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G.R. No.

133876 December 29, 1999


BANK OF AMERICA, NT and SA, petitioner,
vs.
AMERICAN REALTY CORPORATION and COURT OF APPEALS, respondents.
BUENA, J.:
Does a mortgage-creditor waive its remedy to foreclose the real estate mortgage constituted
over a third party mortgagor's property situated in the Philippines by filing an action for the
collection of the principal loan before foreign courts?
Sought to be reversed in the instant petition for review on certiorari under Rule 45 of the Rules
of Court are the decision 1of public respondent Court of Appeals in CA G.R. CV No. 51094,
promulgated on 30 September 1997 and its resolution, 2dated 22 May 1998, denying
petitioner's motion for reconsideration.
Petitioner Bank of America NT & SA (BANTSA) is an international banking and financing
institution duly licensed to do business in the Philippines, organized and existing under and by
virtue of the laws of the State of California, United States of America while private respondent
American Realty Corporation (ARC) is a domestic corporation.
Bank of America International Limited (BAIL), on the other hand, is a limited liability company
organized and existing under the laws of England.
As borne by the records, BANTSA and BAIL on several occasions granted three major multimillion United States (US) Dollar loans to the following corporate borrowers: (1) Liberian
Transport Navigation, S.A.; (2) El Challenger S.A. and (3) Eshley Compania Naviera S.A.
(hereinafter collectively referred to as "borrowers"), all of which are existing under and by
virtue of the laws of the Republic of Panama and are foreign affiliates of private
respondent. 3
Due to the default in the payment of the loan amortizations, BANTSA and the corporate
borrowers signed and entered into restructuring agreements. As additional security for the
restructured loans, private respondent ARC as third party mortgagor executed two real estate
mortgages, 4 dated 17 February 1983 and 20 July 1984, over its parcels of land including
improvements thereon, located at Barrio Sto. Cristo, San Jose Del Monte, Bulacan, and which
are covered by Transfer Certificate of Title Nos. T-78759, T-78760, T-78761, T-78762 and T78763.

Eventually, the corporate borrowers defaulted in the payment of the restructured loans
prompting petitioner BANTSA to file civil actions 5 before foreign courts for the collection of the
principal loan, to wit:
a) In England, in its High Court of Justice, Queen's Bench Division, Commercial Court
(1992-Folio No 2098) against Liberian Transport Navigation S.A., Eshley Compania
Naviera S.A., El Challenger S.A., Espriona Shipping Company S.A., Eddie Navigation
Corp., S.A., Eduardo Katipunan Litonjua and Aurelio Katipunan Litonjua on June 17,
1992.
b) In England, in its High Court of Justice, Queen's Bench Division, Commercial Court
(1992-Folio No. 2245) against El Challenger S.A., Espriona Shipping Company S.A.,
Eduardo Katipuan Litonjua & Aurelio Katipunan Litonjua on July 2, 1992;
c) In Hongkong, in the Supreme Court of Hongkong High Court (Action No. 4039 of
1992) against Eshley Compania Naviera S.A., El Challenger S.A., Espriona Shipping
Company S.A. Pacific Navigators Corporation, Eddie Navigation Corporation S.A.,
Litonjua Chartering (Edyship) Co., Inc., Aurelio Katipunan Litonjua, Jr. and Eduardo
Katipunan Litonjua on November 19, 1992; and
d) In Hongkong, in the Supreme Court of Hongkong High Court (Action No. 4040 of
1992) against Eshley Compania Naviera S.A., El Challenger S.A., Espriona Shipping
Company, S.A., Pacific Navigators Corporation, Eddie Navigation Corporation S.A.,
Litonjua Chartering (Edyship) Co., Jr. and Eduardo Katipunan Litonjua on November
21, 1992.
In the civil suits instituted before the foreign courts, private respondent ARC, being a third
party mortgagor, was private not impleaded as party-defendant.
On 16 December 1992, petitioner BANTSA filed before the Office of the Provincial Sheriff of
Bulacan, Philippines an application for extrajudicial foreclosure 6 of real estate mortgage.
On 22 January 1993, after due publication and notice, the mortgaged real properties were
sold at public auction in an extrajudicial foreclosure sale, with Integrated Credit and
Corporation Services Co (ICCS) as the highest bidder for the sum of Twenty four Million
Pesos (P24,000.000.00). 7
On 12 February 1993, private respondent filed before the Pasig Regional Trial Court, Branch
159, an action for damages 8against the petitioner, for the latter's act of foreclosing

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CONFLICT CHOICE OF LAW

extrajudicially the real estate mortgages despite the pendency of civil suits before foreign
courts for the collection of the principal loan.
In its answer 9 petitioner alleged that the rule prohibiting the mortgagee from foreclosing the
mortgage after an ordinary suit for collection has been filed, is not applicable in the present
case, claiming that:
a) The plaintiff, being a mere third party mortgagor and not a party to the
principal restructuring agreements, was never made a party defendant in
the civil cases filed in Hongkong and England;
b) There is actually no civil suit for sum of money filed in the Philippines
since the civil actions were filed in Hongkong and England. As such, any
decisions (sic) which may be rendered in the abovementioned courts are
not (sic) enforceable in the Philippines unless a separate action to enforce
the foreign judgments is first filed in the Philippines, pursuant to Rule 39,
Section 50 of the Revised Rules of Court.
c) Under English Law, which is the governing law under the principal
agreements, the mortgagee does not lose its security interest by filing civil
actions for sums of money.
On 14 December 1993, private respondent filed a motion for
suspension 10 of the redemption period on the ground that "it cannot exercise said right of
redemption without at the same time waiving or contradicting its contentions in the case that
the foreclosure of the mortgage on its properties is legally improper and therefore invalid."
In an order 11 dated 28 January 1994, the trial court granted the private respondent's motion
for suspension after which a copy of said order was duly received by the Register of Deeds of
Meycauayan, Bulacan.
On 07 February 1994, ICCS, the purchaser of the mortgaged properties at the foreclosure
sale, consolidated its ownership over the real properties, resulting to the issuance of Transfer
Certificate of Title Nos. T-18627, T-186272, T-186273, T-16471 and T-16472 in its name.
On 18 March 1994, after the consolidation of ownership in its favor, ICCS sold the real
properties to Stateland Investment Corporation for the amount of Thirty Nine Million Pesos
(P39,000,000.00). 12 Accordingly, Transfer Certificate of Title Nos. T-187781(m), T187782(m), T-187783(m), T-16653P(m) and T-16652P(m) were issued in the latter's name.

After trial, the lower court rendered a decision 13 in favor of private respondent ARC dated 12
May 1993, the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered declaring that the filing in
foreign courts by the defendant of collection suits against the principal
debtors operated as a waiver of the security of the mortgages.
Consequently, the plaintiff's rights as owner and possessor of the
properties then covered by Transfer Certificates of Title Nos. T-78759, T78762, T-78763, T-78760 and T-78761, all of the Register of Deeds of
Meycauayan, Bulacan, Philippines, were violated when the defendant
caused the extrajudicial foreclosure of the mortgages constituted thereon.
Accordingly, the defendant is hereby ordered to pay the plaintiff the
following sums, all with legal interest thereon from the date of the filing of
the complaint up to the date of actual payment:
1) Actual or compensatory damages in the amount of Ninety Nine Million
Pesos (P99,000,000.00);
2) Exemplary damages in the amount of Five Million Pesos
(P5,000,000.00); and
3) Costs of suit.
SO ORDERED.
On appeal, the Court of Appeals affirmed the assailed decision of the lower court prompting
petitioner to file a motion for reconsideration which the appellate court denied.
Hence, the instant petition for review 14 on certiorari where herein petitioner BANTSA ascribes
to the Court of Appeals the following assignment of errors:
1. The Honorable Court of Appeals disregarded the doctrines laid down by this Hon.
Supreme Court in the cases of Caltex Philippines, Inc. vs. Intermediate Appellate
Court docketed as G.R. No. 74730 promulgated on August 25, 1989 and Philippine
Commercial International Bank vs. IAC, 196 SCRA 29 (1991 case), although said cases
were duly cited, extensively discussed and specifically mentioned, as one of the issues in
the assignment of errors found on page 5 of the decision dated September 30, 1997.

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CONFLICT CHOICE OF LAW

2. The Hon. Court of Appeals acted with grave abuse of discretion when it awarded the
private respondent actual and exemplary damages totalling P171,600,000.00, as of July
12, 1998 although such huge amount was not asked nor prayed for in private respondent's
complaint, is contrary to law and is totally unsupported by evidence (sic).
In fine, this Court is called upon to resolve two main issues:
1. Whether or not the petitioner's act of filing a collection suit against the principal
debtors for the recovery of the loan before foreign courts constituted a waiver of the
remedy of foreclosure.
2. Whether or not the award by the lower court of actual and exemplary damages in
favor of private respondent ARC, as third-party mortgagor, is proper.
The petition is bereft of merit.
First, as to the issue of availability of remedies, petitioner submits that a waiver of the remedy
of foreclosure requires the concurrence of two requisites: an ordinary civil action for collection
should be filed and subsequently a final judgment be correspondingly rendered therein.
According to petitioner, the mere filing of a personal action to collect the principal loan does
not suffice; a final judgment must be secured and obtained in the personal action so that
waiver of the remedy of foreclosure may be appreciated. To put it differently, absent any of the
two requisites, the mortgagee-creditor is deemed not to have waived the remedy of
foreclosure.
We do not agree.
Certainly, this Court finds petitioner's arguments untenable and upholds the jurisprudence laid
down in Bachrach 15 and similar cases adjudicated thereafter, thus:
In the absence of express statutory provisions, a mortgage creditor may
institute against the mortgage debtor either a personal action or debt or a
real action to foreclose the mortgage. In other words, he may he may
pursue either of the two remedies, but not both. By such election, his
cause of action can by no means be impaired, for each of the two
remedies is complete in itself. Thus, an election to bring a personal action
will leave open to him all the properties of the debtor for attachment and
execution, even including the mortgaged property itself. And, if he waives

such personal action and pursues his remedy against the mortgaged
property, an unsatisfied judgment thereon would still give him the right to
sue for a deficiency judgment, in which case, all the properties of the
defendant, other than the mortgaged property, are again open to him for
the satisfaction of the deficiency. In either case, his remedy is complete,
his cause of action undiminished, and any advantages attendant to the
pursuit of one or the other remedy are purely accidental and are all under
his right of election. On the other hand, a rule that would authorize the
plaintiff to bring a personal action against the debtor and simultaneously
or successively another action against the mortgaged property, would
result not only in multiplicity of suits so offensive to justice (Soriano vs.
Enriques, 24 Phil. 584) and obnoxious to law and equity (Osorio vs. San
Agustin, 25 Phil., 404), but also in subjecting the defendant to the vexation
of being sued in the place of his residence or of the residence of the
plaintiff, and then again in the place where the property lies.
In Danao vs. Court of Appeals, 16 this Court, reiterating jurisprudence enunciated in Manila
Trading and Supply Co vs. Co Kim 17 and Movido vs.
RFC, 18 invariably held:
. . . The rule is now settled that a mortgage creditor may elect to waive his
security and bring, instead, an ordinary action to recover the indebtedness
with the right to execute a judgment thereon on all the properties of the
debtor, including the subject matter of the mortgage . . . , subject to the
qualification that if he fails in the remedy by him elected, he cannot pursue
further the remedy he has waived. (Emphasis Ours)
Anent real properties in particular, the Court has laid down the rule that a mortgage creditor
may institute against the mortgage debtor either a personal action for debt or a real action to
foreclose the mortgage. 19
In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and
not cumulative. Notably, an election of one remedy operates as a waiver of the other. For this
purpose, a remedy is deemed chosen upon the filing of the suit for collection or upon the filing
of the complaint in an action for foreclosure of mortgage, pursuant to the provision of Rule 68
of the of the 1997 Rules of Civil Procedure. As to extrajudicial foreclosure, such remedy is
deemed elected by the mortgage creditor upon filing of the petition not with any court of justice
but with the Office of the Sheriff of the province where the sale is to be made, in accordance
with the provisions of Act No. 3135, as amended by Act No. 4118.

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CONFLICT CHOICE OF LAW

In the case at bench, private respondent ARC constituted real estate mortgages over its
properties as security for the debt of the principal debtors. By doing so, private respondent
subjected itself to the liabilities of a third party mortgagor. Under the law, third persons who
are not parties to a loan may secure the latter by pledging or mortgaging their own property. 20

In the case at bar, petitioner BANTSA only has one cause of action which is non-payment of
the debt. Nevertheless, alternative remedies are available for its enjoyment and exercise.
Petitioner then may opt to exercise only one of two remedies so as not to violate the rule
against splitting a cause of action.

Notwithstanding, there is no legal provision nor jurisprudence in our jurisdiction which makes a
third person who secures the fulfillment of another's obligation by mortgaging his own
property, to be solidarily bound with the principal obligor. The signatory to the principal
contractloanremains to be primarily bound. It is only upon default of the latter that the
creditor may have recourse on the mortgagors by foreclosing the mortgaged properties in lieu
of an action for the recovery of the amount of the loan. 21

As elucidated by this Court in the landmark case of Bachrach Motor Co., Inc, vs. Icarangal. 24

In the instant case, petitioner's contention that the requisites of filing the action for collection
and rendition of final judgment therein should concur, is untenable.
Thus, in Cerna vs. Court of Appeals, 22 we agreed with the petitioner in said case, that the
filing of a collection suit barred the foreclosure of the mortgage:
A mortgagee who files a suit for collection abandons the remedy of
foreclosure of the chattel mortgage constituted over the personal property
as security for the debt or value of the promissory note when he seeks to
recover in the said collection suit.
. . . When the mortgagee elects to file a suit for collection, not foreclosure,
thereby abandoning the chattel mortgage as basis for relief, he clearly
manifests his lack of desire and interest to go after the mortgaged
property as security for the promissory note . . . .
Contrary to petitioner's arguments, we therefore reiterate the rule, for clarity and emphasis,
that the mere act of filing of an ordinary action for collection operates as a waiver of the
mortgage-creditor's remedy to foreclose the mortgage. By the mere filing of the ordinary
action for collection against the principal debtors, the petitioner in the present case is deemed
to have elected a remedy, as a result of which a waiver of the other necessarily must arise.
Corollarily, no final judgment in the collection suit is required for the rule on waiver to apply.
Hence, in Caltex Philippines, Inc. vs. Intermediate-Appellate Court, 23 a case relied upon by
petitioner, supposedly to buttress its contention, this Court had occasion to rule that the mere
act of filing a collection suit for the recovery of a debt secured by a mortgage constitutes
waiver of the other remedy of foreclosure.

For non-payment of a note secured by mortgage, the creditor has a single


cause of action against the debtor. This single cause of action consists in
the recovery of the credit with execution of the security. In other words,
the creditor in his action may make two demands, the payment of the debt
and the foreclosure of his mortgage. But both demands arise from the
same cause, the non-payment of the debt, and for that reason, they
constitute a single cause of action. Though the debt and the mortgage
constitute separate agreements, the latter is subsidiary to the former, and
both refer to one and the same obligation. Consequently, there exists only
one cause of action for a single breach of that obligation. Plaintiff, then, by
applying the rules above stated, cannot split up his single cause of action
by filing a complaint for payment of the debt, and thereafter another
complaint for foreclosure of the mortgage. If he does so, the filing of the
first complaint will bar the subsequent complaint. By allowing the creditor
to file two separate complaints simultaneously or successively, one to
recover his credit and another to foreclose his mortgage, we will, in effect,
be authorizing him plural redress for a single breach of contract at so
much cost to the courts and with so much vexation and oppression to the
debtor.
Petitioner further faults the Court of Appeals for allegedly disregarding the doctrine enunciated
in Caltex wherein this High Court relaxed the application of the general rules to wit:
In the present case, however, we shall not follow this rule to the letter but
declare that it is the collection suit which was waived and/or abandoned.
This ruling is more in harmony with the principles underlying our judicial
system. It is of no moment that the collection suit was filed ahead, what is
determinative is the fact that the foreclosure proceedings ended even
before the decision in the collection suit was rendered. . . .
Notably, though, petitioner took the Caltex ruling out of context. We must stress that the
Caltex case was never intended to overrule the well-entrenched doctrine enunciated

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CONFLICT CHOICE OF LAW

Bachrach, which to our mind still finds applicability in cases of this sort. To reiterate, Bachrach
is still good law.

pursue both remedies simultaneously or successively as was done by


PCIB in this case.

We then quote the decision 25 of the trial court, in the present case, thus:
The aforequoted ruling in Caltex is the exception rather than the rule,
dictated by the peculiar circumstances obtaining therein. In the said case,
the Supreme Court chastised Caltex for making ". . . a mockery of our
judicial system when it initially filed a collection suit then, during the
pendency thereof, foreclosed extrajudicially the mortgaged property which
secured the indebtedness, and still pursued the collection suit to the end."
Thus, to prevent a mockery of our judicial system", the collection suit had
to be nullified because the foreclosure proceedings have already been
pursued to their end and can no longer be undone.
xxx xxx xxx
In the case at bar, it has not been shown whether the defendant pursued
to the end or are still pursuing the collection suits filed in foreign courts.
There is no occasion, therefore, for this court to apply the exception laid
down by the Supreme Court in Caltex by nullifying the collection suits.
Quite obviously, too, the aforesaid collection suits are beyond the reach of
this Court. Thus the only way the court may prevent the spector of a
creditor having "plural redress for a single breach of contract" is by
holding, as the Court hereby holds, that the defendant has waived the
right to foreclose the mortgages constituted by the plaintiff on its
properties originally covered by Transfer Certificates of Title Nos. T78759, T-78762, T-78760 and T-78761. (RTC Decision pp., 10-11)
In this light, the actuations of Caltex are deserving of severe criticism, to say the least. 26
Moreover, petitioner attempts to mislead this Court by citing the case of PCIB vs.
IAC. 27 Again, petitioner tried to fit a square peg in a round hole. It must be stressed that far
from overturning the doctrine laid down in Bachrach, this Court in PCIB buttressed its firm
stand on this issue by declaring:
While the law allows a mortgage creditor to either institute a personal
action for the debt or a real action to foreclosure the mortgage, he cannot

xxx xxx xxx


Thus, when the PCIB filed Civil Case No. 29392 to enforce payment of the
1.3 million promissory note secured by real estate mortgages and
subsequently filed a petition for extrajudicial foreclosure, it violates the rule
against splitting a cause of action.
Accordingly, applying the foregoing rules, we hold that petitioner, by the expediency of filing
four civil suits before foreign courts, necessarily abandoned the remedy to foreclose the real
estate mortgages constituted over the properties of third-party mortgagor and herein private
respondent ARC. Moreover, by filing the four civil actions and by eventually foreclosing
extrajudicially the mortgages, petitioner in effect transgressed the rules against splitting a
cause of action well-enshrined in jurisprudence and our statute books.
In Bachrach, this Court resolved to deny the creditor the remedy of foreclosure after the
collection suit was filed, considering that the creditor should not be afforded "plural redress for
a single breach of contract." For cause of action should not be confused with the remedy
created for its enforcement. 28
Notably, it is not the nature of the redress which is crucial but the efficacy of the remedy
chosen in addressing the creditor's cause. Hence, a suit brought before a foreign court having
competence and jurisdiction to entertain the action is deemed, for this purpose, to be within
the contemplation of the remedy available to the mortgagee-creditor. This pronouncement
would best serve the interest of justice and fair play and further discourage the noxious
practice of splitting up a lone cause of action.
Incidentally, BANTSA alleges that under English Law, which according to petitioner is the
governing law with regard to the principal agreements, the mortgagee does not lose its
security interest by simply filing civil actions for sums of money. 29
We rule in the negative.
This argument shows desperation on the part of petitioner to rivet its crumbling cause. In the
case at bench, Philippine law shall apply notwithstanding the evidence presented by petitioner
to prove the English law on the matter.

5
CONFLICT CHOICE OF LAW

In a long line of decisions, this Court adopted the well-imbedded principle in our jurisdiction
that there is no judicial notice of any foreign law. A foreign law must be properly pleaded and
proved as a fact. 30 Thus, if the foreign law involved is not properly pleaded and proved, our
courts will presume that the foreign law is the same as our local or domestic or internal
law. 31 This is what we refer to as the doctrine of processual presumption.
In the instant case, assuming arguendo that the English Law on the matter were properly
pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the
jurisprudence laid down in Yao Kee, et al. vs.
Sy-Gonzales, 32 said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public
policy of the forum, the said foreign law, judgment or order shall not be applied. 33
Additionally, prohibitive laws concerning persons, their acts or property, and those which have
for their object public order, public policy and good customs shall not be rendered ineffective
by laws or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country. 34
The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
If two or more suits are instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable
injustice to the citizens or residents of the forum. To give justice is the most important function
of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental
principles of Conflict of Laws. 35

Actual or compensatory damages are those recoverable because of pecuniary loss in


business, trade, property, profession, job or occupation and the same must be proved,
otherwise if the proof is flimsy and non-substantial, no damages will be given. 36 Indeed, the
question of the value of property is always a difficult one to settle as valuation of real property
is an imprecise process since real estate has no inherent value readily ascertainable by an
appraiser or by the court.37 The opinions of men vary so much concerning the real value of
property that the best the courts can do is hear all of the witnesses which the respective
parties desire to present, and then, by carefully weighing that testimony, arrive at a conclusion
which is just and equitable. 38
In the instant case, petitioner assails the Court of Appeals for relying heavily on the valuation
made by Philippine Appraisal Company. In effect, BANTSA questions the act of the appellate
court in giving due weight to the appraisal report composed of twenty three pages, signed by
Mr. Lauro Marquez and submitted as evidence by private respondent. The appraisal report, as
the records would readily show, was corroborated by the testimony of Mr. Reynaldo Flores,
witness for private respondent.
On this matter, the trial court observed:
The record herein reveals that plaintiff-appellee formally offered as
evidence the appraisal report dated March 29, 1993 (Exhibit J, Records,
p. 409), consisting of twenty three (23) pages which set out in detail the
valuation of the property to determine its fair market value (TSN, April 22,
1994, p. 4), in the amount of P99,986,592.00 (TSN, ibid., p. 5), together
with the corroborative testimony of one Mr. Reynaldo F. Flores, an
appraiser and director of Philippine Appraisal Company, Inc. (TSN, ibid.,
p. 3). The latter's testimony was subjected to extensive cross-examination
by counsel for defendant-appellant (TSN, April 22, 1994, pp. 6-22).39

Clearly then, English Law is not applicable.

In the matter of credibility of witnesses, the Court reiterates the familiar and well-entrenched
rule that the factual findings of the trial court should be respected. 40 The time-tested
jurisprudence is that the findings and conclusions of the trial court on the credibility of
witnesses enjoy a badge of respect for the reason that trial courts have the advantage of
observing the demeanor of witnesses as they testify. 41

As to the second pivotal issue, we hold that the private respondent is entitled to the award of
actual or compensatory damages inasmuch as the act of petitioner BANTSA in extrajudicially
foreclosing the real estate mortgages constituted a clear violation of the rights of herein
private respondent ARC, as third-party mortgagor.

This Court will not alter the findings of the trial court on the credibility of witnesses, principally
because they are in a better position to assess the same than the appellate court. 42 Besides,
trial courts are in a better position to examine real evidence as well as observe the demeanor
of witnesses. 43

6
CONFLICT CHOICE OF LAW

Similarly, the appreciation of evidence and the assessment of the credibility of witnesses rest
primarily with the trial court.44 In the case at bar, we see no reason that would justify this Court
to disturb the factual findings of the trial court, as affirmed by the Court of Appeals, with regard
to the award of actual damages.
In arriving at the amount of actual damages, the trial court justified the award by presenting
the following ratiocination in its assailed decision 45, to wit:
Indeed, the Court has its own mind in the matter of valuation. The size of
the subject real properties are (sic) set forth in their individuals titles, and
the Court itself has seen the character and nature of said properties
during the ocular inspection it conducted. Based principally on the
foregoing, the Court makes the following observations:
1. The properties consist of about 39 hectares in Bo. Sto. Cristo, San Jose
del Monte, Bulacan, which is (sic) not distant from Metro Manila the
biggest urban center in the Philippines and are easily accessible
through well-paved roads;
2. The properties are suitable for development into a subdivision for low
cost housing, as admitted by defendant's own appraiser (TSN, May 30,
1994, p. 31);
3. The pigpens which used to exist in the property have already been
demolished. Houses of strong materials are found in the vicinity of the
property (Exhs. 2, 2-1 to 2-7), and the vicinity is a growing community. It
has even been shown that the house of the Barangay Chairman is located
adjacent to the property in question (Exh. 27), and the only remaining
piggery (named Cherry Farm) in the vicinity is about 2 kilometers away
from the western boundary of the property in question (TSN, November
19, p. 3);
4. It will not be hard to find interested buyers of the property, as
indubitably shown by the fact that on March 18, 1994, ICCS (the buyer
during the foreclosure sale) sold the consolidated real estate properties to
Stateland Investment Corporation, in whose favor new titles were
issued, i.e., TCT Nos. T-187781(m); T-187782(m), T-187783(m); T16653P(m) and T-166521(m) by the Register of Deeds of Meycauayan
(sic), Bulacan;

5. The fact that ICCS was able to sell the subject properties to Stateland
Investment Corporation for Thirty Nine Million (P39,000,000.00) Pesos,
which is more than triple defendant's appraisal (Exh. 2) clearly shows that
the Court cannot rely on defendant's aforesaid estimate (Decision,
Records, p. 603).
It is a fundamental legal aphorism that the conclusions of the trial judge on the credibility of
witnesses command great respect and consideration especially when the conclusions are
supported by the evidence on record. 46 Applying the foregoing principle, we therefore hold
that the trial court committed no palpable error in giving credence to the testimony of
Reynaldo Flores, who according to the records, is a licensed real estate broker, appraiser and
director of Philippine Appraisal Company, Inc. since 1990. 47 As the records show, Flores had
been with the company for 26 years at the time of his testimony.
Of equal importance is the fact that the trial court did not confine itself to the appraisal report
dated 29 March 1993, and the testimony given by Mr. Reynaldo Flores, in determining the fair
market value of the real property. Above all these, the record would likewise show that the trial
judge in order to appraise himself of the characteristics and condition of the property,
conducted an ocular inspection where the opposing parties appeared and were duly
represented.
Based on these considerations and the evidence submitted, we affirm the ruling of the trial
court as regards the valuation of the property
. . . a valuation of Ninety Nine Million Pesos (P99,000,000.00) for the 39hectare properties (sic) translates to just about Two Hundred Fifty Four
Pesos (P254.00) per square meter. This appears to be, as the court so
holds, a better approximation of the fair market value of the subject
properties. This is the amount which should be restituted by the defendant
to the plaintiff by way of actual or compensatory damages . . . . 48
Further, petitioner ascribes error to the lower court awarding an amount allegedly not asked
nor prayed for in private respondent's complaint.
Notwithstanding the fact that the award of actual and compensatory damages by the lower
court exceeded that prayed for in the complaint, the same is nonetheless valid, subject to
certain qualifications.
On this issue, Rule 10, Section 5 of the Rules of Court is pertinent:

7
CONFLICT CHOICE OF LAW

Sec. 5. Amendment to conform to or authorize presentation of evidence.


When issues not raised by the pleadings are tried with the express or
implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time,
even after judgement; but failure to amend does not affect the result of the
trial of these issues. If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial justice
will be subserved thereby. The court may grant a continuance to enable
the amendment to be made.
The jurisprudence enunciated in Talisay-Silay Milling Co., Inc. vs. Asociacion de Agricultures
de Talisay-Silay, Inc. 49citing Northern Cement Corporation vs. Intermediate Appellate
Court 50 is enlightening:

notwithstanding the absence of the required amendment. But it is upon


the condition that the evidence of such higher amount has been presented
properly, with full opportunity on the part of the opposing parties to support
their respective contentions and to refute each other's evidence.
The failure of a party to amend a pleading to conform to the evidence
adduced during trial does not preclude an adjudication by the court on the
basis of such evidence which may embody new issues not raised in the
pleadings, or serve as a basis for a higher award of damages. Although
the pleading may not have been amended to conform to the evidence
submitted during trial, judgment may nonetheless be rendered, not simply
on the basis of the issues alleged but also the basis of issues discussed
and the assertions of fact proved in the course of trial. The court may treat
the pleading as if it had been amended to conform to the evidence,
although it had not been actually so amended. Former Chief Justice
Moran put the matter in this way:
When evidence is presented by one party, with the
expressed or implied consent of the adverse party, as
to issues not alleged in the pleadings, judgment may
be rendered validly as regards those issues, which
shall be considered as if they have been raised in the
pleadings. There is implied consent to the evidence
thus presented when the adverse party fails to object
thereto.

There have been instances where the Court has held that even without
the necessary amendment, the amount proved at the trial may be validly
awarded, as in Tuazon v. Bolanos (95 Phil. 106), where we said that if the
facts shown entitled plaintiff to relief other than that asked for, no
amendment to the complaint was necessary, especially where defendant
had himself raised the point on which recovery was based. The appellate
court could treat the pleading as amended to conform to the evidence
although the pleadings were actually not amended. Amendment is also
unnecessary when only clerical error or non substantial matters are
involved, as we held in Bank of the Philippine Islands vs. Laguna (48 Phil.
5). In Co Tiamco vs. Diaz (75 Phil. 672), we stressed that the rule on
amendment need not be applied rigidly, particularly where no surprise or
prejudice is caused the objecting party. And in the recent case of National
Power Corporation vs. Court of Appeals (113 SCRA 556), we held that
where there is a variance in the defendant's pleadings and the evidence
adduced by it at the trial, the Court may treat the pleading as amended to
conform with the evidence.

Clearly, a court may rule and render judgment on the basis of the
evidence before it even though the relevant pleading had not been
previously amended, so long as no surprise or prejudice is thereby caused
to the adverse party. Put a little differently, so long as the basis
requirements of fair play had been met, as where litigants were given full
opportunity to support their respective contentions and to object to or
refute each other's evidence, the court may validly treat the pleadings as if
they had been amended to conform to the evidence and proceed to
adjudicate on the basis of all the evidence before it.

It is the view of the Court that pursuant to the above-mentioned rule and in
light of the decisions cited, the trial court should not be precluded from
awarding an amount higher than that claimed in the pleading

In the instant case, inasmuch as the petitioner was afforded the opportunity to refute and
object to the evidence, both documentary and testimonial, formally offered by private
respondent, the rudiments of fair play are deemed satisfied. In fact, the testimony of Reynaldo

8
CONFLICT CHOICE OF LAW

Flores was put under scrutiny during the course of the cross-examination. Under these
circumstances, the court acted within the bounds of its jurisdiction and committed no
reversible error in awarding actual damages the amount of which is higher than that prayed
for. Verily, the lower court's actuations are sanctioned by the Rules and supported by
jurisprudence.
Similarly, we affirm the grant of exemplary damages although the amount of Five Million
Pesos (P5,000,000.00) awarded, being excessive, is subject to reduction. Exemplary or
corrective damages are imposed, by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory damages. 51 Considering its
purpose, it must be fair and reasonable in every case and should not be awarded to unjustly
enrich a prevailing party. 52 In our view, an award of P50,000.00 as exemplary damages in the
present case qualifies the test of reasonableness.
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The
decision of the Court of Appeals is hereby AFFIRMED with MODIFICATION of the amount
awarded as exemplary damages. According, petitioner is hereby ordered to pay private
respondent the sum of P99,000,000.00 as actual or compensatory damages; P50,000.00 as
exemplary damage and the costs of suit.
SO ORDERED.

9
CONFLICT CHOICE OF LAW

G.R. No. 119602

October 6, 2000

WILDVALLEY SHIPPING CO., LTD. petitioner,


vs.
COURT OF APPEALS and PHILIPPINE PRESIDENT LINES INC., respondents.
DECISION

chart.14 He ordered Simplicio A. Monis, Chief Officer of the President Roxas, to check all the
double bottom tanks.15
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,16 thus obstructing
the ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner Wildvalley
Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day.

BUENA, J.:
This is a petition for review on certiorari seeking to set aside the decision of the Court of
Appeals which reversed the decision of the lower court in CA-G.R. CV No. 36821, entitled
"Wildvalley Shipping Co., Ltd., plaintiff-appellant, versus Philippine President Lines, Inc.,
defendant-appellant."

Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial Court of
Manila, Branch III against Philippine President Lines, Inc. and Pioneer Insurance Company
(the underwriter/insurer of Philippine Roxas) for damages in the form of unearned profits, and
interest thereon amounting to US $400,000.00 plus attorney's fees, costs, and expenses of
litigation. The complaint against Pioneer Insurance Company was dismissed in an Order
dated November 7, 1988.17

The antecedent facts of the case are as follows:


At the pre-trial conference, the parties agreed on the following facts:
Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine President
Lines, Inc., private respondent herein, arrived in Puerto Ordaz, Venezuela, to load iron ore.
Upon the completion of the loading and when the vessel was ready to leave port, Mr. Ezzar
del Valle Solarzano Vasquez, an official pilot of Venezuela, was designated by the harbour
authorities in Puerto Ordaz to navigate the Philippine Roxas through the Orinoco River.1 He
was asked to pilot the said vessel on February 11, 19882 boarding it that night at 11:00 p.m.3
The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the bridge
together with the pilot (Vasquez), the vessel's third mate (then the officer on watch), and a
helmsman when the vessel left the port4 at 1:40 a.m. on February 12, 1988.5 Captain Colon
left the bridge when the vessel was under way.6
The Philippine Roxas experienced some vibrations when it entered the San Roque Channel at
mile 172.7 The vessel proceeded on its way, with the pilot assuring the watch officer that the
vibration was a result of the shallowness of the channel.8
Between mile 158 and 157, the vessel again experienced some vibrations.9 These occurred at
4:12 a.m.10 It was then that the watch officer called the master to the bridge.11
The master (captain) checked the position of the vessel12 and verified that it was in the centre
of the channel.13 He then went to confirm, or set down, the position of the vessel on the

"1. The jurisdictional facts, as specified in their respective pleadings;


"2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of
the incident;
"3. That defendant Pioneer Insurance was the insurance underwriter for defendant
PPL;
"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel
Malandrinon, whose passage was obstructed by the vessel Philippine Roxas at
Puerto Ordaz, Venezuela, as specified in par. 4, page 2 of the complaint;
"5. That on February 12, 1988, while the Philippine Roxas was navigating the
channel at Puerto Ordaz, the said vessel grounded and as a result, obstructed
navigation at the channel;
"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;
"7. That at the time of the incident, the vessel, Philippine Roxas, was under the
command of the pilot Ezzar Solarzano, assigned by the government thereat, but
plaintiff claims that it is under the command of the master;

10
CONFLICT CHOICE OF LAW

"8. The plaintiff filed a case in Middleburg, Holland which is related to the present
case;
"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the
defendant PPL;

"SO ORDERED."21
Petitioner filed a motion for reconsideration22 but the same was denied for lack of merit in the
resolution dated March 29, 1995.23
Hence, this petition.

"10. The Orinoco River is 150 miles long and it takes approximately 12 hours to
navigate out of the said river;
"11. That no security for the plaintiff's claim was given until after the Philippine
Collier was arrested; and
"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship
Mutual Underwriters Ltd."18

The petitioner assigns the following errors to the court a quo:


1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT
UNDER PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE ATTRIBUTED
TO THE MASTER NOR THE OWNER OF THE "PHILIPPINE ROXAS" FOR THE
GROUNDING OF SAID VESSEL RESULTING IN THE BLOCKAGE OF THE RIO
ORINOCO;

The trial court rendered its decision on October 16, 1991 in favor of the petitioner, Wildvalley
Shipping Co., Ltd. The dispositive portion thereof reads as follows:

2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING


THE FINDINGS OF FACTS OF THE TRIAL COURT CONTRARY TO EVIDENCE;

"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine President
Lines, Inc. to pay to the plaintiff the sum of U.S. $259,243.43, as actual and compensatory
damages, and U.S. $162,031.53, as expenses incurred abroad for its foreign lawyers, plus
additional sum of U.S. $22,000.00, as and for attorney's fees of plaintiff's local lawyer, and to
pay the cost of this suit.

3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT


THE "PHILIPPINE ROXAS" IS SEAWORTHY;

"Defendant's counterclaim is dismissed for lack of merit.

4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN


DISREGARDING VENEZUELAN LAW DESPITE THE FACT THAT THE SAME
HAS BEEN SUBSTANTIALLY PROVED IN THE TRIAL COURT WITHOUT ANY
OBJECTION FROM PRIVATE RESPONDENT, AND WHOSE OBJECTION WAS
INTERPOSED BELATEDLY ON APPEAL;

"SO ORDERED."19
Both parties appealed: the petitioner appealing the non-award of interest with the private
respondent questioning the decision on the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came out with its questioned
decision dated June 14, 1994,20 the dispositive portion of which reads as follows:
"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is hereby
rendered reversing the Decision of the lower court. Plaintiff-appellant's Complaint is dismissed
and it is ordered to pay defendant-appellant the amount of Three Hundred Twenty-three
Thousand, Forty-two Pesos and Fifty-three Centavos (P323,042.53) as and for attorney's fees
plus cost of suit. Plaintiff-appellant's appeal is DISMISSED.

5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING


ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT WITHOUT ANY
FAIR OR REASONABLE BASIS WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING
THAT PETITIONER'S CAUSE IS MERITORIOUS HENCE, PETITIONER SHOULD
BE ENTITLED TO ATTORNEY'S FEES, COSTS AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is applicable to the case
at bar.

11
CONFLICT CHOICE OF LAW

It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts
are not authorized to take judicial notice of them. Like any other fact, they must be alleged and
proved.24
A distinction is to be made as to the manner of proving a written and an unwritten law. The
former falls under Section 24, Rule 132 of the Rules of Court, as amended, the entire
provision of which is quoted hereunder. Where the foreign law sought to be proved is
"unwritten," the oral testimony of expert witnesses is admissible, as are printed and published
books of reports of decisions of the courts of the country concerned if proved to be commonly
admitted in such courts.25
Section 24 of Rule 132 of the Rules of Court, as amended, provides:
"Sec. 24. Proof of official record. -- The record of public documents referred to in paragraph
(a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office." (Underscoring supplied)
The court has interpreted Section 25 (now Section 24) to include competent evidence like the
testimony of a witness to prove the existence of a written foreign law.26
In the noted case of Willamette Iron & Steel Works vs.

Muzzal,27

it was held that:

in an opinion of Lord Chief Justice Denman in a well-known English case where a witness was
called upon to prove the Roman laws of marriage and was permitted to testify, though he
referred to a book containing the decrees of the Council of Trent as controlling, Jones on
Evidence, Second Edition, Volume 4, pages 3148-3152.) x x x."
We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor Master
and Chief of Pilots at Puerto Ordaz, Venezuela,28 to testify on the existence of
the Reglamento General de la Ley de Pilotaje (pilotage law of Venezuela)29 and
the Reglamento Para la Zona de Pilotaje No 1 del Orinoco (rules governing the navigation of
the Orinoco River). Captain Monzon has held the aforementioned posts for eight years.30 As
such he is in charge of designating the pilots for maneuvering and navigating the Orinoco
River. He is also in charge of the documents that come into the office of the harbour
masters.31
Nevertheless, we take note that these written laws were not proven in the manner provided by
Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial32 of the
Republic of Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as an
official publication of the Republic of Venezuela.
The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book issued by
the Ministerio de Comunicaciones of Venezuela.33 Only a photocopy of the said rules was
likewise presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be public documents
for they are the written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers of Venezuela.34

" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the year 1918
under oath, quoted verbatim section 322 of the California Civil Code and stated that said
section was in force at the time the obligations of defendant to the plaintiff were incurred, i.e.
on November 5, 1928 and December 22, 1928. This evidence sufficiently established the fact
that the section in question was the law of the State of California on the above dates. A
reading of sections 300 and 301 of our Code of Civil Procedure will convince one that these
sections do not exclude the presentation of other competent evidence to prove the existence
of a foreign law.

For a copy of a foreign public document to be admissible, the following requisites are
mandatory: (1) It must be attested by the officer having legal custody of the records or by his
deputy; and (2) It must be accompanied by a certificate by a secretary of the embassy or
legation, consul general, consul, vice consular or consular agent or foreign service officer, and
with the seal of his office.35 The latter requirement is not a mere technicality but is intended to
justify the giving of full faith and credit to the genuineness of a document in a foreign
country.36

"`The foreign law is a matter of fact You ask the witness what the law is; he may, from his
recollection, or on producing and referring to books, say what it is.' (Lord Campbell concurring

It is not enough that the Gaceta Oficial, or a book published by the Ministerio de
Comunicaciones of Venezuela, was presented as evidence with Captain Monzon attesting it.

12
CONFLICT CHOICE OF LAW

It is also required by Section 24 of Rule 132 of the Rules of Court that a certificate that
Captain Monzon, who attested the documents, is the officer who had legal custody of those
records made by a secretary of the embassy or legation, consul general, consul, vice consul
or consular agent or by any officer in the foreign service of the Philippines stationed in
Venezuela, and authenticated by the seal of his office accompanying the copy of the public
document. No such certificate could be found in the records of the case.
With respect to proof of written laws, parol proof is objectionable, for the written law itself is
the best evidence. According to the weight of authority, when a foreign statute is involved, the
best evidence rule requires that it be proved by a duly authenticated copy of the statute. 37
At this juncture, we have to point out that the Venezuelan law was not pleaded before the
lower court.
A foreign law is considered to be pleaded if there is an allegation in the pleading about the
existence of the foreign law, its import and legal consequence on the event or transaction in
issue.38
A review of the Complaint39 revealed that it was never alleged or invoked despite the fact that
the grounding of the M/V Philippine Roxas occurred within the territorial jurisdiction of
Venezuela.
We reiterate that under the rules of private international law, a foreign law must be properly
pleaded and proved as a fact. In the absence of pleading and proof, the laws of a foreign
country, or state, will be presumed to be the same as our own local or domestic law and this is
known as processual presumption.40
Having cleared this point, we now proceed to a thorough study of the errors assigned by the
petitioner.
Petitioner alleges that there was negligence on the part of the private respondent that would
warrant the award of damages.
There being no contractual obligation, the private respondent is obliged to give only the
diligence required of a good father of a family in accordance with the provisions of Article 1173
of the New Civil Code, thus:
"Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances of

the persons, of the time and of the place. When negligence shows bad faith, the provisions of
articles 1171 and 2201, paragraph 2, shall apply.
"If the law or contract does not state the diligence which is to be observed in the performance,
that which is expected of a good father of a family shall be required."
The diligence of a good father of a family requires only that diligence which an ordinary
prudent man would exercise with regard to his own property. This we have found private
respondent to have exercised when the vessel sailed only after the "main engine,
machineries, and other auxiliaries" were checked and found to be in good running
condition;41 when the master left a competent officer, the officer on watch on the bridge with a
pilot who is experienced in navigating the Orinoco River; when the master ordered the
inspection of the vessel's double bottom tanks when the vibrations occurred anew.42
The Philippine rules on pilotage, embodied in Philippine Ports Authority Administrative Order
No. 03-85, otherwise known as the Rules and Regulations Governing Pilotage Services, the
Conduct of Pilots and Pilotage Fees in Philippine Ports enunciate the duties and
responsibilities of a master of a vessel and its pilot, among other things.
The pertinent provisions of the said administrative order governing these persons are quoted
hereunder:
"Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage grounds, the
Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a
vessel or to life and property at ports due to his negligence or fault. He can be absolved from
liability if the accident is caused by force majeure or natural calamities provided he has
exercised prudence and extra diligence to prevent or minimize the damage.
"The Master shall retain overall command of the vessel even on pilotage grounds whereby he
can countermand or overrule the order or command of the Harbor Pilot on board. In such
event, any damage caused to a vessel or to life and property at ports by reason of the fault or
negligence of the Master shall be the responsibility and liability of the registered owner of the
vessel concerned without prejudice to recourse against said Master.
"Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and circumstances of
each particular case.
"x x x

13
CONFLICT CHOICE OF LAW

"Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties and
responsibilities of the Harbor Pilot shall be as follows:

Harbour at Port Ordaz, Venezuela,44 and that he had been a pilot for twelve (12) years.45 He
also had experience in navigating the waters of the Orinoco River.46

"x x x

The law does provide that the master can countermand or overrule the order or command of
the harbor pilot on board. The master of the Philippine Roxas deemed it best not to order him
(the pilot) to stop the vessel,47 mayhap, because the latter had assured him that they were
navigating normally before the grounding of the vessel.48 Moreover, the pilot had admitted that
on account of his experience he was very familiar with the configuration of the river as well as
the course headings, and that he does not even refer to river charts when navigating the
Orinoco River.49

"f) A pilot shall be held responsible for the direction of a vessel from the time he assumes his
work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that
his responsibility shall cease at the moment the Master neglects or refuses to carry out his
order."
The Code of Commerce likewise provides for the obligations expected of a captain of a
vessel, to wit:
"Art. 612. The following obligations shall be inherent in the office of captain:
"x x x
"7. To be on deck on reaching land and to take command on entering and leaving ports,
canals, roadsteads, and rivers, unless there is a pilot on board discharging his duties. x x x."
The law is very explicit. The master remains the overall commander of the vessel even when
there is a pilot on board. He remains in control of the ship as he can still perform the duties
conferred upon him by law43 despite the presence of a pilot who is temporarily in charge of the
vessel. It is not required of him to be on the bridge while the vessel is being navigated by a
pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:
"Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring thereat, or
passing through rivers or straits within a pilotage district, as well as docking and undocking at
any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and
foreign trade shall be under compulsory pilotage.
"xxx."
The Orinoco River being a compulsory pilotage channel necessitated the engaging of a pilot
who was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of the
river. In his deposition, pilot Ezzar Solarzano Vasquez testified that he is an official pilot in the

Based on these declarations, it comes as no surprise to us that the master chose not to regain
control of the ship. Admitting his limited knowledge of the Orinoco River, Captain Colon relied
on the knowledge and experience of pilot Vasquez to guide the vessel safely.
"Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different class from
ordinary employees, for they assume to have a skill and a knowledge of navigation in the
particular waters over which their licenses extend superior to that of the master; pilots are
bound to use due diligence and reasonable care and skill. A pilot's ordinary skill is in
proportion to the pilot's responsibilities, and implies a knowledge and observance of the usual
rules of navigation, acquaintance with the waters piloted in their ordinary condition, and
nautical skill in avoiding all known obstructions. The character of the skill and knowledge
required of a pilot in charge of a vessel on the rivers of a country is very different from that
which enables a navigator to carry a vessel safely in the ocean. On the ocean, a knowledge of
the rules of navigation, with charts that disclose the places of hidden rocks, dangerous shores,
or other dangers of the way, are the main elements of a pilot's knowledge and skill. But the
pilot of a river vessel, like the harbor pilot, is selected for the individual's personal knowledge
of the topography through which the vessel is steered."50
We find that the grounding of the vessel is attributable to the pilot. When the vibrations were
first felt the watch officer asked him what was going on, and pilot Vasquez replied that "(they)
were in the middle of the channel and that the vibration was as (sic) a result of the
shallowness of the channel."51
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as well as
other vessels on the Orinoco River due to his knowledge of the same. In his experience as a
pilot, he should have been aware of the portions which are shallow and which are not. His
failure to determine the depth of the said river and his decision to plod on his set course, in all

14
CONFLICT CHOICE OF LAW

probability, caused damage to the vessel. Thus, we hold him as negligent and liable for its
grounding.
In the case of Homer Ramsdell Transportation Company vs. La Compagnie Generale
Transatlantique, 182 U.S. 406, it was held that:

As has already been held above, there was a temporary shift of control over the ship from the
master of the vessel to the pilot on a compulsory pilotage channel. Thus, two of the requisites
necessary for the doctrine to apply, i.e., negligence and control, to render the respondent
liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.

"x x x The master of a ship, and the owner also, is liable for any injury done by the negligence
of the crew employed in the ship. The same doctrine will apply to the case of a pilot employed
by the master or owner, by whose negligence any injury happens to a third person or his
property: as, for example, by a collision with another ship, occasioned by his negligence. And
it will make no difference in the case that the pilot, if any is employed, is required to be a
licensed pilot; provided the master is at liberty to take a pilot, or not, at his pleasure, for in
such a case the master acts voluntarily, although he is necessarily required to select from a
particular class. On the other hand, if it is compulsive upon the master to take a pilot,
and, a fortiori, if he is bound to do so under penalty, then, and in such case, neither he
nor the owner will be liable for injuries occasioned by the negligence of the pilot; for in
such a case the pilot cannot be deemed properly the servant of the master or the owner, but is
forced upon them, and the maxim Qui facit per alium facit per sedoes not apply."
(Underscoring supplied)
Anent the river passage plan, we find that, while there was none,52 the voyage has been
sufficiently planned and monitored as shown by the following actions undertaken by the pilot,
Ezzar Solarzano Vasquez, to wit: contacting the radio marina via VHF for information
regarding the channel, river traffic,53 soundings of the river, depth of the river, bulletin on the
buoys.54The officer on watch also monitored the voyage.55
We, therefore, do not find the absence of a river passage plan to be the cause for the
grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because the circumstances
surrounding the injury do not clearly indicate negligence on the part of the private respondent.
For the said doctrine to apply, the following conditions must be met: (1) the accident was of
such character as to warrant an inference that it would not have happened except for
defendant's negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person charged with the
negligence complained of; and (3) the accident must not have been due to any voluntary
action or contribution on the part of the person injured.56

The Lloyds Register of Shipping confirmed the vessels seaworthiness in a Confirmation of


Class issued on February 16, 1988 by finding that "the above named ship (Philippine Roxas)
maintained the class "+100A1 Strengthened for Ore Cargoes, Nos. 2 and 8 Holds may be
empty (CC) and +LMC" from 31/12/87 up until the time of casualty on or about 12/2/88."57 The
same would not have been issued had not the vessel been built according to the standards
set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the
seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also basing on the class record of the vessel,
wherein recommendations were made on the top side tank, and it was given sufficient time to
be repaired, it means that the vessel is fit to travel even with those defects on the ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even with defects? Is that
what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the third party looking
into the condition of the vessel and as far as their record states, the vessel was class or
maintained, and she is fit to travel during that voyage."
"x x x
"ATTY. MISA

15
CONFLICT CHOICE OF LAW

Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1
Strengthened for Ore Cargoes', mean?

Finally, we find the award of attorneys fee justified.1wphi1


Article 2208 of the New Civil Code provides that:

"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is capable
of carrying ore bulk cargoes, but she is particularly capable of carrying Ore Cargoes with No.
2 and No. 8 holds empty.
"x x x

"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:
"x x x
"(11) In any other case where the court deems it just and equitable that attorney's fees and
expenses of litigation should be recovered.

"COURT
"x x x"
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."58
It is not required that the vessel must be perfect. To be seaworthy, a ship must be reasonably
fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by
the parties to the policy.59

Due to the unfounded filing of this case, the private respondent was unjustifiably forced to
litigate, thus the award of attorneys fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the decision of
the Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED.
SO ORDERED.

As further evidence that the vessel was seaworthy, we quote the deposition of pilot Vasquez:
"Q Was there any instance when your orders or directions were not complied with because of
the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally."60
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident report
wherein he stated that on February 11, 1988, he checked and prepared the main engine,
machineries and all other auxiliaries and found them all to be in good running condition and
ready for maneuvering. That same day the main engine, bridge and engine telegraph and
steering gear motor were also tested.61 Engineer Mata also prepared the fuel for consumption
for maneuvering and checked the engine generators.62

16
CONFLICT CHOICE OF LAW

G.R. No. 136804

February 19, 2003

MANUFACTURERS HANOVER TRUST CO. and/or CHEMICAL BANK, petitioners,


vs.
RAFAEL MA. GUERRERO, respondent.
DECISION

this law bars all of Guerreros claims except actual damages. The Philippine Consular Office
in New York authenticated the Walden affidavit.
The RTC denied the Banks Motion for Partial Summary Judgment and its motion for
reconsideration on March 6, 1996 and July 17, 1996, respectively. The Bank filed a petition for
certiorari and prohibition with the Court of Appeals assailing the RTC Orders. In its Decision
dated August 24, 1998, the Court of Appeals dismissed the petition. On December 14, 1998,
the Court of Appeals denied the Banks motion for reconsideration.

CARPIO, J.:
Hence, the instant petition.
The Case
The Ruling of the Court of Appeals
This is a petition for review under Rule 45 of the Rules of Court to set aside the Court of
Appeals1 Decision of August 24, 1998 and Resolution of December 14, 1998 in CA-G.R. SP
No. 423102 affirming the trial courts denial of petitioners motion for partial summary
judgment.
The Antecedents
On May 17, 1994, respondent Rafael Ma. Guerrero ("Guerrero" for brevity) filed a complaint
for damages against petitioner Manufacturers Hanover Trust Co. and/or Chemical Bank ("the
Bank" for brevity) with the Regional Trial Court of Manila ("RTC" for brevity). Guerrero sought
payment of damages allegedly for (1) illegally withheld taxes charged against interests on his
checking account with the Bank; (2) a returned check worth US$18,000.00 due to signature
verification problems; and (3) unauthorized conversion of his account. Guerrero amended his
complaint on April 18, 1995.
On September 1, 1995, the Bank filed its Answer alleging, inter alia, that by stipulation
Guerreros account is governed by New York law and this law does not permit any of
Guerreros claims except actual damages. Subsequently, the Bank filed a Motion for Partial
Summary Judgment seeking the dismissal of Guerreros claims for consequential, nominal,
temperate, moral and exemplary damages as well as attorneys fees on the same ground
alleged in its Answer. The Bank contended that the trial should be limited to the issue of actual
damages. Guerrero opposed the motion.
The affidavit of Alyssa Walden, a New York attorney, supported the Banks Motion for Partial
Summary Judgment. Alyssa Waldens affidavit ("Walden affidavit" for brevity) stated that
Guerreros New York bank account stipulated that the governing law is New York law and that

The Court of Appeals sustained the RTC orders denying the motion for partial summary
judgment. The Court of Appeals ruled that the Walden affidavit does not serve as proof of the
New York law and jurisprudence relied on by the Bank to support its motion. The Court of
Appeals considered the New York law and jurisprudence as public documents defined in
Section 19, Rule 132 of the Rules on Evidence, as follows:
"SEC. 19. Classes of Documents. For the purpose of their presentation in evidence,
documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;
x x x."
The Court of Appeals opined that the following procedure outlined in Section 24, Rule 132
should be followed in proving foreign law:
"SEC. 24. Proof of official record. The record of public documents referred to in paragraph
(a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign service of the

17
CONFLICT CHOICE OF LAW

Philippines stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office."
The Court of Appeals likewise rejected the Banks argument that Section 2, Rule 34 of the old
Rules of Court allows the Bank to move with the supporting Walden affidavit for partial
summary judgment in its favor. The Court of Appeals clarified that the Walden affidavit is not
the supporting affidavit referred to in Section 2, Rule 34 that would prove the lack of genuine
issue between the parties. The Court of Appeals concluded that even if the Walden affidavit is
used for purposes of summary judgment, the Bank must still comply with the procedure
prescribed by the Rules to prove the foreign law.
The Issues
The Bank contends that the Court of Appeals committed reversible error in "x x x HOLDING THAT [THE BANKS] PROOF OF FACTS TO SUPPORT ITS MOTION FOR
SUMMARY JUDGMENT MAY NOT BE GIVEN BY AFFIDAVIT;
x x x HOLDING THAT [THE BANKS] AFFIDAVIT, WHICH PROVES FOREIGN LAW AS A
FACT, IS "HEARSAY" AND THEREBY CANNOT SERVE AS PROOF OF THE NEW YORK
LAW RELIED UPON BY PETITIONERS IN THEIR MOTION FOR SUMMARY JUDGMENT x
x x."3
First, the Bank argues that in moving for partial summary judgment, it was entitled to
use the Walden affidavit to prove that the stipulated foreign law bars the claims for
consequential, moral, temperate, nominal and exemplary damages and attorneys
fees. Consequently, outright dismissal by summary judgment of these claims is
warranted.
Second, the Bank claims that the Court of Appeals mixed up the requirements of
Rule 35 on summary judgments and those of a trial on the merits in considering the
Walden affidavit as "hearsay." The Bank points out that the Walden affidavit is not
hearsay since Rule 35 expressly permits the use of affidavits.
Lastly, the Bank argues that since Guerrero did not submit any opposing affidavit to
refute the facts contained in the Walden affidavit, he failed to show the need for a
trial on his claims for damages other than actual.

The petition is devoid of merit.


The Bank filed its motion for partial summary judgment pursuant to Section 2, Rule 34 of the
old Rules of Court which reads:
"Section 2. Summary judgment for defending party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits for a summary judgment in his favor as to all or any part
thereof."
A court may grant a summary judgment to settle expeditiously a case if, on motion of either
party, there appears from the pleadings, depositions, admissions, and affidavits that no
important issues of fact are involved, except the amount of damages. In such event, the
moving party is entitled to a judgment as a matter of law.4
In a motion for summary judgment, the crucial question is: are the issues raised in the
pleadings genuine, sham orfictitious, as shown by affidavits, depositions or admissions
accompanying the motion?5
A genuine issue means an issue of fact which calls for the presentation of evidence as
distinguished from an issue which is fictitious or contrived so as not to constitute a genuine
issue for trial.6
A perusal of the parties respective pleadings would show that there are genuine issues of fact
that necessitate formal trial. Guerreros complaint before the RTC contains a statement of the
ultimate facts on which he relies for his claim for damages. He is seeking damages for what
he asserts as "illegally withheld taxes charged against interests on his checking account with
the Bank, a returned check worth US$18,000.00 due to signature verification problems, and
unauthorized conversion of his account." In its Answer, the Bank set up its defense that the
agreed foreign law to govern their contractual relation bars the recovery of damages other
than actual. Apparently, facts are asserted in Guerreros complaint while specific denials and
affirmative defenses are set out in the Banks answer.
True, the court can determine whether there are genuine issues in a case based merely on
the affidavits or counter-affidavits submitted by the parties to the court. However, as correctly
ruled by the Court of Appeals, the Banks motion for partial summary judgment as supported
by the Walden affidavit does not demonstrate that Guerreros claims are sham, fictitious or
contrived. On the contrary, the Walden affidavit shows that the facts and material allegations

The Courts Ruling

18
CONFLICT CHOICE OF LAW

as pleaded by the parties are disputed and there are substantial triable issues necessitating a
formal trial.
There can be no summary judgment where questions of fact are in issue or where material
allegations of the pleadings are in dispute.7 The resolution of whether a foreign law allows
only the recovery of actual damages is a question of fact as far as the trial court is concerned
since foreign laws do not prove themselves in our courts.8 Foreign laws are not a matter of
judicial notice.9 Like any other fact, they must be alleged and proven. Certainly, the conflicting
allegations as to whether New York law or Philippine law applies to Guerreros claims present
a clear dispute on material allegations which can be resolved only by a trial on the merits.
Under Section 24 of Rule 132, the record of public documents of a sovereign authority or
tribunal may be proved by (1) an official publication thereof or (2) a copy attested by the officer
having the legal custody thereof. Such official publication or copy must be accompanied, if the
record is not kept in the Philippines, with a certificate that the attesting officer has the legal
custody thereof. The certificate may be issued by any of the authorized Philippine embassy or
consular officials stationed in the foreign country in which the record is kept, and authenticated
by the seal of his office. The attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be, and must be under the
official seal of the attesting officer.
Certain exceptions to this rule were recognized in Asiavest Limited v. Court of
Appeals10 which held that:
"x x x:
Although it is desirable that foreign law be proved in accordance with the above rule, however,
the Supreme Court held in the case of Willamette Iron and Steel Works v. Muzzal, that
Section 41, Rule 123 (Section 25, Rule 132 of the Revised Rules of Court) does not exclude
the presentation of other competent evidence to prove the existence of a foreign law. In that
case, the Supreme Court considered the testimony under oath of an attorney-at-law of San
Francisco, California, who quoted verbatim a section of California Civil Code and who stated
that the same was in force at the time the obligations were contracted, as sufficient evidence
to establish the existence of said law. Accordingly, in line with this view, the Supreme Court in
the Collector of Internal Revenue v. Fisher et al., upheld the Tax Court in considering the
pertinent law of California as proved by the respondents witness. In that case, the counsel for
respondent "testified that as an active member of the California Bar since 1951, he is familiar
with the revenue and taxation laws of the State of California. When asked by the lower court
to state the pertinent California law as regards exemption of intangible personal properties,

the witness cited Article 4, Sec. 13851 (a) & (b) of the California Internal and Revenue Code
as published in Derrings California Code, a publication of Bancroft-Whitney Co., Inc. And as
part of his testimony, a full quotation of the cited section was offered in evidence by
respondents." Likewise, in several naturalization cases, it was held by the Court that evidence
of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although
not meeting the prescribed rule of practice, may be allowed and used as basis for favorable
action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the
written proof offered." Thus, in a number of decisions, mere authentication of the Chinese
Naturalization Law by the Chinese Consulate General of Manila was held to be competent
proof of that law." (Emphasis supplied)
The Bank, however, cannot rely on Willamette Iron and Steel Works v. Muzzal or Collector
of Internal Revenue v. Fisher to support its cause. These cases involved attorneys testifying
in open court during the trial in the Philippines and quoting the particular foreign laws sought
to be established. On the other hand, the Walden affidavit was taken abroad ex parte and the
affiant never testified in open court.1a\^/phi1.net The Walden affidavit cannot be considered
as proof of New York law on damages not only because it is self-serving but also because it
does not state the specific New York law on damages. We reproduce portions of the Walden
affidavit as follows:
"3. In New York, "[n]ominal damages are damages in name only, trivial sums such
as six cents or $1. Such damages are awarded both in tort and contract cases when
the plaintiff establishes a cause of action against the defendant, but is unable to
prove" actual damages. Dobbs, Law of Remedies, 3.32 at 294 (1993). Since
Guerrero is claiming for actual damages, he cannot ask for nominal damages.
4. There is no concept of temperate damages in New York law. I have reviewed
Dobbs, a well-respected treatise, which does not use the phrase "temperate
damages" in its index. I have also done a computerized search for the phrase in all
published New York cases, and have found no cases that use it. I have never heard
the phrase used in American law.
5. The Uniform Commercial Code ("UCC") governs many aspects of a Banks
relationship with its depositors. In this case, it governs Guerreros claim arising out
of the non-payment of the $18,000 check. Guerrero claims that this was a wrongful
dishonor. However, the UCC states that "justifiable refusal to pay or accept" as
opposed to dishonor, occurs when a bank refuses to pay a check for reasons such
as a missing indorsement, a missing or illegible signature or a forgery, 3-510,
Official Comment 2. .. to the Complaint, MHT returned the check because it had

19
CONFLICT CHOICE OF LAW

no signature card on . and could not verify Guerreros signature. In my opinion,


consistent with the UCC, that is a legitimate and justifiable reason not to pay.
6. Consequential damages are not available in the ordinary case of a justifiable
refusal to pay. UCC 1-106 provides that "neither consequential or special or punitive
damages may be had except as specifically provided in the Act or by other rule of
law". UCC 4-103 further provides that consequential damages can be recovered
only where there is bad faith. This is more restrictive than the New York common
law, which may allow consequential damages in a breach of contract case (as does
the UCC where there is a wrongful dishonor).
7. Under New York law, requests for lost profits, damage to reputation and mental
distress are considered consequential damages. Kenford Co., Inc. v. Country of
Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 4-5 (1989) (lost profits); Motif
Construction Corp. v. Buffalo Savings Bank, 50 A.D.2d 718, 374 N.Y.S..2d 868,
869-70 (4th Dept 1975) damage to reputation); Dobbs, Law of Remedies 12.4(1)
at 63 (emotional distress).
8. As a matter of New York law, a claim for emotional distress cannot be recovered
for a breach of contract. Geler v. National Westminster Bank U.S.A., 770 F. Supp.
210, 215 (S.D.N.Y. 1991); Pitcherello v. Moray Homes, Ltd., 150 A.D.2d 860,540
N.Y.S.2d 387, 390 (3d Dept 1989) Martin v. Donald Park Acres, 54 A.D.2d 975, 389
N.Y.S..2d 31, 32 (2nd Dept 1976). Damage to reputation is also not recoverable for
a contract. Motif Construction Corp. v. Buffalo Savings Bank, 374 N.Y.S.2d at 86970.1a\^/phi1.net
9. In cases where the issue is the breach of a contract to purchase stock, New York
courts will not take into consideration the performance of the stock after the breach.
Rather, damages will be based on the value of the stock at the time of the
breach, Aroneck v. Atkin, 90 A.D.2d 966, 456 N.Y.S.2d 558, 559 (4th Dept
1982), app. den.59 N.Y.2d 601, 449 N.E.2d 1276, 463 N.Y.S.2d 1023 (1983).
10. Under New York law, a party can only get consequential damages if they were
the type that would naturally arise from the breach and if they were "brought within
the contemplation of parties as the probable result of the breach at the time of or
prior to contracting." Kenford Co., Inc. v. Country of Erie, 73 N.Y.2d 312, 319, 540
N.Y.S.2d 1, 3 (1989), (quoting Chapman v. Fargo, 223 N.Y. 32, 36 (1918).

