Opposition Brief — Meier v. Nissan Motor Corp. in U. S. A.

Supreme Court brief1990

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No. 89 - 940

In the Supreme

United States

October Term, 1989

PAULA MEIER, individually, and as guardian ad

litem for Shannon Ann Meier and Kristen Jeanne

Meier; and PAULA MEIER, on behalf of the Estate

of JAMES R. MEIER, Deceased,

Petitioners,

NISSAN MOTOR CORPORATION IN U.S.A., NISSAN

MOTOR COMPANY, LTD., and OXNARD NISSAN,

Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Santa Monica, California 90406

(213) 458-1000

*Counsel of Record

Attorneys for Respondents

NISSAN MOTOR CORPORATION IN U.S.A..

NISSAN MOTOR COMPANY. LTD.., and

OXNARD NISSAN

Westside Law Publishers Los Angeles, California (213) 477-0491

0 e?

QUESTIONS PRESENTED

1. Do the National Traffic and Motor Vehicle Safety

Act (the “Safety Act”) (15 U.S.C. section 1381, et seq.)

and the Federal) Motor Vehicle Safety Standard (the

“FMVSS”) 208 (49 C.F.R. section 571.208) impliedly

preempt any state common law claim that an automobile

is defective because it is equipped with one restraint

system option expressly allowed by federal law, seatbelts

(instead of another allowed option, air bags), as the First,

Tenth, and Eleventh Circuits,' as well as various state

courts (including the California courts in this case), have

held”?

2. Is a state court’s construction of its own summary

judgment statute and related procedural statutes and

rules, as to what constitutes timely service of notice,

a proper issue for review by this Court, or should this

Court respect the state court’s determination of the issue?

'To date the First, Tenth, and Eleventh Circuits are the only federal

circuits which have considered and ruled upon the precise question

presented to this Court. As discussed below, all of these courts

reached the same conclusion, which was that such state claims are

impliedly preempted by federal law, and petitions for writs of

certiorari in each of these cases are currently pending before this

Court

ill

Rule 28.1 Statement

Nissan Motor Corporation in U.S.A., Inc., is a wholly

owned subsidiary of Nissan Motor Company, Ltd. All

subsidiaries of Nissan Motor Corporation in U.S.A.,

Inc., and Nissan Motor Company, Ltd., in the United

States are wholly owned except for the following:

Arizona Test Center, Inc.

Barrett Industrial Trucks, Inc.

Distribution and Auto Service, Inc.

Nihon Radiator

Nissan CR Corporation

Nissan Diesel America, Inc.

Nissan Diesel Motor Co., Ltd.

Nissan Motor Acceptance Corporation

Nissan Motor Aceptance Corporation Holdings, Inc.

Nissan Motor Manufacturing Corporation U.S.A.

Nissan Research & Development, Inc.

TABLE OF CONTENTS

Page

Opinion Below And Related Cases........................ I

I eet core ies enthalpies samen mausschendediaes |

Sembutes Amd Tiemmimtioms ..... << 65.50. sicccecsccccesserseeees |

ee ne, Cecsud sab cererevnis adie deakkennserunees 7

INE EE UI GCI ose ccs eyancrscconcersnswetaskuress 8

MI aur icc st cab uy npance cavesceeereneunnensa pate eaicee 10

Under the Circumstances of the Present Case, There

is No Jurisdiction in This Court Because the

State Court’s Order That Petitioners’ “No Air

Bag” Claim is Preempted by Federal Law is

Not a Final Judgment Within the Meaning of

28 U.S.C. Section 1257(a).......... a A Ones hl Sent eee 10

Il.

Absent Any Constitutional Infirmity, a State

Court’s Decision to Consider a Petition for a

Writ of Mandate Based on its Construction

of its Own Statutes and Procedural Rules Does

Not Provide Any Independent Basis for the

Pe Be ee 12

Ill.

The State Court Determination of Preemption

Below Does Not Conflict with Decisions in the

United States Circuit Courts of Appeal, Does

Not Conflict With Decisions of Any Other

State Court of Last Resort, and Does Not

Contlict With Any Other Decisions by This

Court - 15

IV.

The Court of Appeal Below Was Properly “Per-

suaded™ by the Wood Decision That “No Air

Bag” Claims Are Impliedly Preempted by

Federal Law, and the Same Conclusion by Two

Other Circuit Courts of Appeals Reinforces the

Correctness of the Conclusion..................... 19

Re Meron mrer ry teem iy i ir 26

a, CEP Pt ear on A-1, A-2

*Because of size of page and typeset size limitations, the trial court's

minute order, which consisted of a single page, has been typeset

on two pages in a slightly different format. The content, however,

iS e\acl.

TABLE OF AUTHORITIES CITED

Cases Page

Buccery v. General Motors Corp., 60 Cal.App.3d

S33, (32 COL ORe, Bie CIT so 6s vexceceesse ence, 25

Chicago & Northwestern Transportation Co. v.

Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct.

eS) Parner nye or ene: &r4 Spe) Kerry 25

Coopers & Lybrand v. Livesay, 437 U.S. 463, 98

Ae Is oki cicca chucks tean cia cUueeen reas 10

Costarelli v. Massachusetts, 421 U.S. 193, 95 S.Ct.

PE AAU ois ck sas sev inunbc ea erast aes eata 10

Cox Broadcasting Corporation v. Cohn, 420 U.S.

ee ee ne re 11

Dawson v. Chrysler Corp., 630 F.2d 950 (3rd Cir.

1980), cert. denied, 450 U.S. 959 (1981) .......... 15

Gardner v. Honda Motor Co., 145 A.D 2d 41, 536

N.Y.S.2d 303 (N.Y.A.D. 1988), appeal dis-

missed, 74 N.Y. 2d 715, 543 N.Y.S.2d 401, 541

ewe FO ra res Pree ona cnr pre 16

Gingold v. Audi-NSU-Auto Union, A.G., 567 A.2d

een ttre 16

International Paper Co. v. Ouellette, 479 U.S. 481,

2 ARC Tk, 5) Se ney) eres etry 24

Kitts v. General Motors Corporation, 875_F.2d 787

PE IS. WD savin es incaecccn ces 1, 7, 14, 15, 22, 24

Knippen v. Ford Motor Co., 546 F.2d 993 (D.C.

