Amicus Curiae Brief — Philip Morris USA USA Inc. v. Bo Boeken (Nos. 05-594, 05-600)

9

damages, because it is “well within the ‘single digit ratio’

that marks the outer limits of permissible disparities”

under State Farm).

Further, the Ninth Circuit has interpreted State Farm

to allow “a ratio of up to 4 to 1 [to] serve[] as a good proxy

for the limits of constitutionality,” even when “there are

significant economic damages and *** [the] behavior is

not particularly egregious.” Planned Parenthood v.

American Coalition of Life Activists, 422 F.3d 949, 962 (9th

Cir. 2005). Thus, that court has held that “State Farm's 1:1

compensatory to punitive damages ratio is not binding, no

matter how factually similar the cases may be.” Hangarter

v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015

(9th Cir.), cert. denied, 542 U.S. 939 (2004).

In addition to the decision below, other California

state appellate decisions have engaged in the same

misreading of State Farm. Thus in Maya B. v. Vogel, 2004

WL 551325 (Cal. Ct. App. Mar. 22, 2004), the court of

appeal held that a punitive damages award of $1.6 million

was “not in itself excessive” despite the fact that it was

“two times the amount of compensatory damages” because

“the single-digit multiplier was well within the discretion

of the jury and trial court.” Jd. at *13; see Romo v. Ford

Motor Co., 6 Cal. Rptr. 3d 793, 812 (Cal. Ct. App. 2003)

(sustaining multimillion dollar punitive damages award

that was more than five times the compensatory damages

award for wrongful death suits arising out of rollover

accident). Appellate courts from other States have likewise

reached the same erroneous result and sustained large

single-digit ratios without explanation. See, e.g., Kentucky

Kingdom Amusement Co. v. Belo Kentucky, Inc., 2005 WL

* Other federal courts have likewise made the same analytic error

of viewing single-digit ratios as a safe harbor even when the plainuff

was ewarded substantial compensatory demages. See, «g.. Rhone-

Poulenc Agro, S.A. v. DeKalb Genetics Corp., 345 F.3d 1366, 1372 (Fed.

Cir. 2003), Bogle « McClure, 332 F.3d 1347, 1362 (Lith Cir. 2003),

Chicago Title Ins. Corp. v. Magnuson, 2006 WL 2373430, at *11 (5.D

Ohio Sept. 26, 2005).

10

2043633, at *2, *6 (Ky. Aug. 25, 2005) (sustaining $2.5

million punitive damages award in favor of a defamed

corporation that was five times the $475,000

compensatory damages award).

3. The California Court of Appeal’s decision below

disparaged the relevance of the substantial amount of $5.5

million in compensatory damages awarded to the plaintiff

here, asserting that a larger amount of compensable injury

does not entitle a defendant to receive what the covrt

viewed as greater due process protection. Pet. App. 68a. In

reaching that conclusion, that court ignored the relationship

between compensatory and punitive damages acknowledged

by this and other courts and disregarded the fact that the

substantial, but not excessive, punitive damages allowed

under a proper reading of State Farm can sufficiently

deter and punish defendants.

In State Farm, this Court held that at least one

component of compensatory damages, those awarded for

emotional distress, “already contain this punitive element”

by their nature. 538 U.S. at 426. As explained in one

particularly scholarly district court opinion, all compensatory

damages “possess a deterrent and punitive aspect,” because

“insofar as the compensatory award reflected some measure

of imprecision and uncertainty always inherent in

computations of damages, *** Defendants must bear the

risk of that deficiency, a burden that constitutes a built-in

deterrent aspect of compensatory damages.” TVT Records

v. Island Def Jam Music Group, 279 F. Supp. 2d 413, 424,

451 (S.D.N.Y. 2003), rev'd on other grounds, 412 F.3d 82

(2d Cir. 2005).

The decision below also disregarded the fact that, in

an absolute sense, punitive damages that are equal to

compensatory damages will be substantial whenever the

compensatory damages are substantial, and thus are

likely to serve their legitimate deterrent and punitive

functions at that level. In this case, a punitive damages

award equal to the extraordinary $5.5 million

compensatory damages awarded a single plaintiff can

hardly be viewed as insubstantial. See Williams, 378 F.3d

11

at 799 (reducing punitive damages award to equal

substantial compensatory damages award and noting that

“(s)ix hundred thousand dollars is a lot of money”); Watson

v. E.S. Sutton, Inc., 2005 WL 2170659, at *19 (S.D.N_Y.

