Klingebiel v. Lockheed Aircraft Corporation

• Citation: 372 F. Supp. 1086
• Decision Date: 19 November 1971
• Docket Number: No. C-71 993 AJZ.,C-71 993 AJZ.
• Parties: Frieda KLINGEBIEL et al., Plaintiffs, v. LOCKHEED AIRCRAFT CORPORATION, a California corporation, Defendant.
• Court: U.S. District Court — Northern District of California

372 F. Supp. 1086

Frieda KLINGEBIEL et al., Plaintiffs, v. LOCKHEED AIRCRAFT CORPORATION, a California corporation, Defendant.

No. C-71 993 AJZ.^*

United States District Court, N. D. California.

November 19, 1971.

Kirtland & Packard, Los Angeles, Cal., for defendant.

Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Cal., for plaintiffs in Nos.: C-71-993, C-71-994, C-71-995, C-71-1003, C-71-1006, C-71-1007, C-71-1073, C-71-1640, C-71-1657, C-71-1695, C-71-2068, C-71-2069, and C-71-2118 to C-71-2122.

Belli, Ashe, Ellison, Choulos & Lieff and Lieff, Alexander, Wilcox & Hill, San Francisco, Cal., for plaintiffs in Nos.: C-71-1004, C-71-1005, C-71-1322, C-71-1271, C-71-1334, C-71-1523, and C-7-1740 to C-71-1742.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION FOR A MORE DEFINITE STATEMENT.

ZIRPOLI, District Judge.

These 26 cases are all wrongful death actions arising out of alleged defects in the F-104 Starfighter, a jet plane designed, manufactured and sold by defendant Lockheed Aircraft Corporation. Plaintiffs are the parents, wives and children of various members of the German Air Force whose deaths were allegedly caused by these defects. Defendant has made a motion to dismiss on the theory that the applicable California statute of limitations bars some of these actions. Plaintiffs oppose the motion on the theory that the longer German statute of limitations applies.¹ The parties agree that the court's selection of the applicable statute will apply to all the cases,² although the consequences to the individual plaintiffs of selecting any particular statute of limitations will necessarily vary from case to case.

The basis of defendant's motion is that the California one-year statute of limitations for wrongful death actions applies to these cases. The California Code of Civil Procedure provides:

§ 335.

PERIODS OF LIMITATION PRESCRIBED. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:

§ 340.

Within one year:

1. . . .

2. . . .

3. An action for libel, slander, assault, battery, false imprisonment, seduction of a person below the age of legal consent, or for injury to or for the death of one caused by the wrongful act or neglect of another . . . .

Defendant takes the position that the statute of limitations is "procedural," and the forum court must therefore apply it if a California state court would. If the court does so, the defendant argues, this statute would then bar the actions of any adult plaintiff who has not filed suit within one year after the date of death of plaintiff's decedent.³

Plaintiffs, on the other hand, take the position that the German statute of limitations applies.⁴ Section 852 of the German Civil Code provides:

"The deadline of a claim for compensation of damages arising out of a tort is three years and begins when the person who has suffered damages learns about the damage and obtains information as to the identity of the person who is liable to make compensation but without regard to this knowledge the deadline is thirty years from the date the tort was committed."

Plaintiffs admit that prior to 1967, California courts uniformly characterized Section 340(3) of the Code of Civil Procedure as "procedural" and applied it to all wrongful death actions. However, plaintiffs argue that in Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967), the California Supreme Court abandoned the principle of lex loci delicti for choice of the lex causae, and, consequently, abandoned the application of a "procedural" limitations period. From this premise, plaintiffs further argue that since plaintiffs did not discover the "identity of the person who is liable to make compensation" until shortly before suit was filed, the German limitations period applies, and no plaintiff is barred from maintaining his action.⁵

The positions of the parties to this litigation clearly delimit the question of law before this court. In Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211 (1953), the Supreme Court of the United States held that the forum state may apply its own statute of limitations to a foreign cause of action, although this court is of the view that neither Wells nor any other authority requires the forum state to do so. Thus, in determining whether California's statute of limitations, applies to a foreign cause of action for wrongful death, this court must apply whatever rule of conflict of laws the state courts of California would follow. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

