Mitsubishi Materials v. Superior Court

Decision Date05 November 2003
Docket NumberNo. G030056,G030056
Citation113 Cal.App.4th 55,6 Cal.Rptr.3d 159
CourtCalifornia Court of Appeals Court of Appeals
PartiesMITSUBISHI MATERIALS CORPORATION et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; Frank H. Dillman et al., Real Parties in Interest.

for the State of California as Amicus Curiae on behalf of Real Parties in Interest.




Our original opinion in this matter was filed February 6, 2003. The California Supreme Court granted review on April 30, 2003. While the case was pending before that court, the United States Supreme Court handed down American Ins. Ass'n v. Garamendi (2003) 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376. The Garamendi case held that California's Holocaust Victim Insurance Relief Act was unconstitutional, because it conflicted with express federal policy concerning the recovery of insurance proceeds confiscated by Nazi Germany. In light of Garamendi, the California Supreme Court transferred this case back to this court, with instructions to vacate our earlier decision and reconsider the matter in light of the federal court's Garamendi opinion.

The interim has also given us the benefit of Deutsch v. Turner Corp. (9th Cir.2003) 324 F.3d 692, a Ninth Circuit decision holding that the very law at issue before us — which allows former American POWs forced to do slave labor for Japanese companies during World War II to sue those companies — is unconstitutional because it intrudes on the federal government's power to make and resolve war claims. (See id. at p. 712.) That decision was made final only a few weeks ago (October 6, 2003) with the denial of the POWs' petition to have the United States Supreme Court take the case.

We now vacate our prior decision and issue this new opinion in light of both of these two federal court decisions, plus the additional briefing submitted by both sides after the Supreme Court transferred the case back to this court:


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 relatively 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.)1

Make no mistake about it — this legislation actually creates new claims that would not otherwise exist. (See Deutsch v. Turner Corp., supra, 324 F.3d at p. 707 ["Regardless of any pre-existing law, the California legislature chose to create a specific cause of action for persons subjected to slave labor by the Nazis and their allies and sympathizers."]) As the Ninth Circuit's Deutsch decision points out, the law defines a class of plaintiffs who may sue, sets forth a method for measuring damages, and establishes a special rule for corporations affiliated with any Nazi ally. (Ibid.) And as should be obvious to anyone, any arguable causes of action under California law which American POWs might have possessed against Japanese nationals or corporations for conduct during World War II have long since expired. The only way the plaintiffs in the case before us now could have a viable lawsuit against a Japanese corporation for conduct which ended almost 60 years ago is under this new law.2

The specific 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.

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, this case clearly merits expeditious consideration. These plaintiffs are heroes, who endured some of the worst privations ever visited on American prisoners. It would be a disservice to them to create a false hope of monetary recovery by permitting a lengthy trial only to reverse the judgment years later because federal law required it. Regrettably however, as we explain below, the 1951 peace treaty that formally ended World War II between the United States and Japan expressly preempts the state law which would otherwise allow these plaintiffs to sue.

There is no way to avoid confrontation with the terms of the 1951 treaty. The United States Supreme Court's Garamendi opinion in the Holocaust insurance case was a 5-4 decision, which turned on just exactly how clear a federal policy must be before state action is preempted by the federal government's foreign affairs power. Much of Justice Ginsburg's dissent in that decision was devoted to making the argument that the executive branch's efforts to secure the payment of insurance claims otherwise owed Holocaust survivors were simply not express enough. (E.g., Garamendi, supra, 123 S.Ct. at p. 2395 (dis. opn. of Ginsburg, J.). She, along with Justices Stevens, Scalia, and Thomas wanted a "clear statement" in some "formal expression of foreign policy" before they would take the step of invalidating a state law. (Ibid.) Obviously, the Garamendi majority disagreed. For them the conflict between various federal executive agreements and California's Holocaust insurance relief was "sufficiently clear" to "require finding preemption." (Id. at p. 2390.)

Along these lines, the plaintiffs, in briefing received after the transfer from the Supreme Court, build their argument on the premise that the Garamendi majority did not go so far as to say that mere "field preemption" was enough to invalid state legislation which happened to wander into that field. (See Garamendi, supra, 123 S.Ct. at p. 2389 ["It is a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption ... but the question requires no answer here."].) Rather, the plaintiffs here assert that Garamendi relied on an express conflict, and then they say that the only evidence of federal occupation is the treaty, and the treaty does not preclude their lawsuit. So we have no choice but to confront the terms of the treaty.

The very process of explaining the treaty, however, 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 what the treaty said or 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.


A. Preliminary Considerations

We must begin by acknowledging the obvious: The 1951 treaty was 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 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, whether that be framed as a matter of "preemption" under Garamendi or simply because there is an outright conflict.

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 Cir.2002) 305 F.3d 989, 998 [because Warsaw Convention was...

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