Sept. 6, 2005) (reducing punitive damages award from

$2.5 million to $717,009, which was approximately 50% of

the compensatory damages award because “the amount is

substantial enough to deter, while not being unduly

burdensome”). By contrast, a jury decision to augment

many times over a substantial compensatory damages

award (like the initial jury award of $3 billion in punitive

damages in the instant case before judicial review) serves

as a “telltale sign[|” that the jury’s verdict “may have been

tainted by the jury having given undue weight to

secondary considerations such as Defendants’ wealth, or to

impermissible factors such as prior ‘dissimilar acts,

independent from the acts upon which liability was

premised,’ or Defendant’s affiliations with large and rich

parent companies or out-of-state businesses.” 7VT

Records, 279 F. Supp. 2d at 451 (footnote and citations

omitted).

B. The Decision Below Ignores State Farm’s Holding

And Rationale By Upholding A Punitive Damages

Award Based On Alleged Harms To Individuals

Not Parties To The Case

1. The error of the California Court of Appeal below

in applying the single-digit safe harbor is compounded by

that court’s failure to apply correctly the first State Farm

guidepost, which requires an assessment of the degree of

reprehensibility of the defendant’s conduct. The court

below allowed alleged harms to persons who were not

before the trial court to form part of the basis for the

punitive damages award.

But this Court made clear in State Farm that not only

does the Due Process Clause impose territorial limits on

the conduct that may be considered by a jury, but also

basic notions of procedural due process preclude a jury

from awarding punitive damages for harm caused to

12

persons who are not parties to the particular action. “Due

process,” the Court explained, “does not permit courts, in

the calculation of punitive damages, to adjudicate the

merits of other parties’ hypothetical claims against a

defendant under the guise of the reprehensibility

analysis.” 538 U.S. at 423; see id. at 421 (“lajny proper

adjudication of conduct that occurred * * * to other persons

would require their inclusion”).

Yet that is precisely what occurred in this case. The

Court of Appeal plainly relied om harm to other

individuals, both smokers and non-smokers, in assessing

reprehensibility but declined to require respondent to

identify the specific individuals harmed, to demonstrate

that those individuals were harmed by the same

punishable conduct that underlay respondent’s harms, or

to establish that petitioner would be legally liable to those

particular individuals. Pet. App. 63a-64a. In a similar

situation arising in the Eighth Cirewit, Judge Bye

concurred in the invalidation of a punitive damages award

against a tobacco company because “such evidence can not

be considered when determining the amount of punitive

damages for the specific harm suffered by a plaintiff.”

Boerner, 394 F.3d at 606 (Bye, J., concurring in result).

2. This due process limitation on imposing

punishment for unadjudicated nonparty harms protects

the rights of both defendants and the persons who are not

before the court. If harm to nonparties could be considered

in the cases of other individual plaintiffs, there is a

substantial risk “of multiple punitive damages awards for

the same conduct; for in the usual case nonparties are not

bound by the judgment some other plaintiff obtains.” State

Farm, 538 U.S. at 423. As petitioner notes (Pet. 15), that is

more than a hypothetical concern in the arena of tobacco

litigation, where other California juries have awarded

other individual plaintiffs substantial punitive damages

awards against petitioner based on the same harms to the

same set of nonparty individuals. In essence, consideration

of harm to nonparties permits each individual plaintiff to

recover on behalf of a class.

13

Even were defendants to get an offset in subsequent

cases for earlier punitive damages awards, the exact basis

for a prior punitive damages award will] not always be

clear. And even where it is proven that the defendant has

already been punished severely for a course of conduct

that included harm to the current plaintiff, there is no

guarantee that the jury would agree to deny a different

plaintiff who is before that jury in a different suit recovery

of punitive damages simply because another plaintiff, in

another court, already may have recovered such damages.