11. Under New York law, a plaintiff is not entitled to attorneys fees unless they are
provided by contract or statute.E.g., Geler v. National Westminster Bank, 770 F.
Supp. 210, 213 (S.D.N.Y. 1991); Camatron Sewing Mach, Inc. v. F.M. Ring Assocs.,
Inc., 179 A.D.2d 165, 582 N.Y.S.2d 396 (1st Dept 1992); Stanisic v. Soho
Landmark Assocs., 73 A.D.2d 268, 577 N.Y.S.2d 280, 281 (1st Dept 1991). There
is no statute that permits attorneys fees in a case of this type.
12. Exemplary, or punitive damages are not allowed for a breach of contract, even
where the plaintiff claims the defendant acted with malice. Geler v. National
Westminster Bank, 770 F.Supp. 210, 215 (S.D.N.Y. 1991); Catalogue Service of
chester11_v. Insurance Co. of North America, 74 A.D.2d 837, 838, 425 N.Y.S.2d
635, 637 (2d Dept 1980); Senior v. Manufacturers Hanover Trust Co., 110 A.D.2d
833, 488 N.Y.S.2d 241, 242 (2d Dept 1985).
13. Exemplary or punitive damages may be recovered only where it is alleged and
proven that the wrong supposedly committed by defendant amounts to a fraud
aimed at the public generally and involves a high moral culpability. Walker v.
Sheldon, 10 N.Y.2d 401, 179 N.E.2d 497, 223 N.Y.S.2d 488 (1961).
14. Furthermore, it has been consistently held under New York law that exemplary
damages are not available for a mere breach of contract for in such a case, as a
matter of law, only a private wrong and not a public right is involved. Thaler v. The
North Insurance Company, 63 A.D.2d 921, 406 N.Y.S.2d 66 (1st Dept 1978)."12
The Walden affidavit states conclusions from the affiants personal interpretation and opinion
of the facts of the case vis a vis the alleged laws and jurisprudence without citing any law in
particular. The citations in the Walden affidavit of various U.S. court decisions do not
constitute proof of the official records or decisions of the U.S. courts. While the Bank attached
copies of some of the U.S. court decisions cited in the Walden affidavit, these copies do not
comply with Section 24 of Rule 132 on proof of official records or decisions of foreign courts.
The Banks intention in presenting the Walden affidavit is to prove New York law and
jurisprudence. However, because of the failure to comply with Section 24 of Rule 132 on how
to prove a foreign law and decisions of foreign courts, the Walden affidavit did not prove the
current state of New York law and jurisprudence. Thus, the Bank has only alleged, but has not
proved, what New York law and jurisprudence are on the matters at issue.

20
CONFLICT CHOICE OF LAW

Next, the Bank makes much of Guerreros failure to submit an opposing affidavit to the
Walden affidavit. However, the pertinent provision of Section 3, Rule 35 of the old Rules of
Court did not make the submission of an opposing affidavit mandatory, thus:
"SEC. 3. Motion and proceedings thereon. The motion shall be served at least ten (10) days
before the time specified for the hearing. The adverse party prior to the day of hearing may
serve opposing affidavits. After the hearing, the judgment sought shall be rendered forthwith
if the pleadings, depositions and admissions on file, together with the affidavits, show that,
except as to the amount of damages, there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." (Emphasis supplied)

judgments were devised in our rules, which is, to aid parties in avoiding the expense and loss
of time involved in a trial.
WHEREFORE, the petition is DENIED for lack of merit. The Decision dated August 24, 1998
and the Resolution dated December 14, 1998 of the Court of Appeals in CA-G.R. SP No.
42310 is AFFIRMED.
SO ORDERED.

It is axiomatic that the term "may" as used in remedial law, is only permissive and not
mandatory.13
Guerrero cannot be said to have admitted the averments in the Banks motion for partial
summary judgment and the Walden affidavit just because he failed to file an opposing
affidavit. Guerrero opposed the motion for partial summary judgment, although he did not
present an opposing affidavit. Guerrero may not have presented an opposing affidavit, as
there was no need for one, because the Walden affidavit did not establish what the Bank
intended to prove. Certainly, Guerrero did not admit, expressly or impliedly, the veracity of the
statements in the Walden affidavit. The Bank still had the burden of proving New York law and
jurisprudence even if Guerrero did not present an opposing affidavit. As the party moving for
summary judgment, the Bank has the burden of clearly demonstrating the absence of any
genuine issue of fact and that any doubt as to the existence of such issue is resolved against
the movant.14
Moreover, it would have been redundant and pointless for Guerrero to submit an opposing
affidavit considering that what the Bank seeks to be opposed is the very subject matter of the
complaint. Guerrero need not file an opposing affidavit to the Walden affidavit because his
complaint itself controverts the matters set forth in the Banks motion and the Walden affidavit.
A party should not be made to deny matters already averred in his complaint.
There being substantial triable issues between the parties, the courts a quo correctly denied
the Banks motion for partial summary judgment. There is a need to determine by presentation
of evidence in a regular trial if the Bank is guilty of any wrongdoing and if it is liable for
damages under the applicable laws.
This case has been delayed long enough by the Banks resort to a motion for partial summary
judgment. Ironically, the Bank has successfully defeated the very purpose for which summary

21
CONFLICT CHOICE OF LAW

G.R. No. L-54204 September 30, 1982


NORSE MANAGEMENT CO. (PTE) and PACIFIC SEAMEN SERVICES, INC., petitioners,
vs.
NATIONAL SEAMEN BOARD, HON. CRESCENCIO M. SIDDAYAO, OSCAR M. TORRES,
REBENE C. CARRERA and RESTITUTA C. ABORDO, respondents.

The Hearing Officer III, Rebene C. Carrera of the Ministry of Labor and Employment, after
hearing the case, rendered judgment on June 20, 1979, ordering herein petitioners "to pay
jointly and severally the following:
I. US$30,600 (the 36-month salary of the decreased)) or its equivalent in Philippine
currency as death compensation benefits;

Bito, Misa & Lozada Law Offices for petitioners.

II. US$500.00 or its equivalent in Philippine currency as funeral expenses;

The Solicitor General and Jose A. Rico for respondents.

III. US$3,110 or 10% of the total amount recovered as attorney's fees.

RELOVA, J.:

It is also ordered that payment must be made thru the National Seamen Board within
ten (10) days from receipt of this decision.

In this petition for certiorari, petitioners pray that the order dated June 20, 1979 of the National
Seamen Board, and the decision dated December 11, 1979 of the Ministry of Labor be
nullified and set aside, and that "if petitioners are found liable to private respondent, such a
liability be reduced to P30,000.00 only, in accordance with respondent NSB's Standard
Format of a Service Agreement."
Napoleon B. Abordo, the deceased husband of private respondent Restituta C. Abordo, was
the Second Engineer of M.T. "Cherry Earl" when he died from an apoplectic stroke in the
course of his employment with petitioner NORSE MANAGEMENT COMPANY (PTE). The
M.T. "Cherry Earl" is a vessel of Singaporean Registry. The late Napoleon B. Abordo at the
time of his death was receiving a monthly salary of US$850.00 (Petition, page 5).
In her complaint for "death compensation benefits, accrued leave pay and time-off
allowances, funeral expenses, attorney's fees and other benefits and reliefs available in
connection with the death of Napoleon B. Abordo," filed before the National Seamen Board,
Restituta C. Abordo alleged that the amount of compensation due her from petitioners Norse
Management Co. (PTE) and Pacific Seamen Services, Inc., principal and agent, respectively,
should be based on the law where the vessel is registered. On the other hand, petitioners
contend that the law of Singapore should not be applied in this case because the National
Seamen Board cannot take judicial notice of the Workmen's Insurance Law of Singapore. As
an alternative, they offered to pay private respondent Restituta C. Abordo the sum of
P30,000.00 as death benefits based on the Board's Memorandum Circular No. 25 which they
claim should apply in this case.

Petitioners appealed to the Ministry of Labor. On December 11, 1979, the Ministry rendered
its decision in this case as follows:
Motion for reconsideration filed by respondents from the Order of this Board dated 20
June 1979 requiring them to pay complainant, jointly and severally, the amount of
Thirty-four thousand and two hundred ten dollars ($34,210.00) representing death
benefits, funeral expenses and attorney's fees.
The facts in the main are not disputed. The deceased, husband of complainant herein,
was employed as a Second Engineer by respondents and served as such in the vessel
"M.T. Cherry Earl" until that fatal day in May 1978 when, while at sea, he suffered an
apoplectic stroke and died four days later or on 29 May 1978. In her complaint filed
before this Board, Abordo argued that the amount of compensation due her should be
based on the law where the vessel is registered, which is Singapore law. Agreeing with
said argument, this Board issued the questioned Order. Hence this Motion for
Reconsideration.
In their motion for reconsideration, respondents strongly argue that the law of Singapore
should not be applied in the case considering that their responsibility was not alleged in
the complaint that no proof of the existence of the Workmen's Insurance Law of
Singapore was ever presented and that the Board cannot take judicial notice of the
Workmen's Insurance Law of Singapore. As an alternative, they offered to pay
complainant the amount of Thirty Thousand Pesos (P30,000.00) as death benefits
based on this Board's Memorandum Circular No. 25 which, they maintained, should
apply in this case.

22
CONFLICT CHOICE OF LAW

The only issue we are called upon to rule is whether or not the law of
Singapore ought to be applied in this case.
After an exhaustive study of jurisprudence on the matter. we rule in the
affirmative. Respondents came out with a well-prepared motion which, to
our mind, is more appropriate and perhaps acceptable in the regular court
of justice. Nothing is raised in their motion but question of evidence. But
evidence is usually a matter of procedure of which this Board, being
merely a quasi-judicial body, is not strict about.
It is true that the law of Singapore was not alleged and proved in the
course of the hearing. And following Supreme Court decisions in a long
line of cases that a foreign law, being a matter of evidence, must be
alleged and proved, the law of Singapore ought not to be recognized in
this case. But it is our considered opinion that the jurisprudence on this
matter was never meant to apply to cases before administrative or quasijudicial bodies such as the National Seamen Board. For well-settled also
is the rule that administrative and quasi-judicial bodies are not bound
strictly by technical rules. It has always been the policy of this Board, as
enunciated in a long line of cases, that in cases of valid claims for benefits
on account of injury or death while in the course of employment, the law of
the country in which the vessel is registered shall be considered. We see
no reason to deviate from this well-considered policy. Certainly not on
technical grounds as movants herein would like us to.
WHEREFORE, the motion for reconsideration is hereby denied and the
Order of tills Board dated 20 June 1979 affirmed. Let execution issue
immediately.
In Section 5(B) of the "Employment Agreement" between Norse Management Co. (PTE) and
the late Napoleon B. Abordo, which is Annex "C" of the Supplemental Complaint, it was
stipulated that:
In the event of illness or injury to Employee arising out of and in the
course of his employment and not due to his own willful misconduct and
occurring whilst on board any vessel to which he may be assigned, but not
any other time, the EMPLOYER win provide employee with free medical
attention, including hospital treatment, also essential medical treatment in
the course of repatriation and until EMPLOYEE's arrival at his point of

origin. If such illness or injury incapacitates the EMPLOYEE to the extent


the EMPLOYEE's services must be terminated as determined by a
qualified physician designated by the EMPLOYER and provided such
illness or injury was not due in part or whole to his willful act, neglect or
misconduct compensation shall be paid to employee in accordance with
and subject to the limitations of the Workmen's Compensation Act of the
Republic of the Philippines or the Workmen's Insurance Law of registry of
the vessel whichever is greater. (Emphasis supplied)
In the aforementioned "Employment Agreement" between petitioners and the late Napoleon B.
Abordo, it is clear that compensation shall be paid under Philippine Law or the law of registry
of petitioners' vessel, whichever is greater. Since private respondent Restituta C. Abordo was
offered P30,000.00 only by the petitioners, Singapore law was properly applied in this case.
The "Employment Agreement" is attached to the Supplemental Complaint of Restituta C.
Abordo and, therefore, it forms part thereof. As it is familiar with Singapore Law, the National
Seamen Board is justified in taking judicial notice of and in applying that law. In the case of
VirJen Shipping and Marine Services, Inc. vs. National Seamen Board, et al (L41297), the
respondent Board promulgated a decision, as follows:
The facts established and/or admitted by the parties are the following: that
the late Remigio Roldan was hired by the respondent as Ordinary
Seamen on board the M/V "Singapura Pertama," a vessel of Singapore
Registry; that on September 27, 1973, the deceased Remigio Roldan met
an accident resulting in his death while on board the said M/V "Singapura
Pertama" during the performance of his duties; that on December 3, 1973,
the respondent Virjen Shipping and Marine Services, Inc. paid the
complainant Natividad Roldan the amount of P6,000.00 representing
Workmen's Compensation benefits and donations of the company; that
the amount of P4,870 was spent by the respondent company as burial
expenses of the deceased Remegio Roldan.
The only issue therefore remaining to be resolved by the Board in
connection with the particular case, is whether or not under the existing
laws (Philippine and foreign), the complainant Natividad Roldan is entitled
to additional benefits other than those mentioned earlier. The Board takes
judicial notice, (as a matter of fact, the respondent having admitted in its
memorandum) of the fact that "Singapura Pertama" is a foreign vessel of
Singapore Registry and it is the policy of this Board that in case of award

23
CONFLICT CHOICE OF LAW

of benefits to seamen who were either injured in the performance of its


duties or who died while in the course of employment is to consider the
benefits allowed by the country where the vessel is registered. Likewise,
the Board takes notice that Singapore maritime laws relating to workmen's
compensation benefits are similar to that of the Hongkong maritime laws
which provides that in case of death, the heirs of the deceased seaman
should receive the equivalent of 36 months wages of the deceased
seaman; in other words, 36 months multiplied by the basic monthly
wages. In the employment contract submitted with this Board, the terms of
which have never been at issue, is shown that the monthly salary of the
deceased Remigio Roldan at the time of his death was US$80.00; such
that, 36 months multiplied by $80 would come up to US$2,880 and at the
rate of P7.00 to $1.00, the benefits due the claimant would be P20,160.
However, since there was voluntary payment made in the amount of
P6,000 and funeral expenses which under the Workmen's Compensation
Law had a maximum of P200.00, the amount of P6,200.00 should be
deducted from P20,160 and the difference would be P13,960.00.

Finally, Article IV of the Labor Code provides that "all doubts in the implementation and
interpretation of the provisions of this code, including its implementing rules and resolved in
favor of labor.
For lack of merit, this petition is DENIED.
SO ORDERED.

WHEREFORE, the Board orders the respondent Virjen Shipping and


Marine Services, Inc. to pay the complainant Natividad Roldan the amount
of P13,960.00 within ten (10) days from receipt of this Decision. The
Board also orders the respondent that payment should be made through
the National Seamen Board.
The foregoing decision was assailed as null and void for allegedly having been rendered
without jurisdiction and for awarding compensation benefits beyond the maximum allowable
and on the ground of res judicata. This Court in its resolution dated October 27, 1975 and
December 12, 1975, respectively dismissed for lack of merit the petition as well as the motion
for reconsideration in said G.R. No. L- 41297.
Furthermore, Article 20, Labor Code of the Philippines, provides that the National Seamen
Board has original and exclusive jurisdiction over all matters or cases including money claims,
involving employer-employee relations, arising out of or by virtue of any law or contracts
involving Filipino seamen for overseas employment. Thus, it is safe to assume that the Board
is familiar with pertinent Singapore maritime laws relative to workmen's compensation.
Moreover, the Board may apply the rule on judicial notice and, "in administrative proceedings,
the technical rules of procedure particularly of evidence applied in judicial trials, do not
strictly apply." (Oromeca Lumber Co. Inc. vs. Social Security Commission, 4 SCRA 1188).

24
CONFLICT CHOICE OF LAW

486 F.Supp.2d 1022 (2007)


Michael BUTLER, et al., Plaintiffs,
v.
ADOPTION MEDIA, LLC, et al., Defendants.
No. C 04-0135 PJH.
United States District Court, N.D. California.
March 30, 2007.
[1023] [1024] Courtney Grant Joslin, Katherine K. Ikeda, Orrick Herrington & Sutcliffe LLP, Paul Stephan
Marchegiani, Morrison & Foerster LLP, San Francisco, CA, I. Neel Chatterjee, Theresa Ann Sutton,
Orrick Herrington & Sutcliffe, Menlo Park, CA, Shannon Minter, Dominique Naomi Thomas, [1025]
Alschuler Grossman Stein & Kahn, Santa Monica, CA, for Plaintiffs.
Benjamin Wyman Bull, Alliance Defense Fund, Scottsdale, AZ, Terry Lee Thompson, Terry L.
Thompson, Attorney at Law, Alamo, CA, Byron Jeffords Babione, Dale Schowengerdt, Glen E. Lavy,
Alliance Defense Fund, Scottsdale, AZ, David L. Llewellyn, Jr., Llewellyn Spann, Attorneys at Law,
Citrus Heights, CA, Douglas Carter Fitzpatrick, Sedona, AZ, J. Hector Moreno, Jr., San Jose, CA, for
Defendants.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
HAMILTON, District Judge.
The parties' cross-motions for summary judgment came on for hearing on June 7, 2006. In July 2006,
the California Supreme Court issued three decisions relevant to issues raised in the parties'
motions: Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 45 Cal.Rptr.3d 730, 137 P.3d 914
(2006); Californians for Disability Rights v. Mervyn's, LLC, 39 Cal.4th 223, 46 Cal.Rptr.3d 57, 138 P.3d
207 (2006); and Branick v. Downey Say. & Loan Ass'n, 39 Cal.4th 235, 46 Cal.Rptr.3d 66, 138 P.3d 214
(2006). The court subsequently instructed the parties to submit further briefing addressing those
decisions.
Having read the parties' papers and carefully considered their arguments and the relevant legal
authority, and good cause appearing, the court hereby DENIES plaintiffs' motion and GRANTS
defendants' motions IN PART and DENIES them IN PART, as follows.
INTRODUCTION
Defendants Dale R. Gwilliam and Nathan W. Gwilliam ("the Gwilliams") are Arizona residents who run
businesses that operate adoption-related websites. These websites constitute the largest, most active,
and most well-known Internet adoption-related business in the United States. One of the websites,
ParentProfiles.com, offers a service that allows prospective adoptive parents, for a fee, to post "profiles"
containing information about themselves, for review by women who have given birth or are about to give
birth and plan to give up the children for adoption.

Plaintiffs Michael Butler and Richard Butler ("the Butlers") have been registered domestic partners in the
state of California since 2000. In 2002, they were seeking to adopt a child. They were certified and
approved to adopt in California, and applied to have their profile posted on ParentProfiles.com. Their
application was rejected.
On January 12, 2004, plaintiffs filed suit against the Gwilliams and two Arizona limited liability companies
owned and managed by the Gwilliams Adoption Media LLC and Adoption Profiles LLC. Plaintiffs
alleged violations of the Unruh Civil Rights Act ("the Unruh Act" or "the Act"), California Civil Code 51
and 51.5; and violations of California's unfair competition and false advertising laws, California Business
and Professions Code 17200 and 17500. Plaintiffs subsequently amended the complaint to add three
defendants Adoption.com, True North, Inc., and Aracaju, Inc. and to allege alter ego and
successor liability. Plaintiffs amended the complaint a second time following the court's ruling on the
motion to dismiss the first amended complaint. Plaintiffs seek damages and injunctive relief.
Each side has moved for summary judgment. Plaintiffs seek summary judgment on the issue of liability
against Dale R. Gwilliam, Nathan W. Gwilliam, Adoption.com, and Adoption Profiles LLC, on the Unruh
Act claims. Defendants seek summary judgment on the substantive [1026] causes of action and on the
issues of alter ego and successor liability, and personal jurisdiction. They also argue that the injunctive
relief requested would violate the First Amendment, that California substantive law may not be applied in
this case, and that plaintiffs lack standing to bring the unfair competition and false advertising claims.
BACKGROUND
On August 31, 1999, Dale Gwilliam and Nathan Gwilliam formed an Arizona general partnership, known
as Adoption.com. Dale and Nathan each owned, and continue to own, 50% of the Adoption.com
partnership.
As of October 2002, the Adoption.com partnership owned a network of adoption-related websites,
including Adoption.com, a website providing a variety of adoption-related information, and
ParentProfiles.com, which allowed prospective adoptive parents to post information about themselves,
for a monthly fee. In addition, in Dale and Nathan formed another general partnership in 2002, Adoption
Internet Holdings, and through that partnership purchased a California business, the Adopting.org
website.
Plaintiffs were certified and approved to adopt on October 3, 2002. The Independent Adoption Center
("IAC"), the oldest and largest adoption agency in California, which had a contract with the Adoption.com
partnership relating to referrals to the ParentProfiles service, referred plaintiffs to the website,
ParentProfiles.com, as part of plaintiffs' search for an adoptable child.
Plaintiffs filled out an application to become members of ParentProfiles.com. They obtained a log-in
identification name and password to access the ParentProfiles website and upload their profile
information. On October 21, 2002, plaintiffs submitted by facsimile copies of the ParentProfiles credit
card authorization form and agreement and a certificate of compliance from the IAC.

25
CONFLICT CHOICE OF LAW

On October 24, 2002, Michael Butler called Adoption.com's toll-free number to inquire about the status
of the application. He spoke with Dale Gwilliam. In the course of the conversation, Dale told Michael that
plaintiffs would not be permitted to use ParentProfiles.com's services.
The partnership had adopted a policy allowing only individuals in an opposite-sex marriage to post
profiles on the website. Dale testified in his deposition that the "opposite gender component is an
essential component of the policy." Nathan testified that a same-sex couple registered under California's
domestic partnership law would not qualify under the policy because they are not married, and that even
if same-sex couples were permitted to marry in all 50 states, defendants would still be reluctant to
change the policy and would instead "look at all the evidence gathered altogether and make a decision"
as to whether to modify their policy.
Michael e-mailed the Gwilliams five days later "confirming our conversation we had last Thursday
afternoon" in which Dale "stated that it is your policy to not allow domestic partners to sign-up for your
site." Michael asked that Dale "reconsider your policy against gay couples and allow us to join your site."
The Gwilliams did not respond to the e-mail, and did not have any further direct communication with the
plaintiffs. The partnership did not accept plaintiffs' application to use the services of ParentProfiles.com,
and refused to post their profile on the website.
On January 2, 2003, the Gwilliam formed two Arizona limited liability companies, Adoption Media LLC
and Adoption Profiles LLC. Each of the two LLCs was [1027] owned 50-50 by Dale and Nathan. At the
formation of the LLCs, each was provided with $200 in cash assets.
On January 9, 2003, Dale and Nathan elected themselves the sole managers and officers of Adoption
Media LLC and Adoption Profiles LLC. Nathan is the Chief Executive Officer, and Dale is the President
and Secretary, of each LLC. Also on January 9, 2003, Dale and Nathan executed documents
transferring most of the partnership assets of Adoption.com (the general partnership) to Dale and
Nathan. Those assets included the Adoption.com and ParentProfiles.com domain names and related
programming and intellectual property.
Dale and Nathan then transferred ownership of the Adoption.com website to Adoption Media LLC and
ownership of the ParentProfiles.com website to Adoption Profiles LLC all transfers or distributions to
be effective as of 11:59:30 p.m. on January 31, 2003. The Adoption.com partnership retained the
software used by the websites transferred to the LLCs, and also retained more than 1000 domain
names, the operating website, the Adopting.org website, and other associated assets.
On January 15, 2003, Dale and Nathan dissolved the partnership Adoption Internet Holdings, and
distributed all its assets, including the Adopting.org website, to the general partners as of 11:59:30 p.m.
on January 31, 2003. Dale and Nathan transferred these assets to Adoption Media LLC as of 11:59:35
p.m. on January 31, 2003.

On June 2, 2003, Dale and his wife Kristie incorporated True North, Inc. ("True North") as an Arizona
corporation; and Nathan incorporated Aracaju, Inc. ("Aracaju") as an Arizona corporation.
On June 6, 2003, Dale conveyed his 50% ownership in Adoption Media LLC and Adoption Profiles LLC
to True North; and Nathan conveyed his 50% ownership in Adoption Media LLC and Adoption Profiles
LLC to Aracaju. The transfers involved membership only, with no transfer of the underlying assets. That
same day, Dale, as President of True North, designated himself as True North's representative relating
to its membership interests in both LLCs; and Nathan as President of Aracaju, designated himself as
Aracaju's representative relating to its membership interests in both LLCs. True North and Aracaju
currently act as holding companies of the membership interests in the LLCs.
Adoption Profiles LLC continues the policy of allowing only married, opposite-sex couples to use the
ParentProfiles service.
DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there is no genuine issue as to material facts and the moving
party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. Material facts are those that might
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a
reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence,
and is required to view the evidence in the light most favorable to the nonmoving party. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its
motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. [1028] 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must
affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On
an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail
merely by pointing out to the district court that there is an absence of evidence to support the nonmoving
party's case. See id. If the moving party meets its initial burden, the opposing party must then set forth
specific facts showing that there is some genuine issue for trial in order to defeat the
motion. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
B. The Unruh Act
The Unruh Civil Rights Act, California Civil Code 51 and 52, was enacted in 1959, although
predecessor statutes had been enacted in 1897 and 1905, and the 1905 statute remained in effect until
the effective date of the Unruh Act. See Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 115052, 278 Cal.Rptr. 614, 805 P.2d 873 (1991). Civil Code 51.5 was enacted in 1976.
While it has been amended several times since 1959, Civil Code 51 has always provided that "[a]ll
persons within the jurisdiction of this state are free and equal, and no matter what their [specified
personal characteristics], . . . are entitled to the full and equal accommodations, advantages, facilities,

26
CONFLICT CHOICE OF LAW

privileges, or services in all business establishments of every kind whatsoever." Cal. Civ.Code 51(b).
Section 51.5 provides, in part, that "[n]o business establishment of any kind whatsoever shall
discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any
person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section
51. . . ." Cal. Civ.Code 51.5(a).
The "specified personal characteristics" listed in the 1959 version of the Unruh Act were "race, color,
religion, ancestry, or national origin." In 1970, the California Supreme Court applied the Unruh Act to a
case involving the exclusion of a patron of a business establishment for reasons not involving the
specified characteristics listed in the Act. In re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992 (1970).
The question was whether a shopping center had the right to exclude a customer based only on his
association with a young man who "wore long hair" and "dressed in an unconventional manner."
The court examined its previous decisions in Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d
449 (1951) and Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969 (1951), two cases brought under the
Unruh Act's predecessor statute, the Civil Rights Act, which provided that "all citizens" were entitled to
"full and equal accommodations, advantages, facilities, and privileges," and also prohibited "denying to
any citizen, except for reasons applicable alike to every race or color," access to places of public
accommodation. In Orloff, the court had held that the Civil Rights Act barred the manager of a race track
from ejecting a patron (a convicted gambler) who had acquired a reputation as a man of immoral
character. Orloff, 36 Cal.2d at 739, 227 P.2d 449. In Stoumen, the court had "recognized the right of
homosexuals to obtain food and drink in a bar and restaurant." Stoumen, 37 Cal.2d at 716, 234 P.2d
969.
The California Supreme Court concluded that Orloff and Stoumen had "clearly established" that the Civil
Rights Act prohibited all arbitrary discrimination in public accommodations. Cox, 3 Cal.3d at 214, [1029]
90 Cal.Rptr. 24, 474 P.2d 992.[1] The court also noted that the Legislature had enacted the 1959
amendment to 51 and 52 subsequent to the decisions in Orloff and Stoumen, neither of which had
restricted discrimination to race, color, religion, ancestry, or national origin. Id. at 215, 90 Cal.Rptr. 24,
474 P.2d 992. Stating that "[w]e must, of course, presume that the Legislature was well aware of these
decisions," the court refused to "infer from the 1959 amendment any legislative intent to deprive citizens
in general of the rights declared by the statute and stanchioned by public policy." Id.
Based on the nature of the 1959 amendments, the past judicial interpretation of the Civil Rights Act, and
the history of legislative enactments that extended the statutes' scope, the court concluded that
"identification of particular bases of discrimination color, race, religion, ancestry, and national origin
added by the 1959 amendment, is illustrative rather than restrictive." Id. at 216, 90 Cal.Rptr. 24, 474
P.2d 992. The court noted that while the legislation had been invoked primarily by persons alleging
discrimination on the basis of race, "its language and its history compel the conclusion that the
Legislature intended to prohibit all arbitrary discrimination by business establishments." Id.
In 1974, the Legislature amended 51 and 52 to add "sex" to the list of "specified personal
characteristics. The Legislature noted that section 51 applied to all arbitrary discrimination and that [t]he
listing of possible bases of discrimination has no legal effect, but is merely illustrative."
In 1982, in Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 (1982), the
California Supreme Court applied Cox to hold that the owner of an apartment complex violated the
Unruh Act by refusing to rent to families with minor children. The court again rejected the view that the

Act was limited to the categories specifically enumerated. Id. at 732, 180 Cal.Rptr. 496, 640 P.2d 115.
The court cited the legislative history of the Act, which reflected that in 1974, in sending the bill
amending 51 to the Governor for his signature, the Chairman of the Select Committee on Housing and
Urban Affairs had stated that "[t]he listing of possible bases of discrimination [in the Act] has no legal
effect but is merely illustrative." Id. at 734, 180 Cal.Rptr. 496, 640 P.2d 115. The court also cited various
opinions of the California Attorney General, advising that non-enumerated characteristics such as
occupation, marital status, or status as students or welfare recipients could provide a basis for an
Unruh Act claim. Id. at 736, 180 Cal. Rptr. 496, 640 P.2d 115.
The following year, in O'Connor v. Village Green Owners Ass'n, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662
P.2d 427 (1983), the court applied Marina Green to hold that a condominium development restricting
residency to persons over 18 violated the Unruh Act (noting also, however, that an age limitation in a
retirement community preserved for older citizens would likely not violate the Act). Id. at 793, 191
Cal.Rptr. 320, 662 P.2d 427.
In 1985, the California Supreme Court applied Cox and Marina Point to hold that the Boys' Club of Santa
Cruz a community recreation facility that was open (for a nominal annual fee) to all Santa Cruz boys
between the ages of 8 and 18 discriminated against girls in violation of the Unruh [1030] Act. Isbister
v. Boys' Club of Santa Cruz, 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). The court's
discussion focused primarily on the question whether the Boys' Club qualified as a "business
establishment," but the court did reiterate its by-now familiar statement that "identification of particular
bases of discrimination [in the Unruh, Act] is illustrative rather than restrictive." Id. at 86-87, 219 Cal.Rptr.
150, 707 P.2d 212 (quoting Cox, 3 Cal.3d at 216, 90 Cal.Rptr. 24, 474 P.2d 992).
During this same period 1982 to 1984 three appellate courts held that the Unruh Act prohibits
discrimination based on sexual orientation. First, in Hubert v. Williams, 133 Cal.App.3d Supp. 1, 184 Cal.
Rptr. 161 (App.Dep't., Super.Ct, L.A.County, 1982), a quadriplegic tenant who required 24-hour care
was evicted from his apartment because he had hired a lesbian attendant. Relying on Marina Point,
Cox, and Stoumen, the court held that discrimination on the basis of homosexuality violated the Unruh
Act. Id. at 3-5, 184 Cal.Rptr. 161.
Second, in Curran v. Mt. Diablo Council of the Boy Scouts, 147 Cal.App.3d 712, 195 Cal.Rptr. 325
(1983), the Court of Appeal held that the expulsion of a person from membership in the Boy Scouts
the plaintiff was an Eagle Scout who had applied to be an adult leader on the basis of his
homosexuality was a violation of the Unruh Act. Id. at 733-34, 195 Cal.Rptr. 325.[2]
Third, in Rolon v. Kulwitzky, 153 Cal. App.3d 289, 200 Cal.Rptr. 217 (1984), two lesbians filed suit
against a restaurant owner after they were refused service in a semi-private booth in the restaurant, and
were instead offered service at a table in the main dining room. The restaurant had a policy of allowing
seating in the booths only by two people of the opposite sex. The Court of Appeal observed that while
the Unruh Act "preserves the traditional broad authority of owners and proprietors of business
establishments to adopt reasonable rules regulating the conduct of patrons or tenants," it does not
permit the exclusion of an individual who has committed no such conduct, "solely because he falls within
a class of persons whom the owner believes is more likely to engage in misconduct than some other
group." Id. at 292, 200 Cal.Rptr. 217.
In 1987, the Legislature added "blindness or other physical disability" to the list of "specified personal
characteristics."