Rt, Scr cih, aug enes as eageuteieennieees tees 15

Local No. 438 Const. and General Laborers’ Union,

AFL-CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531

NE Shs cea Bh EK de ae cee 10

Nissan Motor Corp. in U.S.A. v. Superior Cour,

212 Cal.App.3d 980, 261 Cal.Rptr. 80

(Cal. Age. SSGP).... 66. .66sc0x. “a hone

Vii

O'Dell v. Espinoza, 456 U.S. 430, 102 S.Ct. 1865

Lo . eE e eE eT OIE rey SRE Ade by a 10

Okuda v. Superior Court, 144 Cal.App.3d 135

| BAe tO ea NO EE BEE Rea DAE oe Aaa TERT Fe 14

Pacilic Gas & Electric Co. v. State Energy Resources

Conservation & Development Comm'n, 461

Oo. POR, IGS S.C, FFD CIID. |. o.oicaceccccs cess. 17

Pennsylvania Railroad Co. v. Puritan Coal Mining

Co.. 237 U.S. 121, 35 S.A. 466 (1985)............ 25

Radio Station WOW, Inc. v. Johnson, 326 U.S.

as We ey WUT CU UIOD os cicccsscestinvcckncetas. 10

San Diego Building Trades Council v. Garmon, 359

aes te, FA Ee, 21

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104

TBs WU MUN «oa cicuds usu ceccabiaveosvawessss 17, 18

Staggys v. Chrysler Corp., 678 F.Supp. 270 (N.D.

NE. SOR e ae, IAP an gt Repeated orga yt LAAN ote Sete 16

Taylor v. General Motors Corporation, 875 F.2d

816 (tlth Cir. 1989) 00... l. 7, 98, 2m, a 28, 2D

Texas & Pacific Railway Co. v. Abilene Cotton

Oil Co., 204 U.S. 426, 27 S.Ct. 350 (1907) ....... a

Wickstrom v. Maplewood Toyota, Inc.,416 N.W.2d

838 (Minn.App. 1987), cert. denied, U.S.

oe eee El | rere 8, 16

Wood vy. General Motors Corporation, 865 F.2d

395 (Ist Cir. 1988)... ATT OTE passim

Statutes

Calitornia Code of Civil Procedure

section 437c(I).. rs tae tan oe

section 1OO8(b).. . . 14

section 1013a.. i 7,13

section 409.4 | 14

section 664.5 | . 5,6. 13, 14

Vill

49 C.F.R.

section 571.208 roe ; —— =

15 U.S.C.

section 1392(d).......... . 16, 19, 20

section 1410b(a).. . ah 18

section I410b . . ae 4,18

28 U.S.C.

section 1257(a)........... ee | ee ee

42 U.S.C.

section 2210 ............... Rp Ppa ertige, 17

section 2011 ......... ELAS SOTTO ee ETT Tae

National Traffic and Motor Vehicle Safety Act of 1966

section 1391(2).... Beene os Se eela ein 3

section 1392(a) .. ee yeeros . 4

section 1392(d).. ecue te er aaree ee 3

e6ction 1 FPHE)..............6.00. nea eee 3, 24

Constitution

United States Constitution

Article VI, clause 2.................. . : 3

Rules

Calitornia Rules of Court

Rule 309.......... . eee Tae ore: ee

Rules of the Supreme Court of the United States

Rute 7 ........ ae 1. a

No. 89 - 940

In the Supreme Court of the

United States

October Term, 1989

PAULA MEIER, individually, and as guardian ad

litem for Shannon Ann Meier and Kristen Jeanne

Meier; and PAULA MEIER, on behalf of the Estate

of JAMES R. MEIER, Deceased,

Petitioners,

NISSAN MOTOR CORPORATION IN U.S.A., NISSAN

MOTOR COMPANY, LTD., and OXNARD NISSAN,

Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

OPINION BELOW AND RELATED CASES

As noted by petitioners, the opinion of the California

Court of Appeal is reported as Nissan Motor Corp. in

U.S.A. v. Superior Court, 212 Cal.App.3d 980, 261

Cal.Rptr. 80 (1989). (Petition, pp. la-6a.)

A copy of the trial court’s minute order, entered

January 23. 1989, denying the respondents’ motion for

partial summary adjudication of the air bag issue is

annexed as Appendix A to this brief in opposition.

There are three related cases, Wood v. General Motors

Corporation, 865 F.2d 395 (1st Cir. 1988), cert. pending,

No. 89-46, Kitts v. General Motors Corporation, 875

F.2d 787 (10th Cir. 1989), cert. pending, No. 89-279,

and Jaylor v. General Motors Corporation, 875 &.2d

816 (1 1th Cir. 1989), cert. pending, No. 89-852, currently

before this court on petitions for writs of certiorari. These

are the only federal circuit decisions which have

considered the precise issue before this court, and all

have held that “no air bag™ claims are impliedly

preempted by federal law.

The Wood case was expressly relied upon by the

California Court of Appeal in reaching its conclusion

that the “no air bag™ aspect of the petitioners’ state law

claims was preempted by federal law. The Aitts case

also expressly embraced the Wood decision in reaching

its conclusion of implied preemption. The Jay/or case.

while reaching the same conclusion as the Wood case

as to implied preemption, employed a slightly different

analysis

JURISDICTION

While the current petition for writ of certiorari was

timely filed in this court, the respondents contend that

this court lacks jurisdiction to consider the petition

because the order of which review is sought ts not a

“final judgment” as that term has been construed in 28

U.S.C. section 1257(a)

STATUTES AND REGULATIONS

Since respondents contend that jurisdiction ts lacking

in this Court, the principal statutory guideline is provided

by 28 U.S.C. section 1257(a):

“Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari where the validity

of a treaty or statute of the United States is

drawn in question or where the validity of a

Statute of any state is drawn in question on

the ground of its being repugnant to the

Constitution, treaties, or laws of the United

States, or where any title, right, privilege or

immunity is specially set up or claimed under

the Constitution or the treaties or statutes of,

or any commission held or authority exercised

under, the United States.”

