In re Tobacco Cases II,

Citation20 Cal.Rptr.3d 693,123 Cal.App.4th 617
Decision Date06 October 2004
Docket NumberNo. D041356.,D041356.
PartiesIn re TOBACCO CASES II, JCCP 4042.
CourtCalifornia Court of Appeals
20 Cal.Rptr.3d 693
123 Cal.App.4th 617
No. D041356.
Court of Appeal, Fourth District, Division 1.
October 6, 2004.
Rehearing Denied October 27, 2004.
Review Granted February 16, 2005.

[20 Cal.Rptr.3d 696]

Blumenthal & Markham, Norman B. Blumenthal, San Diego, David R. Markham, Kyle R. Nordrehaug; Thorsnes, Bartolotta & McGuire, Vincent J. Bartolotta, Jr., John F. McGuire, Karen Frostrom; Chavez & Gertler, Mark A. Chavez, Mill

[20 Cal.Rptr.3d 697]

Valley; and Thomas E. Sharkey, San Diego, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, William N. Brieger, Acting Chief Assistant Attorney General, Dennis Eckhart and Herschel T. Elkins, Assistant Attorneys General, Ronald Reiter, Seth E. Mermin and Alan Lieberman, Deputy Attorneys General, as Amicus Curiae on behalf of Plaintiffs and Appellants.

Munger, Tolles & Olson, Gregory P. Stone, Daniel P. Collins, Steven B. Weisburd, Los Angeles; Seltzer Caplan McMahon Vitek, Gerald L. McMahon and Daniel E. Eaton, San Diego, for Defendant and Respondent Philip Morris USA Inc.

Gray Cary Ware & Freidenrich, William S. Boggs and Brian A. Foster, San Diego, for Defendant and Respondent Lorillard Tobacco Company.

Howard, Rice, Nemerovsky, Canady, Falk & Rabkin, H. Joseph Escher III, San Francisco, Todd E. Thompson; Jones, Day, Reavis & Pogue and William T. Plesec for Defendant and Respondent R.J. Reynolds Tobacco Company.

Sedgwick Detert Moran & Arnold and Steven D. DiSaia for Defendant and Respondent Brown & Williamson Tobacco Corp.


The representative plaintiffs in this class action asserting claims under California's unfair competition law (Bus. & Prof.Code, § 17200 et seq. (UCL)) appeal a summary judgment in favor of defendant tobacco companies Philip Morris Incorporated (Philip Morris), R.J. Reynolds Tobacco Company (R.J. Reynolds), Lorillard Tobacco Company, and Brown & Williamson Tobacco Corporation.1 The summary judgment is based on the granting of two separate motions for summary judgment brought jointly by defendants—one based on federal preemption under the Federal Cigarette Labeling and Advertising Act, 15 United States Code section 1331 et seq., (FCLAA) and the other based on the protection afforded commercial speech by the First Amendment of the United States Constitution and article I, section 2 of the California Constitution. Plaintiffs contend the court erred by (1) ruling all of their claims are preempted by the FCLAA; (2) ruling defendants' activities were protected by the First Amendment; and (3) denying plaintiffs' motion for "relief from proceedings" under Code of Civil Procedure section 473 that sought consideration of evidence identifying specific perpetrators of illegal sales in connection with their claim that defendants aided and abetted illegal sales of cigarettes to minors. Alternatively, plaintiffs contend they should be given leave to amend their complaint because the summary judgment motions were effectively motions for judgment on the pleadings.2 We affirm the judgment on the grounds of FCLAA preemption and insufficient evidence to raise a triable issue

20 Cal.Rptr.3d 698

of fact as to the only nonpreempted claim put in issue by plaintiffs.


This action was filed as a class action on behalf of "all persons who as California resident minors (under 18 years of age) smoked one or more cigarettes in California between April 2, 1994, and December 31, 1999." Plaintiffs' second amended complaint (the complaint) sought restitutionary and injunctive relief under two causes of action, one for unlawful or deceptive business practices in violation of the UCL and one for untrue or misleading advertising in violation of Business and Professions Code section 17500 et seq.3 The court certified the case as a class action.4