See Roginsky v. Richardson-Merreli, Inc., 378 F.2d 832,

840 (2d Cir. 1967) (Friendly, J.) (“whatever the right result

may be in strict theory, we think it somewhat unrealistic

to expect a judge, say in New Mexico, to tell a jury that

their fellow townsman should get very little by way of

punitive damages because Toole in California and

Roginsky and Mrs. Ostopowitz in New York had stripped

that cupboard bare, even assuming the defendant would

want such a charge, and still more unrealistic to expect

that the jury would follow such an instruction or that, if

they didn't, the judge would reduce the award below what

had become the going rate”).

Permitting an aggregate recovery followed by offsets

in future cases could, moreover, unfairly deprive

subsequent claimants of their own recoveries, including

compensatory damages, either as a matter of law or

because the pool of money available to those subsequent

plaintiffs will be substantially reduced by the recovery of

the initial plaintiff. Cf, Ortez v. Fibreboard Corp., 527 U.S.

815, 834-842 (1999) (discussing judicial responses to

“limited fund” situations in class actions).

In all these circumstances, it is difficult, if not

impossible, for defendants to rebut divergent charges

about what happened to persons not before the court

because of a myriad of evidentiary and practical] issues.

That is especially true given the constraints that trial

courts must necessarily impose to make jury trials

manageable. See 2 Jack B. Weinstein & Margaret A.

Berger, Weinstein'’s Federal Evidence § 403.06(2) (2d ed.

2005).

14

Furthermore, even where a defendant prevails and

establishes in an initial suit that it is not liable to a

particular plaintiff, it is possible that such a defendant

could lose the benefit of that victory against the same

claim of misconduct as a basis for a punitive damages

award in a later case because the prior verdict would not

bind the later jury in its determination of punitive

damages. Likewise, where a defendant prevails and is

found not legally liable in some or most later suits

involving similar claims there is no means for that

defendant to recoup whatever portion of any earlier

punitive damages award in another case was based on the

alleged harm for which the defendant is later found not

responsible.

The California Court of Appeal’s decision to permit a

jury to consider the effect of petitioner's conduct on

persons not before the court essentially deputizes the

presumably well-meaning but inexpert individuals serving

on the jury to act as de facto regulators with the authority

to impose monetary penalties far greater than the State

has authorized to be imposed by its own expert state

regulators. Pet. App. 71a-72a. And, significantly, the jury’s

vote to award punitive damages in this case was not

unanimous. The plaintiff mustered the bare minimum of

votes necessary under California law, with a vote of 9 to 3.

Yet those nine individuals voted to award the single

plaintiff here $3 billion in punitive damages against a

single defendant. Even after the reduction to $50 million,

that punitive damages award will supplant all other state

regulation in the eyes of defendants. Cf. Geier v. American

Honda Motor Co., 529 U.S. 861, 871 (2000) (describing

effect of jury verdicts as akin to regulation).

When faced with the threatened risk of financial

exposure from such a punitive damages award based on

alleged harm to persons or entities not before the court,

defendants are often subject to heightened (and

unjustified) pressure to settle cases regardless of the

likelihood of winning or losing the case on liability against

a particular plaintiff. Such an approach “‘over-deter(s)’ by

leading potential defendants to spend more to prevent the

15

activity that causes the economic harm * * * than the costs

of the harm itself,” Gore, 517 U.S. at 593 (Breyer, J.,

concurring), and thus potentially “dissuad/ies] activities

commercially or socially beneficial on account of excessive

caution induced among some corporate managers by fear

of disproportionate punitive liability.” TVT Records, 279

F. Supp. 2d at 429.

CONCLUSION

For the reasons set forth above and in the petition for

a writ of certiorari, the Court should grant the petition.

Respectfully submitted,

Rosin S. CONRAD W. STEPHEN SMITH

AMAR D. SARWAL BeTH S. BRINKMANN*

NATIONAL CHAMBER SETH M. GALANTER

LITIGATION CENTER, INC. MORRISON & FOERSTER LLP

1615 H Street, N.W. 2000 Pennsylvania Ave., N.W.

Washington, D.C. 20062 Washington, D.C. 20006

(202) 463-5337 (202) 887-1544

*Counsel of Record

December 15, 2005

FILED

3 DEC 22 2005

No. 05-594 OFFICE OF Lith prey

IN THE

Supreme Court of the United States

PHILIP Morris USA,

Petitioner,

Vv.