The key question in the petition involves Article VI,

clause 2, of the United States Constitution (“Supremacy

Clause”):

“This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereol; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every state shall be bound

thereby, any Thing in the constitution or Laws

of any state to the Contrary notwithstanding.”

The petition sets forth sections 1392(d) and 1397(c)

of the National Traffic and Motor Vehicle Safety Act

of 1966 (the “Safety Act”) and Federal Motor Vehicle

Safety Standard (the “F MVSS”) 208, 49 C.F_R. section

571.208. (Petition, pp. 2-3; App., pp. 8a-10a.) The

complete text of section 1391(2) of the Safety Act is

as follows:

*“Motor Vehicle Safety Standards’ means a

minimum standard for motor vehicle pertor-

mance, or motor vehicle caguipment pertor-

mance, which is practicable, which meets the

need for motor vehicle safety and which

provides objective criteria.”

Section 1392(a) provides:

“The Secretary shall establish by order

appropriate Federal Motor Vehicle Safety

Standards. Each such Federal Motor Vehicle

Safety Standard shall be practicable, shall meet

the need for motor vehicle safety, and shall

be stated in objective terms.”

The 1974 Amendment to the Safety Act, as codified

in 15 U.S.C. section 1410b, provides as follows:

“§1410b. Occupant Restraint Systems:

(a) Amendment of Federal Motor Vehicle

Safety Standard number 208; effective

date. Not later than 60 days after the date

of enactment of this section, the Secretary

shall amend the Federal Motor Vehicle

Safety Standard into conformity with the

requirements of paragraphs (1), (2), and

(3) of subsection (b) of this section. Such

amendment shall take effect no later than

120 days after the date of the enactment

of this section.

“(b) Federal Motor Vehicle Standard

requirements. After the effective date of

the amendment prescribed under subsec-

tion (a):

3 | ee

“(2) Except as otherwise provided in

paragraph (3), no Federal Motor Vehicle

Safety Standard respecting occupant

restraint systems may

(A) have the effect of requiring, or

(B) provide that a manufacturer is

permitted to comply with such stand-

ard by means of, an occupant restraint

system other than a belt system.

a ore

(A)..

(B) paragraph (2) shall not apply to any Federal!

Motor Vehicle Safety Standard which the

Secretary elects to promulgate in accordance

with the procedure specified in subsection (c),

unless it is disapproved by both Houses of

Congress by concurrent resolution in accor-

dance with subsection (d)... .

The petition sets forth the provisions of section 437c(i)

of the California Code of Civil Procedure. (Petition,

p. 3.) Rule 309 of the California Rules of Court, which

is entitled “Notice of the termination of submitted

matters,” provides, in pertinent part, as follows:

“When the court rules on a demurrer or motion

or makes an order or renders a judgment in

a matter it has taken under submission, the

clerk shall forthwith notify the parties of the

ruling. order or judgment. The notification,

which shall specifically identify the matter ruled

upon. may be given by mailing the parties a

copy of the ruling, order or judgment, and it

shall constitute service of notice only if the clerk

is required to give notice pursuant to Code ol

Civil Procedure section 664.5. The failure of

the clerk to give notification shall not extend

the time provided by law tor performing any

act except as provided in rule 2(a) or rule

122(a).”

California Code of Civil Proceduresection 664.5,

which is entitled “Notice of entry of judgment,” provides

as follows:

‘“(a) In any contested action or special

proceeding in a superior court, other than a

proceeding for voidable marriage pursuant to

the Family Law Act (Title 2 (commencing with

Section 4400) or dissolution of marriage, legal

separation and summary dissolution pursuant

to Title 3 (commencing with Section 4500) of

the Civil Code) the party submitting an order

or judgment for entry shall prepare and mail

a copy of the notice of entry of judgment to

all parties who have appeared in the action

or proceeding and shall file with the court the

Original notice of entry of judgment together

with the proof of service by mail.

“(b) Promptly upon entry of judgment in a

contested action or special proceeding in a

municipal or justice court, the clerk of the court

shall mail notice of entry of judgment to all

parties who have appeared in the action or

special proceeding and shall execute a certif-

icate of such mailing and place it in the court’s

file in the cause.

“(c) For purposes of this section, ‘judgment’

includes any judgment, decree, or signed order

from which an appeal lies.

“Upon order of the court in any action or

special proceeding, the clerk shall mail notice

of entry of any judgment or ruling, whether

eau ma ———

or not appealable.”

California Code of Civil Proceduresection 1013a

entitled “Service by mail; Proof,” provides in pertinent

part as follows:

“(4) In case of service by the clerk of a court

of record, acertificate by that clerk setting forth

the exact title of the document served and filed

in the cause, showing the name of the clerk

and the name of the court of which he or she

is the clerk, and that he or she is not a party

to the cause, and showing the date and place

of deposit in the mail, the name and address

of the person served as shown on the envelope,

and also showing that the envelope was sealed

and deposited in the mail with the postage

thereon fully prepaid.”

INTRODUCTION

The California Court of Appeal has recognized the

unique regulatory impact of air bag claims and the

weighty policy considerations underlying the Safety Act

and FMVSS 208 by following the only three federal

cireuit courts which have decided the air bag preemption

issue, and has concluded that such claims are preempted

by federal law. See, Taylor v. General Motors Corp.,

875 F.2d 816 (11th Cir. 1989), cert pending, No. 89-

852: Aitts v. General Motors Corp., 875 F.2d 787 (10th

Cir. 1989), cert pending, No. 89-279, Wood v. General

Motors Corp., 865 F.2d 395 (1st Cir. 1988), cert pending,

No. 89-46. The petitioners in this matter, and in the

three other petitions before this Court, have failed to

demonstrate that these decisions conflict with decisions

of this Court, other federal courts of appeals, or with

a _

those of any state court of last resort. See, Rule 17,

Rules of the Supreme Court of the United States. Thus,

there is no reason for this Court to grant the petitions

involving the same issue which this Court declined to

review last Term. Wickstrom v. Maplewood Toyota,

Inc., 416 N.W.2d 838 (Minn. App. 1987), cert. denied,

—_____ ;U.S. —___,, 108 S.Ct. 2905 (1988).

