Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC387313 William F. Fahey, Judge.
Benedon & Serlin, Douglas G. Benedon and Shona L. Armstrong for Plaintiff and Appellant.
Murchison & Cumming and Edmond G. Farrell III for Defendant and Respondent.
JACKSON, J.
INTRODUCTION
Plaintiff Patrick Braden appeals from a judgment in favor of defendant All Nippon Airways Co. Ltd. (ANA) entered after the trial court sustained defendant’s demurrer without leave to amend. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Melissa Braden (Melissa) is the infant daughter of plaintiff and Ryoko Uchiyama (Uchiyama). Plaintiff and Uchiyama were never married but had joint legal and physical custody of Melissa pursuant to a court order issued on March 8, 2006. Uchiyama attempted to obtain a court order allowing her to move to Japan with Melissa. The court denied her request, finding it would not be in Melissa’s best interest. The court ordered Uchiyama to surrender Melissa’s Japanese passport to plaintiff’s attorney.
On March 16, 2006, Uchiyama boarded an ANA flight from Los Angeles to Japan. Without plaintiff’s consent or permission, Uchiyama brought Melissa on the flight. Uchiyama used Melissa’s Japanese passport that she was supposed to turn over to plaintiff’s attorney. ANA did not require Uchiyama to present proof that plaintiff had authorized Uchiyama to take Melissa out of the country or proof that Uchiyama had sole custody of Melissa.
Plaintiff has not seen Melissa since Uchiyama took her to Japan. Because Japan is not a signatory to the Hague Convention, plaintiff is without legal recourse to secure Melissa’s return to the United States.
The Hague Convention on the Civil Aspects of International Child Abduction was created and entered into by several countries around the world for the purpose of preventing abduction of children from their native countries. Japan is the only G-7 industrialized country that has never been a signatory to the Hague Convention.
The court awarded plaintiff full legal and physical custody of Melissa on April 19, 2006.
Plaintiff filed this action against ANA on March 14, 2008, alleging causes of action for negligence and interference with custodial relations. On December 17, 2008, the trial court granted ANA’s motion for judgment on the pleadings with leave to amend, finding that the original complaint failed to state a cause of action against ANA. On December 29, 2008, plaintiff filed an amended complaint. The trial court sustained ANA’s demurrer to the amended complaint without leave to amend. It found plaintiff failed to state causes of action for negligence or interference with custodial relations, in that Civil Code section 49 did not apply, there is no cause of action for loss of filial relationship, and plaintiff’s claims were preempted by the Airline Deregulation Act of 1978 (49 U.S.C. § 41713).
Civil Code section 49, subdivision (a), forbids the abduction or enticement of a child from a parent. Plaintiff does not challenge the trial court’s finding that this section does not apply here.
DISCUSSION
A. Standard of Review
On appeal from a judgment following the sustaining of a demurrer, we apply the de novo standard of review. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) We assume the truth of the allegations in the complaint but do not assume the truth of the contentions, deductions or conclusions of law. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) We review de novo “whether the complaint states facts sufficient to constitute a cause of action.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
B. Whether Plaintiff’s Claims are Preempted by the Airline Deregulation Act of 1978
Plaintiff claims that ANA should have required Uchiyama to provide either proof of consent from plaintiff that she could take Melissa out of the country or proof that Uchiyama had sole custody of Melissa. The trial court found that plaintiff’s claims were preempted by the Airline Deregulation Act of 1978 (ADA). Plaintiff contends his claims are not preempted.
The ADA prohibits a state from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier....” (49 U.S.C. § 41713.) The trial court concluded that services, within the meaning of the ADA, encompassed boarding passes and that plaintiff’s claims were therefore preempted by the ADA. We disagree. We hold that plaintiff’s claims were not preempted because boarding procedures are not services within the meaning of the ADA.
The ADA was enacted in order to ensure that the states would not undo the anticipated benefits of federal deregulation of the airline industry, because Congress had determined “that ‘maximum reliance on competitive market forces’ would best further... [the] ‘variety [and] quality... of air transportation services.’” (Morales v. Trans World Airlines, Inc. (1992) 504 U.S. 374, 378.)
Neither the Supreme Court of the United States nor the California Supreme Court has yet defined “services” within the meaning of the ADA. (Hodges v. Delta Airlines, Inc. (5th Cir.1995) 44 F.3d 334, 336.) The issue has produced disagreement among various jurisdictions.