27
CONFLICT CHOICE OF LAW

In 1991, the California Supreme Court issued its decision in Harris v. Capital Growth Investors XIV The
plaintiffs were a group of prospective tenants who sued under the Unruh Act to challenge a landlord's
requirement that any prospective tenant have a monthly income of at least three times the apartment's
monthly rent. The two issues in the case were whether the Act proscribes economic discrimination, and
whether a plaintiff can state a claim under the Act for disparate impact (as opposed to disparate
treatment).
The defendants asserted, based on the specific discriminatory classifications listed in the Act, that
judicial expansion of those classifications to include whatever the courts might deem "arbitrary" could not
be justified. They also argued that the court should overrule Cox, Marina Point, and O'Connor.
The court found some indication that the Legislature had intended to confine the [1031] scope of the Act
to certain specified types of discrimination, but also found an "[in]sufficiently compelling reason" to
overrule Cox and its progeny. Harris, 52 Cal.3d at 1155, 278 Cal.Rptr. 614, 805 P.2d 873. The court
noted that while the Legislature had amended the Act several times in the 20 years since
the Cox decision, it had taken no steps to overrule the cases that had found that the Unruh Act
prohibited discrimination on the basis of unconventional dress or appearance (Cox), families with
children (Marina Point), persons under 18 (O'Connor), and homosexuality (RoIon, Curran, and Hubert).
Id.
The court reiterated that "[w]e generally presume the Legislature is aware of appellate court
decisions," id. at 1155, 278 Cal. Rptr. 614, 805 P.2d 873, and cited Marina Pointfor the proposition that
when the Legislature amends a statute without altering portions of the provision that have been
previously judicially construed, "the, Legislature is presumed to have been aware of and to have
acquiesced in the previous judicial construction." Id. at 1156, 278 Cal.Rptr. 614, 805 P.2d 873
(citing Marina Point, 30 Cal.3d at 734, 180 Cal.Rptr. 496, 640 P.2d 115). The court found the defendants'
argument that the holdings of Cox, Marina Point, O'Connor, and other decisions extending the Unruh Act
beyond its specified categories of discrimination had been somehow repudiated by the Legislature to be
"untenable." Id.
The court also concluded, however, that the Legislature's decision to enumerate personal characteristics
in the Act, and to omit financial or economic ones, did suggest a limitation on the scope of the statute.
The court devised a three-part analysis to help answer the question whether, in view of the continued
importance of the enumerated categories, and in light of the language and history of the Act and the
probable impact on its enforcement of the competing interpretations urged by the parties, the Act could
nonetheless be extended to claims of economic status discrimination. Id. at 1159, 180 Cal.Rptr. 496, 640
P.2d 115.
First, the court considered the language of the statute, noting an essential difference between economic
status (the basis for the plaintiffs' claims) and the Act's enumerated categories and those added by
judicial construction. The common element shared by the enumerated categories and those added by
judicial construction was that they "involve personal as opposed to economic characteristics." Id. at
1160, 180 Cal.Rptr. 496, 640 P.2d 115. The court found no case in which distinctions based on financial
or economic status (as opposed to personal characteristics) had been subjected to scrutiny under the
Act; and found no support in the language or history of the Act to support plaintiffs' contention that
economic distinctions and criteria were within the scope of the Act. Id. at 1161-62, 180 Cal.Rptr. 496,
640 P.2d 115.
Second, the court asked whether a legitimate business interest justified the minimum income policy at
issue in the case, and concluded that it did. Id. at 1164, 180 Cal.Rptr. 496, 640 P.2d 115. The court

observed that "[b]usiness establishments have an obvious and important interest in obtaining full and
timely payment for the goods and services they provide," and noted that it had previously "recognized
that the Unruh Act did not prohibit businesses from making economic distinctions among customers so
long as the criteria used were not based on personal characteristics and could conceivably be met by
any customer." Id. at 1162-63, 180 Cal.Rptr. 496, 640 P.2d 115. The court found that the minimum
income policy was "not `arbitrary' in the same way that race and sex [1032] discrimination are
arbitrary." Id. at 1164, 180 Cal.Rptr. 496, 640 P.2d 115.
Third, the court considered the potential consequences of allowing claims for economic status
discrimination to proceed under the Act, and suggested the possibility that courts would become
involved in a multitude of microeconomic decisions they are ill prepared to make, and the possibility that
landlords might abandon neutral criteria such as income, and use subjective criteria that might promote
the kind of discrimination the Unruh Act prohibits. Id. at 1165-69, 180 Cal.Rptr. 496, 640 P.2d 115.
Although Harris did not overrule Cox, Marina Point, or O'Connor, several decisions issued by the court of
appeal during the post-Harris period reflected a new unwillingness to expand the number of protected
characteristics under the Unruh Act. For example, in 1991, the court in Gayer v. Polk Gulch, Inc., 231
Cal.App.3d 515, 282 Cal.Rptr. 556 (1991), found that the Unruh Act did not encompass a retaliatory
discrimination claim by a patron who had a pending discrimination suit against a bar. In 1994, the court
in Roth v. Rhodes, 25 Cal.App.4th 530, 30 Cal. Rptr.2d 706 (1994), found that a podiatrist could not
maintain a claim under the Unruh Act against the operator of a medical building who refused to lease
space to him. In 2001, the court in Hessians Motorcycle Club v. J.C. Flanagans, 86 Cal.App.4th 833, 103
Cal.Rptr.2d 552 (2001), found that the Unruh Act did not prohibit a sports bar from denying admittance to
motorcycle club members who refused to remove their "colors."
In 1992, a California appellate court held that the Unruh Act should not be expanded to include "marital
status" as an additional basis of prohibited discrimination. See Beaty v. Truck Ins. Exchange, 6 Cal.
App.4th 1455, 8 Cal.Rptr.2d 593 (1992). The plaintiffs, a same-sex couple, sued the defendant
insurance company because it refused to sell them a joint umbrella policy under the terms and
conditions offered to married couples. The court acknowledged that prior California decisions (Stoumen,
Rolon, Curran, and Hubert) had held that discrimination against individuals on the basis of sexual
orientation violates the Unruh Act. However, the court found that the case did not involve discrimination
on the basis of sexual orientation, because the insurance company treated all unmarried individuals the
same with regard to the issuance of umbrella policies, without regard to sexual orientation. Id. at 146061, 8 Cal.Rptr.2d 593.
The court then considered' the claim of discrimination on the basis of marital status. While recognizing
that the Unruh Act had previously been extended to cover categories not enumerated in the statute, the
court noted that "no court has extended the Unruh Act to claimed discrimination on the basis of marital
status," and declared that "we shall not be the first to do so." Id. at 1462, 8 Cal.Rptr.2d 593. The court
interpreted Harris as accepting that the Unruh Act had previously been extended to unenumerated
categories, but also as requiring that any future expansion of prohibited categories should be "carefully
weighed to insure a result consistent with legislative intent." Id.
The court applied the second two prongs of Harris' three-part analysis (legitimate business interest and
consequences of allowing the type of claim brought by plaintiffs). In place of the first prong (examination
of the language of the statute, and determination whether the proposed basis of discrimination marital
status was similar to either the enumerated characteristics or the judicially-construed characteristics),

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the court simply concluded that marital status, like the economic status at [1033] issue in Harris, was a
characteristic the Act was not intended to reach.
The court found that the "strong policy in [California] in favor of marriage" categorically precluded
recognition of marital status discrimination under the Act. In the context presented, the court found that
the policy in favor of marriage would not be furthered and, in the case of an unmarried heterosexual
couple, would actually be thwarted, by including marital status among the prohibited categories. Id. at
1462-63, 8 Cal.Rptr.2d 593. The court also observed that the Legislature had included "marital status" in
scores of statutes, but had never taken the opportunity to include it in the Unruh Act. Id.
Thus, as of 2002, when defendants denied the Butlers' request to post their profile on
ParentProfiles.com, the Unruh Act specifically prohibited discrimination on the basis of race, color,
religion, ancestry, national origin, sex, disability, and medical condition.[3] The California Supreme. Court
had repeatedly stated, however, that the enumerated categories were "illustrative rather than restrictive,"
and the Legislature had never acted to repudiate that construction, despite having amended the Act
several times in the interim. The Harriscourt had slightly narrowed the earlier construction, holding that
the Unruh Act did not apply to prohibit discrimination based on "financial or economic status," or other
characteristics falling outside the realm of "personal characteristics."
Also as of 2002, a number of California appellate courts had ruled that the Unruh Act prohibited
discrimination on the basis of sexual orientation. While at least one appellate court had held that the
Unruh Act did not prohibit discrimination on the basis of marital status, the California Supreme Court had
indicated that it was an open question,[4] and had also repeatedly held that the Unruh Act's list of bases
of discrimination was illustrative rather than restrictive.
In 2004, plaintiffs filed the complaint in this action, alleging discrimination based on marital status, sexual
orientation, and sex, in violation of Civil Code 51 and 51.5.
In 2005, the California Supreme Court issued its opinion in Koebke v. Bernardo Heights Country
Club, 36 Cal.4th 824, 31 Cal.Rptr.3d 565, 115 P.3d 1212 (2005). In that case, a same-sex couple who
were registered domestic partners sued a country club to which one of them belonged, alleging that the
club's refusal to extend to them certain benefits it extended to married couples constituted marital status
discrimination under the Unruh Act.
The court first summarized its prior decisions (Cox, Marina Point, O'Connor, Isbister, [1034] and Harris),
and then applied the three-part Harris analysis to plaintiffs' marital status discrimination claim. As an
initial matter, the court found that marital status involves a personal characteristic, like those categories
already covered by the Act, and disagreed with the defendant country club's argument that marital status
is nothing more than a legal status imposed by the state. Koebke, 36 Cal.4th at 842, 31 Cal.Rptr.3d 565,
115 P.3d 1212.
The court then discussed the Beaty decision at length. The court acknowledged the strong policy in
California favoring marriage, and the practical interests served by that policy.Id. at 844-45, 31
Cal.Rptr.3d 565, 115 P.3d 1212. The court found, however, that "[t]hese policy considerations cannot
justify denial of Unruh Civil Rights Act protection to domestic partners, whatever their application to other
unmarried individuals and couples." Id. at 845, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court concluded
that the Domestic Partner Rights and Responsibilities Act of 2003 (effective January 1, 2005), by which
the Legislature granted legal recognition comparable to marriage both procedurally and in terms of
substantive rights and obligations, was supported by policy considerations similar to those that favor
marriage. Id. Thus, the court found, discrimination against registered domestic partners in favor of

married couples is a type of discrimination that falls within the ambit of the Unruh Act. Id. at 846, 31 Cal.
Rptr.3d 565, 115 P.3d 1212.
The court then analyzed the second and third prongs of the Harris test, while simultaneously
distinguishing the Beaty court's findings. In particular, the court found the Beaty court's concerns
inapplicable to registered domestic partners. Id. at 846-48, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court
also addressed the Beaty court's argument that the Legislature's failure to add marital status to the list of
characteristics protected under the Unruh Act was somehow significant, declaring that the Legislature's
failure to amend the Act to expressly prohibit discrimination against domestic partners "is a particularly
weak barometer of legislative intent." The court added, "No specific legislative declaration is required for
this court to infer from the statement of legislative intent accompanying the Domestic Partner Act an
intent that registered domestic partners should not be discriminated against in favor of married couples
in public accommodations." Id. at 849, 31 Cal.Rptr.3d 565, 115 P.3d 1212.
Finally, while it found that the defendant country club's spousal benefit policy did not constitute
impermissible marital status discrimination on its face prior to the effective date of the Domestic Partner
Act, the court indicated that it would consider whether plaintiffs should be able to proceed on a claim that
the policy, as applied, violated the Unruh Act prior to January 1, 2005. Id. at 851-52, 31 Cal. Rptr.3d 565,
115 P.3d 1212.
With regard to sexual orientation, plaintiffs had argued that using marriage as a criterion for allocating
benefits necessarily denied such benefits to all the country club's homosexual members, who, like
plaintiffs, were unable to marry in California. The court compared this claim to the claim in Harris, where
the plaintiffs had argued that the defendant landlord's minimum income policy constituted gender
discrimination because of its disparate impact on women, who were more likely to be receiving public
assistance and who generally had lower-paying jobs than men did. Id. at 853, 31 Cal.Rptr.3d 565, 115
P.3d 1212 (citing Harris, 52 Cal.3d at 1170, 278 Cal.Rptr. 614, 805 P.2d 873). The court noted that it
had previously rejected this theory, on the basis that the Unruh Act [1035] prohibits intentional acts of
discrimination, not disparate impact. Id. at 853-54, 31 Cal.Rptr.3d 565, 115 P.3d 1212.
The court recognized, however, that the plaintiffs had cast their claim as one of disparate treatment
rather than disparate impact, by alleging that discriminatory intent was established by country club's
adoption of marriage as the criterion by which to extend benefits to some of its members, but not to
others, for the reason that gays and_ lesbians cannot marry in California. Plaintiffs had also asserted
that a policy or classification, in itself permissible, may nonetheless be illegal if it is merely a device
employed to accomplish the prohibited discrimination. Nevertheless, the court found no evidence
supporting plaintiffs' claim that the country club had adopted its spousal benefit policy to accomplish
discrimination on the basis of sexual orientation, and concluded that plaintiffs' argument still seemed to
be based on the effects of a facially neutral policy. Id. at 854, 31 Cal.Rptr.3d 565, 115 P.3d 1212.
The court did find evidence, however, that the country club had not applied its facially neutral policy in an
impartial manner specifically, evidence that unmarried, heterosexual members of the country club
were granted membership privileges to which they were not entitled, while plaintiffs were denied such
privileges purportedly pursuant to the country club's spousal benefit policy. Id. There was also evidence
that the directors of the country club were motivated by animus toward plaintiffs because of their sexual
orientation. Id.The court determined that the plaintiffs should be allowed to try to establish that, prior to
2005, the spousal benefit policy was applied in a discriminatory fashion in violation of the Unruh
Act. Id. at 855, 31 Cal.Rptr.3d 565, 115 P.3d 1212.

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Later that year (2005), the Legislature amended the Unruh Act to substitute "medical condition, marital
status, or sexual orientation" for "or medical condition." See 2005 Cal. Legis. Serv. Ch. 420 (A.B. 1400).
This amendment was effective January 1, 2006. In addition, the Legislature appended the following
findings:
(a) Even prior to the passage of the Unruh Civil Rights Act, California law afforded broad protection
against arbitrary discrimination by business establishments. The Unruh Civil Rights Act was enacted to
provide broader, more effective protection against arbitrary discrimination. California's interest in
preventing that discrimination is longstanding and compelling.
(b) In keeping with that history and the legislative history of the Unruh Civil Rights Act, California courts
have interpreted the categories enumerated in the act to be illustrative rather than restrictive. It is the
intent of the Legislature that these enumerated bases shall continue to be construed as illustrative rather
than restrictive.
(c) The Legislature affirms that the bases of discrimination prohibited by the Unruh Civil Rights Act
include, but are not limited to, marital status and sexual orientation, as defined herein. By specifically
enumerating these bases in the Unruh Civil Rights Act, the Legislature intends to clarify the existing law,
rather than to change the law, as well as the principle that the bases enumerated in the act are
illustrative rather than restrictive.
(d) It is the intent of the Legislature that the amendments made to the Unruh Civil Rights Act by this act
do not affect the California Supreme Court's rulings in [Marina Point] and [O'Connor].
[1036] Cal. Civ.Code. 51, Historical Notes Historical and Statutory Notes.
Thus, as of January 1, 2005, based on the Koebke decision, the Unruh Act clearly prohibited marital
status discrimination against registered domestic partners in California. As of January 1, 2006, based on
the 2005 amendments to the Unruh Act and the Legislative findings, the Unruh Act clearly prohibits
discrimination based on marital status (regardless of whether the affected, persons are registered
domestic partners) and also based on sexual orientation (though this, had previously been established
by judicial decisions, dating back to the mid-1980s). The Legislature has also confirmed that the
enumerated characteristics should be construed as illustrative rather than restrictive.
C. The Parties' Motions
1. Choice of Law
Defendants argue that California law does not apply to plaintiffs' substantive claims, while plaintiffs
contend that it does.
a. Standard for Determining Applicable Law
Federal courts sitting in diversity look to the law of the forum state when making a choice-of-law
determination. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477
(1941); Sparling v. Hoffman Const, Co., Inc., 864 F.2d 635, 641 (9th Cir.1988); see also Fields v. Legacy

Health Sys., 413 F.3d 943, 950 (9th Cir.2005). Thus, because the complaint in the present action was
filed in California, California's choice-of-law rules apply.
In the absence of an effective choice of law by the parties, California applies the "governmental interest"
test. Washington Mutual Bank FA v. Superior Court, 24 Cal.4th 906, 919-20, 103 Cal.Rptr.2d 320, 15
P.3d 1071 (2001). Under that analysis,
a court carefully examines the govern mental interests or purposes served by the applicable statute or
rule of law of each of the affected jurisdictions to determine whether there is a "true conflict." If such a
conflict is found to exist, the court analyzes the jurisdictions' respective interests to determine which
jurisdiction's interests would be more severely impaired if that jurisdiction's law were not applied in the
particular con text presented by the case.
Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 100, 45 Cal.Rptr.3d 730, 137 P.3d 914 (2006)
(citing Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); Hurtado v. Superior
Court, 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 (1974); Bernhard v. Harrah's Club, 16 Cal.3d
313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976); Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157,
148 Cal.Rptr. 867, 583 P.2d 721 (1978)).
Kearney reflects the California Supreme Court's most recent thinking regarding the application of the
"governmental interest" test. In that case, two California clients of Salomon Smith Barney ("SSB") filed a
class action alleging that telephone calls they had made to brokers at SSB's Georgia office had been
tape-recorded without the clients' consent, in violation of California Penal Code 637.2. Penal Code
637.2 authorizes a civil cause of action for any violation of California's invasion-of-privacy statutory
scheme, and Penal. Code 632 is the specific portion of that scheme that governs the unlawful
recording of telephone conversations. Plaintiffs also alleged a cause of action under California Business
& Professions Code 17200. Kearney, 39 Cal.4th at 102, 45 Cal.Rptr.3d 730, 137 P.3d 914.
SSB demurred to the complaint. The trial court sustained the demurrer, concluding that under both
Georgia anti federal [1037] law, recordings may be lawfully made in Georgia by one party without the
other party's knowledge or consent, and that SSB's conduct could therefore not be viewed as unlawful or
unfair or deceptive under 17200. The court found further that any attempt to apply Penal Code 632 to
recordings made in Georgia would be preempted by federal law and would violate the Commerce
Clause. Id. at 102-03, 45 Cal.Rptr.3d 730, 137 P.3d 914.
The court of appeal affirmed the trial court's judgment, but on the basis that under the specific facts of
the case, Georgia had a greater interest in having its law applied. Id. at 103, 45 Cal.Rptr.3d 730, 137
P.3d 914. The California Supreme Court granted the petition for review to address what it termed the
"novel choice-of-law issue presented by this case." Id. The court initially disposed of SSB's arguments
regarding personal jurisdiction, legislative jurisdiction and extraterritorial application of state law, federal
preemption, and the Commerce Clause, id. at 103-07, 45 Cal.Rptr.3d 730, 137 P.3d 914, and then
addressed the choice-of-law issue, which it termed "the only substantial issue presented by the
case." Id at 107, 45 Cal.Rptr.3d 730, 137 P.3d 914.
The court summarized the governmental interest approach, as follows.
First, the court determines whether the relevant law of each of the potentially affected jurisdictions with
regard to the particular issue in question is the same or different. Second, if there is a difference, the
court examines each jurisdiction's interest in the application of its own law under the circumstances of
the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true

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conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in
the application of its own law "to determine which state's interest would be more impaired if its policy
were subordinated to the policy of the other state" . . . and then ultimately applies "the law of the state
whose interest would be the more impaired if its law were not applied."
Id. at 107-08, 45 Cal.Rptr.3d 730, 137 P.3d 914 (citation omitted).
The court then reviewed four of its previous decisions on the issue Reich, Hurtado,
Bernhard, and Offshore Rental. The first two cases Reich and Hurtado presented "no true conflict"
because in each case, only one of the states involved had an interest in having its law applied. The last
two cases Bernhard and Offshore Rental each presented a "true conflict," because in those cases,
each state had an interest in having its law applied, which required the court to conduct a "comparative
impairment" analysis.
In Reich, a 1967 decision, the plaintiffs Mr. Reich and one of his children filed a wrongful death
action after Mrs. Reich and the Reichs' other child were killed in an automobile accident while traveling
through Missouri. The Reichs were residents of Ohio at the time of the accident. After the accident, Mr.
Reich and the surviving child moved to California.
The suit was filed in a California court. The trial court held that Missouri law applied because the
accident had taken place in Missouri. Missouri had a limit of $25,000 on wrongful death damages, while
Ohio and California had no such limits. The question was whether the law of Missouri, California, or Ohio
should apply.
The California Supreme Court rejected the "law of the place of the wrong" rule, and instead adopted the
"governmental interest" test. Reich, 67 Cal.2d at 555-56, 63 Cal.Rptr. 31, 432 P.2d 727. The court found
that California had no interest in the [1038] case because plaintiffs were not California residents at the
time of the accident, and because California law did not limit damages. The court found further that
Missouri's interest was local, and did not apply to extend protection to travelers from another state. Ohio
had a substantial interest in having its law applied, while Missouri did not. Thus, the court found, the
case did not present a true conflict and Ohio law applied.
The facts in Hurtado, a 1974 decision, were somewhat similar to the facts in Reich. The plaintiffs (widow
and children of Antonio Hurtado) filed a wrongful death action in California. Antonio Hurtado had been
riding in an automobile owned and operated by his cousin, defendant Manuel Hurtado, and was killed
when Manuel Hurtado's automobile collided with a pickup truck owned and operated by defendant Jack
Rexius. The plaintiffs (Widow Hurtado and children) and the decedent (Antonio Hurtado) were residents
of Mexico, and defendants Manuel Hurtado and Jack Rexius were California residents. All vehicles were
registered in California.
At the time of the accident, Mexico had a law that limited damages in wrongful death actions, while
California had no limit. The question was whether the court should apply the law of California or the law
of Mexico.
The California Supreme Court noted the importance of correctly identifying the various interests in a
particular type of action. The court concluded that where a state's laws limit damages in a wrongful death
action, the interest of the state is to protect defendants from excessive financial burdens or exaggerated
claims. This interest is local, because it is designed to protect residents of the state. However, the court
found that Mexico had no interest in applying its limitation of damages because it had no defendant

residents to protect with such limitation it was the plaintiffs who were the residents of Mexico, not the
defendants. Hurtado, 11 Cal.3d at 583-84, 114 Cal.Rptr. 106, 522 P.2d 666.
In Bernhard, a 1976 decision, the California Supreme Court was confronted with a "true conflict" case for
the first time since adopting the "governmental interest" analysis.Bernhard was a dramshop-liability
case. The plaintiff, a resident of California, was injured in California by a drunk driver. The defendant,
Harrah's Club, was the owner of a Nevada tavern that had served alcohol to the driver who injured the
plaintiff.
Plaintiff filed suit in California, under a law that allowed a person injured by an intoxicated driver to file a
civil action to recover damages from a negligent tavern owner.[5] In Nevada, by contrast, while it was a
crime to sell alcohol to an intoxicated person, the state courts had ruled that a tavern owner could not be
held civilly liable in tort for injuries caused by that intoxicated person.
The court found that this presented a true conflict because each state had an interest in the application
of its respective law of liability, and the interests of the two states conflicted. Nevada had an interest in
having its decisional rule applied to protect its tavern owners from being subjected to a form of civil
liability that Nevada declined to impose. California, on the other hand, had an interest in applying its rule
imposing liability in such circumstances, because the rule was intended to protect members of the public
from injuries to persons and property resulting from excessive use of intoxicating liquor. [1039] California
also had a special interest in extending this protection to California residents injured in
California. Bernhard, 16 Cal.3d at 322-24, 128 Cal.Rptr. 215, 546 P.2d 719. The question was whether
California or Nevada law applied.
The court applied the third part of the governmental interest test the "comparative impairment"
analysis to determine which state's interest would be more impaired if its policy were subordinated to
the policy of the other state. Id. at 320, 128 Cal.Rptr. 215, 546 P.2d 719. The court first noted that
Harrah's "by the course of its chosen commercial practice" had "put itself at the heart of California's
regulatory interest, namely to prevent tavern keepers from selling alcoholic beverages to obviously
intoxicated persons who are likely to act in California in the intoxicated state." Id. at 322, 128 Cal.Rptr.
215, 546 P.2d 719.
The court observed that California "cannot reasonably effectuate its policy if it does not extend its
regulation to include out-of-state tavern-keepers such as defendant who regularly and purposefully sell
intoxicating beverages to California residents," under circumstances in which it is likely that intoxicated
persons will return to California while still in an intoxicated state. Id. at 322-23, 128 Cal.Rptr. 215, 546
P.2d 719. The court found that California's interest would be significantly impaired if its policy were not
applied to defendant Harrah's. Id. at 323, 128 Cal. Rptr. 215, 546 P.2d 719.
In Offshore Rental, a 1978 decision, a California corporation filed suit in California against an out-of-state
corporation (which did business in California, Louisiana, and other states), alleging damage to business
interests. The California corporation sought to recover damages for loss of services of one of its key
corporate officers, who was injured at the defendant corporation's Louisiana premises. The question was
whether California or Louisiana law applied.
Although Louisiana law allowed a "master" to bring an action "against any man for beating or maiming
his servant," Louisiana courts had ruled that a corporate plaintiff could not state a cause of action under
that law for loss of services of its officer. California cases, on the other hand, seemed to support a cause
of action under California Civil Code 49, which provided that "[t]he rights of personal relations forbid . .
. any injury to a servant which affects his ability to serve his master." California courts had indicated that

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a corporation could assert a claim under Civil Code 49 against a third party for negligent injury to a key
employee.
The California Supreme Court found that the laws of Louisiana and California were directly in conflict,
and looked at the governmental policies underlying the laws of the two states, in order to determine
whether either state had an interest in applying its policy to the case.
Louisiana's refusal to permit recovery for loss of a key employee's services was predicated on a policy of
"protect[ing] negligent resident tort-feasors acting within Louisiana's borders from the financial hardships
caused by the assessment of excessive legal liability or exaggerated claims resulting from the loss of
services of a key employee." Offshore Rental, 22 Cal.3d at 163-64, 148 Cal.Rptr. 867, 583 P.2d 721.
"Clearly," the court observed, "the present defendant is a member of the class which Louisiana law
seeks to protect, since defendant is a Louisiana `resident' whose negligence on its own premises has
caused the injury in question," and "negation of plaintiff's cause of action serves Louisiana's policy of
avoidance of extended financial hardship to the negligent defendant." Id. at 164, 148 Cal.Rptr. 867, 583
P.2d 721.
[1040] The court recognized as "equally clear," however, that "application of California law to the present
case will further California's interest," noting that California, through Civil Code 49, "expresses an
interest in protecting California employers from economic harm because of negligent injury to a key
employee." Id. Moreover, "California's policy of protection extends beyond such an injury inflicted within
California, since California's economy and tax revenues are affected regardless of the situs of physical
injury." Id.
Having found a true conflict between the law of Louisiana and the law of California, the court proceeded
with the analysis to determine which state's interest would be more impaired if its policy were
subordinated to the policy of the other state. This analysis, according to the court, does not involve
"weighing" the conflicting governmental interests, in the sense of determining which interest is "worthier"
or expresses the "better" social policy, but rather can be viewed as an attempt to determine "the relative
commitment of the respective states to the laws involved." Id. at 165-66, 148 Cal.Rptr. 867, 583 P.2d
721 (citations omitted). "The approach incorporates several factors . . . [including] the history and current
status of the states' laws; [and] the function and purpose of those laws." Id. at 166, 148 Cal.Rptr. 867,
583 P.2d 721.
The court characterized the Louisiana law as being in the "main stream" of American jurisdictions, as the
majority of states that had considered the question did not sanction actions for harm to business
employees. Id. at 167-68, 148 Cal.Rptr. 867, 583 P.2d 721. By contrast, California had exhibited little
interest in applying Civil Code 49, no California court had squarely held that California law provides a
cause of action for harm to business employees, and no California court had recently considered the
issue at all. Id. at 168, 148 Cal.Rptr. 867, 583 P.2d 721. Thus, to the extent that 49 provided a cause
of action for injuries to key corporate employees, it nonetheless constituted a law that was "archaic and
isolated in the context of the laws of the federal union," and California's interest in the application of its
unusual and outmoded statute was comparatively less strong than Louisiana's corollary interest in its
"prevalent and progressive law." Id.
The court found further that while the "law of the place of the wrong" is not necessarily the applicable law
for all tort actions, "the situs of the injury remains a relevant consideration." Id. The court found that
Louisiana had a "vital interest in promoting freedom of investment and enterprise within Louisiana's

borders, among investors incorporated both in Louisiana and elsewhere," and that the imposition of
liability on the defendant would "strike at the essence of a compelling Louisiana law." Id. The court also
noted that the plaintiff corporation was particularly able to calculate risks and plan accordingly, by
purchasing "key employee" insurance and indeed, should have anticipated a need for such protection
whereas defendant reasonably did not anticipate a need for insurance to protect against "key
employee" losses at its Louisiana facility, as that type of loss is not actionable under Louisiana law. Id. at
168-69, 148 Cal. Rptr. 867, 583 P.2d 721.
Following its review of the Reich, Hurtado, Bernhard, and Offshore Rental decisions, the Kearney court
turned to an examination of the facts of the case before it, in order to determine whether California law or
Georgia law apply to the recording of a telephone conversation that occurs between a person in
California and a person in Georgia.
[1041] The court first analyzed the California statutory scheme, noting that Penal Code 632 the law
prohibiting the recording of telephone conversations without the knowledge of both participants was
part of California's broad, protective invasion-of-privacy statute. Kearney, 39 Cal.4th at 115-16, 45
Cal.Rptr.3d 730, 137 P.3d 914. Further, the legislatively prescribed purpose of the 1967 invasion-ofprivacy statute "is to `protect the privacy of the people of this state.'" Id. at 119, 45 Cal.Rptr.3d 730, 137
P.3d 914 (citing Penal Code 630).
The court found that the stated purpose "certainly supports application of the statute in a setting in which
a person outside California records, without the Californian's knowledge or consent, a telephone
conversation of a California resident who is within California." Id. "The privacy interest protected by the
statute is no less directly and immediately invaded when a communication within California is secretly
and contemporaneously recorded from outside the state than when this action occurs within the
state." Id.
The court then turned to the Georgia law. The basic provision of the Georgia statute is the prohibition of
the employment of devices that would permit the clandestine "overhearing, recording or transmitting of
conversations or observing of activities which occur in a private place." Id. at 121, 45 Cal.Rptr.3d 730,
137 P.3d 914 (citing Ga.Code Ann. 16-11-62). The policy underlying the statute is the public policy of
the state to "`protect the citizens of this State from invasions upon their privacy.'" Id. At the same time,
however, another provision of that statutory scheme provides that nothing in 16-11-62 "shall prohibit a
person from intercepting a wire, oral, or electronic communication where such person is a party to the
communication or one of the parties to the communication has given prior consent to such
interception." Id. (citing Ga.Code Ann. 26-11-66).
Georgia courts have long interpreted the Georgia privacy statutes as not applicable when a conversation
is recorded by one of the participants in the conversation. Id. at 121-22, 45 Cal.Rptr.3d 730, 137 P.3d
914. Thus, the court noted, Georgia law differs from California law in this respect, although nothing in
either law addresses whether the law is intended to apply to a telephone call in which one of the parties
is in another state. Id. at 122, 45 Cal. Rptr.3d 730, 137 P.3d 914.
The Kearney court concluded that the case presented a true conflict California had a legitimate
interest in having its law applied because the plaintiffs were California residents whose telephone
conversations in California were recorded without their knowledge or consent; and Georgia had a
legitimate interest in not having liability imposed on persons or businesses who acted in Georgia in
reliance on the provisions of Georgia law, because the conduct at issue in the case involved activity
engaged in by defendant's employees in Georgia. Id. at 123, 45 Cal.Rptr.3d 730, 137 P.3d 914.