As an additional consideration, the petitioners herein

seek review of an interlocutory order of the state court

below which does not consitute a “final judgment” within

the scope of 28 U.S.C. 1257(a), and therefore this Court

lacks jurisdiction to consider the petition. Consequently,

the petition should be denied.

STATEMENT OF THE CASE

Petitioner Paula Meier’s husband, James R. Meier,

was killed in acar accident on November 17, 1985, while

driving a 1982 Nissan Stanza automobile distributed by

Nissan Motor Corporation in U.S.A. The vehicle was

equipped with three point seat belts authorized by federal

regulation in effect at the time of manufacture and at

the time of the accident. See, 49 C.F.R. section 571.208.°

The petitioners sought recovery against Nissan based

on claims of negligence, product defect, and breach of

warranty. The claims were premised on the theories that

the occupant restraint system installed in the automobiie

failed to restrain the decedent, and that the vehicle was

not equipped with air bags.

On December 2, 1988, respondents filed a motion for

2Nissan adopts the legislative and regulatory history of the Safety

Act and FMVSS 208 contained in the General Motors Corporation

Brie! in Opposition to the Petition for Writ of Certiorari in Wood.

No. &9-46, at pp. 3-11

partial summary adjudication of the issue that

petitioners’ theory of product defect based on the absence

of an air bag was preempted by federal law.

On January 23, 1989, by minute order, the Superior

Court of the State of California for the County of Los

Angeles denied the respondents’ motion. Appendix A.

No notice was ever served by the petitioners as they

were directed to do by the court.

On March 24, 1989, respondents filed a petition for

writ of mandate in the Court of Appeal of the State

of California, Second Appellate District. The appellate

court issued its original unpublished opinion on May

26, 1989, and, relying on Wood v. General Motors Corp..,

865 F.2d 395 (Ist Cir. 1988), the court determined that

the petitioners’ “no air bag” claim was preempted by

federal law.

On June 22, 1989, the Court of Appeal modified and

certified its decision for publication.

On August 31, 1989, the California Supreme Court

denied the petitioners’ petition for review.

ARGUMENT

Under the Circumstances of the Present Case, There

is No Jurisdiction in This Court Because the State

Court's Order That Petitioners’“ No Air Bag” Claim

is Preempted by Federal Law is Not a Final

Judgment Within the Meaning of 28 U.S.C. Section

1257(a).

By the express provisions of 28 U.S.C. section 1257(a),

this Court is one of limited jurisdiction. By the enactment

of that section, Congress has imposed the restriction

upon this Court that it may only review “[f]inal

judgments or decrees rendered by the highest court of

a State in which a decision could be had.” The critical

interests of efficiency, judicial restraint, and federalism

clearly underlie the congressional postponement of direct

review by this Court. See, e.g., Local No. 438 Const.

and General Laborers’ Union, AFL-CIO v. Curry, 371

U.S. 542, 550, 83 S.Ct. 531, 536 (1963); Radio Stati

WOW, Inc. v. Johnson, 326 U.S. 120, 124, 65 S.Ct.

1475, 1478 (1945). Furthermore, this court itself has

consistently applied a strict test of finality to ascertain

whether state court decisions, remanding cases for

further proceedings, or in cases where further substantial

state court proceedings remain, should be reviewed. See,

O'Dell v. Espinoza, 456 U.S. 430, 102 S.Ct. 1865 (1982);

Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct.

2454 (1978). This court has recognized that an important

purpose of the finality requirement is to prevent

interference with state court proceedings when the

underlying dispute may be otherwise resolved. Costarelli

v. Massachusetts, 421 U.S. 193, 95 S.Ct. 1534 (1975).

It is only in very limited circumstances where this court

a Oe Te

will depart from the rule of strict finality and treat a

State court judgment as final even though state court

proceedings are not yet complete.

In Cox Broadcasting Corporation v. Cohn, 420 U.S.

469, 95 S.Ct. 1029 (1975), this Court recognized four

limited exceptions to the general principle that it may

not review cases in which further proceedings are

anticipated in state courts. Of these, only one has any

potential application here. As the Cox court set forth:

“Lastly, there are those situations where the

federal issue has been finally decided in the

state courts with further proceedings pending

in which the party seeking review here might

prevail on the merits on nonfederal grounds,

thus rendering unnecessary review of the

federal issue by this Court, and where reversal

of the state court on the federal issue would

be preclusive of any further litigation on the

relevant cause of action rather than merely

controlling the nature and character of, or

determining the admissibility of evidence in,

the state proceeding still to come. In these

circumstances, if a refusal immediately to

review the state court decision might seriously

errode federal policy, the Court has entertained

and decided the federal issue, which itself has

been tinally determined by the state courts for

purposes of the state litigation.” 420 U.S. at

482-483, 95 S.Ct. at 1040.

Petitioners may argue there has been a final

determination of the federal question here when the state

Court of Appeal determined that the petitioners’ “no

air bag” claim was preempted by federal law. However,

since this issue represents only one aspect of petitioners’

State law claims as to product defect and breach of

warranty, it is clear that reversal of the state court on

the federal issue would not be preclusive of any further

litigation. To the contrary, the trial of the petitioners’

various Claims of product defect and breach of warranty

is currently scheduled to go forward in state court on

or about March 19, 1990, and the determination of the

preemption question merely controls the nature and

character of certain evidence in those proceedings to

come.

Certainly, if defendants and respondents herein prevail

in the state court proceedings, the plaintiffs and

petitioners may appeal from the judgment, and take that

appeal as far as they wish. On the other hand, if the

petitioners prevail below, there would be neither need

for appeal by them, nor necessity for any review by

this Court, as the litigation would have been resolved

based purely on state law. The California Court of

Appeal’s conclusion to follow well-reasoned federal

authority in determining the preemption of one aspect

of petitioners’ case simply does not warrant interference

by this Court in the state court proceedings. Any such

review by this Court at this time would be premature.

Absent Any Constitutional Infirmity, a State

Court's Decision to Consider a Petition for a Writ

of Mandate Based on its Construction of its Own

Statutes and Procedural Rules Does Not Provide

Any Independent Basis for the Jurisdiction of This

Court.