The complaint alleges: "This case arises from a scheme involving [d]efendants' systematic advertising efforts which appeal not only to adults, but also to children under the age of 18.... Defendants' scheme was to market cigarettes for consumption to California consumers, including minors below 18." According to the complaint, defendants have concealed internal research showing tobacco causes cancer and other diseases and have repeatedly told the public nicotine is not addictive despite knowing it is highly addictive. To prevent a precipitous decline in cigarette sales resulting from smoking-related deaths, defendants make children and teenagers the main target of "deceptive acts, including unfair and deceptive marketing programs and advertising." As a result, over 3,000 children begin smoking every day. Eighty-two percent of adults who have ever smoked had their first cigarette before age 18, and more than half became regular smokers before that age. Tobacco use by minors continues to increase. Defendants have intentionally promoted youth cigarette smoking by designing marketing and advertising campaigns intended to appeal to minors (while proclaiming they are not targeting minors); placing tobacco advertisements near schools and playgrounds and in youth-oriented publications; distributing logos and characters on promotional items like T-shirts and baseball caps directly to minors or in areas frequented by minors; advertising in video arcades; sponsoring events likely to attract youth interest; and paying for the promotion of their products in movies that appeal to young people. By advertising in magazines read by minors, defendants have willfully set in motion a chain of distribution illegal under Penal Code section 308, which prohibits the sale of tobacco to minors under the age of 18.

20 Cal.Rptr.3d 699

Defendants never warned class members or any other California consumer that cigarettes are highly addictive.5

Defendants jointly filed two separate motions for summary judgment, one based on federal preemption under the FCLAA and the other based on the First Amendment. The court issued telephonic rulings granting both motions. Plaintiffs requested oral argument and filed a "motion for relief from proceedings pursuant to [Code of Civil Procedure section 473, subdivision (b)]" seeking "relief from the ... rulings granting summary judgment to Defendants insofar as those rulings were based on an alleged lack of evidence that Penal Code [section] 308 was violated during the class period." After hearing oral argument on the summary judgment motions, the court denied plaintiffs' motion for relief under Code of Civil Procedure section 473, issued a final ruling granting the summary judgment motions, and entered final judgment in favor of defendants.

Request for Judicial Notice

Defendants ask us to judicially notice four federal district court orders6 and plaintiffs' opposition to the petition they filed in the California Supreme Court seeking review of this court's denial of their petition for writ of mandate challenging the trial court's class certification ruling. Plaintiffs have not opposed defendants' request for judicial notice.

"Although a court may judicially notice a variety of matters (Evid.Code, § 450 et seq.), only relevant material may be noticed." (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, 31 Cal.Rptr.2d 358, 875 P.2d 73 (Mangini).) If a document is relevant and subject to judicial notice, notice is taken of its existence but not of the truth of any matters asserted in it. (Ibid.) Although we may take judicial notice of materials not before the trial court, including records of another court (Evid.Code, §§ 459, subd. (a), 452, subd. (d)), we need not give effect to that evidence. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.)

The opposition brief plaintiffs filed with the California Supreme Court is subject to judicial notice as a record of that court (Evid.Code, § 452, subd. (d)) and is relevant to defendants' argument that their summary judgment motions addressed all of the issues raised by plaintiffs' complaint. The four federal court orders in question are subject to judicial notice as court records (Forty-Niner Truck Plaza, Inc. v. Union Oil Co. (1997) 58 Cal.App.4th 1261,

20 Cal.Rptr.3d 700

1277, fn. 7, 68 Cal.Rptr.2d 532) and as federal decisional law (Evid.Code, § 451, subd. (a); Mangini v. R.J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1064, 31 Cal.Rptr.2d 358, 875 P.2d 73). The first, second and fourth orders (attached to the request for judicial notice as exhibits B, C and E, respectively) are relevant to defendants' argument that statutory immunity bars plaintiffs' fraud-based claim that defendants falsely denied smoking was addictive. The third order (exhibit D) is relevant to defendants' preemption argument. All four orders are cited in defendants' respondents' brief. Because the materials defendants ask us to judicially notice are relevant and subject to judicial notice, we grant defendants' request for judicial notice.7

Summary Judgment Standards

Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment "bears the burden of persuasion that `one or more elements of' the `cause of action' in question `cannot be established,' or that `there is a complete defense' thereto." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) A summary judgment motion must be directed to the issues raised by the pleadings, and the papers filed in opposition to the motion may not create issues outside the pleadings or operate as a substitute for an amendment to the pleadings. (Nash v. Fifth Amendment (1991) 228 Cal.App.3d 1106, 1116, 279 Cal.Rptr. 465.) A defendant moving for summary judgment is not required to refute liability on some theory not included in the pleadings. (Ibid.)

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