Mitsubishi Materials v. Superior Court, G030056.

CourtCalifornia Court of Appeals
Citation130 Cal.Rptr.2d 734,106 Cal.App.4th 39
Decision Date06 February 2003
Docket NumberNo. G030056.,G030056.
PartiesMITSUBISHI MATERIALS CORPORATION et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; Frank H. Dillman et al., Real Parties in Interest.
130 Cal.Rptr.2d 734
106 Cal.App.4th 39
The SUPERIOR COURT of Orange County, Respondent;
Frank H. Dillman et al., Real Parties in Interest.
No. G030056.
Court of Appeal, Fourth District, Division 3.
February 6, 2003.
As Modified March 7, 2003.
Review Granted April 30, 2003.

[130 Cal.Rptr.2d 735]

Morrison & Foerster, Kathleen V. Fisher, Arne D. Wagner and H. Mark Mersel, Irvine, for Petitioners.

Robert D. McCallum, Jr., Assistant Attorney General of the United States, John S. Gordon, United States Attorney; Mark Stern, Douglas Hallward-Driemeier, Kathleen Kane, United States Department of Justice; James G. Hergen and Lara A. Ballard, United States Department of State, for the United States of America as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Herman, Mathis, Casey, Kitchens & Gerel, David S. Casey, Jr., and Bonnie E. Kane, San Diego, for Real Parties in Interest.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Jr., Senior Assistant Attorney General, Catherine Z. Ysrael, Supervising Deputy Attorney General, and

[130 Cal.Rptr.2d 736]

Angela Sierra, Deputy Attorney General, for the State of California as Amicus Curiae on behalf of Real Parties in Interest.




Before us are claims by surviving American prisoners of war against a number of Japanese companies for whom they were forced to do slave labor during World War II. It is a remarkable case, one in which the Attorney General of the United States and the Attorney General of the State of California are on opposite sides.

The immediate cause of the litigation is a recent change to our state law which was intended to allow "Second World War slave labor" victims to bring a lawsuit to recover compensation under state law for their labor against private companies who benefited by that labor during the war. (Code Civ. Proc, § 354.6.) The legislation actually creates a state law claim which would not otherwise exist,1 or if it ever did exist, would have been long since barred by the statute of limitations.2 Our state Attorney General seeks to uphold the law against the federal Attorney General's argument that all claims by American nationals against Japanese nationals were settled in the 1951 peace treaty that formally ended World War II between the United States and Japan. (Multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169, T.I.A.S. No. 2490 (Peace Treaty).

The plaintiffs here are survivors of Japanese prisoner of war camps who have brought this lawsuit against a group of Japanese companies, mainly Mitsubishi and Mitsui, for whom they were forced to work in World War II. The trial court overruled the demurrers of the Mitsui companies and denied the motion for judgment on the pleadings brought by the Mitsubishi companies.

Regrettably, as we explain below, the federal government has the better part of the argument regarding the effect of the treaty. Simply put, it precludes this lawsuit from going forward.3

130 Cal.Rptr.2d 737

Ordinarily appellate courts are reluctant to entertain writ proceedings based on erroneously overruled demurrers or improperly denied judgments on the pleadings. However, because the plaintiffs are World War II veterans, we issued an order to show cause so that the merits of the argument regarding the effect of the treaty could be expeditiously considered. It would be a disservice to these heroes of World War II to create the false hope of some sort of monetary recovery by permitting a lengthy trial only to reverse the judgment years later because federal law, as expressed in the treaty, required it.

However, the very process of explaining the effect of the treaty also requires that we recognize the sacrifice of these plaintiffs. That sacrifice deserves to be explicitly recognized by the judiciary of this country, regardless of the validity of the legal claims they are now making, indeed, all the more so in light of our determination that the 1951 treaty precludes this lawsuit. The unique circumstances of this case, including the special nature of the plaintiffs' claims arising out of a world war, compel the conclusion that these plaintiffs be given a forthright, honest explanation why their government waived their rights to seek redress in American courts against the companies that benefited from their slave labor.


We must begin by acknowledging the obvious: This case involves a treaty made by the federal government of the United States, and it is binding on us as a state court. In fact, the Constitution specifically mentions state courts in making treaties the "supreme Law of the land." Article 6, clause 2 of the United States Constitution provides that "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." As a treaty it therefore trumps any law of the State of California.