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The court then considered which state's interest would be more impaired if its policy were subordinated
to the policy of the other state. Id. at 124, 45 Cal.Rptr.3d 730, 137 P.3d 914. The court first looked at the
degree of impairment of California's interest that would result if Georgia law rather than California law
were applied. The court noted that unlike the situation in Offshore Rental, the California statute in
question was not "ancient" or "little used." Rather, California courts have repeatedly invoked and
vigorously enforced the provisions of Penal Code 632. Id.
Moreover, the court noted, in recent years the California Legislature has continued [1042] to add
provisions and make modifications to the invasion-of-privacy statutory scheme at issue, which, along
with California's constitutional privacy provision (Cal. Const., art. I, 1) was enacted specifically to
protect Californians from overly intrusive business practices. Id. at 125, 45 Cal.Rptr.3d 730, 137 P.3d
914. The court concluded that California had a strong and continuing interest in the full and vigorous
application of all the provisions of Penal Code 632 prohibiting the recording of telephone
conversations, and that the failure to apply the statute would substantially undermine the protection it
afforded. Id.
The court concluded that the application of California law would have a relatively less severe effect on
Georgia's interests, than would the application of Georgia law on California's interests. Id. at 126, 45
Cal.Rptr.3d 730, 137 P.3d 914. First, because California law was more protective of privacy interests
than the comparable Georgia statute, the application of California law would not violate any privacy
interest protected by Georgia law. Id. at 126-27, 45 Cal.Rptr.3d 730, 137 P.3d 914.
Second, with regard to businesses in Georgia that record telephone calls, California law would apply
only to those calls made to or received from California, not to all calls to and from such Georgia
businesses, and it would be easy to identify both the calls being made to California residents, and the
calls coming in from California residents. Id. at 127, 45 Cal. Rptr.3d 730, 137 P.3d 914.
Third, applying California law to a Georgia business' recording of telephone calls between its employees
and California customers would not severely impair Georgia's interests. The calls could still be made and
could still be recorded the only requirement would be that the recording not be secret or
undisclosed. Id. Further, to the extent that the Georgia law is intended to protect a business' ability
to secretly record calls to and from its customers, the application of California law to those calls made to
and from California customers "would represent only a relatively minor impairment of Georgia's
interests." Id.
The court concluded that because the interests of California would be severely impaired if Georgia law
were applied, and because the interests of Georgia would not be significantly impaired if California law
were applied, California law should apply in determining whether the alleged secret recording of
telephone conversations at issue in the case constitutes an unlawful invasion of privacy. Id. at 127-28,
45 Cal. Rptr.3d 730, 137 P.3d 914.
b. Whether California Law Applies in the Present Action
In issuing its decision in Kearney, the California Supreme Court did not change the law regarding choiceof-law analysis. The "governmental interest" test, as previously articulated and applied in Reich,
Hurtado, Bernhard, and Offshore Rental, still provides the basis for determining which state's law applies
in a case involving multi-state interests.
This court now considers whether, in light of this analysis, plaintiffs can assert claims under California
law in the present case.
i. whether the laws of Arizona differ from the laws of California

The parties agree though for different reasons that Arizona law differs from California law.
Defendants assert that the issue for choice-of-law analysis is not merely whether Arizona and California
treat sexual orientation and marital status discrimination differently, but whether the acts about which
plaintiffs complain could support a claim under Arizona law. They [1043] argue that Arizona does not
permit same-sex couples to adopt jointly, and that same-sex couples have no claim for discrimination
based on being treated differently than married couples when it comes to adoption or marriage. They
also contend that because a same-sex couple cannot jointly adopt in Arizona, there can be no claim for
discrimination in Arizona based on the refusal to "publish" a profile for a same-sex couple.
Plaintiffs, on the other hand, focus on the fact that while California law prohibits discrimination on the
basis of sexual orientation and marital status, Arizona law does not affirmatively permit Arizona
businesses to discriminate against gays or lesbians or domestic partners, Arizona's public
accommodation statute is silent with regard to discrimination on the basis of sexual orientation and
marital status, and Arizona courts have not ruled on the question whether the state's public
accommodation statute forbids discrimination against same-sex couples. Plaintiffs contend that while
Arizona has no state law prohibiting sexual orientation discrimination by business establishments, it does
not condone such discrimination. They also note that various localities in Arizona have promulgated local
policies prohibiting discrimination based on sexual orientation or marital status in public accommodation
and other areas.
Both Arizona and California have enacted anti-discrimination laws, and laws governing adoption and
marriage. California's Unruh Act is discussed at length above. The Arizona Civil Rights Act of 1965
prohibits discrimination in places of public accommodation, "against any person because of race, color,
religion, sex, national origin or ancestry." Ariz.Rev.Stat. 41-1442. It is unlawful under this statute to
deny or withhold "accommodations, advantages, facilities, or privileges thereof' based on the
enumerated characteristics, or to make any distinction "with respect to any person" based on the
enumerated characteristics, "in connection with the price or quality of any item, goods or services offered
by or at any place of public accommodation." Id.
"Places of public accommodation" under 41-1442 include
all public places of entertainment, amusement or recreation, all public places where food or beverages
are sold for consumption on the premises, all public places which are conducted for the lodging of
transients or for the benefit, use or accommodation of those seeking health or recreation, and all
establishments which cater or offer their services, facilities or goods to solicit patronage from members
of the general public.
Ariz.Rev.Stat. 41-1441.
On its face, the Arizona statute is similar to the pre-1987 version of the Unruh Act prior to addition of
disability, medical condition, marital status, and sexual orientation to the list of protected characteristics
except that it uses the term "public accommodations" rather than "business establishments." As
interpreted by the Arizona courts, however, there is a significant difference. No Arizona court has ever
held, as has the California Supreme Court with regard to the Unruh Act, that the categories specified in

33
CONFLICT CHOICE OF LAW

ARS 41-1442 are "illustrative" only. Moreover, the Arizona statute was enacted in 1965; prior to that
time, Arizona had no state laws prohibiting discrimination in public accommodations.
The adoption and marriage laws of the two states are similar in some respects, but different in others.
Under Arizona law, "[a]ny adult resident of this state, whether married, unmarried or legally separated is
eligible to qualify to adopt children. A husband and wife may jointly [1044] adopt children." Ariz.Rev.Stat.
8-103. This statute was adopted in 1970, and has not been amended since.
Because the statute allows adoption by "[a]ny" adult resident, it does not regulate adoption on the basis
of the sexual orientation of a single adoptive parent. Moreover, in April 2006, HB 2696, a bill that would
have given married couples preference over single people in adopting children, was defeated in the
Arizona Legislature. Seehttp://www.azleg.gov/Format Document.asp?inDoc =/legtext/471eg/2r/
bills/hb1696o.asp.
Arizona law does not say anything about joint adoptions, other than that a "husband and wife" may
jointly adopt. Arizona does have a law, added in 1996, providing that "[m]arriage between persons of the
same sex is void and prohibited." Ariz.Rev.Stat. 25-101(C).[6] With the same bill, the Legislature
amended the law relating to marriages contracted in other states, to provide that "[m]arriages valid by
the laws of the place where contracted are valid in this state, except marriages that are void and
prohibited by 25-101." Ariz.Rev. Stat. 25-112.[7]
Thus, since same-sex couples cannot marry in Arizona, and if married in another state, will not be
considered married in Arizona, they presumably would not qualify under the "joint" adoption provision of
8-103. However, Arizona law does not specifically prohibit joint adoptions by same-sex couples.
Arizona allows stepparent adoption. In Arizona, "stepparent adoption" refers to "adoption by the spouse
of the child's parent." Ariz.Rev.Stat. 8-117(C); see also Ariz.Rev.Stat. 25-409(F) (visitation granted to
grandparents or great-grandparents automatically terminates if child is placed for adoption, except where
the child is adopted "by the spouse of a natural parent if the natural parent remarries"). Based on this
language specifically, the reference to the "spouse" of the child's parent it is likely that a person of
the same sex as the child's parent would not be eligible to adopt as a stepparent under Arizona law,
because that person cannot be a "spouse" (husband or wife).
Arizona law is silent with regard to second-parent adoption. "Second-parent" adoption has been defined
in California as "an independent adoption whereby a child born to [or legally adopted by] one partner is
adopted by his or her non-biological or non-legal second parent, with the consent of the legal parent, and
without changing the latter's rights and responsibilities." Sharon S. v. Superior Court, 31 Cal.4th 417,
422 n. 2, 2 Cal.Rptr.3d 699, 73 P.3d 554 (2003) (citation omitted).
California permits "any adult" to adopt a minor child. Cal. Fam.Code 8600. The adult must be at least
10 years older than the child, unless the adult is a stepparent or sister, brother, aunt, uncle or first
cousin. Cal. Fam.Code 8601. A married person may not adopt a child without consent of his or her
spouse. Cal. Fam.Code 8603. Thus, Arizona and California both permit single adoption without any
limitation as to sexual orientation, and joint adoption by married couples.
California allows stepparent adoption, defined as the "adoption of a child by a stepparent where one birth
parent retains [1045] custody and control of the child." Cal. Fam.Code 8543; see also Cal. Fam.Code

9000-9007. However, unlike Arizona, California does not classify stepparent adoption as adoption by
the "spouse" of the child's parent.
Second-parent adoption is also legal in California. While there has never been a statute expressly
authorizing second-parent adoption, California adoption statutes have always permitted adoption without
regard to the marital status of prospective adoptive parents. Sharon S., 31 Cal.4th at 433, 2 Cal.Rptr.3d
699, 73 P.3d 554. At least as early as 1999, the California Department of Social Services the agency
that oversees county child welfare agencies that perform home studies in adoption cases had a
stated policy that unmarried couples seeking to adopt were to be evaluated on the same basis as
married couples. Id. at 433 n. 8, 2 Cal.Rptr.3d 699, 73 P.3d 554. The `California Supreme Court
in Sharon S. noted that as of 2003, published materials indicated that between 10,000 and 20,000
second-parent adoptions had been granted in California over the years. However, it was not until August
4, 2003, that the California Supreme Court (in Sharon S.) officially recognized the validity of secondparent adoptions.
On March 8, 2000, the voters passed Proposition 22, an initiative providing that "[o]nly marriage between
a man and a woman is valid or recognized in California." This law is codified as California Family Code
308.5. Pursuant to this statute, California will not recognize samesex marriages even if those marriages
are validly formed in other jurisdictions that permit same-sex marriage.[8] Thus, like Arizona, California
does not allow samesex couples to marry.
However, unlike Arizona, the California Legislature has enacted legislation allowing civil unions
(domestic partnerships). California created a "domestic partner registry" in 1999.See Cal. Fam.Code
297 (effective January 1, 2000). The statute was subsequently amended to expand the rights and
obligations of domestic partners. In 2001, the California Legislature enacted AB 25, which became
effective on January 1, 2002. Among other things, AB 25 provided that registered domestic partners
were entitled to use the streamlined step-parent adoption procedures. See Cal. Fam.Code 9000(g).
Thus, AB 25 equalized registered domestic partners with married spouses with regard to the issue of
adoption in California.
As of January 1, 2005, California's domestic partner law provides most of the same rights and
responsibilities of spouses under California law, such as complete inheritance rights, community
property, joint responsibility for debt, and the right to request support from the other partner upon
dissolution of the partnership. Cal. Fam.Code 297.5.[9]
While Arizona law does not authorize civil unions, the voters of the state recently rejected an attempt to
make the enactment of such laws impossible in the future, [1046] by rejecting Proposition 107 in the
Arizona November 2006 state-wide election. Proposition 107 would have amended the Arizona
Constitution to state that marriage consists of a union of one man and one woman, and to prohibit the
state and its political subdivisions from creating or recognizing any legal status for unmarried persons
that is similar to that of marriage. See http://www.azsos.gov/election/2006/ General/ballotmeasures.htm.
Thus, as of 2002, when the Butlers sought to have their profile posted on ParentProfiles.com, Arizona
state law did not prohibit discrimination on the basis of sexual orientation or marital status; any single
person could petition to adopt in Arizona; there was no prohibition against single homosexual persons
becoming adoptive parents; there was no law prohibiting joint adoptions by same-sex couples, although
the law explicitly provided for joint adoptions only by "husband and wife;" and there was no law explicitly
prohibiting same-sex second-parent adoptions. The law regarding adoptions is the same today plus,
the Arizona Legislature recently defeated a bill that would have given preference to married couples over
single people in adoption.

34
CONFLICT CHOICE OF LAW

As of 2002, California prohibited discrimination in public accommodations on the basis of sexual


orientation; it was an open question whether discrimination on the basis of marital status was also
prohibited; any single person could adopt in California; there was no law prohibiting adoptions by samesex couples; and California allowed stepparent and second-parent adoptions without reference to sexual
orientation or marital status, and had equalized registered domestic partners with married spouses with
regard to the issue of adoption.
Having determined that the laws of the two states differ in some respects, as explained above, the court
now considers whether a true conflict exists.
ii. whether a true conflict exists
Both plaintiffs and defendants argue that no true conflict exists in this case. Defendants contend that
there is no true conflict because Arizona has an interest in applying its own laws under the facts of this
case, while California does not. Defendants assert that Arizona has an interest in determining which
business practices that occur in Arizona will subject Arizona businesses to liability; in ensuring that
businesses operating within its borders are not subjected to liability for activities or practices that are
legal in Arizona; and, in assuring that its citizens are not penalized when they enter into or refuse to
enter into contracts in Arizona with persons from the minority of states with substantially different laws,
such as those that prohibit marital status discrimination or sexual orientation discrimination.
Defendants contend that California has a limited interest if any in applying its law. They claim that
the "policy" interests upon which plaintiffs rely are still developing within California noting that the
California Legislature only recently included sexual orientation discrimination or marital status
discrimination in the list of prohibited conduct under the Unruh Act; claiming that it was not clear until
recently that two "unrelated" persons (presumably meaning "unmarried") had the right to adopt a child
under California law; and asserting that no court has found that marital status discrimination was
prohibited under the Unruh Act prior to January 1, 2005. Thus, they contend, California cannot be
deemed to have had a strong commitment in 2002 to the policies underlying plaintiffs' claims.
Defendants also argue that the Unruh Act's stated purpose "to guarantee access [1047] to public
accommodations on the part of all persons [in California] regardless of race, sex, religion, or other
characteristics that have no bearing on a person's status as a responsible consumer," Harris, 52 Cal.3d
at 1168, 278 Cal.Rptr. 614, 805 P.2d 873 makes it clear that California's interest relates to
accommodations in California. Defendants argue that because Adoption.com's business operations,
office facilities, and "Internet servers"[10] are located in Arizona, and because ParentProfiles.com may be
accessed in California only after a person in California sends a request for information to the Internet
server located in Arizona, a resident of California must, in effect, go to Arizona in order to obtain services
from defendants. Thus, according to defendants, the public accommodation at issue is in Arizona rather
than in California. They contend that California has no interest in mandating a public accommodation in
another state.
Plaintiffs also claim that there is no true conflict in this case. However, they argue that the absence of a
true conflict means that California is entitled to apply its own law. They submit that there is no true
conflict between the laws of the two states because only California law is affected, asserting that a true

conflict exists only where, as stated by the court in Offshore Rental, "each of the states involved has a
legitimate but conflicting interest in applying its own law will we be confronted with a true conflicts
case." Offshore Rental,22 Cal.3d at 163, 148 Cal.Rptr. 867, 583 P.2d 721 (emphasis added).
Plaintiffs contend that this case directly implicates the primary purpose of the Unruh Act to guarantee
access to public accommodations for all Californians and that California courts have invoked and
vigorously enforced the Unruh Act from its inception to the present. They also note that the 2005
amendments to the Unruh Act added language expressly codifying the prohibition against discrimination
on the basis of sexual orientation and marital status. Thus, they argue, as in Kearney, "California must
be viewed as having a strong and continuing interest in the full and vigorous application" of its law in this
case. See Kearney, 39 Cal.4th at 124-25, 45 Cal.Rptr.3d 730, 137 P.3d 914. Plaintiffs assert that
Arizona has no legitimate interest in a policy of discrimination on the basis of sexual orientation or
marital status.
The California Supreme Court found a "true conflict" in Bernhard, in Offshore Rental, and
in Kearney because in each of those cases, the laws of two states were in conflict, and that conflict
reflected competing state interests. In Bernhard, Nevada law held that tavern owners were not liable for
injuries caused by drunk drivers who had obtained alcohol from the tavern owners, while California law
imposed liability on the tavern owners for such injuries. In Offshore Rental, Louisiana law held that a
corporate plaintiff could not bring a claim for the loss of services of one of its officers, while California law
arguably allowed such a claim. In Kearney, it was legal under Georgia law to record a [1048] telephone
conversation if only one of the participants knew it was being recorded, but illegal under California law to
record such a conversation unless both participants were aware of the recording.
In the present case, neither the Arizona Civil Rights Law nor the Unruh Act specifically prohibited
discrimination on the basis of sexual orientation or marital status in 2002. However, while there are no
reported Arizona cases holding (even up to the present) that either of those characteristics can provide a
basis for a claim of discrimination in public accommodations under the Arizona Civil Rights Law, a
number of California cases had held by 1984, at least with regard to discrimination on the basis of sexual
orientation, that such discrimination was prohibited by the Unruh Act. As of January 2006, of course, the
Unruh Act unambiguously prohibits discrimination on the basis of both sexual orientation and marital
status.
Also as of October 2002, both Arizona and California allowed any single person to adopt. Neither
Arizona nor California had a law prohibiting adoptions by same-sex couples although Arizona law
explicitly provided for joint adoptions only by "husband and wife," and defined "stepparent" adoption as
adoption by the "spouse" of the child's parent; while California allowed both stepparent and secondparent adoptions, regardless of the gender of the adoptive parents.
While the differences between the laws of Arizona and California are not as distinct as the differences at
issue in Bernhard, Offshore Rental, and Kearney, this case arguably presents a true conflict, if only for
the reason that it is unlikely that plaintiffs could have brought a similar discrimination claim under Arizona
law. California has a strong interest in enforcing its anti-discrimination laws. It is less clear what interest
Arizona might have in allowing discrimination in public accommodations on the basis of sexual
orientation or marital status, or in applying its own law to California residents. The only interest plaintiffs
have articulated is Arizona's interest in protecting its resident businesses from uncertainty.

35
CONFLICT CHOICE OF LAW

Plaintiffs have supported their position with citations to the Unruh Act and the cases that have
interpreted it, while defendants have provided no support for their claim that Arizona has a strong
interest in protecting its businesses from "surprise" penalties in the form of liability under the antidiscrimination laws of other states. It is true that the courts in Kearney, Offshore
Rental, and Bernhard considered a similar interest under the facts of those cases with regard to Georgia,
Louisiana, and Nevada, respectively. See Kearney, 39 Cal.4th at 128-29, 45 Cal.Rptr.3d 730, 137 P.3d
914; Offshore Rental, 22 Cal.3d at 168, 148 Cal.Rptr. 867, 583 P2d 721; and Bernhard, 16 Cal.3d at
318, 128 Cal. Rptr. 215, 546 P.2d 719. But defendants have not pointed to any Arizona statute or judicial
decision establishing that Arizona has a paramount interest in ensuring certainty in business dealings for
Arizona businesses. Moreover, as the court in Kearney pointed out, "a company that conducts business
in numerous states ordinarily is required to make itself aware of and comply with the law of a state in
which it chooses to do business." Kearney, 39 Cal.4th at 105, 45 Cal.Rptr.3d 730, 137 P.3d 914; see
also Bernhard, 16 Cal.3d at 322-23, 128 Cal.Rptr. 215, 546 P.2d 719. Nevertheless, in view of this
finding that the interests of the two states are not entirely in accord, the court will consider the
"comparative impairment" of each state's interest.
iii. which state's interest would be more impaired if its law were not applied
Once it has determined that a true conflict exists, the court must carefully [1049] evaluate and compare
the nature and strength of the interest of each jurisdiction in the application of its own law "to determine
which state's interest would be more impaired if its policy were subordinated to the policy of the other
state," and must apply the law of the state whose interest would be more impaired if its law were not
applied. See Kearney, 39 Cal.4th at 107-08, 45 Cal.Rptr.3d 730, 137 P.3d 914.
Defendants argue that even if the court were to conclude that California has some interest in having its
laws applied, Arizona's interest would be more impaired if its policy were subordinated to the policy of
California. Specifically, defendants contend that Arizona's interest in promoting freedom of investment
and enterprise within its borders would be impaired if Arizona businesses have no assurance of what
laws apply to "Arizona activities." They argue that applying California law in this case would impair
Arizona's ability to provide the benefits and protections of its laws to Arizona businesses, while applying
Arizona law would not impede California's ability to protect its own citizens from discrimination within the
bounds of its territorial jurisdiction.
The basis of California's interest in applying its law in Kearney was that the principal purpose of
California's privacy law is to protect the privacy of confidential communications of California residents
while they are in California. See Kearney, 39 Cal.4th at 119-20, 45 Cal.Rptr.3d 730, 137 P.3d 914.
Defendants argue that the nature of secretly recording a phone call enables a person to reach out from
another state and perform the tort of invading the privacy of a person in California, but that California has
no similar interest in protecting its residents' access to public accommodations in other jurisdictions.
Defendants claim that in order to find that California has an interest in applying the Unruh Act in this
case, the court would have to find that the California Legislature intended to impose a duty on foreign
Internet businesses to make their services available to California residents.
Plaintiffs, on the other hand, argue that California's interest would be more impaired if California law
were not applied in this case. They argue that California's strong interest is shown in this case by the
facts that the principal purpose underlying the Unruh Act is the protection of California residents from
discrimination in California business transactions, and that the Legislature has continued to modify the
Act and the courts have vigorously enforced it. Plaintiffs also contend that California has a significant

interest in this case because this case involves family and adoption-related issues issues that
traditionally lie in the domain of the states. Plaintiffs claim that in light of these strong public policies,
California's interests would be significantly impaired by the failure to apply California law.
Plaintiffs argue further that defendants have not shown and cannot show that Arizona has an actual or
significant stake in this litigation or that its interests will be impaired if California law is applied. With
regard to defendants' claim that Arizona has an interest in promoting "free enterprise," plaintiffs argue
that defendants have not shown that this alleged interest would be promoted by permitting defendants to
discriminate against same-sex couples.
In sum, plaintiffs argue that the factors that led the Kearney court to find that California law applied to the
recording of telephone conversations between California residents and persons located in other states
also apply in this action, while defendants maintain that California's interest does not come into play
because this case does not involve discrimination against [1050] California residents in California.
Defendants submit that all the activity occurred in Arizona, where defendants and Parent-Profiles.com's
server are located. They argue that plaintiffs, in contacting defendants via the Internet, "traveled" from
California to Arizona, and were therefore "in" Arizona at the time of the alleged discrimination. They
argue that California has no interest in having its law applied extraterritorially.
Defendants claim that the Kearney court's finding of a California interest that would be severely impaired
unless California law were applied that is, the interest in protecting individuals in California from the
secret recording of confidential communications by or at the behest of another party to the
communication has no relevance to the Unruh Act claims at issue here.
Defendants contend that it is well-established that the Unruh Act cannot be invoked to regulate activities
conducted in another state, even though the welfare of California citizens may be affected when they
travel to that state. In support, they cite Chaplin v. Greyhound Lines, Inc., 1995 WL 419741 (N.D.Cal.,
July 3, 1995); State of Calif. Auto. Dismantlers Ass'n v. Interinsurance Exchange, 180 Cal.App.3d 735,
225 Cal.Rptr. 676 (1986); and Archibald v. Cinerama Hawaiian Hotels, Inc., 73 Cal.App.3d 152, 140
Cal.Rptr. 599 (1977).
In Archibald, the plaintiff asserted that the defendant Hawaiian hotel's policy of charging California
residents a higher rate than it charged Hawaii residents was discriminatory in violation of the Unruh Act.
The court found, however, that the Unruh Act, by its express language, applied only within California,
and could not be extended into the Hawaiian jurisdiction. The court cited Bigelow v. Virginia, 421 U.S.
809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), for the proposition that a state cannot regulate or proscribe
activities conducted in another state or supervise the internal affairs of another state in any way, even
though the welfare or health of its citizens may be affected when they travel to that
state.[11] Archibald, 73 Cal.App.3d at 159, 140 Cal.Rptr. 599 (citing Bigelow, 421 U.S. at 824-25, 95 S.Ct.
2222).
In Chaplin, the plaintiff asserted a claim under the Unruh Act for discriminatory conduct that occurred
while plaintiff was traveling on one of defendant's buses in Texas. The court repeated the holding
from Archibald (the language taken from Bigelow) that a state cannot regulate or proscribe actions
conducted in another state, even though the welfare or health of its citizens may be affected when they
travel to that state. Chaplin, 1995 WL 419741 at *5 (citing Archibald, 73 Cal. App.3d at 159, 140
Cal.Rptr. 599). Similarly, inAuto Dismantlers, the court relied on Archibald and Bigelow to support its
ruling that licensed auto dismantlers could not seek to have California dismantling [1051] laws applied to

36
CONFLICT CHOICE OF LAW

buyers wild took vehicles out of the state to dismantle them. Auto. Dismantlers, 180 Cal.App.3d at 746,
225 Cal.Rptr. 676.
Defendants argue that just as in Archibald, Chaplin, and Auto Dismantlers, this case involves a wholly
"extraterritorial" application of the Unruh Act to "conduct taking place outside the state." Defendants
contend that plaintiffs have provided no evidence of any activity of any specific defendant within
California that would provide the basis for the lawsuit. They claim that they have never contacted the
plaintiffs, and that the only connection the events have with California is that the plaintiffs live in
California and attempted, from California, to do business with an Arizona business.
Defendants also dispute plaintiffs' assertion that defendants have "actively and consistently court[ed]
California consumers and businesses." They claim that the undisputed facts in the summary judgment
record show no evidence that Adoption Profiles LLC has ever solicited a California consumer or
business. Defendants assert that as of the filing of this lawsuit, Adoption "Profiles had done less than
$38,000 worth of business with California residents.
Thus, according to defendants, California has no interest in applying the Unruh Act to Adoption Profiles'
Arizona policy of "publishing," via its Arizona servers, potential adoptive parent profiles of married
husbands and wives only.
Plaintiffs on the other hand argue that defendants' combined physical and virtual presence in California
is substantial and significant, warranting application of California law in the present case. They contend
that defendants should not be permitted to escape liability for injury they have caused simply because
their offices are physically located in another state, and note that the court previously rejected
defendants' assertion that all the actions of which plaintiffs complain occurred in Arizona, and that the
court found that plaintiffs' claims arise directly from defendants' California-related contacts.
Where an out-of-state business solicits California customers and does business with customers living in
California, California has an interest in ensuring that the out-of-state business does not discriminate
against the California customers. Contrary to defendants' arguments, this is not a case that involves
extraterritorial application of California law, as did the case against the Hawaiian hotel in Archibald; or
the case against Greyhound based on the incident at the Texas bus terminal in Chaplin; or the case
against the insurance company in Auto Dismantlers.
Archibald and Chaplin were brought by California residents seeking the protections of the Unruh Act in
connection with events occurring when the California residents were physically located in other
states. Auto Dismantlers involved an attempt to apply California law to the dismantling of automobiles
outside of California's borders. By contrast, defendants in this case discriminated against California
residents in California not in Arizona or in any other state. Plaintiffs in this case were not in Arizona
when the Gwilliams and the Adoption.com partnership refused to do business with them. As residents of
California, they have been present in California from October 2002 until the present. Defendants have
not cited any case in which a court has declined to apply California law to an out-of-state business that
intentionally solicits California customers and intentionally harms California residents in California, in
violation of California law.
[1052] In Kearney, SSB also argued that the plaintiffs there were seeking to impose California law on
activities conducted outside of California, as to which California had no legitimate or sufficient state
interest. The California Supreme Court rejected SSB's argument, stating that the case was based on
SSB's policy and practice of recording telephone calls of California clients, while the clients were in

California, without the clients' knowledge or consent; and held that California had an interest in
protecting the privacy of telephone conversations of California residents while they were in California
that was sufficient to permit California to exercise legislative jurisdiction over such activity. Kearney,39
Cal.4th at 104-05, 45 Cal.Rptr.3d 730, 137 P.3d 914.
The Kearney court distinguished the situation in which California law is applied to out-of-state
businesses to protect California residents while they are in California, from the situation in which
California "would be applying its law in order to defeat a defendant's conduct in another state vis-a-vis
another state's residents" or to "alter [a company's] nationwide policy." Id. at 104, 45 Cal.Rptr.3d 730,
137 P.3d 914.
Plaintiffs argue that the same reasoning applies in the present case, because the Butlers' claim is based
on defendants' acknowledged policy and practice of applying its discriminatory policy to California
residents, while such residents were in California. They claim that just as in Kearney, defendants'
conduct here constitutes a "multi-state event" in which a crucial element denial of services to
California residents occurred in California after defendants engaged in substantial and continuous
efforts to attract California consumers.
The Kearney court found, with regard to the impairment of California's interest, that the failure to apply
California law in that case would "substantially undermine the protection afforded by the statute"
because it would permit out-of-state companies doing business in California to invade the privacy of
California residents in contravention of California law.
Many companies who do business in California are national or international firms that have
headquarters, administrative offices, or in view of the recent trend toward outsourcing at least
telephone operators located outside of California. If businesses could maintain a regular practice of
secretly recording all telephone conversations with their California clients or customers at which the
business employee is located outside of California, that practice would represent a significant inroad into
the privacy interest that the statute was intended to protect.
Id. at 126, 45 Cal.Rptr.3d 730, 137 P.3d 914.
The court finds that the failure to apply California law in the present case would undermine the Unruh Act
for the same reasons. If businesses with headquarters in other states could maintain a regular practice
of discriminating against California residents, that practice would substantially impair the protection
afforded by the statute.
The court is not persuaded by defendants' argument that Arizona's interests would be seriously impaired
by applying California law. In Kearney, the court found that because California law was more protective
of privacy interests than the comparable Georgia statute, "the application of California law would not
violate any interest protected by Georgia law." Id. at 126-27, 45 Cal.Rptr.3d 730, 137 P.3d 914.
Moreover, the court noted, because there was "nothing in Georgia law that requires any person or
business to record [1053] a telephone call without providing notice to the other parties to the call, . . .
persons could comply with Georgia law without violating any provision of Georgia law." Id. at 127, 45
Cal.Rptr.3d 730, 137 P.3d 914.
Similarly, in the present case, the Unruh Act is more protective of consumers than the comparable
Arizona law. Application of California law would not violate any right protected by Arizona law, and the
Unruh Act merely provides protections in addition to those specifically enumerated protections in

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Arizona. Arizona law does not require, or even permit, discrimination by businesses against same-sex
couples.
Thus, defendants can comply with California law while doing business in California without violating any
provision of Arizona law, and any interest Arizona may have in its own law would not be seriously
impaired by the application of California law. As in Kearney,' where the court found that it would be
feasible for a business located outside California to identify the calls that its employees were making to
California residents, or were taking from California residents, it would be feasible in the present case for
defendants to identify those potential customers of ParentProfiles.com who were living in, and certified to
adopt in, California.
In a final argument, defendants contend that applying California law to regulate the policies of foreign
Internet businesses would be a direct regulation of interstate commerce (citing American Civil Liberties
Union v. Johnson, 194 F.3d 1149, 1160-61 (10th Cir.1999); American Booksellers Found. v. Dean, 342
F.3d 96, 102, 104 (2d Cir.2003); PSINet, Inc. v. Chapman, 362 F.3d 227, 239-40 (4th Cir.2004)). They
claim that there is no justification for permitting one state to exert such control over the Internet.
Defendants raised this same argument in their original motion to dismiss, filed in April 2004. In the order
denying that motion, the court specifically distinguished the cases cited by defendants in this motion
American Booksellers Found. v. Dean, ACLU v. Johnson, and PSINet v. Chapman on the basis that
each of those cases dealt with statutes that addressed Internet activities specifically, laws prohibiting
the dissemination of material harmful to minors via the Internet. The court then noted that, by contrast,
the Unruh Act is an anti-discrimination statute that contains no reference to Internet-content distribution,
and thus, on its face, places no burden on interstate commerce. See Order, May 3, 2004, at 17-18.
Moreover, defendants have provided no evidence that the application of California law would pose an
undue and excessive burden on interstate commerce by making it impossible or infeasible for
defendants to comply with the requirements of the Unruh Act without altering their conduct with regard to
ParentProfiles.com's non-California clients.
In Kearney, the application of California law to the out-of-state defendant was "limited to the defendant's
surreptitious or undisclosed recording of words spoken over the telephone by California residents while
they are in California." Kearney, 39 Cal.4th at 104, 45 Cal.Rptr.3d 730, 137 P.3d 914. As plaintiffs point
out, the same geographic limitation applies in the present case, as they are seeking to prevent
defendants from discriminating against California residents while they are in California. The evidence
shows that defendants already require all persons who wish to use the ParentProfiles service to identify
their state of residence and where they are certified to adopt. Thus, defendants can easily distinguish
California residents from others, and the application of California [1054] law will not require defendants
to alter their policy or practice with regard to residents of other states.
2. The Unruh Act Claims
Plaintiffs allege in the second amended complaint that defendants' refusal to offer same-sex domestic
partners the adoption-related services on ParentProfiles.com, on the same terms and conditions offered
married couples, constitutes unlawful discrimination on the basis of marital status, sexual orientation,
and sex, in violation of the Unruh Act.

Plaintiffs seek summary judgment on the issue of liability against Dale Gwilliam, Nathan Gwilliam,
Adoption.com (the partnership), and Adoption Profiles, LLC. Defendants also seek summary judgment,
arguing that Adoption.com (the partnership) did not violate the Unruh Act in 2002, and that the injunctive
relief sought by plaintiffs under the Unruh Act is unconstitutional.
a. Liability under the Unruh Act
Plaintiffs argue that the Adoption.com partnership, and Dale Gwilliam and Nathan Gwilliam as general
partners, were directly liable for violating the Unruh Act in 2002 because the partnership was the owner
of the ParentProfiles.com website when plaintiffs were denied access to the ParentProfiles services.
Plaintiffs assert that Adoption Profiles LLC is directly liable for the continuing violation of the Unruh Act
as the current owner of ParentProfiles.com, which continues to discriminate against the plaintiffs and
other same-sex couples, and that Dale and Nathan are also liable for discriminating against plaintiffs in
connection with their role as managers of Adoption Profiles LLC.
i. marital status
Defendants argue that plaintiffs' application was denied solely because they were not married, and that
plaintiffs were treated no differently than other unmarried couples who sought to post their profiles on
ParentProfiles.com. They also assert that the Adoption.com partnership cannot be liable for
discrimination on the basis of marital status in connection with the October 2002 denial of plaintiffs'
application because the Unruh Act did not prohibit marital status discrimination against registered
domestic partners until January 1, 2005.
Plaintiffs contend, however, that defendants' refusal to provide equal benefits and services to registered
domestic partners discriminates on the basis of marital status, and did so in October 2002. They argue
that the distinction made by the Koebke court between pre-2005 and post-2005 conduct does not apply
in this case because the plaintiffs there were not registered domestic partners at the time the defendant
country club initially denied their request for equal access to the services provided to married members.
They also assert that marital status has been a protected category under the Unruh Act for well over two
decades. In support, they cite to Marina Point, in which the California Supreme Court cited an opinion of
the California Attorney General stating that discrimination in rental housing on the basis of occupation,
marital status, and number of children would violate the Unruh Act. See Marina Point, 30 Cal.3d at 736,
180 Cal.Rptr. 496; 640 P.2d 115 (citing 58 Ops. Cal. Atty. Gen. 608, 613 (1975), 1975 WL 22578).
In Kearney, the California Supreme Court found that California law applied under the facts of the case.
However, with regard to the question of damages for conduct pre-dating the court's decision on [1055]
the choice-of-law question, the court found that it would "maximize each affected state's interest to the
extent feasible" to restrain the application of California law with regard to the imposition of liability for
acts that occurred in the past in order to accommodate Georgia's interest in protecting persons who
acted in Georgia in reasonable reliance on Georgia's law from being subjected to liability on the basis of
such an action. Kearney, 39 Cal.4th at 128-31, 45 Cal.Rptr.3d 730, 137 P.3d 914.
The court based its decision not to apply California law to SSB's past actions on two considerations. The
court noted the existence of conflicting lower court decisions from various jurisdictions, which might have
given SSB cause to believe that Georgia law would apply to the recording of a telephone conversation

38
CONFLICT CHOICE OF LAW

between a person in Georgia and a person in California. The court also found that the damages for
invasion of privacy might prove difficult to calculate.
Plaintiffs argue that the facts in this case do not warrant a result similar to the result in Kearney, because
there are no conflicting decisions on point from other states. They contend that the relevant facts in this
case are more like the facts in Bernhard, where the court found that California's dramshop-liability law
applied to impose liability on a Nevada tavern owner who had served alcohol to an intoxicated patron,
after that intoxicated individual injured a California resident in an automobile accident in California. The
court's ruling was based in part on a finding that the tavern owner had actively solicited California
patronage. Bernhard, 16 Cal.3d at 322-23, 128 Cal.Rptr. 215, 546 P.2d 719.
Plaintiffs also assert that unlike the uncertain and potentially massive damages at issue
in Kearney, plaintiffs' damages under the Unruh Act are set by statute and are minimal in the context of
this dispute. In addition, they contend, unlike the violations of California law alleged in Kearney, the
violations in this case are ongoing, as defendants have refused to alter their discriminatory policy, which
they continue to apply to the Butlers and to other California residents. Plaintiffs contend that awarding
damages will have a deterrent effect, but will not significantly impair any Arizona interest.
Defendants maintain that their consistent practice of requiring all customers to agree to Arizona law and
venue limits the foreseeability of being subjected to liability under California law for actions that are
lawful under Arizona law. They claim that Arizona's interest in protecting Arizona companies from liability
for reasonable reliance on Arizona law could certainly by impaired if California law were applied in this
case.
The question as the court sees it, however, is not whether defendants in this case should have
reasonably relied on Arizona law. Unlike the dispute in Kearney regarding the application of the
California statute, this case presents no conflicting decisions on point from other jurisdictions. As
plaintiffs point out, the relevant facts in this case are more like the facts in Bernhard. Defendants in this
case have actively sought business connections with Californian consumers, and as of October 2002,
their Internet business was more closely tied to California than to any other state (based on the profiles
posted by residents of various states). California has a strong interest in regulating defendants' activities
because of defendants' penetration into the California economy, and the likelihood of exposure for
violating California law was a foreseeable and reasonable business expense.
As explained in some detail above, the question whether the Unruh Act prohibited marital status
discrimination was not [1056] completely resolved in 2002. In 2005, however, the California Legislature
clearly stated its agreement with the California Supreme Court's rulings, going back 35 years, that the
categories listed in the Unruh Act should be considered illustrative rather than restrictive; and also
"affirmed" that the bases of discrimination prohibited by the Unruh Act include marital status and sexual
orientation.
Defendants assert that plaintiffs' application to post their profile was denied in October 2002 pursuant to
a policy that only opposite-sex married couples should be permitted to use the ParentProfiles service.
They claim that this policy was applied evenly and was not personal to plaintiffs. The court finds that
there is a triable issue as to whether the policy of not allowing unmarried couples to post profiles on
ParentProfiles.com amounts to marital status discrimination.