There is no question that Reich v. Purcell, supra, markedly changed the character of California's choice of law rules. In Reich, the California Supreme Court held that in a wrongful death action brought in California by residents of Ohio following an automobile accident in Missouri, defendant's liability should not be limited to the $25,000 maximum under Missouri law, where California had no interest in applying its own laws, which did not contain a statutory limitation of damages, and where the substantial interests of Ohio, also without a statutory limitation on damages, did not conflict with any substantial interest of Missouri. The significance of the case is the court's holding that "the law of the place of the wrong is not necessarily the applicable law for all tort actions brought in the courts of this state." 67 Cal.2d at 555, 63 Cal.Rptr. at 34, 432 P. 2d at 730. While the court agrees with plaintiffs' contention that the principle of "interest analysis" enunciated in Reich will probably lead to the application of German substantive law to their causes of action, the court does not agree that Reich requires this court to apply the German statute of limitations. The cases cited by plaintiffs do not support the assertion that the principle of "interest analysis" also applies to the choice of "procedural" law. See, e. g., Ryan v. Clark Equipment Co., 268 Cal. App.2d 679, 74 Cal.Rptr. 329; Fuller v. Greenup, 267 Cal.App.2d 10, 72 Cal.Rptr. 531 (1968); Howe v. Diversified Builders, Inc., 262 Cal.App.2d 741, 69 Cal. Rptr. 56 (1968); Travelers Insurance Co. v. Workmen's Compensation Appeals Bd., 68 Cal.2d 7, 64 Cal.Rptr. 440, 434 P.2d 992 (1967). Rather, the viability of the dichotomy between "substantive" and "procedural" law is reinforced by the only post-Reich California case considering this question which the parties have brought to the attention of the court. In St. Louis-San Francisco Ry. Co. v. Superior Court, 276 Cal.App.2d 762, 767, 81 Cal.Rptr. 705, 708 (1969), the court of appeal observed:

"Later California decisions have reflected the present view of the California Supreme Court that this state will no longer apply the lex loci delicti theory in solving conflict of laws problems . . . but will apply the substantive law deemed most appropriate in light of the significant interest in the particular case. However, if the matter is purely procedural the law of the forum must be applied since `the forum does not adopt as its own the procedural law of the place where the tortious acts occur' . . . ."

Accordingly, if the court concludes that California's statute of limitations is procedural, it will apply to these cases.

The weight of authority compels this court to conclude that the statute is procedural, and thus it applies to the cases now before the court. Numerous California cases have held that the effect of the statute of limitations is procedural:

"It is a principle of conflict of laws recognized in California that the barring of a claim by the statute of limitations is a procedural matter governed by the law of the forum, regardless of where the cause of action arose." Biewind v. Biewind, 17 Cal.2d 108, 114, 109 P.2d 701, 705 (1941).

This principle has been repeatedly reiterated by the California state courts: see, e. g., Boyle v. Lampe, 223 Cal.App. 2d 715, 719, 35 Cal.Rptr. 910 (1963); Mills v. Mills, 147 Cal.App.2d 107, 305 P.2d 61 (1956); Grant v. McAuliffe, 41 Cal.2d 859, 864, 264 P.2d 944 (1953).

The federal courts sitting in California have heretofore taken the same view, as they must. In Costello v. Atlas Corp., 297 F.Supp. 19, 22 (N.D.Cal.1967), the court held:

"Regardless of where the cause of action arises, California courts apply the California statute of limitations. . . . Accordingly, this Court must apply California's limitation statute to this action. McMillen v. Douglas Aircraft Co., 90 F.Supp. 670 (S.D.Cal.1950)."

In Zellmer v. Acme Brewing Co., 184 F. 2d 940 (9th Cir. 1950), the Ninth Circuit held the California one-year period applicable to a wrongful death action resulting from a Nevada accident brought in a federal court sitting in California. In so holding the court said:

"While on settled principles substantive rights arising in one state are generally enforceable elsewhere, such right may be denied by statutory law of any forum. We are of the opinion that California Code of Civil Procedure § 340(3) limits to one year the time within which any wrongful death action, wherever accruing, can be commenced in California courts." Id. at 943.

The court rejected appellant's contention that the California legislature intended the one-year time limit to apply solely to causes of action for death arising in California. In commenting on appellant's contention that the limitation period of the Nevada statute was substantive (not merely procedural), the court observed that it did not follow from that that appellant could prosecute her claim in another state at any time during such period notwithstanding that the limitations period of the other state was shorter. Even conceding that the substantive right still existed, the court could not concede that there was a remedy in a California forum. Following this reasoning...