 423

Washington Street, Fourth Floor, San

Francisco, California 94111.

On the 6th day of October, 1986, I

served the attached document to the

interested parties in this action by placing

a true copy thereof enclosed in a sealed

envelope with postage thereon fully prepaid

in the United States mail at San Francisco,

California, addressed as follows:

(SEE ATTACHED SERVICE LIST)

a oro

Angié Tytherleigh

SERVICE LIST

Juan G. Collas, Jr., Esq.

Bruce H. Jackson, Esq.

Jonathan S. Kitchen, Esq.

Baker & McKenzie

580 California Street

5th Floor

San Francisco, CA 94104

James F. Kirkham, Esq.

Debra B. Keil,

Attorney at Law

Pillsbury, Madison & Sutro

225 Bush Street

P.O. Box 7880

San Francisco, CA 94120

Otis Pratt Pearsall

Philip H. Curtis

Bruce R. Kelly

Hughes Hubbard & Reed

One Wall Street

New York, New York 1000C5

Andrew J. Kilcarr

Maureen O'Bryon

Donovan Leisure Newton

& Irvine

1850 K Street, N.W.

Suite 1200

Washington, D.C. 20006

William Simon

William R. O'Brien

Robert M. Bruskin

Howrey & Simon

1730 Pennsylvania Ave., N.W.

Washington, D.C. 20006

SERVICE LIST

(Continued )

Leslie C. Randall

Texaco Inc.

10 Universal City Plaza

Suite 1300

Universal City, CA 91608

Darryl Snider

Brobeck, Phleger

& Harrison

444 South Flower Street

Suite 4300

Los Angeles, CA 90071

Philip K. Verleger

David A. Destino

McCutchen, Black,

Verleger & Shea

600 Wilshire Boulevard

Los Angeles, CA 90017