The court finds, given the status of California law in 2002, that defendants should not be subjected to
damages for marital status discrimination in connection with their rejection of plaintiffs' application.
However, the claim for injunctive relief can go forward.
ii. sexual orientation
Defendants argue that there is no evidence that their "married-couples-only" policy discriminated on the
basis of sexual orientation. They contend that their "editorial policy" focusing on adoption by married
couples cannot be used to infer an intent to discriminate because it disparately impacts same-sex
couples, because the Unruh Act prohibits only intentional discrimination. They also claim that Adoption
Profiles LLC has legitimate business reasons for its policy; and that the Parent-Profiles.com website is
not a "business establishment" because it is a vehicle for "publishing" the Gwilliams' opinion that children
should be adopted by heterosexual married couples only.[12]
In response, plaintiffs contend that defendants are operating a public business, and do not have the
option under the Unruh Act to violate the law based on their own beliefs. The also assert that defendants'
allegedly neutral policy was and is applied in a discriminatory manner. They argue that the policy was
applied in a discriminatory fashion in 2002, by virtue of the fact that defendants made exceptions to their
policy for single people, but not for same-sex couples. They also assert that defendants have admitted
that they do not provide services to gays and lesbians.
The court is not persuaded by defendants' claim that ParentProfiles.com is not a "business
establishment." As described herein, the ParentProfiles.com website is plainly a business establishment
as defined under California law. See Isbister, 40 Cal.3d at 78-79, 219 Cal.Rptr. 150, 707 P.2d 212 (in
enacting the Unruh Act, the Legislature intended that "business establishments" be interpreted in the
broadest 'sense reasonably possible).
[1057] With regard to the claim that Adoption Profiles LLC has legitimate business reasons for its
"married-couples-only" policy which the court notes appears to conflict with the claim that
ParentProfiles.com is not a "business establishment" the court finds that defendants have not actually
articulated any such legitimate business reason.
Defendants assert that the Gwilliams believe it is in the best interests of infants to be placed for adoption
with a married mother and father, and that anyone involved in adoption-related activities should act in
the best interests of children. This is not a "business reason." The Gwilliams and the Adoption.com
partnership were not in the business of arranging adoptions in 2002, and Adoption Profiles LLC has not
been in that business during the period beginning in January 2003. Defendants sell products and
services that are of interest to people who are seeking to adopt or who have recently adopted, but their
own beliefs regarding the suitability of certain prospective parents over others have little relevance to the
conduct of their business.
With regard to the merits of the claim of discrimination on the basis of sexual orientation, defendants are
correct that a claim of disparate effect cannot proceed under the Unruh Act. Thus, to the extent that
plaintiffs may be arguing that defendants' married-couples-only policy is facially discriminatory because it
has the effect of discriminating on the basis of sexual orientation, that claim is barred. See Koebke, 36

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Cal.4th at 853-54, 31 Cal.Rptr.3d 565, 115 P.3d 1212; Harris, 52 Cal.3d at 1170-74, 278 Cal.Rptr. 614,
805 P.2d 873.
With regard to disparate treatment on the basis of sexual orientation the claim that the Gwilliams and
Adoption.com (the partnership) rejected plaintiffs' application to post their profile on ParentProfiles.com
because plaintiffs are not heterosexual, and that Adoption Profiles continued the policy for the same
reason after January 2003 the court finds that disputed issues of material fact preclude summary
judgment, and that the claim must be tried to a jury. For example, the evidence suggests that the policy
may not have been applied evenly; and also raises questions with, regard to whether the Gwilliams
developed the "married-couples-only" policy because they are biased toward gays and lesbians, and
whether the employees of the Adoption.com partnership and the LLCs advocated and enforced the
defendants' policy with a discriminatory motive.
iii. sex
Defendants argue that there is no evidence in the record showing that they treated men and women
unequally. They submit that no California court has ever found sex discrimination under the Unruh Act
absent evidence of preferential treatment of one sex over the other.
Plaintiffs assert, however, that by mandating that each of the individual prospective parents be in a
relationship with a person of the opposite sex, defendants have discriminated on the basis of the sex of
the person with whom each of the individuals associates.
There is no dispute that the Unruh Act has long prohibited discrimination on the basis of sex. However,
the court is hard-pressed to find any distinction between the sex discrimination claim as described by
plaintiffs in their own motion and in their opposition to defendants' motion, and the claim that defendants
discriminated against plaintiffs based on sexual orientation. To the extent that plaintiffs are able to
articulate a difference, this claim may also be tried to the jury.
[1058] b. Propriety of Injunctive Relief
Defendants argue that the injunctive relief sought by plaintiffs is not appropriate for two reasons. They
contend that the proposed injunction would violate their constitutional rights, and that plaintiffs cannot
obtain an injunction based on the 2005 amendment to the Unruh Act because there has been no
ongoing relationship between plaintiffs and defendants since plaintiffs' application was rejected in
October 2002.
With regard to the constitutional argument, defendants assert that plaintiffs are seeking to use California
law to compel Adoption Profiles LLC to accept for "publication" on its websites adoption information that
is inconsistent with the purposes for which the website is operated, which defendants claim is to promote
adoption by married husband and wife couples. Defendants argue that using the courts to compel a
"private publisher" to "grant access to its Internet publications" for the speech of another private party
violates the free speech protections of the California Constitution and the First Amendment to the United
States Constitution.

Defendants contend that this issue is controlled by the U.S. Supreme Court's decision in Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487
(1995). In that case, the Irish-American Gay, Lesbian and Bisexual Group of Boston sued for sexual
orientation discrimination under a Massachusetts law similar to the Unruh Act, after the organizers of a
private St. Patrick's Day parade refused to let the group march in their parade. The Massachusetts state
court ruled in the plaintiff group's favor, but the U.S. Supreme Court found that the compelled inclusion of
the group unconstitutionally interfered with the freedom of expression of the private parade organizers.
Defendants claim that compelling them to post plaintiffs' profiles on their "web publication"
ParentProfiles.com would similarly constitute compelled speech, and would also interfere with their
constitutional right to decide what not to say. They argue, in essence, that their website ParentProfiles
constitutes "expressive speech," and that just as a newspaper cannot be compelled to publish particular
writings by outsiders, defendants cannot be compelled to publish plaintiffs' "writings."
Defendants maintain that the fact that they accept money for posting the profiles does not change the
analysis, because newspapers also accept money for printing advertisements, but cannot be compelled
to accept every advertisement that anyone wants to have printed. They claim that the speech on the
ParentProfiles.com website is not commercial speech because it does not propose commercial
transactions (as accepting money for adoptions would constitute the unlawful selling of babies). They
assert that civil rights laws cannot be used to compel people to change their speech.
In response, plaintiffs argue that defendants do not have a First Amendment right to engage in
discriminatory conduct, and that statutes prohibiting discrimination in public accommodation do not
violate the First Amendment because they are not aimed at the suppression of speech. They contend
that the Unruh Act affects what defendants must do to engage in business activities in California
refrain from engaging in discrimination not what defendants may say or not say regarding their beliefs
about gay people, adoption, marriage, or parenting. They claim the Unruh Act does not require
defendants to espouse or denounce any particular viewpoint, but rather to refrain from discriminatory
conduct. Plaintiffs contend that [1059] under defendants' view, any business that claimed ideological
opposition to serving women, African-Americans, gays and lesbians, or people with disabilities would be
entitled to do so on First Amendment grounds, simply by asserting that they wished to "send a
message." Plaintiffs assert that if defendants' position were correct, it would eviscerate governments'
ability to eliminate discrimination.
Finally, plaintiffs argue that any speech that is incidentally affected by application of the Unruh Act is
commercial speech at best, and note that commercial speech does not receive the same level of
constitutional protection as other types of protected speech. Plaintiffs claim that the only expression by
defendants on Parent-Profiles.com is related to the commercial advertising services they provide to
prospective parents, and that any conduct or decision associated with such speech is properly
considered commercial speech.
The court finds that defendants' argument is without merit. The defendants in the present case are
selling adoption-related services. It is undisputed that none of the defendants is a licensed adoption
agency, and that none of the defendants is authorized by any state to pass on the fitness of any person

40
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to become an adoptive parent. The Gwilliams operate various adoption-related commercial enterprises
via the Internet. Some of these enterprises offer information and advice regarding adoption to Internet
users without charge. Others offer adoption-related merchandise for sale.
The website ParentProfiles.com is not "expressive speech." It is a commercial enterprise, consisting of a
website where prospective parents post profiles for a fee. Indeed, ParentProfiles.com is more akin to a
commercial Internet dating service than it is to an Internet. "publication." The "service" requires that the
prospective parents be pre-approved for adoption by the appropriate agency in their own states of
residence, but apart from that, it operates as any matchmaking service. Just as the operators of Internet
dating services do not schedule dates or perform marriages, but rather simply provide interested
individuals with a vehicle for making contact and arranging introductions, the operators of
ParentProfiles.com do not preside over meetings between birth mothers and prospective adoptive
parents, and do not broker or arrange any adoptions. The website simply provides an opportunity for
prospective parents for a fee to post information about themselves on a website in the hope that a
birth mother will select them as the adoptive parents for their babies.
Nor is it "undisputed" that defendants are "Internet publishers." The language in the profiles that are
posted on the site is not defendants' language it is the language of defendants' paying customers.
Simply "publishing" information written by prospective parents does not suffice to transform defendants'
discriminatory conduct into "speech itself." Plaintiffs are not seeking to place any restrictions on
what defendants are permitted to say or to compel them to say anything. It is the discriminatory conduct
that is at issue here defendants' refusal to do business with plaintiffs, based on their sexual
orientation and/or marital status. The key component of defendants' business is the selling of adoptionrelated services to the public, and the fact that there may be some speech involved in that business
does not entitle them to First Amendment protection.
The Supreme Court found that the organizer of the parade in Hurley was an expressive organization
carrying on an expressive activity. The Court made clear, however, that anti-discrimination laws do not,
as a general matter, violate the First [1060] or Fourteenth Amendments, because such laws generally do
not "target speech" but rather prohibit "the act of discriminating." Hurley, 515 U.S. at 572, 115 S.Ct.
2338; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 623-24, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)
(statutes prohibiting discrimination in public accommodation do not violate the First Amendment because
they are not aimed at suppression of speech). Defendants cite no reported decision extending the
holding of Hurley to a commercial enterprise carrying on a commercial activity.
The Supreme Court recently further clarified the distinction between regulating conduct and speech
in Rumsfeld v. Forum for Acad. and Inst. Rights, Inc., 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d 156
(2006), where it rejected the argument that a federal law requiring law schools to give access to military
recruiters violated the schools' First Amendment rights. Commenting that "[l]aw schools remain free
under the statute to express whatever views they may have on the military's congressionally mandated
employment policy," the Court found that, as a general matter, the federal law at issue "regulates
conduct, not speech." Id., 126 S.Ct. at 1307.
Moreover, even if the ParentProfiles.com website were deemed to have some expressive component,
defendants still cannot prevail in their First Amendment argument. Under the test set forth in United
States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a governmental regulation that
places a burden on expressive activity is sufficiently justified if it is within the constitutional power of the

government, if it furthers an important or substantial governmental interest, and if the incidental


restrictions on alleged First Amendment freedoms are no greater than is essential to the furtherance of
that interest. Id. at 377, 88 S.Ct. 1673. In this case, California has the constitutional authority to bar
discrimination on the basis of sexual orientation in public accommodations, California's interest in
combating discrimination on the basis of sexual orientation is compelling, and the Unruh Act prohibits
such discrimination in order to eliminate the harms caused by the discriminatory conduct, not to silence
particular viewpoints.
Defendants' second argument is that plaintiffs cannot state a present cause of action for injunctive relief
with regard to the claim of marital status discrimination. They assert that an injunction based on a
change in law presumes the existence of an ongoing relationship over which the court has jurisdiction,
but where, as here, the rejection of plaintiffs' application was not unlawful in October 2002, and there
was no ongoing relationship between plaintiffs and the defendants, plaintiffs cannot obtain injunctive
relief.
In support, defendants cite White v. Davis, 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222 (1975),
and American Fruit Growers v. Parker, 22 Cal.2d 513, 140 P.2d 23. (1943). In White, the plaintiff a
University of California history professor and a taxpayer filed a taxpayer's suit to enjoin the Chief of
the Los Angeles Police Department from spending public funds in connection with the police
department's conduct of covert intelligence gathering activities at UCLA. Among other things, the
complaint alleged that the challenged conduct violated students' and teachers' constitutional right to
privacy. Shortly after the trial court sustained the defendant's demurrer, the voters amended Article I,
Section 1 of the California Constitution to provide explicit protection to every individual's interest in
"privacy."
The court of appeal noted that although the new constitutional provision had not [1061] been adopted
until after the filing of the lawsuit, the complaint nonetheless stated a prima facie violation of the
constitutional right of privacy. White, 13 Cal.3d at 776, 120 Cal.Rptr. 94, 533 P.2d 222. The court found
the provision controlling on the appeal because the complaint sought only injunctive relief to restrain the
continuation of the alleged surveillance and data collecting practice in the future. The court
cited American Fruit Growersfor the proposition that "[r]elief by injunction operates in futuro, and the right
to it must be determined as of the date of the decision by an appellate court." White, 13 Cal.3d at 773 n.
8, 120 Cal.Rptr. 94, 533 P.2d 222 (citing American Fruit Growers, 22 Cal.2d at 515, 140 P.2d 23).
The court does not agree that the principle stated in White bars plaintiffs' claim for injunctive relief in this
case. White does not stand for the proposition that an injunction based on a change in law presumes the
existence of an ongoing relationship over which the court has jurisdiction. White simply holds that an
appellate court must apply the law in effect at the time it issues its opinion in a case.
3. Unfair Competition and Misleading Advertising Claims
The court finds that both claims brought under California Business & Professions Code must be
dismissed. Plaintiffs have indicated their intention to dismiss the claim brought under 17500, and the
17200 claim must be dismissed for lack of standing.
California law previously permitted any person acting for the general public to sue for relief from unfair
competition. See Californians for Disability Rights v. Mervyn's, LLC, 39 Cal.4th 223, 227, 46 Cal. Rptr.3d

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57, 138 P.3d 207 (2006). Proposition 64, which was passed by the voters on November 2, 2004,
amended California's unfair competition law to require that any plaintiff have "suffered injury in fact and
[have] lost money or property as a result of . . . unfair competition." Cal. Bus. & Prof.Code 17203, as
amended by Prop. 64 2; Id. 17204, as amended by Prop. 64 3. In CDR, the. California Supreme
Court held that these new requirements apply to cases pending at the time the proposition became
effective. CDR, 39 Cal.4th at 232-33, 46 Cal.Rptr.3d 57, 138 P.3d 207.
Defendants argue that the California Supreme Court's decision in CDR eliminates plaintiffs' unfair
competition claim. Defendants contend that it is undisputed that plaintiffs have not "lost money or
property as a result of any conduct at issue in this litigation, noting that neither the first amended
complaint nor the second amended complaint contains any such allegation, and that plaintiffs have
never produced any evidence showing that they "lost money or property as a result of defendants'
actions.
In response, plaintiffs argue that while Proposition 64 eliminated the standing of certain plaintiffs to bring
unfair competition claims, it did not affect their standing in this case. Plaintiffs argue that even though the
California Supreme Court has ruled that Proposition 64 is retroactive, plaintiffs as injured parties here
can still pursue their claims as individuals (rather than as private attorneys general), Plaintiffs assert
that they do not plan to seek class certification in this case and intend to seek an injunction based on
their personal injury.
Plaintiffs submit that unlike the plaintiffs in CDR, and its companion case, Branick v. Downey Say. &
Loan Ass'n, 39 Cal.4th 235, 46 Cal.Rptr.3d 66, 138 P.3d 214 (2006) none of whom could allege any
direct personal injury as a result of the actions of the defendants in those cases [1062] they (plaintiffs
here) have been injured by defendants' business practices, and thus have standing to sue to enjoin
those practices.
Plaintiffs contend that they have suffered both "injury in fact" and a "loss of money or property" as a
result of defendants' conduct. Plaintiffs claim that they have been injured in fact by defendants' unlawful
denial of access to defendants' business services and their false and misleading statements regarding
those services, and that they continue to suffer the ongoing stigmatizing injury that defendants' actions
have caused.
Plaintiffs also note that while they seek statutory damages rather than compensatory damages, they did
expend time and money preparing and submitting their application to defendants, only to have
defendants refuse to allow them to use defendants' business services. They contend that this economic
loss is sufficient to support standing under 17200.
The court finds, however, that plaintiffs do not have standing to assert the 17200 claim. The court
agrees with defendants, who argue that statutory damages cannot be considered a "loss of money or
property." As defendants point out, plaintiffs have not previously identified any loss of money or property
in connection with their unfair competition claims, and cannot now attempt to establish such a loss.
Plaintiffs have previously taken the position that they should not be required to respond to deposition
questions regarding damages, for the reason that they had disclaimed any claim to damages other than
the statutory minimum.

Moreover, plaintiffs' expenditure of time and money preparing an application is not the kind of loss of
money or property that is necessary for standing under the new version of the unfair competition law.
Restitution, which is the only monetary recovery possible under 17200, involves the payment or return
of money or property that belongs to the plaintiff. See, e.g.; Montecino v. Spherion Corp., 427 F.Supp.2d
965, 967 (C.D.Cal.2006). The time and expenditure of preparing the application to ParentProfiles is not
the type of loss of money or property that is necessary for standing under 17200.
4. Successor Liability and Alter Ego
a. Plaintiffs' Allegations as to Successor Liability and Alter Ego
Plaintiffs allege in the second amended complaint that Adoption Media LLC and Adoption Profiles LLC
are the successors in-interest of Adoption.com (the partnership) and its general partners Dale and
Nathan Gwilliam. They also assert that each defendant is the alter ego of the other defendants.
In October 2002, when defendants refused to post plaintiffs' profile on Parent-Profiles.com, the general
partnership Adoption.com, consisting of Dale and Nathan, owned the vast majority of the adoptionrelated websites operated by the Gwilliams. Between that time and June 2003, Dale and Nathan created
the two LLCs, transferred ownership of the partnership's websites to the LLCs (while leaving the
partnership in place), created the corporations, and transferred the membership interests in the LLC's
from themselves, as sole members of the LLCs, to the corporations.
Plaintiffs assert that in so doing, defendants erected a complex array of corporate structures that involve
only two people Dale Gwilliam and Nathan Gwilliam. Plaintiffs allege that the two LLCs are the
successors-in-interest of the Adoption.com partnership and its partners. Plaintiffs assert that the LLCs
received two vital assets from the general partnership the [1063] Adoption.com website and the
ParentProfiles.com website. They note that Dale and Nathan, the sole general partners of the general
partnership, were also at that time the sole members and officers of the LLCs, and claim that this
resulted in a mere continuation of ownership and control over day-to-day operations of all broad policy
decisions regarding the websites.
Plaintiffs also argue that the business entity defendants are all alter egos of the Gwilliams because the
Gwilliams have failed to maintain the separateness among the various entity defendants, and have often
confused the various entities. Plaintiffs assert that it was the intent of the Gwilliams to create a business
structure in which no single entity or individual can be held responsible for the October 2002 decision not
to allow plaintiffs to post their profile on ParentProfiles.com, or for the current policy of not allowing
same-sex couples to post on ParentProfiles.com.
b. Defendants' Motion
Defendants seek summary judgment on the claims of successor and alter ego liability. Both plaintiffs and
defendants argue, however, that an inquiry into successor and alter ego liability would be superfluous
though for different reasons. Plaintiffs contend that there is no need to consider successor and alter ego
liability because four of the defendants Dale Gwilliam, Nathan Gwilliam, Adoption.com (the
partnership), and Adoption Profiles LLC are directly liable for violations of the Unruh Act. Plaintiffs
claim that each of these defendants affirmatively made the decision to discriminate in violation of the

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Unruh Act because of their consistent application of the discriminatory policy and express rejection of
same-sex couples.
Defendants, on the other hand, contend that the inquiry would be superfluous because the court does
not have personal jurisdiction over any defendant. They assert that in its previous orders, the court
merely found personal jurisdiction as to "defendants," and that plaintiffs made no showing to justify a
finding of personal liability as to any specific defendant. Defendants also argue that if plaintiffs cannot
establish that Adoption Profiles LLC is the successor in liability to, or the alter ego of, the Adoption.com
partnership, they cannot establish personal jurisdiction over Adoption Profiles LLC, and cannot obtain
the injunctive relief they seek.
i. successor liability
Defendants assert that plaintiffs cannot establish successor liability because neither Adoption Media LLC
nor Adoption Profiles LLC is a successor to the Adoption.com partnership. Under California law, when
one corporation sells or transfers all its assets to another corporation, the latter is not liable for the debts
and liabilities of the transferor unless one of four exceptions applies:[13]
(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a
consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of
the seller, or (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability
for the seller's debts.
Ray v. Alad Corp., 19 Cal.3d 22, 28, 136 Cal.Rptr. 574, 560 P.2d 3 (1977). Defendants argue that
neither Adoption Media LLC nor Adoption Profiles LLC falls within any of these exceptions to the general
rule against successor liability.
[1064] With regard to the first exception, defendants contend that there is no express or implied
agreement of assumption that the partnership expressly retained liability, and the transfer of assets
from the partnership to Dale and Nathan and from Dale and Nathan to the LLCs expressly disclaimed
any intent to transfer liability.
With regard to the second exception, defendants contend that courts recognize de facto mergers only
when four conditions apply:
(1) there was a continuation of the enterprise of the seller in terms of continuity of management,
personnel, physical location, assets, and operations; (2) there is a continuity of shareholders [ac
complished by paying for the acquired corporation with shares of stock]; (3) the seller ceases operations,
liquidates, and dissolves as soon as legally and practically possible; and (4) the purchasing corporation
assumes the obligations of the seller necessary for the uninterrupted continuation of business.
See Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1264 (9th Cir.1990); see also Marks v.
Minnesota Mining and Mfg. Co., 187 Cal.App.3d 1429, 1436, 232 Cal.Rptr. 594 (1986) (de facto merger
where original business became a part of defendant, corporation ceased to exist, and result was the
same as a statutory merger). Defendants argue that this exception does not apply because the

Adoption.com general partnership still exists and still has assets, and could readily pay any judgment for
the minimum statutory damages at issue in this litigation.
With regard to the third exception, the "mere continuation" doctrine also requires that the selling entity
dissolve because only one corporation may remain after the transaction.Ferguson v. Arcata Redwood
Co., LLC, 2004 WL 2600471 at *5 (N.D.Cal., Nov.12, 2004); State of Washington v. United States, 930
F.Supp. 474, 478 (W.D.Wash.1996). As with the first exception, defendants contend that because the
Adoption.com partnership still survives and has assets, there can be no successor liability under this
exception.
With regard to the fourth exception, defendants contend that Dale and Nathan made no effort to escape
liability for prior debts or actions, and that there can therefore be no question of any fraudulent purpose
of escaping liability.
In opposition, plaintiffs assert that successor liability is an equitable doctrine, and that because of the
great variety of factual circumstances in which successorship issues may arise, and because of the
different legal consequences that may be at issue in different cases, no single, mechanical formula can
be devised to resolve all successorship issues. They argue that because the origins of successor liability
are equitable, fairness is a prime consideration in its application.
Plaintiffs concede that many California courts have followed the four-part formulation set forth in the
California Supreme Court's decision in Ray, but argue that courts working within that framework have
applied the factors differently. For example, they note, the court in Franklin v. USX Corp., 87 Cal.App.4th
615, 105 Cal.Rptr.2d 11 (2001), observed that "the common denominator, which must be present in
order to avoid the general rule of successor nonliability, is the payment of inadequate cash
consideration." Id. at 627, 105 Cal.Rptr.2d 11. Plaintiffs also contend that some courts have gone
outside the "traditional" exceptions, when the case before them warrants another application of the
equitable doctrine to reach an equitable result. They dispute defendants' suggestion that successor
liability can never be imposed in the context of partnerships, noting that courts have recognized [1065]
the existence of successors-in-interest to a partnership where the facts and equitable considerations
warrant such a finding.
Plaintiffs argue further that under the traditional successor liability standard, Adoption Profiles and
Adoption Media are liable. They dispute defendants' assertion that the "mere continuation" exception
does not apply, and cite McClellan v. Northridge Park Townhome Owners Ass'n, Inc., 89 Cal.App.4th
746, 107 Cal.Rptr.2d 702 (2001), for the proposition that corporations cannot escape liability by a mere
change of name or a shift of assets when and where it is shown that the new corporation is in reality but
a continuation of the old.
In McClellan, a condominium association failed to pay a contractor for repair work. When the contractor
commenced an arbitration proceeding, the condominium association created a new homeowners
association for the condo complex. A court entered the arbitration award for the contractor two weeks
later, and the original condominium association filed for bankruptcy two weeks after that. The trial court
amended the judgment to include the new homeowners association, which appealed.
The appellate court found that the mere continuation exception applied and that the new homeowners
association was liable as a successor because it was a homeowners association for the same
condominium complex, because the same management company remained in place, and because the
new association derived its income from the same source as the original condominium association

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homeowner dues assessed to the membership. Id. at 756, 107 Cal.Rptr.2d 702. The court held that
successor liability applied even though there was no evidence that the predecessor had been dissolved
or had wound up its affairs. Id.
Plaintiffs argue that in this case, Adoption Profiles LLC continues to offer the same profile posting
service as the predecessor general partnership, operates the same website (ParentProfiles.com), and
derives its revenues from the same source the fee charged to prospective adoptive parents to use the
profile posting service. Plaintiffs claim that the ParentProfiles.com coordinator responsible for accepting
and processing applications to post on the website was continuously employed in that position from
January 2002 to November 2003 first by the partnership, then by Adoption Media. Plaintiffs assert
that the fact that the partnership continues to own assets and develop new products is immaterial. They
argue that the rule articulated in McClellan applies because the Gwilliams have attempted to frustrate
plaintiffs' right to injunctive relief by a "mere change of name" and a "shift of assets" from the partnership
to Adoption Profiles and Adoption Media, despite the fact that the new business entities are essentially
but a continuation of the old.
Plaintiffs also assert that courts have applied the fourth Ray exception the "fraudulent transfer"
exception to hold a successor business liable for the obligations of a successor when the transfer of
assets occurs "for the fraudulent purpose of escaping liability." Ray, 19 Cal.3d at 28, 136 Cal.Rptr. 574,
560 P.2d 3. They claim that California courts have applied this exception, when they find that a transfer
of assets is undertaken to escape liability for a predecessor's existing or perceived future liabilities.
Plaintiffs claim that in the present case, defendants attempted to frustrate plaintiffs' statutory right to
injunctive relief, by transferring the assets of the general partnership to two newly-formed limited liability
companies. Plaintiffs note that Nathan [1066] and Dale initiated formation of the LLCs and the asset
transfers less than one month after responding to a letter from plaintiffs attorney, which had put them on
notice of the potential for legal action to stop their discrimination against same-sex couples. Plaintiffs
claim that defendants have indicated their intent to evade liability by their assertions that Adoption
Profiles LLC and Adoption Media LLC cannot be liable for discrimination because they did not exist at
the time the events at issue in this case occurred.
Plaintiffs argue further that because they seek an injunction to remedy an ongoing discriminatory
practice, the application of successor liability in the context of other discrimination statutes is more apt
than its application to claims for monetary relief. They contend that courts analyzing federal laws have
held that prospective relief against a successor is appropriate where the facts indicate that the successor
will continue the predecessor's practices, including where a successor will continue the predecessor's
practices, such as a violation of civil rights. They also submit that the key component is notice by the
successor in other words, while a business cannot be held liable for its predecessor's liabilities if it did
not assume those liabilities, it can be held to account for the obligations of a predecessor where it had
knowledge of unfair or discriminatory practices by the predecessor.
The court finds that under the standard articulated by the California Supreme Court in Ray, neither
Adoption Media LLC nor Adoption Profiles LLC can be considered a successor to the partnership. There
is no evidence of any express or implied agreement of assumption of debts and liabilities; the conditions
required to effectuate a de facto merger do not apply; the LLCs cannot be considered a "mere
continuation" of the Adoption.com partnership because the partnership still exists in its previous legal

form; and there is no evidence that the Gwilliams transferred the partnership's assets to the, LLCs for the
fraudulent purpose of escaping liability for the debts of the partnership.
The facts in this case are distinguishable from the facts in McClellan. In McClellan, the transfer and
abandonment of the original homeowners association was deemed invalid because it had not been
accomplished with the required percentage of votes of the membership. The new association was
therefore a mere continuation of the old because while it was collecting dues from the condominium
owners, it did not actually have any members. See McClellan, 89 Cal.App.4th at 756, 107 Cal. Rptr.2d
702. Here, by contrast, the Adoption.com partnership, which remains legally viable, sold or transferred
assets including the ParentProfiles.com website to the newly created LLCs. While there may have been
a continuation of part of the enterprise of the partnership (the operation of ParentProfiles.com), the
partnership itself was not dissolved and the LLCs did not assume all of the obligations of the partnership.
ii. alter ego liability
Defendants also argue that none of the defendants meets the requirements for alter ego liability. Under
California law, a plaintiff seeking to invoke the alter ego doctrine must establish two elements: that there
is a unity of interest and ownership between the corporation and its equitable owner such that the
separate personalities of the corporation and the shareholder do not really exist; and that there will be an
inequitable result if the acts in question are treated as those of the corporation alone. Sonora Diamond
Corp. v. Superior Court, 83 Cal.App.4th 523, 538, 99 Cal.Rptr.2d 824 (2000).
[1067] The alter ego doctrine "arises when a plaintiff comes into court claiming that an opposing party is
using the corporate form unjustly and in derogation of the plaintiff's interests." Mesler v. Bragg Mgmt.
Co., 39 Cal.3d 290, 300, 216 Cal. Rptr. 443, 702 P.2d 601 (1985). The alter ego doctrine prevents
individuals or other corporations from misusing the corporate laws by the device of a sham corporate
entity formed for the purpose of committing fraud or other misdeeds. Assoc. Vendors, Inc. v. Oakland
Meat Co.,210 Cal.App.2d 825, 842, 26 Cal.Rptr. 806 (1962). California also applies the alter ego
doctrine to LLCs. See, e.g., People v. Pacific Landmark, 129 Cal.App.4th 1203, 1212, 29 Cal.Rptr.3d
193 (2005).
Courts have identified a number of factors that may bear on the question whether there is a unity of
interest and ownership. Although no single factor is dispositive, they include
the commingling of funds and other assets; the failure to segregate funds of the individual and the
corporation; the unauthorized diversion of corporate funds to other than corporate purposes; the
treatment by an individual of corporate assets as his own; the failure to seek authority to issue stock or
issue stock under existing authorization; the representation by an individual that he is personally liable
for corporate debts; the failure to maintain adequate corporate records; the intermingling of individual
and corporate records, the ownership of all the stock by a single individual or family; the domination or
control of the corporation by the stockholders; the use of a single address for the individual and the
corporation; the inadequacy of the corporation's capitalization; the use of the corporation as a mere
conduit for an individual's business; the concealment of the ownership of the corporation; the disregard
of formalities and the failure to maintain arm's-length transactions with the corporation; and the attempts
to segregate liabilities to the corporation.
Mid-Century Ins. Co. v. Gardner, 9 Cal. App.4th 1205, 1213 & n. 3, 11 Cal.Rptr.2d 918 (1992) (citation
omitted). Because no one factor governs, the court should look at all the circumstances to determine
whether the alter ego doctrine applies. Sonora Diamond, 83 Cal.App.4th at 539, 99 Cal.Rptr.2d 824.

