Applera Corp. v. MP Biomedicals, LLC

Full title: APPLERA CORPORATION, Plaintiff and Appellant, v. MP BIOMEDICALS, LLC…

Court: California Court of Appeals, Fourth District, Third Division

Date published: May 28, 2009

No. G038984 (Cal. Ct. App. May. 28, 2009)

Opinion

Page 155e

174 Cal.App.4th 155e __ Cal.Rptr.3d__ APPLERA CORPORATION, Plaintiff and Appellant, v. MP BIOMEDICALS, LLC, Defendant and Appellant. G038984 California Court of Appeal, Fourth District, Third Division May 28, 2009

Super. Ct. No. 05CC09341

THE COURT.

It is ordered that the opinion filed herein on April 30, 2009 (173 Cal.App.4th 769;___ Cal.Rptr.3d ___), be modified as follows:

On page 2727, line 8 [173 Cal.App.4th 792, advance report, 1st par., line 5 from the bottom of the par.], immediately after the sentence, “With regard to the doctrine of forfeiture we note only that Swiss law was timely raised with regard to the attorney fee issue,” add as footnote 14 the following footnote:

¹⁴ Citing Hurtado v. Superior Court (1974) 11 Cal.3d 574 [114 Cal.Rptr. 106, 522 P.2d 666], defendant claims plaintiff forfeited the right to rely on Swiss law by failing to “timely invoke” Swiss law. (Id. at p.581 [“generally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state”].) But Hurtado, which analyzed a conflict of law dispute in a wrongful death action involving Mexican citizens, offers no guidance in the instant case. (Id. at pp. 580-581.) Hurtado does not discuss or define the point of time at which the invocation of foreign law becomes untimely. In the absence of any showing that the invocation of a Swiss rule of decision would have made any difference in the outcome had it been invoked earlier, the invocation, at the time the Swiss rule did make a difference, was timely. Hurtado is similarly unhelpful with regard to the choice of Swiss law as the substantive rule of decision. Hurtado applied a “governmental interest approach” to decide a choice of law issue in a tort action, not involving an agreement by the parties that chose the rule to apply. (Id. at pp. 579-582.) In contrast, Nedlloyd, supra, 3 Cal.4th 459, provides the appropriate guidance where, as here, the issue is the enforcement of the law chosen by the parties as the rule of decision.

The petition for rehearing is DENIED.

There is no change in the judgment.