JUDY BOEKEN, AS TRUSTEE, ETC.,

Respondent.

On Petition for Writ of Certiorari to the

California Court of Appeal

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave,, NW

Washington, DC 20036

(202) 588-0302

Date: December 22, 2005

WiILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WAasHiINGTON, D.C. 20001

QUESTION PRESENTED

Amicus curiae addresses the following question only:

Whether, despite this Court's holding that the Federal

Cigarette Labeling and Advertising Act (15 U.S.C. §§ 1331 ef

seq.) preempts state law “failure to warn” claims, States may

use a “consumer expectations” theory to impose liability for

failure to provide warnings about the dangers of smoking

beyond the warnings mandated by Congress.

eee

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......cccccccccvccvess iv

INTERESTS OF AMICUS CURIAE .........000050: 1

STATEMENT OF THE CASE .........65:eceeeeees 2

REASONS FOR GRANTING THE PETITION ....... 4

I. REVIEW IS WARRANTED TO PRESERVE THE

UNIFORMITY PRINCIPLE THAT ANIMATES

THE LABELING ACT AND SIMILAR

PREF DOMRUUIEEED cocscbcucvicéccosvesse 6

fl. REVIEW IS WARRANTED BECAUSE THE

ISSUE RAISED HERE RECURS FREQUENTLY

AND HAS DIVIDED THE LOWER COURTS .. 12

ill. REVIEW IS WARRANTED BECAUSE THE

DECISION BELOW CONFLICTS WITH THIS

COURT'S PREEMPTION DECISIONS ........ 16

GRUGMMIEEEINS coceveccrvedbuddevesececessanes 20

iv

TABLE OF AUTHORITIES

Page

Cases:

Aetna Health Inc. v. Davila,

Cn cswessesiorastvacsvevaens de 17

Allis-Chalmers Corp. v. Lueck,

ee Ss ED on acd becdvcdeecaneunecnvad 17

Arnold v. Dow Chemical Co.,

91 Cal. App. 4th 698 (2001) 0.0... .. cece ee ce eeeees 16

Baldwin v. Alabama,

ccs ee be ube nn¢ ketwee eden 16

Barker v. Lull Engineering Co.,

PG ROE bccbddwscccechesdveseses 3,13

Bates v. Dow AgroSciences LLC,

ee as ROO cecvccncttvisvcionne 5, 11, 18

Buckman Co. v. Plaintiffs’ Legal Committee,

er ii PRED 6 wis ceencskedpecetsuewenaeee 10

Cipollone v. Liggett Group, Inc.,

Fe Gs SOR CUNOED cc oO Fivvedsccvccéues 5, 8, 9, 17-18

In re Deep Vein Thrombosis Litigation,

2005 U.S. Dist. LEXIS 4043 (N.D. Cal. 2005).... 11,12

Lorillard Tobacco Co. v. Reilly,

Ciel rekein bbb ees seuss ipadtne 8

McCathern v. Toyota Motor Corp.,

PG, AE CONE ebb cccbcccecccesncdeens 14

Morales v. TWA,

EEE OO OE PE Te LP 11

Norfolk Southern Railway Co. v. Shanklin,

ha ada ine pct beds cukeeen be 11

Papike v. Tambrands Inc.,

107 F.3d 737 (9th Cir.), cert. denied,

si i id ues 6h 004d bes 15, 16

San Diego Building Trades Council v. Gammon,

EE ice y.d seh cu ces'e econ ewuestn’ 9

Page

Soule v. General Motors Corp.,

Dat aE, bdeeeussccoceodeueeceevess 14

Witty v. Delta Air Lines, Inc.,

Bee Fes SE PN Ge BSED cc cccccecccccccccces 11

Statutes:

Airline Deregulation Act of 1978 (“ADA”),

Dn fees adiucadeeedscecteudsec ll

SE PECTEMEEEED coucccerccscoesessecs 1!