Petitioners make the same argument to this Court

regarding timeliness of respondents’ request tor relief

which they made unsuccesstully in both state courts

below. It was rejected in the state courts and must be

rejected here. An examination of 28 U.S.C. section

1257(a), and rule 17 of the Rules of the Supreme Court

of the United States, demonstrates that this “timeliness”

issue provides neither a basis for this Court’s jurisdiction,

nor a valid consideration in influencing this Court's

discretion as to whether to consider the petition in the

first instance.

Petitioners contend that the respondents’ petition for

writ of mandate in the Court of Appeal below was not

timely filed because it was filed more than ten days after

the trial court denied the respondents’ motion for

summary adjudication of issues. However, the respond-

ents contended that their mandate petition was timely

filed because there was no formal service of the notice

of the ruling as required by the court’s minute order,

and as required by the California Code of Civil

Procedure and Rules of Court. The Court of Appeal

in Nissan Motor Corp. in U.S.A. v. Superior Court,

212 Cal.App.3d 980, 262 Cal.Rptr 80 (1989), apparently

agreed with the respondents’ contention by accepting,

and subsequently granting, the petition for writ of

mandate, and this Court should respect that

determination.

An analysis of rule 309 of the California Rules of

Court, and Calitornia Code of Civil Procedure sections

437c(|), 664.5, and 1013a, amply demonstrates the

implied determination of the appellate court that there

was no “service of written notice” in this case as required

by those provisions. Furthermore, on the face of the

order in question, specific direction was given that the

petitioners (plaintiffs and responding parties in the trial

court) were to give notice of the ruling, and that notice

was never given. Consequently, contrary to the

petitioners’ lament, the court below determined by

implication that the request was timely by considering

the respondents’ request for a writ of mandate. As a

final consideration, it should be noted that, pursuant

to California Code of Civil Procedure section 1008(b), ,

the respondents were free to renew their motion for

summary adjudication at any time, and most likely would

have, given the additional decisions in Kitts and Taylor,

which were rendered subsequent to the trial court’s

determination.

In Okuda v. Superior Court, 144 Cal.App.3d 135,

138 (1983), a California appellate court applied a similar

analysis to a petition for writ of mandate in a lis pendens

context under Code of Civil Procedure section 409.4,

and concluded that a contention of untimeliness was

“meritless.” In like fashion, the Court of Appeal below

apparently rejected the petitioners’ untimeliness claim

out of hand by omitting any reference to it in its opinion.

Similarly, by implication, the California Supreme Court

considered the claim to be inconsequential. The mere

fact that other Courts of Appeal may have construed

rule 309 and Code of Civil Procedure sections 437c(1)

and 664.5 differently under different circumstances is

of no moment. In those cases, there were apparently

sworn declarations of service by the court clerk. Those

decisions were both nonbinding on the Court of Appeal

below, and provide no basis in law for assumption of

_ jurisdiction by this Court.

Ihe State Court Determination of Preemption

Below Does Not Conflict with Decisions in the

United States Circuit Courts of Appeal, Does Not

Conflict With Decisions of Any Other State Court

of Last Resort, and Does Not Conflict With Any

Other Decisions by This Court.

The argument in the petition (pp. 10-14) that several

circuit courts of appeals have found that the Safety Act

was not intended to preclude common law claims is

simply erroneous. The decision of the California Court

of Appeal is in accord with the decisions of the First

Circuit in Wood, the Tenth Circuit in Kitts, and the

Eleventh Circuit in TJay/or which have reached the same

conclusion as to preemption. The cases cited in the

petition, see, e.g., Knippen v. Ford Motor Co., 546 F.2d

993, 1000 (D.C. Cir. 1976); Dawson v. Chrysler Corp.,

630 F.2d 950, 957-958 (3rd Cir. 1980), cert. denied, 450

U.S. 959 (1981), merely hold that compliance with federal

safety standards is relevant but not conclusive on the

merits of a design defect claim. As the Wood court

expressly recognized:

“Not a single appellate decision addressed the

question of the implied preemption of a state

law cause of action that would effectively create

a state standard, not identical to a federal

standard in violation of section 1392(d).

“Instead, the cited cases hold that compliance

with a federal safety standard does not serve

as a defense on the merits of a defective design

claim.” (Emphasis in original.) 865 F.2d at 417.

Wood was the first appellate decision to consider the

concept of implied preemption of a state cause of action

i isaac, Vepcacramammmmrrmman

because it creates a nonidentical state standard in

violation of 15 U.S.C. section 1392(d), and to distinguish

such preemption from the raising of a FMVSS as a

defense to a design defect claim. Implied preemption }

analysis involves a finding not of compliance, but of

a conflict between state and federal law. See, Wood v.

General Motors Corp., 865 F.2d at 417-18; Staggs v.

Chrysler Corp., 678 F.Supp. 270, 272 (N.D. Ga. 1987).

None of the cases cited by petitioners involve a federal

design standard similar to FMVSS 208, and none

involved a direct conflict between a federal standard

and a state common law design defect claim. Although

no state court of last resort has resolved the air bag

preemption issue, at least three state intermediate

appellate courts addressing the issue have also found

these claims preempted, including the appellate court

below. See, Nissan Motor Corp. in U.S.A. v. Superior

Court, 212 Cal. App.3d 980, 261 Cal. Rptr. 80 (Cal.App.

1989). Gardner v. Honda Motor Co., 145 A.D.2d 41,

536 N.Y.S.2d 303 (N.Y.A.D. 1988), appeal dismissed,

74.N.Y. 2d 715,543 N.Y.S.2d 401, 541 N.E.2d 430(1989);

Wickstrom v. Maplewood Toyota, Inc., 416 N.W.2d 838

(Minn.App. 1987), cert. denied, U.S. 108

S.Ct 2905 (1988). A fourth intermediate court which

recently considered the issue determined that such a

claim was not preempted. Gingold v. Audi-NSU-Auto

Union, A.G.,567 A.2d 312(Pa.Super. 1989), application

for rehearing en banc pending. It should be noted,

however, that the Gingold decision is not final in the

Commonwealth of Pennsylvania because it is subject

to either potential vacatur upon en banc consideration

by the Superior Court of Pennsylvania, or reversal upon

discretionary review by the Supreme Court of Pennsyl-

vania. Furthermore, the Gingold decision its an

aberration of law especially because of its unsupported

views that common law tort claims do not have

regulatory impact and that implied preemption analysis

may never be undertaken in the presence of a general

savings clause. Such conclusions are completely contrary

to those of the other six appellate courts which have

considered the issue.