While treaty analysis obviously begins with the text of the treaty itself (e.g., El Al Israel Airlines, Ltd. v. Tseng (1999) 525 U.S. 155, 167, 119 S.Ct. 662, 142 L.Ed.2d 576), federal and state courts regularly look to the historical context of a treaty to elucidate its meaning, particularly where any terms are ambiguous or where the treaty is silent on a point. (E.g., Hosaka v. United Airlines, Inc. (9th

130 Cal.Rptr.2d 738

Cir.2002) 305 F.3d 989, 998 [because Warsaw Convention was silent on the availability of the doctrine of forum non conveniens, court considered historical context in which particular amendment had been offered]; Bruguier v. Class (S.D.1999) 599 N.W.2d 364, 374-375 [looking to historical context of treaty to determine whether a particular Indian reservation would continue].)

Because "`[t]reaties are construed more liberally than private agreements, ... to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.'" (Air France v. Saks (1985) 470 U.S. 392, 396, 105 S.Ct. 1338, 84 L.Ed.2d 289; accord Chan v. Korean Air Lines (1989) 490 U.S. 122, 134, 109 S.Ct. 1676, 104 L.Ed.2d 113 [recognizing that drafting history may be consulted to shed light on ambiguous text of treaty (opinion by Scalia, J.) ].) Even plain language must be viewed in its historical context. (Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe (1985) 473 U.S. 753, 774, 105 S.Ct. 3420, 87 L.Ed.2d 542 ["even though `legal ambiguities are resolved to the benefit of the Indians,' ... courts cannot ignore plain language that, viewed in historical context and given a `fair appraisal,' ... clearly runs counter to a tribe's later claims"]; see also Curry v. U.S. Forest Service (W.D.Pa.1997) 988 F.Supp. 541, 548 [noting that historical context of migratory bird treaty further demonstrated the intent of the treaty beyond its text not to apply to the federal government itself].)

In the present case, historical context is particularly important because it eliminates doubt in the language as to whether the treaty was intended to cover the claims of American POWs against private Japanese companies. Specifically, there are a number of places where the 1951 treaty is either vague (in the sense that people of ordinary intelligence have to guess at the meaning of words) or ambiguous (in the sense that words have multiple meanings), and consequently in need of clarification by reference to the surrounding circumstances under which the agreement was made.

One, in Article 14(b) of the treaty, the victorious Allied nations "waive" claims of "their nationals" arising out of the "prosecution" of the war against Japan and Japanese "nationals." (Peace Treaty, supra, 3 U.S.T. at p. 3183.) According to the plaintiffs, the word "waive" should not be construed to extinguish actions brought in American state courts under state law because the reference to the claims of the Allied Powers and their nationals necessarily implicates international claims only. Along those same lines, the reference to Japanese "nationals" raises the question of whether the word should be construed to include corporate entities, such as the defendants here, which have, in the post-war era, grown into large multinational corporations.

Also, Article 14(b) uses the phrase "prosecution of the war." (Peace Treaty, supra, 3 U.S.T. at p. 3183.) According to the plaintiffs, the word "prosecution" should not be interpreted to include actions which are contrary to international law. In particular, they point out that while the 1929 Geneva Convention (specifically Article 31) allowed POWs to be forced to do labor, that labor cannot have any connection with the operation of the war (such as putting POWs to work making munitions). They reason that since their own labor was in connection with the Japanese war effort, it was "illegal" under the Geneva Convention and therefore not part of the "prosecution" of the war.

Further, as plaintiffs strenuously point out, Article 14—where Allied claims are waived—does not parallel Article 19— where the Japanese waive their claims against the Allied powers and their nationals. (Peace Treaty, supra, 3 U.S.T. at pp.

130 Cal.Rptr.2d 739

3187, 3188.) What's more, the Japanese waiver in Article 19 contains a specific reference to Japanese POWs, yet the Allied waiver in Article 14 contains no specific reference to Allied POWs. For the plaintiffs, the asymmetry is itself significant, in that it shows that the claims of Allied POWs, unlike the claims of Japanese POWs, were not being waived.


The proper place to begin is with the sufferings endured by Americans taken prisoner by the Japanese in World War II, for those sufferings surely gave them many claims.

Most of the plaintiffs were taken...

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    • United States
    • United States State Supreme Court (California)
    • 24 September 2003
    ...Doyle, Brown & Enersen, San Francisco, CA, Matthew Edward Digby, Bingham McCutchen LLP, for Petitioners. Prior report: Cal.App., 130 Cal.Rptr.2d 734. Transferred to CA 4/3 after The above-entitled review is hereby transferred to the Court of Appeal, Fourth Appellate District, Division Three......

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