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CONFLICT CHOICE OF LAW

Defendants argue, however, that many of those factors do not apply in the case of an LLC, because the
members of the LLC are permitted by statute to actively participate in the management and control of the
company. Defendants also argue that Adoption Profiles LLC and Adoption Media LLC do not have a
unity of ownership and interest with each other or with the Adoption.com partnership, because Dale and
Nathan own the partnership, while True North and Aracaju own the LLCs.[14]
In addition, defendants contend that the business operations of Adoption Media LLC and Adoption
Profiles LLC are distinct, with Adoption Media LLC focusing on publishing adoption-related information,
and Adoption Profiles LLC focusing on publishing profiles of potential adoptive parents for a fee, neither
of which business interests are shared by the Adoption.com partnership. Defendants contend that cases
that have found "unity" between affiliated corporations have involved businesses that were engaged in a
joint effort to accomplish the same purpose.

plaintiffs can' easily recover that amount from the partnership. They contend that because Adoption.com
no longer owns the ParentProfiles.com website, and no longer engages in the behavior about which the
plaintiffs complain, it will not be possible for this court to grant any injunctive or other preventive relief
against the partnership, because there can be no possibility of future injury where the defendant has
ceased owning the business.

[1068] Defendants also argue that alter ego liability cannot apply to True North and Aracaju, because
there is no evidence of self-dealing between the corporate defendants, the Gwilliams, and the LLCs.
Defendants contend that the essence of the analysis is whether the corporate owners have engaged in
some sort of self-dealing to the detriment of the plaintiffs, and argue that there can be no alter ego
liability absent some bad faith. Moreover, they assert, an inequitable result cannot be demonstrated
merely by showing that a plaintiff is unable to obtain the relief sought without piercing the corporate veil.

In opposition, plaintiffs argue that the defendants are liable as alter egos. They contend that California
courts state that there is no specific "litmus test" for identifying whether an individual or entity is an alter
ego of another, but that the main concern is equity. They argue that the equitable remedy of injunction is
required in this case to prevent an inequitable result for the plaintiffs. They dispute defendants' claim that
there must be a finding of "bad faith" before liability can be imposed on a theory of alter ego. They assert
instead, that the doctrine is designed to prevent what would be fraud or injustice if accomplished.
Plaintiffs contend that California courts have defined "inequitable result" to include a situation where a
corporate entity is used to evade the law or to accomplish some other wrongful or inequitable purpose.
They argue that where a corporation is established to avoid the effect of a statute, the court may look at
factors including the strength of the policy behind the statutory enactment. They note that California
courts have disregarded the corporate form where an individual attempts to create multiple business
entities to evade coverage of a statute.

Defendants contend that there is no genuine issue of material fact regarding defendants' good faith.
They claim that the Gwilliams chose to form the LLCs and then later, to incorporate, for legitimate
business reasons, to avoid personal liability for future corporate obligations, and for various reasons
relating to estate planning. They also contend that the timing of the formation of the LLCs does not raise
any inference of bad faith, asserting that Dale Gwilliam, who is an attorney, attended a CLE seminar on
tax issues for LLCs in. June 2002, some four months before plaintiffs attempted to post their profile in
October 2002, and also noting that Dale has stated in his declaration that he and Nathan made the
decision to begin operating as LLCs before September 2002. Defendants also assert that when they
decided to form the LLCs, and when they denied plaintiffs' application to post their profile, they had no
reason to believe that they were violating California law, or that forming the LLCs or later incorporating
would eliminate a remedy (injunctive relief) that a potential claimant might have.
As for plaintiffs' assertion that Dale and Nathan's common ownership of the Adoption.com partnership,
the LLCs, and the corporations supports alter ego liability, defendants argue that this claim is not
supported by California law. Defendants contend that officers and directors of parent companies
routinely serve as officers and directors of subsidiaries. They assert that corporate entities remain
distinct, and argue that a parent may be involved in, the subsidiary's activities so long as that
involvement is consistent with the parent's investor status. In sum, they contend, that there can be no
unity of ownership, between Aracaju and True North, as they are separately owned and have separate
interests Aracaju being owned by Nathan, and True North being owned by Dale.
Finally, defendants argue that the alter ego doctrine cannot justify an injunction against the LLCs or the
corporate defendants for the Adoption.com partnership's alleged violation of plaintiffs' rights. Defendants
assert that plaintiffs' total damages in this case are the statutory minimum damages of $24,000, and that

Defendants contend that plaintiffs can seek injunctive relief only on the basis of current, ongoing
activities, and personal jurisdiction for that relief will have to be based on something other than the
contacts that the Adoption.com partnership had with California in October 2002. In a related argument,
they assert that plaintiffs cannot obtain injunctive relief against Adoption Media, True North, or Aracaju,
[1069] because there is no evidence that any of those defendants discriminated against plaintiffs.

Plaintiffs dispute defendants' assertion that the doctrine of alter ego cannot apply because the
partnership still exists and can pay any judgment. They note that defendants rely on cases that sought
only monetary damages from the alleged alter ego defendant. They argue that plaintiffs can obtain
complete relief in this case only by obtaining an injunction.
Plaintiffs argue that a finding of alter ego liability is appropriate where, as here, there is common
equitable ownership and control over all companies by the same individuals. In support, they cite Elliott
v. Occidental Life Ins. Co. of Calif, 272 Cal. App.2d 373, 77 Cal.Rptr. 453 (1969). In that case, the court
upheld the jury's finding that the Oroweat Baking Company of San Francisco (a corporation) was an alter
ego of the Oroweat Oakland Bakery (a partnership), where the same three individuals owned all the
stock in the corporation and also constituted the three partners of the bakery. All the baking was done by
the San Francisco company, and the Oakland company acted as the distributor. Both companies were
represented by the same attorney, and the records and correspondence of both companies was kept in
the San Francisco office. Both companies used the same employees and the same business
locations. Id. at 375-77, 77 Cal.Rptr. 453.
Plaintiffs assert that `there is evidence that many of the relevant factors cited by the Elliott court support
a finding of alter ego in this case. First, they note that Dale and Nathan are each 50% owners of the
partnership; that Dale and wife are the sole owners of True North, and Nathan is the sole owner of

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CONFLICT CHOICE OF LAW

Aracaju; and that Dale and Nathan are the controlling owners of the sole corporate members of Adoption
Media LLC and Adoption Profiles LLC, giving them effective and exclusive control over both LLCs.
Plaintiffs also contend that the evidence shows, based on defendants' tax returns and W-2 statements
for employees, that defendants are located at the same business address and share their employees.
Plaintiffs also assert that the ParentProfiles.com development agreement details the symbiotic
relationship between the two LLCs; and that the defendants' internal financial documents (general ledger
and balance sheets) reveal that the entities share their assets and liabilities as a normal course of
business, thus failing to [1070] maintain arms'-length relationships among themselves.
Second, plaintiffs argue that Adoption Media, Adoption Profiles, True North, and Aracaju were all
undercapitalized at their formation. Plaintiffs assert that the attempt to do corporate business without
providing a sufficient basis of financial responsibility to creditors is an abuse of the separate entity and
will be ineffectual to shield shareholders from liability. They argue that where a corporation is set up with
insufficient capital to meet its debts, it would be inequitable to allow shareholders to escape personal
liability by means of such a flimsy organization. Plaintiffs assert that in light of the volume of business
that defendants conducted, the initial capitalization ($100 from Dale and $100 from Nathan for each of
the LLCs) was inadequate as a matter of law.
Third, plaintiffs also contend that during the first year that the LLCs were in operation, defendants touted
ParentProfiles.com as part of the "Adoption.com Family," where "millions of pages are visited each
month," and Adoption Media LLC described the Adoption.com website as "the foremost authority for
adoption on the Internet."
Fourth, plaintiffs argue that the Gwilliams themselves have disregarded distinctions among the various
defendants, and failed to maintain adequate records because they and their employees confused the
records of the separate entities. For example, plaintiffs claim that the corporations' meeting minutes refer
to Dale and Nathan in their individual capacities, rather than as representatives of True North or Aracaju;
and that despite the alleged transfer of the membership of the LLCs into distinct corporations, the LLCs
continued to list Dale and Nathan as "members" of those entities. Plaintiffs also note that minutes of a
special meeting of Adoption Profiles, LLC, held on January 21, 2003, refers to Adoption Media, LLC, in
the body, and that defendants used the Tax ID number for the Adoption.com partnership to submit filings
for Adoption Media LLC.
Finally, plaintiffs assert that the Gwilliams used the defendant business entities for their own personal
economic benefit, treating the assets of the entities as their own. Plaintiffs cite to an incident involving
Dale Gwilliam, who attempted to use funds from Adoption Media LLC to pay a penalty assessed against
him by the State Bar of Arizona. However, plaintiffs note, because the matter to which the penalty
related had occurred prior to the formation of Adoption Media LLC, he could not rightfully claim that
Adoption Media should be paying fines incurred by its counsel. Plaintiffs claim that this demonstrates
Dale's willingness to use Adoption Media's assets as his own and to use them to settle his personal
debts.

Plaintiffs have provided some evidence suggesting a material dispute with regard to whether there is a
unity of interest and ownership among the Gwilliams and the entity defendants, although the evidence
that Dale and Nathan from time to time may have disregarded the corporate formalities or disregarded
distinctions among the entities is not particularly compelling under the facts of this case. Where a
corporation is closely held, as True North, Aracaju, and the LLCs appear to be, "the interests of the
corporation's management and stockholders and the corporation itself generally fully collide." Gottlieb v.
Kest, 141 Cal.App.4th 110, 151, 46 Cal.Rptr.3d 7 (2006). Moreover, lack of formality is not unusual in a
closely-held corporation. See Nelson v. Anderson, 72 Cal.App.4th 111, 125 n. 7, 84 Cal.Rptr.2d 753
(1999).
[1071] The Elliott case, however, is not persuasive authority. Elliott involved an action on a certificate of
life insurance issued under a group policy, and neither of the Oroweat entities was a defendant in the
action. Thus, the court noted, "[T]he situation is therefore not one where the plaintiff was seeking to
pierce the corporate veil and impose liability upon one company for the acts of the other." Elliott, 272
Cal. App.2d at 376, 77 Cal.Rptr. 453. The court simply cited the alter ego factors as support for its
decision, to reverse the judgment for the defendant notwithstanding the verdict.
More importantly, however, the court finds that plaintiffs have provided no evidence of bad faith, or
evidence that Dale and Nathan created the LLCs or the corporations as separate entities in order to
avoid the operation of a statute. Plaintiffs have not refuted defendants' evidence that there was a
legitimate business reason for the formation of the LLCs, and later, the corporations. In order to invoke
the alter ego doctrine, plaintiffs must demonstrate how the corporate structure was intended to deprive
them of a right, or how it has been used to do so.
Finally, to the extent that plaintiffs have raised triable issues with regard to alter ego liability, the court
finds that such disputed facts are not material, as plaintiffs have argued that an inquiry into alter ego
liability would be superfluous.
5. Personal Jurisdiction
Defendants argue that the undisputed material facts show that the court does not have personal
jurisdiction over any defendant. Plaintiffs respond that the court has repeatedly analyzed the issue of
personal jurisdiction, and has ruled that sufficient minimum contacts exist to establish both general and
specific jurisdiction. They argue that defendants' motion does not identify any undisputed issues of
material fact, or any case law, that would warrant a different ruling on summary judgment.
California permits the exercise of personal jurisdiction to the full extent permitted by due process. Cal.
Civ.Code 410.10. Absent one of the traditional bases for personal jurisdiction (presence, domicile, or
consent), due process requires that the defendant have certain "minimum contacts" with the forum state,
"such that the maintenance of the suit does not offend traditional notions of fair play and substantial
justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The extent to
which a federal court can exercise personal jurisdiction will depend on the nature and quality of
presence, or the nature and quality of the defendant's contacts with the forum state.
If the defendant's activities in the forum state are "substantial, continuous, and systematic," a federal
court can (if permitted by the state's "long arm" statute) exercise jurisdiction as to any cause of action,

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even if unrelated to the defendant's activities within the state. Perkins v. Benguet Consolidated Mining
Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. 485 (1952). This is referred to as "general jurisdiction." If
a non-resident's contacts with the forum state are not sufficiently continuous and systematic for general
jurisdiction, that defendant may still be subject to "specific jurisdiction" on claims related to its activities
or contacts in the forum. See Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1169 (9th
Cir.2006).
When a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the
burden of demonstrating that jurisdiction is proper. Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d
1007, 1019 (9th Cir.2002). Where the motion is based on written materials rather [1072] than on an
evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional
facts. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004). In such cases, the
court need only inquire into whether the plaintiffs pleadings and affidavits make a prima facie showing of
personal jurisdiction. Id. Although the plaintiff cannot rest on the bare allegations of the complaint,
uncontroverted allegations in the complaint must be taken as true. Id. Conflicts between the parties over
statements contained in affidavits must be resolved in the plaintiffs favor.Id.
Presenting a prima facie case of personal jurisdiction, however, does not necessarily guarantee
jurisdiction over the defendant at the time of trial. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir.1987). If
the pleadings or other declarations raise issues of credibility or disputed questions of fact, the court may,
in its discretion, order a preliminary hearing to resolve the contested issues. In that situation, the plaintiff
must establish the jurisdictional facts by a preponderance of the evidence. Data Disc, Inc. v. Systems
Tech. Assoc., Inc.,557 F.2d 1280, 1285 (9th Cir.1977). Alternatively, the plaintiff must prove the
jurisdictional facts at trial by a preponderance of the evidence. Id. at 1289 n. 5.
The court previously found, in orders issued on May 3, 2004, on April 25, 2005, and on March 13, 2006,
that plaintiffs had established a prima facie case of personal jurisdiction. Nevertheless, defendants now
assert that the previous rulings are to no effect because the court failed to find personal jurisdiction as to
each defendant, individually. Defendants also contend that the previous rulings were made before the
record in this case was fully developed, and are not "evidence" and cannot be considered as such.
Plaintiffs argue in response that the court has repeatedly analyzed the issue of personal jurisdiction, and
has ruled that sufficient minimum contacts exist to satisfy both general and specific jurisdiction. They
contend that the record is replete with evidence supporting the court's exercise of personal jurisdiction
over defendants as well as the propriety of applying California law to this case. They also assert that it is
undisputed that the court has jurisdiction over four of the defendants Dale Gwilliam, Nathan Gwilliam,
Adoption.com (the partnership), and Adoption Profiles LLC.
a. General Jurisdiction
For general jurisdiction to exist over defendants in this case, defendants must have engaged in
"continuous and systematic general business contacts" in the forum. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (citing Perkins, 342
U.S. 437, 72 S.Ct. 413). "This is an exacting standard, . . . because a finding of general jurisdiction
permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere
in the world."Schwarzenegger, 374 F.3d at 801. In considering whether it has general jurisdiction over a
defendant, the court should look at all the defendant's activities that impact the state, including whether
the defendant makes sales, solicits or engages in business in the state, serves the state's markets,

designates an agent for service of process, holds a license, or is incorporated there. Bancroft & Masters,
Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir.2000).
Defendants argue that no defendant has sufficient contacts for general jurisdiction. They contend that
the Adoption.com partnership and Dale and Nathan as general partners currently have no substantial or
continuous contacts with California, and [1073] have had no contacts with California since the
partnership distributed the Adoption.com and ParentProfiles.com websites to Dale and Nathan in
January 2003.
Thus, defendants assert, to the extent that the general partners or the partnership ever had any
substantial or continuous contacts with California, those contacts ceased, never to be renewed, nearly
eleven months before the present lawsuit was filed. Based on these facts, defendants contend that
neither the general partners nor the partnership may be subjected to general jurisdiction. Defendants
contend that the corporate defendants likewise have had no contacts with California, and cannot be
subjected to general jurisdiction.
Defendants argue that Adoption Profiles LLC and Adoption Media LLC are the only defendants with
current contacts with California. However, defendants assert, those contacts cannot be deemed
"continuous and systematic," as neither LLC has directed or currently directs solicitations toward
California businesses or residents. Defendants claim that the only advertising defendants do is directed
at a nationwide audience, and assert that advertisements over the Internet cannot be used to subject a
business to general jurisdiction.
In opposition, plaintiffs argue that the court has found general jurisdiction on numerous occasions, based
on its analysis of the record evidence in the case. They quote at length from the court's previous order of
May 3, 2004, denying the original defendants' motion to dismiss, and the order of April 25, 2005, denying
the original defendants' motion for reconsideration of the portion of the May 3, 2004, order finding that
plaintiffs had established a prima facie case of personal jurisdiction; and also cite to the declarations filed
by plaintiffs in support of their oppositions to those motions.
They contend that the Internet-based activities of Adoption Profiles LLC are sufficient to support general
jurisdiction, given that those activities are targeted at California residents and have resulted in contacts
with California residents.
b. Specific Jurisdiction
Specific personal jurisdiction requires that the plaintiff make a three-part showing. The plaintiff must
show 1) that the out-of-state defendant purposefully directed its activities toward residents of the forum
state or otherwise established contacts with the forum state; 2) that the plaintiffs cause of action arises
out of or from the defendant's forum-related contacts; and 3) that the forum's exercise of personal
jurisdiction in the particular case is reasonable that it comports with fair play and substantial
justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
In addition, courts including the Ninth Circuit have adopted a "flexible approach" that may allow personal
jurisdiction with a lesser showing of minimum contacts where dictated by considerations of
reasonableness. See Ochoa v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1188 n. 2 (9th Cir.2002).

47
CONFLICT CHOICE OF LAW

The first requirement is that the defendant must have purposefully directed its activities at residents of
the forum, or purposefully availed itself of the privilege of conducting activities within the forum state,
thus invoking the benefits and protections of local law. Hanson v. Denckla, 357 U.S. 235, 253-54, 78
S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In examining "purposeful direction" most often used in cases
involving tort claims courts apply the "effects test," which requires that the defendant have 1)
committed an intentional act, 2) expressly aimed at the forum state, 3) causing harm that the defendant
knows is likely to be suffered in the forum [1074] state. Schwarzenegger, 374 F.3d at 802-03; see
also Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320-22 (9th Cir.1998).
Defendants contend that no defendant has sufficient contacts for specific jurisdiction. They assert that
plaintiffs' claims involve their October 2002 application to have their profile posed on ParentProfiles.com,
and the rejection of that application by Adoption.com and its general partners. Defendants contend that
apart from this lawsuit, plaintiffs have never had any contact with the LLC defendants or with the
corporate defendants. Thus, they argue, there is no basis for a finding of specific jurisdiction over
Adoption Media LLC, Adoption Profiles LLC, True North, or Aracaju, or against Dale Gwilliam or Nathan
Gwilliam as officers, directors, or managers of those entities.
Defendants also argue there is no basis in the record for subjecting the Adoption.com general
partnership or its general partners to specific jurisdiction. They claim that there is no evidence that the
partnership committed an intentional act, aimed at California, which caused plaintiffs harm, or that the
general partners knew was likely to cause harm. They assert that under Schwarzenegger, 374 F.3d at
804-05, general foreseeability that an injury could occur in another state, standing alone, is insufficient
for the exercise of personal jurisdiction under the effects test. They contend that under Yahoo! Inc. v. La
Ligue Contre Le Racisme et L'Antisemitisme, 433 F.3d 1199, 1206 (2006), there must be more than
"mere untargeted negligence" to meet the effects test. They assert that what plaintiffs are complaining
about in this case is "mere untargeted acts," which defendants argue is not the kind of activity necessary
to satisfy the "effects" test.
Defendants concede that Dale and Nathan, as general partners of the Adoption.com partnership,
undertook numerous intentional acts that involved California, including purchasing the Adopting.org
website. But they maintain that no intentional act expressly aimed at California is the source of plaintiffs'
injuries. They argue that the act that caused the alleged Unruh Act violation was an act of "considered
decision, dictated by their consciences and best judgment as to the best interests of children," to limit
ParentProfiles.com's customers to prospective parents who were heterosexual married couples.
Defendants claim that their refusal to enter into a contract is not the type of activity necessary to satisfy
the "effects" test. They assert that while Dale and Nathan may have undertaken numerous intentional
acts that involved California, such as purchasing the Adopting.org website, no intentional act expressly
aimed at California is the source of plaintiffs' alleged injuries.
Defendants contend that apart from this lawsuit, plaintiffs have never had contact with the LLC
defendants or the corporate defendants. They also note that neither the LLC defendants nor the
corporate defendants existed in October 2002. Thus, they assert, there is no basis for a finding of
specific jurisdiction over Adoption Media LLC, Adoption Profiles LLC, True North, Aracaju, or Dale and
Nathan Gwilliam in their capacity as officers, managers, or directors of those entities.

Defendants also contend that plaintiffs have failed to show any "but-for" causation, to establish specific
jurisdiction. In other words, they argue that plaintiffs have failed to provide evidence showing that but for
defendants' contacts with California, plaintiffs would not have applied to ParentProfiles.com. Defendants
claim that the alleged Unruh Act injuries could not have arisen out of the relationship between the
Adoption.com partnership and IAC, [1075] because IAC's recommendation that plaintiffs post their profile
on ParentProfiles.com was not based on a relationship with the Adoption.com partnership, and because
IAC did not actually recommend that plaintiffs post their profile on defendants' website.
In opposition, plaintiffs argue that the court's previous findings continue to support specific jurisdiction,
again quoting from the May 3, 2004, and April 25, 2005, orders, and citing to the declarations filed by
plaintiffs in opposition to defendants' motions. They contend that the evidence referenced therein, as
well as the evidence previously submitted, supports the fact that defendants do more business in
California than in any other state, including Arizona.
Plaintiffs argue that the court has specific jurisdiction, because the original injury in 2002 arose out of
plaintiffs' contacts with the Adoption.com partnership, Dale Gwilliam, and Nathan Gwilliam. They assert
that defendants discriminated against people they knew to be California residents, and that defendants
knew that the brunt of the injury would be felt by them in California. They contend that these injuries
were not the result of plaintiffs' unilateral overtures to the partnership and the Gwilliams, but rather were
the result of defendants' successful and deliberate attempts to solicit business from California residents
through California adoption agencies.
Plaintiffs also contend that Adoption Profiles LLC is subject to specific jurisdiction because its policy,
from January 2003 to the present, has denied access to the Butlers and other same-sex couples in
California who would like to use the services of ParentProfiles.com. They argue that Adoption Profiles
LLC simply continued the discriminatory policy initiated by the Gwilliams while the Adoption.com
partnership owned the ParentProfiles.com website. They claim that this intentional action was expressly
aimed at California. As well, they assert that Adoption Profiles LLC encourages adoption agencies
located in California to recommend that prospective adoptive parents apply to be listed on
ParentProfiles.com, and has entered into agreements with California businesses, including IAC.
Plaintiffs assert that Dale and Nathan Gwilliam, as the sole officers and managers of Adoption Profiles
LLC, created and exclusively control the policies of the LLC. They assert that the Gwilliams' active
participation in denying access to the Butlers and other California same-sex couples makes them
individually subject to personal jurisdiction for claims arising out of that denial.
c. Analysis
It is true, as defendants argue, that personal jurisdiction, if challenged, must be established as to each
defendant individually. See Rush v. Savchuk, 444 U.S. 320, 331-32, 100 S.Ct. 571, 62 L.Ed.2d 516
(1980). However, both the original defendants' motion to dismiss for lack of personal jurisdiction and
their motion for reconsideration of the order denying the motion to dismiss for lack of personal
jurisdiction referred throughout to "defendants' activities in California" and "defendants' contacts with

48
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California." Thus, the orders issued by the court on May 3, 2004, and April 25, 2005, were also directed
to the California activities and contacts of "defendants."
Moreover, the May 3, 2004, and April 25, 2005, orders did address the contacts of the individual
defendants by implication. That is, where the orders discussed jurisdiction over "defendants" in
connection with the events that occurred in late 2002 (rejection of the Butlers' ParentProfiles.com [1076]
application), the ruling applied to Dale Gwilliam and Nathan Gwilliam, as the Gwilliams had not yet
created the LLCs at that point. Where the orders discussed jurisdiction over "defendants" in connection
with the post-2002 activities, the ruling applied to the LLCs.
The ruling as to the Gwilliams can also be extended to the Adoption.com partnership.[15] The Gwilliams,
as general partners in the partnership, developed and implemented the "married-couples-only" policy. In
both California and Arizona, a partner is an agent of the partnership when carrying on the business of
the partnership in the usual way. Cal. Corp.Code 16301(1); Ariz.Rev.Stat. 29-1021(1). For purposes
of personal jurisdiction, the actions of an agent are attributable to the principal. Sher v. Johnson, 911
F.2d 1357, 1362 (9th Cir.1990) (interpreting former Cal. Corp. Code 15009(1), repealed effective Jan.
1, 1999, and replaced with Cal. Corp.Code 16301). Thus, the actions that warrant the exercise of
specific jurisdiction over the Adoption.com general partnership, as set forth in the earlier orders, were
undertaken by the Gwilliams, as general partners.
Defendants argue, of course, that there can be no personal jurisdiction over the Gwilliams and the
Adoption.com partnership with regard to the October 2002 denial of plaintiffs' application to post their
profile on ParentProfiles.com, because the website was transferred to Adoption Profiles LLC in January
2003. Thus, according to defendants, because the Adoption.com partnership no longer owned
ParentProfiles.com when the complaint in this action was filed in January 2004, the court cannot
exercise jurisdiction over the partnership. The court declines to adopt this theory. The court is satisfied,
based on the evidence heretofore provided, that it has jurisdiction over the partnership and the general
partners based on their activities vis--vis California prior to January 2003.
After plaintiffs amended the complaint, defendants again moved to dismiss for lack of personal
jurisdiction. The motion filed by the original defendants (the Gwilliams and the LLCs) and the motion filed
by the Adoption.com partnership and Dale and Nathan as general partners made essentially the same
arguments they had made in the previous motions and the same arguments they are making here
that neither Dale and Nathan Gwilliam, nor the LLC defendants had sufficient contacts with California for
general jurisdiction; that plaintiffs could not establish specific jurisdiction over the original defendants
because the lawsuit did not arise out of those defendants' contacts with California; that the LLC
defendants could not be subject to specific jurisdiction because they did not exist in October 2002; and
that plaintiffs had not adequately pled alter ego liability. The motion filed by True North and Aracaju
argued both that the court did not have personal jurisdiction over the corporate defendants because the
corporate defendants had no contacts with California, and that plaintiffs had not adequately pled alter
ego liability.
In its order filed March 13, 2006, the court denied the original defendants' motion and the motion of the
general partners on the ground that it had previously found that plaintiffs had stated a prima facie case of
personal jurisdiction. The court denied the motions of the partnership and the corporate defendants on

the ground that plaintiffs had established a [1077] prima facie case of alter ego liability. Thus, the only
defendants as to which the court has not specifically found a prima facie case of personal jurisdiction are
the corporate defendants.
As the court has now found that summary judgment should be granted on plaintiffs' alter ego and
successor liability claims, the basis for finding personal jurisdiction over the corporate defendants has
evaporated. Based on plaintiffs' failure to establish a prima facie case of personal jurisdiction over True
North and Aracaju, the court finds that those defendants must be dismissed for lack of personal
jurisdiction.
With regard to the remaining defendants, apart from the analysis provided above, the court is not
inclined to again revisit the same arguments previously made by the defendants. Defendants describe
their motion regarding personal jurisdiction as "not technically a motion for [s]ummary [j]udgment."
Although they do not say what kind of motion it is, the court is evidently meant to consider it as another
Rule 12(b)(2) motion.
In the June 21, 2005, order regarding the plaintiffs' motion to strike the affirmative defenses, the court
denied the motion to strike the first through fourth affirmative defenses, in which defendants alleged that
the court does not have personal jurisdiction over, respectively, Adoption Media LLC, Adoption Profiles
LLC, Dale Gwilliam, and Nathan Gwilliam. The denial was based on the rule stated in Data Disc, that
even when a plaintiff succeeds in making a prima facie showing of jurisdictional facts, "he must still
prove jurisdictional facts at trial by a preponderance of the evidence." Data Disc, 557 F.2d at 1286 n. 2.
Thus, the June 21, 2005, order directed defendants, no later than 60 days prior to trial; to "submit a list of
the alleged disputed facts or credibility considerations, which they intend to present to the jury for
determination on the factual aspects of' the dispute regarding personal jurisdiction. That order did not
contemplate a renewal of defendants' previous Rule 12(b)(2) arguments. Accordingly, defendants motion
as to personal jurisdiction is DENIED, except as to True North and Aracaju.
6. Objections to Evidence and Motions to Strike Evidence
The parties have submitted objections to evidence and motions to strike evidence. The court has
reviewed the objections, and finds that the evidence at issue appears to have been submitted primarily
in support of or in opposition to the motions for summary judgment on liability under the Unruh Act, the
motion for summary judgment on the claims of alter ego and successor liability, or the motion to dismiss
for lack of personal jurisdiction. Because the court has not granted any of those motions in reliance on
the disputed evidence, the objections are OVERRULED. Defendants have also objected to plaintiffs'
request for judicial notice, filed December 8, 2006. That objection is also OVERRULED.
CONCLUSION
In accordance with the foregoing, plaintiffs' motion for summary judgment is DENIED; defendants'
motion for summary judgment is GRANTED as to the claims under Business and Professions Code
17200 and 17500; GRANTED as to the claims of alter ego and successor liability; and DENIED as to the

49
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claims under the Unruh Act. Defendants' motion to dismiss for lack of personal jurisdiction is GRANTED
as to True North and Aracaju, and DENIED as to the remaining defendants.
[1078] The court will conduct a case management conference to discuss the trial schedule on Thursday,
April 26, 2007, at 2:30 p.m.
IT IS SO ORDERED.
[1] The court added a qualification, however, stating that businesses subject to the Unruh Act retained
the right "to establish reasonable regulations that are rationally related to the services performed and
facilities provided." Id. at 212, 217 & n. 13, 90 Cal.Rptr. 24, 474 P.2d 992.
[2] This ruling was subsequently reversed, on the ground that the Boy Scouts are not a "business
establishment" governed by the provisions of the Unruh Act. See Curran v. Mt. Diablo Council of Boy
Scouts of America, 17 Cal.4th 670, 700, 72 Cal.Rptr.2d 410, 952 P.2d 218 (1998).
[3] The Legislature again amended the Unruh Act in 1992, deleting "blindness or other" from the phrase
"blindness or other disability," and adding "or medical condition" after "disability" in 2000.
[4] In Smith v. Fair Employment & Housing Comm'n, 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909
(1996), the California Supreme Court held that the Fair Employment and Housing Act, Cal. Gov't Code
12900, et seq., protects unmarried cohabitants from housing discrimination. The plaintiffs had also
raised an Unruh Act claim, asserting discrimination on the basis of marital status, but the court found it
unnecessary to address that claim in light of the ruling on the FEHA claim. The court noted the conflict
on the issue, citing Beaty, where the court ruled that marital status discrimination was not actionable
under the Unruh Act; and also citing Marina Point, where the California Supreme Court had stated to the
contrary in dicta, see Marina Point, 30 Cal.3d at 736, 180 Cal.Rptr. 496, 640 P.2d 115, and Frantz v.
Blackwell, 189 Cal.App.3d 91, 95, 234 Cal.Rptr. 178 (1987) (same). Smith, 12 Cal.4th at 1160 n. 11, 51
Cal.Rptr.2d 700, 913 P.2d 909.
[5] This law was subsequent abrogated by the California Legislature. See Cory v. Shierloh, 29 Cal.3d
430, 435, 174 Cal.Rptr. 500, 629 P.2d 8 (1981).
[6] The Court of Appeals of Arizona held in 2003 that Arizona's prohibition of same-sex marriages is
constitutional. Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451 (Ariz. App.2003).
[7] Prior to 1996, the relevant statute had provided that "[m]arriages valid by the laws of the place where
contracted are valid in this state." Ariz.Code of 1939 63-108 (currently codified as Ariz.Rev.Stat. 25112(A)).
[8] Section 308.5 is being challenged in the California courts. See In re Marriage Cases, 49 Cal.Rptr.3d
675, review granted and opinion superseded by In re Marriage Cases, 149 P.3d 737, 53 Cal.Rptr.3d 317
(Cal.2006).
[9] Section 297.5 was unsuccessfully challenged in the California courts. The plaintiffs argued that
297.5 impermissibly amended Family Code 308.5 (marriage is between a man and a woman) without
voter approval in violation of the California Constitution. The Court of Appeal found that the language of
Proposition 22 said nothing about precluding the Legislature from granting rights to domestic partners
that were the equivalent of rights granted to married couples. See Knight v. Superior Court, 128
Cal.App.4th 14, 26 Cal. Rptr.3d 687 (2005).