The petitioners contend that Silkwood v. Kerr- McGee

Corp., 464 U.S. 238, 251, 104 S.Ct. 615 (1984), stands

for the proposition that preemption “is applied in

Situations where a federal regulatory scheme is

substituted for those of individual states,” and that “the

federal regulatory scheme generally contains its own

rights and remedies.” Petition, p. 16. Silkwood not only

is inapplicable to the issue presented here, but its holding

has been severely mischaracterized. See, Wood v.

General Motors Corp., 865 F.2d at 411-12. The issue

in Silkwood was whether punitive damages were

recoverable under the Price-Anderson Act; the plaintiff's

entitlement to compensatory damages was undisputed.

The “tension” which this Court referred to was that

created by the interface between two very different

concepts: (1) the fact that this Court had recently

established that federal regulations occupied the field

of nuclear safety, see, Pacific Gas & Electric Co. v. State

Energy Resources Conservation & Development

Comm n, 461 U.S. 190, 212, 103 S.Ct. 1713 (1983), and

(2) the fact that Congress had enacted the Price-

Anderson Act, 42 U.S.C. section 2011, 2210, (1982),

limiting the aggregate liability for accidents at nuclear

facilities. Silkwood, 464 U.S. at 256. The very existence

of a scheme where the government would indemnify

operators of nuclear facilities strongly evidenced a

congressional intent to allow common law actions for

damages. See, Wood, 865 F.2d at 411. This Court ruled

that the recovery of punitive damages was not preempted

by the Price-Anderson Act, and also recognized that

state common law actions would be preempted if the

actions “would frustrate the objectives of the federal!

law.” 464 U.S. at 256. Yet, under the circumstances in

Silk wood, the Court perceived no conflict.

On the other hand, there is no evidence whatsoever

that, by enacting the Safety Act, Congress intended to

preserve conflicting state tort claims or that there is a

“tension” -similar to that involved in Silkwood which

Congress intended to accept. See, Wood, 865 F.2d at

412. The petitioners suggest absolutely no reason why

Congress would encourage regulation by jury verdict

in a manner totally inconsistent with the federal

regulatory scheme. The fact that FMVSS 208 is a

precisely drawn, carefully considered “design” standard

sanctioned by statute, 15 U.S.C. section 1410b(a)-(b),

belies any notion that Congress would find conflicting

State-created design standards an acceptable form of

“tension.”

The decision below, relying on the unanimous

decisions of the federal circuits, does not conflict with

Silkwood, or any other decision of this Court.

Based on the foregoing, and an examination of rule

17 of the Rules of the Supreme Court of the United

States, review by grant of certiorari would not be a

proper exercise of this Court's discretion.

IV.

The Court of Appeal Below Was Properly

“Persuaded™ by the Wood Decision That “No Air

Bag™ Claims Are Impliedly Preempted by Federal

Law, and the Same Conclusion by Two Other

Circuit Courts of Appeals Reinforces the Correct-

ness of the Conclusion.

As noted above, Wood was the first appellate decision

to deal with the concept of implied preemption of a

State cause of action because it created a nonidentical

State standard in violation of 15 U.S.C. section 1392(d),

and the first to distinguish such preemption from the

raising of a FMVSS as a defense to a design defect

claim. The Wood court described the manufacturer's

burden in establishing preemption as follows:

“To prove preemption, on the other hand, the

manufacturer must show (1) that the theory

of recovery advanced by the product liability

suit is directed at the same ‘aspect of perfor-

mance’ as that term is narrowly defined in

Chrysler v. Rhodes, 416 F.2d 319 (Ist Cir.

1969). as the federal safety standard, and (2)

that the theory of recovery is of sufficiently

general applicability that a successful tort suit

would be equivalent to a state regulation.” 865

F.2d at 417-418.

The Wood court concluded that, in the air bag context,

the manufacturer had satisfied both prongs of its burden

to establish preemption. The court was convinced that

Congress's purposes, as revealed in the Safety Act and

in the legislative history, plainly implied a preemptive

intent. The court pointed out that the product liability

claim betore it alleging that the absence of an air bag

rendered the vehicle’s design faulty would, if upheld,

clearly “stand as an obstacle” to the regulatory scheme

of the Safety Act. It was apparent to the Wood court

that a state common law action sustaining the theory

that a vehicle was defective because it lacked an air bag

would, in effect, create a state safety standard related

to the same aspect of performance as FMVSS 208, but

not identical to FMVSS 208. As the Wood court

concluded:

“Such an action is, in our view, impliedly

preempted because it would effectively circum-

vent section 1392(d)’s prohibition of noniden-

tical state standards covering the same aspect

of performance as a federal safety standard.”

865 F.2d at 402.

The court further elaborated that air bag regulation

is preempted because it is addressed to “the same aspect

of performance,” no matter how narrowly one defines

that term, as the federal regulation is addressed. The

court noted that, by including passive restraints as an

option for complying with FMVSS 208, the Safety Act

had left no doubt that passive restraints are within the

“aspect of performance” addressed by the federal

standard. As the Wood court observed:

“Furthermore, the history of FMVSS 208

shows irrefutably that passive restraints are

within the ‘aspect of performance’ covered by

the standard. All of the regulatory changes,

lawsuits, and congressional actions have

focused on the same question as that presented

by [plaintiff's] lawsuit: Are seatbelts adequate

to protect occupants in crashes, or are passive

restraints required?” 865 F.2d at 409.

With regard to the second prong of the manufacturer’s

burden to establish preemption set forth above, the

Wood court cited this court’s observation in San Diego

Building Trades Council v. Garmon, 359 U.S. 236, 247,

79 S.Ct. 773 (1959), as follows:

“[R]egulation can be as effectively exerted

through an award of damages as through some

form of preventative relief. The obligation to

pay compensation can be, indeed is designed

to be, a potent method of governing conduct

and controlling policy.” 865 F.2d at 410.