Federal Cigarette Labeling and Advertising Act

(“Labeling Act”), 15 U.S.C. § 1331 ef seg. ...... passim

EE Aon cb cveeekepteseecued evn 7

in totes shbdesae ouéacnede ei 10

reek a isd bet entesechbbosks’ 8

SP Se SEED cect ccentecveees 8, 17, 19, 20

PE SEED be nes 6udoebccecsoes 8, 17,19

Federal Insecticide, Fungicide, and Rodenticide

Act (“FIFRA”), 7 U.S.C. § 136 ef seg. .......... 10, 15

Di ds cote snhuecadéeecion 10, 15

Federal Railroad Safety Act of 1970, 84 Stat. 97!

(1970), 45 U.S.C. § 20101 ef seg. ............044.- 11

Medical Device Amendments of 1976 .............. 10

WO I BONIS 6 oon cv cccccecccvrccecess 10

Miscellaneous:

John F. Vargo, “The Emperor’s New Clothes:

The American Law Institute Adorns a ‘New

Cloth’ for Section 402A Products Liability

Design Defects — A Survey of the States

Reveals a Different Weave,” 26 U. MEM. L.REV.

GE dddetoduictsdntcheotuaseveresesess

RESTATEMENT (SECOND) OF TORTS (1965),

RE EE EES eR aE

RESTATEMENT (THIRD) OF TORTS:

PRODUCTS LIABILITY (1998) §2...........20000ee

IN THE

SUPREME COURT OF THE UNITED STATES

No. 05-594

PuiLip Morris USA,

Petitioner,

Vv.

JUDY BOEKEN, AS TRUSTEE, ETC.,

Respondent.

On Petition for Writ of Certiorari to the

California Court of Appeal

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTERESTS OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is a non-profit

public interest law and policy center with supporters in all 50

States.’ WLF devotes a substantial portion of its resources to

defending free-enterprise, individual rights, and a limited and

accountable government. To that end, WLF has frequently

appeared as amicus curiae in this and other federal courts in

cases involving preemption issues, to point out the economic

' Pursuant to Supreme Court Rule 37.6, WLF states that no

counsel for a paity authored this brief in whole or in part; and that no

person or entity, other than WLF and its counsel, contributed

monetarily to the preparation and submission of this brief.

2

inefficiencies created when multiple layers of government seek

simultaneously to regulate the same business activity. See, e.g..

Bates v. Dow AgroSciences LLC, 125 S. Ct. 1788 (2005);

Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341

(2001); Geier v. American Honda Motor Co., 529 U.S. 861

(2000); United States v. Locke, 529 U.S. 89 (2000).

WLF is particularly concerned that individual freedom and

the American economy both suffer when state law, including

state tort law, imposes upon industry an unnecessary layer of

regulation that frustrates the objectives or operation of federal!

regulatory programs. Such programs include the Federal

Cigarette Labeling and Advertising Act (the “Labeling Act’),

which is intended to promote uniformity in cigarette

labeling/advertising regulation and to reinforce First

Amendment values and, consequently, commercial free speech

rights by limiting state and local power to restrict commercial

speech.

WLHF believes that both of the issues raised by the Petition

are worthy of the Court's review. Nonetheless, this brief

focuses solely on the first Question Presented, regarding the

California Court of Appeal's preemption ruling.

WLF has no direct interest, financial or otherwise, in the

outcome of this case. It is filing due solely to its interest in the

important preemption issues raised by this case. WLF is filing

this brief with the consent of all parties. The written consents

have been lodged with the Clerk of the Court.

STATEMENT OF THE CASE

Respondent Richard Boeken died of lung cancer after

smking, for more than 40 years, cigarettes manufactured by

Petitioner Philip Morris USA (“PM USA”) and its predecessors.

3

Before his death, he filed suit against PM USA seeking damages

for common-law fraud and product liability. He argued, inter

alia, that Marlboro Lights were not as safe as he and other

ordinary consumers expected und thus that PM USA should be

held strictly liable under a product liability theory.

The jury returned a general verdict in favor of Respondent,

awarding $5.5 million in compensatory damages and $3 billion

in punitive damages. The trial court reduced the punitive

damages award to $100 million but otherwise upheld the jury

award. Pet. App. 155a-181a.

The California Court of Appeal reduced the punitive

darnages award to $50 million but affirmed the liability verdict.