[10] Defendants refer to "Internet server" and "Web server" interchangeably, without defining those
terms. Although the court could not locate a definition for "Internet server," a "Web server" can be either
1) a computer that is responsible for accepting HTTP requests from clients, which are known as Web
browsers, and serving them HTTP responses along with optional data contents, which are usually Web
pages such as HTML documents and linked objects (images, etc.); or 2) a computer program that
provides the functionality described in the first sense of the term. See http://en.wikipedia.org/wiki/Web
server (last visited March 30, 2007). Since plaintiffs appear to be talking about the physical location of
the server, they must be referring to a computer.
[11] Bigelow was a First Amendment case, in which a Virginia newspaper editor challenged his
conviction in Virginia for the crime of "encouraging or prompting the procuring of an abortion." The editor
had published an advertisement indicating that abortion was legal in New York and that there was no
residency requirement. It was in that context that the Supreme Court noted that Virginia possessed no
authority to regulate services provided in New York, and observed that "[a] State does not acquire power
or supervision over the internal affairs of another State merely because the welfare and health of its own
citizens may be affected when they travel to that State . . . [and] may not, under the guise of exercising
internal police powers, bar a citizen of another State from disseminating information about an activity
that is legal in that State." Bigelow, 421 U.S. at 824-25, 95 S.Ct. 2222.
[12] Defendants also attempt to distinguish Koebke on the basis that the policy of the country club was
solely commercial, whereas the "editorial policy" of the defendants is to promote adoption by
heterosexual married couples, and is based on the defendants' protected rights to freedom of thought,
conscience, religion, belief, and expression, which they assert are recognized defenses under the Unruh
Act. In support, they cite North Coast Women's Care Med. Group, Inc. v. Superior Court, 40 Cal.Rptr.3d
636 (2006). The California Supreme Court granted review in that case on June 14, 2006, however, and
the opinion therefore cannot be cited. See North Coast Women's Care Med. Group, Inc. v. Superior
Court, 139 P.3d 1, 46 Cal.Rptr.3d 605 (Cal.2006). In addition, plaintiffs assert that defendants denied in
their depositions that their policy is based on their religious or philosophical beliefs.
[13] Here, of course, it was the assets of the Adoption.com partners which were transferred to the LLCs.
[14] However; True North and Aracaju are both closely-held corporations, as Dale" Gwilliam and his wife
own 100% of True North, and Nathan Gwilliam owns 100% of Aracaju.
[15] In their motion for leave to file the FAC, plaintiffs explained that at the time the original complaint
was filed, they were unaware that Adoption.com was both a website and a general partnership, and had
not yet learned of the existence of True North and Aracaju.

50
CONFLICT CHOICE OF LAW

293 F.3d 270

Appellant Ernesto Francisco, a Philippine national, was injured on a chemical tanker ship
located on the Mississippi River. Francisco was employed aboard the M/T STOLT

Ernesto FRANCISCO, Plaintiff-Appellant,

ACHIEVEMENT (the vessel), which was allegedly operated by Stolt-Nielsen

v.

Transportation Group, Inc., (Stolt) a Liberian corporation.

STOLT ACHIEVEMENT MT, a vessel bearing official number 1973; Stolt Achievement,
Inc.; Stolt-Nielsen Transportation Group, Ltd.; Stolt Parcel Tankers, Inc., the operator
and/or owner of the M/T STOLT ACHIEVEMENT, Defendants-Appellees.

3
Stolt's "Crewing Manager" submitted an affidavit attesting that when Stolt hires Philippine

No. 01-30694.

seamen, it must comply with employment contract requirements of the Philippine


Overseas Employment Administration. Francisco signed such a contract. The contract

United States Court of Appeals, Fifth Circuit.

contains lengthy provisions addressing employee compensation and benefits in the event
of work-related injury, illness, or death. It provides in section 29 of the "Standard Terms

June 4, 2002.

and Conditions" that in the event of "claims and disputes arising from this employment,"
the parties agree to arbitrate their disputes in the Philippines.1 Section 31 of the same

James R. Sutterfield (argued), Charmagne A. Padua, Sutterfield & Webb, New Orleans, LA,

document provides that "[a]ny unresolved dispute, claim or grievance arising out of or in

for Plaintiff-Appellant.

connection with this Contract ... shall be governed by the laws of the Republic of the
Philippines, international conventions, treaties and covenants where the Philippines is a

David B. Lawton (argued), Kenneth Joseph Gelpi, Jr., Terriberry, Carroll & Yancey, New
Orleans, LA, for Defendants-Appellees.

signatory."
4
Francisco sued Stolt in Louisiana state court, asserting claims under the Jones Act2 and

Appeal from the United States District Court for the Eastern District of Louisiana.

under general maritime law for unseaworthiness and for maintenance and cure. He
alleged that suit in state court was authorized by the saving to suitors clause of 28 U.S.C.

Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.

1333(1).
REAVLEY, Circuit Judge:

5
Stolt removed the case to federal district court, alleging that Francisco had signed an

employment contract agreeing to arbitrate claims against Stolt in the Philippines, and that
In this appeal we conclude that the district court properly ordered the case to arbitration

this agreement was subject to the Convention on the Recognition and Enforcement of

and accordingly affirm.

Foreign Arbitral Awards (the Convention),3 a convention to which the United States and
the Philippines are both signatories. The United States implemented the Convention in

BACKGROUND

1970 through the enactment of 9 U.S.C. 201-208 (hereinafter the Convention Act).
Francisco filed a motion to remand the case to state court, and Stolt filed a motion to

compel arbitration under 9 U.S.C. 206. The district court denied the motion to remand,
granted the motion to compel arbitration, and dismissed the suit. This appeal by Francisco
followed.

51
CONFLICT CHOICE OF LAW

DISCUSSION

10
A. The Convention Act (9 U.S.C. 201-208)

11
Generally, the removal jurisdiction of the federal district courts extends to cases over

The Convention Act provides that "[a] court having jurisdiction under this chapter may

which they have original jurisdiction.4 "Any civil action of which the district courts have

direct that arbitration be held in accordance with the agreement at any place therein

original jurisdiction founded on a claim or right arising under the Constitution, treaties or

provided for, whether that place is within or without the United States."9 In applying the

laws of the United States shall be removable without regard to the citizenship or residence

Convention, we have held that it "contemplates a very limited inquiry by courts when

of the parties."5 Under 203 of the Convention Act,6 "[a]n action or proceeding falling

considering a motion to compel arbitration," and that the court should compel arbitration if

under the Convention shall be deemed to arise under the laws and treaties of the United

(1) there is an agreement in writing to arbitrate the dispute, (2) the agreement provides for

States." Notwithstanding the saving to suitors clause,7 under 205 of the Convention

arbitration in the territory of a Convention signatory, (3) the agreement arises out of a

Act,8

commercial legal relationship, and (4) a party to the agreement is not an American

citizen.10 "If these requirements are met, the Convention requires district courts to order
[w]here the subject matter of an action or proceeding pending in a State court relates to
an arbitration agreement or award falling under the Convention, the defendant or the

arbitration."11
12

defendants may, at any time before the trial thereof, remove such action or proceeding to

These elements were met in the pending case. Francisco, a Philippine national, signed a

the district court of the United States for the district and division embracing the place

written employment contract stating that claims and disputes arising from his employment,

where the action or proceeding is pending.

including personal injury claims, were subject to arbitration in the Philippines. The
employment contract states that it shall be governed by the law of the Philippines and

such conventions and treaties to which the Philippines is a signatory. The Philippines and
The district court, therefore, had removal jurisdiction and subject matter jurisdiction if the
pending dispute was one "falling under" the Convention.

the United States are both signatories to the Convention.12


13
Title 9 of the United States Code has two chapters relevant to this appeal. Chapter 1

contains the Federal Arbitration Act (Arbitration Act). Chapter 2 is the Convention Act.
The district court concluded that it should compel arbitration because this case fell under

Francisco argues that under 1 of the Arbitration Act,13 seaman employment contracts

the arbitration provision of the employment contract, as well as the provisions of the

are excluded from the reach of the Convention Act. He argues that this exclusion applies

Convention Act and the Convention. Francisco essentially makes three arguments as to

to the Convention Act because, under 208 of the Convention Act,14 the Arbitration Act

why the district court erred. He argues first that his case does not fall under the

"applies to actions and proceedings brought under [the Convention Act] to the extent that

Convention Act because there is an exception making that Act inapplicable to seaman

[the Arbitration Act] is not in conflict with [the Convention Act] or the Convention as ratified

employment contracts. He argues second that, under the Convention itself, his case is not
"capable of settlement by arbitration" and otherwise does not fall under the Convention.

by the United States."


14

He argues third that his claims are not subject to the arbitration agreement.

52
CONFLICT CHOICE OF LAW

Francisco correctly points out that the Arbitration Act does not cover seaman employment

18

contracts. Section 2 of the Arbitration Act15 generally recognizes the validity of arbitration

Again, nothing in this language suggests an exception for seaman employment contracts.

provisions "in any maritime transaction or a contract evidencing a transaction involving

While the Arbitration Act contains such an exception, the language from 202 of the

commerce." However, 1 of the Arbitration Act16 expressly excludes "contracts of

Convention Act states only that the legal relationships covered by the Convention

employment of seamen" from the reach of the Arbitration Act.

Act includethose transactions covered by 2 of the Arbitration Act. The Convention Act

15

does not state that agreements falling under the Convention are exclusively limited to
This exclusion of seamen employment contracts in the Arbitration Act, however, conflicts

those which also fall under 2 of the Arbitration Act, and makes no mention of the

with the Convention Act and "with the Convention as ratified by the United States" under

exclusion for seaman employment contracts found in 1 of the Arbitration Act.

208 of the Convention Act, and therefore is not applicable to the Convention Act. Article

19

II(1) of the Convention itself is very broadly worded to provide that signing nations shall

In short, the language of the Convention, the ratifying language, and the Convention Act

recognize arbitration agreements "in respect of a defined legal relationship, whether

implementing the Convention do not recognize an exception for seamen employment

contractual or not, concerning a subject matter capable of settlement by arbitration." The

contracts. On the contrary, they recognize that the only limitation on the type of legal

United States, in ratifying the Convention, agreed to apply it "only to differences arising

relationship falling under the Convention is that it must be considered "commercial," and

out of legal relationships, whether contractual or not, which are considered as commercial

we conclude that an employment contract is "commercial." Even if we were doubtful of the

under the national law of the United States."17 Neither the Convention nor the limiting

correctness of our conclusion, doubts as to whether a contract falls under the Convention

language ratifying the Convention contemplate any exception for seamen employment

Act should be resolved in favor of arbitration, in light of the Supreme Court's recognition

contracts or employment contracts in general. While the ratification language expresses

generally of "the strong federal policy in favor of enforcing arbitration agreements,"18 and

an intent to limit the reach of the Convention to commercial relationships, there is no


indication that employment contracts or seamen employment contracts are not considered
"commercial."

its recognition that


20

16

[t]he goal of the Convention, and the principal purpose underlying American adoption and
implementation of it, was to encourage the recognition and enforcement of commercial

In keeping with the ratification language, 202 of the Convention Act states:

arbitration agreements in international contracts and to unify the standards by which


agreements to arbitrate are observed and arbitral awards are enforced in the signatory

17

countries.19
An arbitration agreement or arbitral award arising out of a legal relationship, whether

21

contractual or not, which is considered as commercial, including a transaction, contract, or

The Court has also recognized that the federal policy favoring arbitration "applies with

agreement described in section 2 of this title, falls under the Convention. An agreement or
award arising out of such a relationship which is entirely between citizens of the United
States shall be deemed not to fall under the Convention unless that relationship involves
property located abroad, envisages performance or enforcement abroad, or has some
other reasonable relation with one or more foreign states. For the purpose of this section
a corporation is a citizen of the United States if it is incorporated or has its principal place
of business in the United States.

special force in the field of international commerce."20


22
Francisco argues that as a matter of policy the Convention Act and the Arbitration Act
should be applied uniformly. We cannot accept this argument. If the language of a
statutory provision "is sufficiently clear in its context and not at odds with the legislative

53
CONFLICT CHOICE OF LAW

history, it is unnecessary to examine the additional considerations of policy ... that may

United States in the first sentence of section 202 because the definition of commerce

have influenced the lawmakers in their formulation of the statute."21

contained in section 1 of the original Arbitration Act is the national law definition for the

23

purposes of the declaration. A specific reference, however, is made in section 202 to


We note two other arguments which favor Francisco's position but do not ultimately alter
our conclusion. Francisco argues that the exclusions of 1 of the Arbitration Act are

section 2 of title 9, which is the basic provision of the original Arbitration Act.25
28

referred to in the statutory heading of 1 as "exceptions to operation of title."22 Title 9 of

This testimony suggests that the definition of a transaction involving "commerce" in 1

the United States Code includes the Arbitration Act in Chapter 1 and the Convention Act

and 2 of the Arbitration Act is the same as the definition of a "legal relationship... which is

in Chapter 2. The use of the term "title" in the heading to I therefore suggests that its

considered as commercial" falling under the Convention Act. However, the witness does

exclusion of seaman employment contracts applies to both Acts.

not specifically address whether the exclusion in 1 of seaman employment contracts is

24

also applicable to the then-proposed 202 of the Convention Act.


While the use of the term "title" in the heading is helpful to Francisco, it does not change
our conclusion that the plain language of the Convention Act, enacted long after 1 of the

29

Arbitration Act,23 does not admit to an exception for seaman employment contracts.

Furthermore, the testimony of a witness not a member of Congress cannot bind this court

"While words in the title of a statute or the heading of a section can shed light on the

where the plain language of the Convention Act does not provide an exception for

meaning of an ambiguous word or phrase in the text of a statute, they cannot create an

seaman employment contracts. "Legislative history is problematic even when the attempt

exist."24

is to draw inferences from the intent of duly appointed committees of the Congress."26 As

ambiguity where none otherwise would


25

discussed above, 202 of the Convention Act states that a contract considered
commercial includesthose contracts described in 2 of the Arbitration Act, makes no

Francisco also points to legislative history which is helpful to him. In a Senate hearing on

mention of 1, and does not state that only those contracts described in 2 of the

February 9, 1970, Richard Kearney, the chairman of a State Department advisory

Arbitration Act "fall under" the Convention. "Courts should not rely on inconclusive

committee, gave the following testimony:

statutory history as a basis for refusing to give effect to the plain language of an Act of
Congress...."27

26

B. The Convention Itself


[P]aragraph 3 of article I of the Convention permits a state party to the Convention to file a

30

declaration that the Convention will apply only to legal relationships that are considered as

Francisco argues that, aside from the issue of the scope of the Convention Act, the

commercial under the national law of that state.... [T]he United States will file such a

Convention itself is inapplicable to his suit. He bases this argument on his claim that on

declaration....

September 11, 2000, the Supreme Court of the Philippines suspended section 20(G) of
the standard terms and conditions of his employment contract. We assume without

27

deciding that Francisco is correct regarding the suspension of section 20(G) by the
Philippine court and the applicability of this change to his case.

Consequently it is necessary to include the substance of this limiting declaration in the


legislation that implements the Convention. This is what the first sentence of section 202
intends. It was not, of course, necessary to make any reference to the national law of the

31

54
CONFLICT CHOICE OF LAW

Section 20 of the terms and conditions addresses compensation and benefits due the

before the NLRC labor arbitrators "shall have the original and exclusive jurisdiction to hear

seaman for injury or illness. Section 20(G) provides:

and decide... the claims arising out of an employer-employee relationship or by virtue of


any law or contract involving Filipino workers for overseas deployment including claims for

32

actual, moral, exemplary and other forms of damages."


The seafarer ... acknowledges that payment for injury, illness, incapacity, disability or
death of the seafarer under this contract shall cover all claims arising from or in relation

35

with or in the course of the seafarer's employment, including but not limited to damages

Francisco also relies on Articles V(1)(c) and (e) of the Convention. Article V(1) provides

arising from the contract, tort, fault, or negligence under the laws of the Philippines or any

that recognition and enforcement of an arbitral award may be refused "at the request of

other country.

the party against whom it is invoked," if, under subpart (c), "[t]he award deals with a
difference not contemplated by or not falling within the terms of the submission to

33

arbitration, or it contains decisions on matters beyond the scope of the submission to


arbitration...." First, Article V(1) by its terms can only be invoked by a party resisting an

Francisco argues that under the terms of the Convention the suspension of section 20(G)

award. No award has been made and Francisco would have no reason of which we are

means that the Convention no longer governs his claims against Stolt. We cannot agree

aware to resist the enforcement of an arbitration award made to him under the

with this argument. The suspension of section 20(G) only means that the seaman no

employment contract. Second, the mere suspension of a contract term stating that the

longer acknowledges that the receipt of scheduled payments set out in the contract are

remedies enumerated in the contract are exclusive would not, in our view, make an

the only benefits he can recover from his employer.

arbitration in the Philippines one dealing with a dispute "not contemplated by and not
falling within the terms of the submission to arbitration" under Article V(1)(c) and would

34

not render an arbitration decision one "on matters beyond the scope of the submission to
arbitration" under that provision.

Francisco argues that under Article II(1) of the Convention, the treaty only applies to
"differences ... in respect of a defined legal relationship ... concerning a subject matter
capable of settlement by arbitration." Francisco similarly relies on Article V(2)(a) of the
Convention, which states that recognition and enforcement of an arbitral award may be
refused if "[t]he subject matter of the difference is not capable of settlement by arbitration
under the law of" the country where enforcement is sought. The suspension of section
20(G) does not, in our view, render the dispute incapable of settlement by arbitration
under these provisions. Even if section 20(G) is rendered a nullity, the parties still agree to
arbitrate their dispute under section 29 of the terms and conditions of the contract,
discussed above; section 20(G) only limits the claims available to Francisco. If anything,
the suspension would seem to give the arbitrators greater discretion to grant the relief to
which Francisco thinks he is entitled. We note that in an arbitration before the Philippine
National Labor Relations Commission (NLRC), Section 10 of the Migrant Workers and
Overseas Filipino Act of 1995, included in the record, does not appear to limit awards to
those damages set out in the employment contract. Instead, it provides that in cases

36
Article V(1)(e) provides that recognition and enforcement of an award may be refused if
"[t]he award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of which,
that award was made." Again, this provision only comes into play after an award has been
made, and only at the request of the party resisting enforcement of the award, and is
inapplicable here. Further, the mere fact that one clause of the employment contract
purporting to limit the relief available to Francisco can no longer be enforced in the
Philippines does not mean that a Philippine authority has "set aside" an award under
subpart (e). If anything, the suspension of section 20(G) of the contract means that
Francisco is eligible for greater relief from the Philippine arbitrators than before the
suspension of that section's limitation on the employee's remedies.

55
CONFLICT CHOICE OF LAW

C. The Employment Contract

arbitration,"31 we read the contract as mandating arbitration of this dispute in the

37

Philippines.
Francisco separately argues that his claims against Stolt are federal and general maritime
tort claims that are not covered by the arbitration provision of the employment contract.

39
AFFIRMED.

The contract clearly provides remedies for work-related personal injuries, and states in
paragraph 29 that "claims and disputes arising from this employment" are subject to
arbitration in the Philippines. The arbitration provision is not by its language limited to
contract claims but covers all claims "arising from this employment." Francisco alleged in
his original petition that his injuries were sustained "in the course and scope of his
employment." InMarinechance Shipping, Ltd. v. Sebastian,28 we addressed whether a
forum selection clause in a seaman employment contract applied to tort claims. We held
that the clause providing that "any and all disputes or controversies arising out of or by
virtue of this Contract" shall be litigated in the Philippines applied to tort claims brought
by two Philippine seamen injured aboard a vessel while it was located in the Mississippi
River.29 We do not agree that the language of the forum selection clause
in Marinechance is meaningfully different from the language of the arbitration clause in the
pending case for purposes of deciding whether tort claims are covered, and note that
"foreign arbitration clauses are but a subset of foreign forum selection clauses in
general."30
38
Francisco also contended at oral argument that an employee like himself who was not
subject to a collective bargaining agreement (CBA) is not required to submit his claim to
arbitration in the Philippines. Assuming that this argument was timely made, we reject it.
Paragraph 29 of the Terms and Conditions states that parties subject to a
CBA shall submit the claim or dispute to arbitration, but that parties not subject to a
CBA may submit the claim or dispute "to either the original and exclusive jurisdiction of
the" NLRC "or to the original and exclusive jurisdiction of the voluntary arbitrator or panel
or arbitrators." As explained above in our footnote 1, cases submitted to the NLRC are
resolved by arbitration. Accordingly, even though the contract uses the word "may" when
describing the procedures available to an employee not covered by a CBA, the only two
options available to such an employee both require arbitration. Especially in light of our
general rule, recognized in a Convention Act case, that "whenever the scope of an
arbitration clause is in question, the court should construe the clause in favor of

56
CONFLICT CHOICE OF LAW

962 So.2d 627 (2007)


Roger Lionel HANCOCK, Appellant
v.
David Steven WATSON, Appellee.
No. 2005-IA-00413-COA.
Court of Appeals of Mississippi.
January 9, 2007.
Rehearing Denied May 22, 2007.
*628 Chuck McRae, William B. Kirksey, Jackson, attorneys for appellant.
Robert D. Jones, Meridian, Palmer, Eddie Briggs, DeKalb, attorneys for appellee.
Before KING, C.J., CHANDLER and ROBERTS, JJ.
KING, C.J., for the Court.
1. Roger Lionel Hancock brought this interlocutory appeal following the trial court's denial of
his motion to dismiss. Hancock asserts that the trial court erred in its conflicts of law analysis,
its failure to find lack of subject matter jurisdiction, and its statute of limitations analysis.
PROCEDURAL HISTORY
2. David Watson filed his complaint in the circuit court of Hinds County, alleging alienation of
affection, on April 23, 2004. Hancock filed a motion to dismiss and a motion for a more definite
statement on June 2, 2004, contending that the complaint did not sufficiently allege facts in
support of the claim that would enable Hancock to respond properly. After a hearing on
October 27, 2004, the trial court ordered Watson to file an amended complaint that more
specifically stated the facts upon which Watson based his claim. The trial court stated that it
would consider the motion for a more definite statement moot and would take the motion to
dismiss under advisement, with a warning to Watson that the court would grant the motion to
dismiss if the amended complaint did not comply with his order. Following the filing of the
amended complaint, in which Watson alleged Hancock conducted an affair with Lori Watson
in 1999 and 2000, Hancock filed a second motion to dismiss.

3. Following a hearing in February 2005, the court denied both motions to dismiss. The trial
court also denied Hancock's motion to reconsider and request for permission to file an
interlocutory appeal. Hancock then advised the trial court that despite the trial court's denial,
he was proceeding with an interlocutory appeal. On March 1, 2005, Hancock filed a petition
for interlocutory appeal with the Mississippi Supreme Court. The court granted the petition and
assigned the case to this Court on May 10, 2005.
FACTS[1]
4. David and Lori Watson, both residents of Tennessee, were married in 1989. During the
first ten years of their marriage, the couple had two children. According to the allegations of
David Watson's amended complaint, Hancock began a sexual affair with Lori in 1999. The last
incident alleged in the amended complaint occurred in 2000. The affair ended without Watson
ever knowing that the affair *629 existed. Lori continued in her marriage to Watson, giving
birth to the couple's third child in August 2002.
5. On May 19, 2003, while Lori was six months pregnant with the couple's fourth child,
Watson learned of the affair. On November 12, 2003, Watson filed for divorce, citing May 20,
2003, as the date of separation. A Tennessee court granted the irreconcilable differences
divorce on February 20, 2004. Despite the divorce, the couple continued to reside together in
the house that had served as the marital residence and to share responsibilities in raising their
four children.[2]
ANALYSIS
6. Hancock argues that, for a variety of reasons, the trial court should have applied
Tennessee law. Tennessee has abolished alienation of affection as a viable cause of action;
therefore, Hancock argues, the trial court, applying a choice of law analysis, should have
granted Hancock's motion to dismiss for failure to state a claim for which relief can be granted.
Alternatively, Hancock argues that even if Mississippi law applied, the statute of limitations
has expired, and Watson is procedurally barred from bringing his claim.
7. Watson contends that the trial court properly applied Mississippi law because Watson is
bringing a claim for a tort that occurred in Mississippi. Watson also disputes Hancock's
assertion that the statute of limitations has expired. Watson contends that whether the trial
court applied the one-year or the three-year statute of limitations, his complaint is not
procedurally barred because he filed the claim within one year of his discovery of the affair.
1. Choice of law analysis

57
CONFLICT CHOICE OF LAW

8. The situation before the Court is a classic conflict of laws issue. In Mississippi, alienation
of affection is a viable cause of action. See Bland v. Hill, 735 So.2d 414, 418( 17)
(Miss.1999) (stating that the court "decline[s] the invitation to abolish the tort of alienation of
affection."). See also Kirk v. Koch, 607 So.2d 1220 (Miss.1992) (upholding an award of
$50,000 on an alienation of affection claim). In Tennessee, however, both the legislature and
judiciary have abolished alienation of affection as a viable cause of action. See Tenn.Code
Ann. 36-3-701 (2006) (abolished in 1989); Dupuis v. Hand,814 S.W.2d 340, 345
(Tenn.1991) (stating that "in the final analysis, the action does not protect marriage or the
family its only real justification and the harm it causes far outweighs any reason for its
continuance.") (citation omitted).
9. Choice of law analysis is a three step process. See Zurich Am. Ins. Co. v. Goodwin, 920
So.2d 427, 433-34 ( 9, 11, 13) (Miss.2006). First, the Court must determine whether the
conflicting laws are substantive or procedural. See id. at 433( 9). The Court must then
classify the substantive area of law contract, tort, or property applicable to the conflicting
laws, as each area of law has its own choice of law provisions. See id. at 433 ( 11). Finally,
the Court must apply the appropriate analytical provisions to the conflict. See id. at 434( 13).
10. In the case before the Court, the first two steps in the process are easily resolved.
Clearly, the conflicting laws are substantive, as the outcome will determine whether Watson
has a viable cause of action. If Tennessee law applies, the suit *630 must be dismissed, as
alienation of affection has been abolished in Tennessee. Categorizing the substantive area of
law for an alienation of affection claim is also a simple step. Alienation of affection claims are
tort actions. Accordingly, the Court will apply the test adopted by the Mississippi Supreme
Court to resolve tort choice of law questions the "most significant relationship test" set forth
in the Restatement (Second) of Conflicts of Law Section 145. See McDaniel v. Ritter, 556
So.2d 303, 310 (Miss.1989). The Restatement section provides as follows:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the
local law of the state which, with respect to that issue, has the most significant relationship to
the occurrence and the parties under the principles stated in 6.[3]
(2) Contacts to be taken into account in applying the principles of 6 to determine the law
applicable to an issue include:

(d) the place where the relationship, if any, between the parties is centered.
Restatement (Second) of Conflicts of Law 145 (2003).
11. After reviewing the limited facts available in the record, given that this appeal is before
the Court as an interlocutory appeal of the trial court's denial of Hancock's motion to dismiss,
the Court finds that it is unable to complete the conflict of law analysis due to the lack of
factual information available from the record. Although the amended complaint alleges that
Lori Watson conducted her affair with Hancock in the State of Mississippi, those allegations do
not end the inquiry as to the place where the injury or the conduct causing the injury occurred.
12. An alienation of affection claim requires a finding of the following elements: "(1) wrongful
conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection
between such conduct and loss." Bland v. Hill, 735 So.2d 414, 417( 13) (Miss.1999)
(citations omitted). Moreover, "[a] claim for alienation of affections does not require that the
plaintiff prove an adulterous relationship." Id. Due to the nature of the marital relationship and
the type of conduct necessary to create a loss of affection or consortium, application of these
elements cannot be satisfied simply by an allegation that an extra-marital affair took place.
Unlike a tort claim arising from an automobile accident, determining the location of an
alienation of affection claim is not a simple matter of naming the site of the incidents of
Hancock's sexual encounters with Lori. To determine where the injury or the conduct causing
the injury occurred would require an in-depth inquiry into the scope of the relationship
between Lori and Hancock including, for example, the manner and frequency and content
of their communications outside of their face-to-face meetings. The record provides us with no
such additional information.
*631 13. Accordingly, the Court remands this case to the trial court so that the trial court
may direct the parties to engage in discovery on the details of the communications and
actions between Hancock and Lori which Watson contends led to the alienation of Lori's
affections. After that discovery is complete, the trial court should then be able to apply "the
most significant relationship" test and complete the conflicts of law analysis.
2. Statute of Limitations Analysis

(a) the place where the injury occurred,


(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the
parties, and

14. Both parties stated initially in their briefs that alienation of affection claims are governed
by a three-year statute of limitations. Hancock argues alternatively, however, that because
Watson is pleading an intentional tort rather than negligence, the one-year statute of limitation
set forth in Mississippi Code Annotated Section 15-1-35 should apply.

58
CONFLICT CHOICE OF LAW

15. Alienation of affection is an intentional tort with no specifically prescribed statute of


limitations; therefore, the three-year statute of limitations applies to alienation of affection
claims. Carr v. Carr, 784 So.2d 227, 230( 8) (Miss. Ct.App.2000). See also Miss.Code Ann.
15-1-49 (Rev.2003). On May 19, 2003, Watson discovered that his wife, Lori, engaged in an
affair with Hancock between 1999 and 2000. He filed his claim for alienation of affection on
April 23, 2004, less than a year after he discovered the affair but more than three years after
the affair ended.
16. Accordingly, the crux of the statute of limitations issue in this case lies in the accrual of
the claim for alienation of affection. Under Mississippi law, "[a] claim of alienation of affection
accrues when the alienation or loss of affection is finally accomplished." Carr, 784 So.2d at
229-30( 8) (citations omitted). The accrual of the claim, then, occurs when the affections of
the spouse involved in the extramarital relationship are alienated. The affections of the spouse
wronged by the affair are irrelevant to a determination of when the cause of action accrued.
17. Watson argues that the claim accrued when he learned of the affair in May 2003
because it was his discovery of the affair that led to the divorce. Hancock, however, argues
that he has had no contact with Lori since the affair ended in 2000; therefore, the cause of
action could have accrued no later than the date of his last contact with Lori. Because his last
contact with Lori was more than four years ago, Hancock argues that the statute of limitations
has expired.
18. Again, due to the procedural posture of this case, the Court is unable to determine when
the cause of action accrued. Based on the limited facts before the Court, however, it appears
that Watson was never aware that the affair existed until several years after it had ended.
Additionally, it appears that Watson, not Lori, ended the marriage, as he is the one who
initiated the divorce. The limited information available for this Court to review indicates that
although Lori was engaged in an affair, she continued to live with Watson in the matrimonial
home and maintained the appearance, at least, of a stable married family, as evidenced by
Watson's ignorance of the affair. After the affair ended, Lori continued her marriage to her
husband and proceeded to have two more children with him.
19. On remand, the Court instructs the trial judge to direct the parties to engage in discovery
that will ascertain when "the alienation or loss of affection [was] finally accomplished."
Watson's arguments before this Court in both his brief and during oral argument have
left the Court, in light of Lori's decision to *632 remain with her husband during the course of
the affair and afterward, with the impression that Watson is arguing that the cause of action

accrued upon his discovery of the affair. In other words, Hancock's affair with Lori
caused his affections to be alienated. Under Bland, 735 So.2d at 421( 33) (Miss.1999), a
claim for alienation of affection must be proven with evidence "that the acts of the defendant in
alienating the affection of the spouse were done with malice or that there were circumstances
or aggravation. . . ." Again, Lori's affections must be the focus of the discovery. Watson's
affections have no relevance in the statute of limitations analysis.
20. Alternatively, Watson's arguments have raised questions with this Court as to whether
Watson is simply disguising a claim for criminal conversation[4], which has been abolished in
Mississippi, as a claim for alienation of affection. These issues can be resolved, in conjunction
with the question of the accrual of the claim, only after further discovery between the parties.
21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REMANDED FOR
PROCEEDINGS CONSISTENT WITH THIS COURT'S OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.,
CONCUR. IRVING, J., CONCURS IN RESULT ONLY. CARLTON, J., NOT PARTICIPATING.
NOTES
[1] As this case is currently before this Court following an interlocutory appeal of the denial of
Hancock's motion to dismiss, the facts available to this Court are derived from Watson's
amended complaint and Hancock's two motions to dismiss (including exhibits).
[2] The divorce decree converted ownership of the marital home to the Watsons as tenants in
common for a period of twenty-four months from the date of the divorce decree. Thereafter,
the house was to be sold and the proceeds divided equally.
[3] Restatement (Second) of Conflicts of Law 6 sets forth the general principles and factors
to be considered in a choice of law analysis, including policy considerations, uniformity of
results in the application of the analysis, and ease in application of the
analysis. See Restatement (Second) of Conflicts of Law 6(2).
[4] The Mississippi Supreme Court abolished the tort of criminal conversation, defined as "no
more or less than an act of adultery between the defendant and the plaintiff's spouse,"
in Saunders v. Alford, 607 So.2d 1214, 1216 (Miss.1992).

59
CONFLICT CHOICE OF LAW