The Wood court then concluded its analysis of

regulation by damage awards as follows:

“With respect to a claim that a vehicle is

defective because it lacks air bags, however,

it seems obvious that a damages award will

have a pronounced effect on the manufacturer's

future conduct. The same theory of recovery

could be pursued by every front seat occupant

injured in a multi-purpose vehicle. It is well

known that injuries to front seat occupants are

frequent; well over 20 lawsuits have been filed

on theory of absence of air bags in the last

two years.. . . In these circumstances, [defend-

ant’s}] choice to avoid modification of its design

‘seems akin to the free choice of coming up

for air after being under water.’ ” 865 F.2d at

410-411.

The Wood court thus reached its determination that

the plaintiff's air bag claim was preempted by federal

law. The manufacturer in Wood, as well as respondents

here, have unequivocally established that the theory of

recovery advanced by petitioners is directed at the same

aspect of performance as the federal safety standard,

and that the theory, if successful, would be equivalent

to a conflicting state regulation. Petitioners’ theory of

defect therefore cannot stand.

The Tenth Circuit in Kitts v. General Motors Corp,,

875 F.2d 787 (10th Cir. 1989), like the Court of Appeal

below, also came to the conclusion that Wood directly

addressed and correctly resolved the issue before it as

to preemption. However, in their petition for review to

the California Supreme Court and in their petition here,

the petitioners seek to argue that the Court of Appeal’s

determination was erroneous because Wood was

“incorrectly decided” based on the grounds that

“Congress could not have intended to nullify” “no air

bag” claims because “it did not know [they] would ever

exist,” and because Wood “dispenses with the safety

clause.” (Petition, pp. 8-9.)

Perhaps the best answer to the petitioners’ objection

to Wood concerning the question of congressional intent

may be found in a recent opinion filed by the Eleventh

Circuit Court of Appeals, Taylor v. General Motors

Corp., 875 F.2d 816 (11th Cir. 1989). In Taylor, the

Eleventh Circuit, like the First Circuit in Wood,

determined that “no air bag” claims are impliedly

preempted by federal law. 875 F.2d at 827. However,

instead of focusing on what Congress contemplated in

1966 with respect to tort claims when it passed the Safety

Act, the Taylor court began its implied preemption

analysis “with the principle that federal law preempts

State law when state law creates ‘a potential frustration

of the administrative scheme provided by [the federal

law] “ or when a “state law ‘interferes with the methods

by which federal statute was designed to reach [its]

goal.” ~ 875 F.2d at 825-826. The court then noted two

important differences between the analysis employed in

determining whether a state law or rule is expressly

a ranaenne TERT

preempted or whether it is impliedly preempted.

The first is that there is no strong presumption

applicable in deciding whether a state law or rule conflicts

with federal law, “in contrast to the strong presumption

against preemption that we apply in determining whether

the language of a federal statute or regulation expressly

preempts state law.” 875 F.2d at 826. With regard to

the second difference, the court noted that “in implied

preemption analysis it is possible to infer preemptive

intent solely from effects.” 875 F.2d at 826. As the Taylor

court further observed:

“Even where the preemptive intent behind the

federal regulatory scheme is unclear from its

Statutory language or legislative history, the

federal law nevertheless preempts the state law

to the extent that the ordinary application of

the two laws creates a conflict. See Brown v.

Hotel & Restaurant Employees & Bartenders

Intl Union, 468 U.S. 491, 501, 104 S.Ct. 3179,

3185, 82 L.Ed.2d 373 (1984). (Where there is

an ‘actual conflict’ between federal and state

law, the state law ‘is preempted by direct

operation of the Supremacy Clause.’)” 875 F.2d

at 826.

The Jay/or court then analyzed the effect of allowing

a plaintiff to pursue a state “no air bag” claim on the

regulatory scheme passed by Congress, and specifically

observed:

“Consistent with Congress’s 1974 mandate, the

regulations promulgated under the Safety Act

authorized automobile manufacturers to

choose one of three different methods to

comply with the safety standards for occupant

crash protection, one of those federally

approved options was the installation of

manual seatbelts. See 39 Fed.Reg. 38,380

(1974). Congress subsequently endorsed the

option authorized in the federal regulation by

providing in 1978 and again in 1979 that ‘[none]

of the funds appropriated [for the Department

of Transportation] shall be used to implement

or enforce any standard or regulation which

requires any motor vehicle to be equipped with

an occupant restraint system (other than a belt

system).’ ” 875 F.2d at 826.

The Eleventh Circuit then acknowledged that, while

the ultimate intent-of Congress may be indiscernible:

“(T]he effect of the regulatory scheme estab-

lished by the 1974 amendment to the Safety

Act and Safety Standard 208 is unmistakeable.

It grants automobile manufacturers the option

of complying with federal standards for

occupant crash protection by installing manual

seat belts instead of air bags.” 875 F.2d at 827.

Thus, the petitioners’ attack on the Wood decision

with regard to Congress’s intent at the time it passed

the Safety Act is irrelevant to the ultimate conclusion

of implied preemption of “no air bag” claims as reached

by the courts in Wood, Kitts, Taylor, and the Court

of Appeal below.

The petitioners’ attempt to extend the reach of the

general savings clause must be rejected. Section 1397(c)

cannot, by itself, negate the application of implied

preemption analysis, and cannot revive preempted state

law which stands as an obstacle to the accomplishment

of federal goals and objectives. See, International Paper

Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805 (1987)

(Congress certainly would not have “intended to

undermine this carefully drawn statute through a savings

clause.”); Chicago & Northwestern Transportation Co.

v. Kalo Brick & Tile Co., 450 U.S. 311, 328, 101 S.Ct.

1124 (1981).

This Court has frequently found savings clauses

inapplicable when the state remedy at issue would “be

absolutely inconsistent with the provisions of the act.”

Texas & Pacific Railway Co. v. Abilene Cotton Oil Co..,

204 U.S. 426, 446, 27 S.Ct. 350 (1907). In other words,

“the act cannot be held to destroy itself.” 204 U.S. at

446. The purpose of a savings clause is “not to nullify

other parts of the act, or to defeat rights or remedies

given by preceding sections, but to preserve all existing

rights which were not inconsistent with those created

by the statute.” Pennsylvania Railroad Co. v. Puritan

Coal Mining Co., 237 U.S. 121, 129, 35 S.Ct. 484 (1915).