A number of jurisdictions have held that the term “services” encompasses boarding procedures. In the First Circuit, it has been held that claims “involving ‘services provided by individual airline employees directly to passengers, such as ticketing, boarding, in-flight service, and the like, ’ are related to airline ‘services’” and are therefore preempted by the ADA. (Chukwu v. Board of Directors British Airways (D.Mass. 1995) 889 F.Supp. 12, 13, aff’d sub nom.Azubuko v. Board of Directors, British Airways (1st Cir. 1996) 101 F.3d 106.) Similarly, the Fourth Circuit held that to the extent that claims are based on boarding practices, “they clearly relate to an airline service and are preempted under the ADA.” (Smith v. Comair, Inc. (4th Cir. 1998) 134 F.3d 254, 259.) The Fifth Circuit agreed with statements from the Civil Aeronautics Board that preemption extends to “‘all of the economic factors that go into the provision of the quid pro quo for passenger’s [sic] fare, including flight frequency... and boarding practices....” (Hodges v. Delta Airlines, Inc., supra, 44 F.3d at p. 337.) The Seventh and Eleventh Circuits have adopted the Fifth Circuit’s definition of “services” “to include elements of air carrier service such as boarding procedures and baggage handling.” (Koutsouradis v. Delta Air Lines, Inc. (11th Cir. 2005) 427 F.3d 1339, 1343; Travel All Over the World v. Saudi Arabia (7th Cir. 1996) 73 F.3d 1423, 1433.) At least one state has held that an airline’s “boarding and seating policies relate to ‘services’ and are, consequently, preempted.” (Pearson v. Lake Forest Country Day School (1994) 633 N.E.2d 1315, 1320 [262 Ill.App.3d 228, 235].)
However, the Ninth Circuit has taken a narrower approach to the question of how to define “services” for the purpose of preemption under the ADA. It has held that the term “services” only encompasses “‘prices, schedules, origins and destinations of the point-to-point transportation of passengers’” but not the “‘provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities.’” (Duncan v. Northwest Airlines, Inc. (9th Cir. 2000) 208 F.3d 1112, 1114-1115.) It explained that Congress enacted the ADA in order to “‘preempt only state laws and lawsuits that would adversely affect the economic deregulation of the airlines and the forces of competition within the airline industry.” (Id. at p. 1114.) The court interpreted the term “‘service’ narrowly in order to prevent the ‘preemption of virtually everything an airline does.’” (Ibid.)
California appellate courts have applied the same narrow approach as the Ninth Circuit with regard to the definition of “services” as used in the ADA. For example, in Romano v. American Trans Air (1996) 48 Cal.App.4th 1637, Division One of this district held that the ADA preempts only “economic factors ‘that go into the provision of the quid pro quo for passenger’s fare....’” (Id. at p. 1642.) The court pointed out that almost everything an airline does is related in some way to “service.” (Id. at p. 1643, fn. 6.) The court held that when the “airlines have a legitimate interest to protect (the right to advertise their rates, set their routes, determine whether to provide food service on a particular flight), the states cannot interfere. But where there is no legitimate interest needing protection-as is the case when the issue is negligence-there is no preemption.” (Id. at p. 1645.)
We agree with Division One of this district and the Ninth Circuit. We hold that regulating airlines’ boarding practices is not preempted by the ADA because it does not affect economic deregulation and has no impact on prices, schedules, origins, or destinations. Additionally, the regulation of airlines’ boarding practices is not a legitimate interest needing protection under the ADA. (Romano v. American Trans Air, supra, 48 Cal.App.4th at pp. 1642-1645; Duncan v. Northwest Airlines, Inc., supra, 209 F.3d at pp. 1114-1115.)
C. Negligence
Plaintiff contends that he stated a cause of action for negligence, because ANA had a duty to take reasonable care to prevent the foreseeable risk of child abductions on its flights, which required it to check for proof of custody and/or a notarized letter from plaintiff before allowing Melissa to board its flight to Japan. We disagree.
In order to establish negligence, it must be shown that: (1) the defendant owes the plaintiff a legal duty; (2) the defendant breached the duty; (3) there is a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulted from the breach of the duty of care. (Carrera v. Maurice J. Sopp & Son (2009) 177 Cal.App.4th 366, 377-378.) Policy considerations involved in determining whether the defendant owes the plaintiff a duty to use reasonable care include (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113.)
The court’s role with regard to determining duty is to “‘evaluate... whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’” (Carrera v. Maurice J. Sopp & Son, supra, 177 Cal.App.4th at p. 378.)