Id. \a-78a. Although Respondent had raised several product

liability theories at trial, the Court of Appeal said that the

verdict could be affirmed on basis of the “consumer

expectations test.” /d 28a. The court explained, “The

consumer expectatio.is test is satisfied when the evidence shows

that ‘the product failed to perform as safely as an ordinary

consumer would expect when used in an intended or reasonably

foreseeable manner."” /d. 28a-29a (quoting Barker v. Lull

Engineering Co., 20 Cal. 3d 413, 429 (1978)). The court said

that “substantial evidence” supported the finding that Marlboro

Lights were a defective product under that test. /d. 28a. The

Court said that “most smokers” believe that Marlboro Lights are

safer than ordinary cigarettes because, when they are smoked

the same way as ordinary cigarettes, less tar is inhaled (as

measured by Federal Trade Commission-approved standards).

Id. at 29a. The Court held that substantial evidence supported

Respondent’s claim that Marlboro Lights smokers generally

inhale as much tar as smokers of ordinary cigarettes.

Respondent's evidence suggested that that result is due to

“compensation”: the tendency of smokers to draw more smoke

4

into their lungs and to keep it there longer when smoking “light”

cigarettes. Id.

The court rejected PM USA's contention that

Respondent's claim under the consumer expectations test was

preempted by the Labeling Act. /d@ Although apparently

conceding that the Labeling Act would have preempted any

failure-to-warn claim raised by Respondent, the court said that

Respondent's product liability claim was not preempted because

“{p}roduct liability under a failure-to-warn theory is a distinct

cause of action from one under the consumer expectation test.”

id. The court also said that additional warnings could not have

made Marlboro Lights any safer because “the only way to

reduce the risk is to quit smoking.” /d.

The California Supreme Court denied PM USA's petition

for review on August 10, 2005.

REASONS FOR GRANTING THE PETITION

This case presents an issuc of exceptional importance to

thousands of companies throughout the Ur.ited States: whether

their activities should be regulated on a uniform basis

nationwide by the federal government, or whether they are

subject to a different set of regulations in each State in which

they operate. Through its adoption of a variety of statutes,

Congress has made clear its intent that certain industries should

be subject to uniform regulation with respect to what they

should and should not say to consumers, and that State

regulation of that subject matter be preempted. The decision

below applied a very narrow reading to federal] preemption and

thereby threatens to undermine the national uniformity Congress

sought to achieve. Review is warranted in light of the

importance of this preemption issue to the ability of the

businesses to operate on a nationwide basis.

5

Review is also warranted because of the frequency with

which the Question Presented arises, under the Labeling Act and

similar statutes. At least half of the 50 States apply some form

of the “consumer expectations test” to determine whether a

manufacturer can be held strictly liable in tort for manufacturing

a defective product. In determining just what “consumer

expectations” are, most of those States look to statements of the

product manufacturer. The California Court of Appea! was

correct that a product liability cause of action that proceeds

under the “consumer expectations test” is a separate cause of

action from a “failure to warn” cause of action; that is true both

in California and elsewhere. But the Court of Appeal went on

to conclude that because a “consumer expectations test” claim

is a distinct cause of action, such a claim is not subject to the

same federal preemption limitations as is a “failure to warn”

claim. Pet. App. 29a, That position is a well-entrenched

minority position, albeit it is one that has been rejected by a

clear majority of State and federal courts that have considered

the issue. Because the application of federal preemption

provisions to state-law product liability claims applying the

“consumer expectations test” is an issue that arises frequently

and that has divided the lower courts, review is warranted to

resolve that conflict.

Review is also warranted because the decision below is so

clearly at odds with the decisions of this Court that have

addressed federal preemption c’*.« _In both Cipollone v.

Liggett Group, Inc., 505 U.S. 5 4 .1992), and Bates v. Dow

AgroSciences LLC, 125 S. Ct. . 88 (2005), the Court made

clear that in determining whether a common law cause of action

is one that Congress intended to preempt, courts should examine

the common law duty being imposed by that cause of action.

When, as here, the common law duty is one that Congress

intended to bar States from imposing, the cause of action is

preempted. The California Court of Appeal never engaged in