The petitioners’ interpretation of the clause, which

is that the FMVSS does not affect state common law,

is clearly illogical and unsupported by the case law as

noted above. As evidenced by Wood, Taylor, and the

Court of Appeal below, the better reading of the savings

clause construes it consistently with the rest of the Safety

Act. Thus, the clause, as the appellate court in Buccery

v. General Motors Corp., 60 Cal.App.3d 533, 132

Cal.Rptr. 605 (1976), in effect determined, would then

defeat the argument that compliance with FMVSS

automatically exempts the manufacturer from liability

for all safety defects. However, the clause would noi,

as the Court of Appeal below effectively concluded here,

allow a state to define a tort standard or rule which

would remove the element of choice specifically

authorized in FMVSS 208 with respect to which

occupant restraint system a manufacturer may use in

a vehicle in order to comply with the requirements of

oii aint

the Safety Act.

Contrary to the petitioners’ unsupported and nebulous

references to policy conflicts, the determination of the

Court of Appeal below does not prevent the petitioners

from pursuing their state law tort claims that the

particular occupant restraint system with which the car

was equipped was defective. Rather it prevents them

from asserting a tort claim which is preempted by federal

law, namely that the car should have been equipped

with an air bag in addition to, or as an alternative to,

the system selected by the manufacturer as explictly

authorized by federal law. The result reached by the

Court of Appeal below is entirely consistent with both

California and federal !aw and policy. As the Court of

Appeal below observed with respect to its determination:

“To hold otherwise would be to allow a

potential flood of actions against manufactur-

ers that have been following the custom of

industry and acting in compliance with federal

regulations. The result would not only work

a hardship to manufacturers, but also might

sO encourage litigation as to hamper the

administration of justice.” 212 Cal.App.3d at

982-983.

Vv.

Conclusion.

Because there is no “final judgment” as mandated by

28 U.S.C. section 1257(a), this Court should decline to

consider the petition for writ of certiorari, as jurisdiction

does not lie.

Alternatively, for the foregoing reasons, the petition

should be denied.

Respectfully submitted,

HAIGHT, BROWN & BONESTEEL

Elliott D. Olson,

Roy G. Weatherup, and

Thomas N. Charchut*

*Counsel of Record

Attorneys for Respondents

NISSAN MOTOR CORPORATION IN U.S.A..,

NISSAN MOTOR COMPANY, LTD., and

OXNARD NISSAN

APPENDIX

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SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES DEPT. wer

DATE JANUARY 23, 1989 K.PAPPAS DEPUTY CLERK

HONORABLE LAWRENCE WADDINGTON JUDGE a

HONORABLE JUDGE PROTEM NONE Reporter

NONE Depety Sherff (Parnes end counsel checked if present)

WEC 103437 Counsel for JOHN F. GERARD

MEIER. PAULA, ETC., ET AL, Pisimitt (No Appearance)

vi.

NISSAN MOTOR CORPORATION. = Counsel for HAIGHT. BROWN,

ET AL. BONESTEEL

Defendant (No Appearance)

NATURE OF PROCEEDINGS.

DEFENDANTS’ IN THIS MATTER HERETOFORE

MOTION FOR TAKEN UNDER SUBMISSION ON

SUMMARY 12-30-89 THE COURT RULES AS

ADJUDICATION FOLLOWS:

OF ISSUES

MOTION DENIED.

AFTER READING MOVING,

RESPONSIVE AND REPLY PAP-

ERS, THE COURT CONCLUDES

THAT THE FEDERAL STATUTE

DOES NOT PRE-EMPT COMMON

LAW REMEDIES. ALTHOUGH

THE ISSUE IS NOT ALTO-

GETHER FREE FROM DOUBT.

THE COURT CANNOT CON-

APPENDIX A

A-2

CLUDE AS A MATTER OF LAW

THAT THE MOTION SHOULD BE

GRANTED

COPY OF MINUTE ORDER SENT

TO COUNSEL BY U.S. MAIL.

O IT ISSTIPULATED that Commissioner

mav hear this matter as Judge Pro Tem.

O TRANSFERRED TO/FROM DEPARTMENT

O CONTINUED TO IN DEPT. AT eM

O On court's own motion O Stip. to be filed

O On oral written stipulation O OSC Discharged

CO REQUEST OF O Moving party OC Respondent(s)

OC TRO to remain in full force and effect O TRO dissolved

O ______ days to amend/answer O overruled

O PETITIONER(S) IS/ARE SWORN AND TESTIFIES, TESTIFY

O DECREE IS SIGNED AND FILED.

MINUTES ENTERED

WE -P {1/23/89

— COUNTY CLERK

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: | am and was at all times

herein mentioned, a citizen of the United States and

a resident of the County of Los Angeles, over the age

of eighteen (18) years and not a party to the within

action or proceeding; that my business address is 11333

Iowa Avenue, Los Angeles, California 90025; that on

February 1, 1990, I served the within Brief of

Respondents in Opposition to Petition for Writ of

Certiorari in said action or proceeding by depositing

true copies thereof, enclosed in a sealed envelope with

postage thereon fully prepaid, in the United States mail

at Los Angeles, California, addressed as follows:

Clerk, United States Clerk of the Superior Court

Supreme Court

One First Street, N.W.

Washington, D.C. 20543

(By Express Mail: original

and forty copies)

Clerk of the California

Supreme Court

3580 Wilshire Boulevard

Room 213

Los Angeles, California 90010

Clerk of the California Court

of Appeal

Second Appellate District

Division One

3580 Wilshire Boulevard

Room 30!

Los Angeles, California 90010

County of Los Angeles

Hon. Lawrence Waddington

West District

1725 Main Street

Santa Monica, California 9040!

David M. Harney

Thomas Kallay

Michael N. Friedman

HARNEY & PACKER

201 North Figueroa Street

Suite 1300

Los Angeles, California 900i 2

I declare under penalty of perjury that the foregoing

is true and correct. Executed on February 1, 1990, at

Los Angeles, California.

Betty J. Malloy

(Original signed)

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