Although there is no controlling authority on the issue here, the Second Circuit has addressed the question whether a private international air carrier has a duty to require parental consent from the non-present parent before transporting a child. In Pittman by Pittman v. Grayson (2d Cir. 1998) 149 F.3d 111, the father of a child sued an airline for its participation in the mother’s illegal removal of the child from America to Iceland in violation of a court order. In fear that the mother would take the child to Iceland, the father contacted the airline to inform them of the situation and provided the airline with a description of his child. (Id. at pp. 114-115.) The mother took the child to Iceland, and the father had not seen his child since then. (Id. at p. 115.) The court upheld dismissal of the father’s negligence claim, holding the airline did not owe a duty to the father to ensure that a child traveling with a custodial parent is not transported in violation of a court order. (Id. at p. 125.)
In his reply brief, plaintiff contends that defendant’s reliance on Pittman is misplaced because the court was considering a unique New York tort, and the court determined that the airline did not owe a duty to the father because the airline did not have actual knowledge. Plaintiff contends that this discussion is not applicable here because actual knowledge is not necessary for duty of care for negligence in California. Plaintiff’s contentions are inaccurate. The court in Pitman did not discuss actual knowledge with respect to the father’s negligence claim. (Pittman by Pittman v. Grayson, supra, 149 F.3d at pp. 124-125.) The discussion of actual knowledge was only discussed in the section on concerted action liability. (Id. at pp. 122-124.)
The rationale of Pittman is equally applicable here: Plaintiff lacks a viable negligence claim because ANA owed him no duty of care; plaintiff was a member of the general public and had not entered into a special relationship with ANA; and although ANA certainly owed some duties of care to Melissa as a passenger, we have seen no authority for the proposition that a common carrier has a duty to ensure that a minor traveling with a custodial parent is not being transported in violation of a court order. (Pittman by Pittman v. Grayson, supra, 149 F.3d at p. 125.)
This conclusion is supported by California law, under which, “[a]s a general rule one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct. [Citations.] A duty may arise, however, where ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ [Citations.]” (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806.) Where the alleged breach is based on nonfeasance rather than malfeasance, a special relation is required for the imposition of a duty. (See Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 289-290.)
Here, plaintiff alleged that it was or should have been well known to ANA that children of American and Japanese parents were frequently abducted to Japan by the Japanese parents, leaving the American parents with no legal recourse to compel the children’s return. He further alleged that since Melissa was less than one year old and was traveling on a Japanese passport issued in the United States, it was foreseeable that she was being abducted by Uchiyama, supporting the imposition of a duty to ensure she was being taken to Japan legally. What plaintiff failed to allege was that ANA had a special relation with him, which supports the imposition of a duty to prevent Uchiyama from harming him.
Plaintiff also argues that it is the custom in the airline industry to require a parent and/or other adult international passenger traveling alone with a minor to present a notarized statement of consent from the other parent before the minor can leave the country. However, plaintiff did not provide any proof of this claim. In conjunction with his opposition to ANA’s earlier motion for judgment on the pleadings, plaintiff submitted an exhibit showing that American Airlines follows this custom. However, as ANA points out, this exhibit was from the Irish website for American Airlines and only applies to those traveling out of Ireland on American Airlines. The website governing international flights out of America on American Airlines says that parents “may” be required to have additional documentation when they are traveling alone with a child under eighteen years old, depending on the country to which they are traveling. Thus, plaintiff has failed to establish a foundation for imposing a duty of care on ANA based on custom within the industry.
In summary, plaintiff has failed to state a cause of action against ANA for negligence, because ANA did not owe a duty to plaintiff to require Uchiyama to show proof that she had consent from plaintiff or that she had sole custody of Melissa.
D. Intentional Interference with Custodial Relations
Plaintiff contends that he stated a cause of action for intentional interference with his custodial relations with Melissa. He argues that ANA knew, or should have known, that Uchiyama was using its airline to abduct Melissa to Japan. ANA transported Melissa with knowledge that plaintiff had not consented, or with reckless indifference and/or conscious disregard of plaintiff’s custodial rights. Again, we disagree.
Section 700 of the Restatement (Second) of Torts states, “One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has... left him, is subject to liability to the parent.” Comment a further specifies that in order to be liable, the actor must either “by force abduct[] the child from its home” or “induce[] the child to leave its home with knowledge that the parent has not consented.”
Here, there are no facts alleging that ANA abducted Melissa by force or induced Melissa to leave plaintiff with knowledge that plaintiff had not consented. Rather, ANA merely let Melissa board the plane with Uchiyama, without requiring proof of consent from plaintiff. ANA did not act intentionally or recklessly because ANA did not have any knowledge that plaintiff had not consented, and ANA did not have a duty to inquire into whether Uchiyama was planning on using their airline to violate court orders and abduct Melissa to Japan. (Rest.2d Torts, § 700) Thus, there was no interference with custodial relations.
DISPOSITION
The judgment is affirmed. ANA is awarded its costs on appeal.
We concur: WOODS, Acting P. J., ZELON, J.