Opinion
No. C 94-2769 SI
January 23, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR DISMISSAL
On November, 21, 2000, the Court heard argument on defendants' motion to dismiss plaintiffs' Third Amended Complaint. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS the motion for the reasons set forth below.
BACKGROUND
Mr. Tei Yan Sun and Mrs. Yeh Hwa Sun (the "Suns") lost their son Peter Sun in a drowning accident in Taiwan on August 8, 1993. Peter Sun was participating in the summer 1993 run of the Overseas Chinese Youth Language Training and Study Tour ("Study Tour"). Motion to Dismiss 1; Opposition 7-8. The Suns reside in Palatine, Illinois. Third Amended Compl. ¶ 1. They first learned of the Study Tour in January of 1993, from a newsletter sent by the Chinese Culture Center of the Coordination Council for North American Affair ("CCNAA"), now known as Taipei Economic and Cultural Representative Office in the United States ("TECRO"). Motion to Dismiss 2; Declaration of Tei Yan Sun ("Sun Decl.") ¶ 3. The Suns submitted an application on behalf of Peter Sun to TECRO in San Francisco, California. Sun Decl. ¶ Ex. 1; Opposition 2. TECRO accepted Peter Sun for the summer 1993 Study Tour program. Sun Decl. ¶¶ 5, 7 and Ex. 2. After Peter Sun's acceptance, the Suns received a Study Tour brochure and detailed itinerary of the trip, planned for June 3 through August 15, 1993. Id. at ¶ 7 and Ex. 3.
At all relevant times in the Suns' Complaint, TECRO was acting under its former name, CCNAA. Third Amended Compl. ¶ 4. However, for purposes of the instant motion, the Court will refer to CCNAA by its current name, TECRO.
The Study Tour brochure included an itinerary describing all the events planned on the Study Tour, along with a detailed list of rules governing participants' behavior. See Opposition 9; Sun Decl., Ex. 3. According to the itinerary, the plans for August 8, 1993 was a "swimming activity" at Little Bay Beach in Ken-Ting National Park. Id. No other information about this swimming activity was provided in the itinerary or brochure.
Peter Sun drowned at Little Bay Beach on August 8, 1993. Third Amended Compl. ¶ 14. On September 30, 1993, the Suns filed a national compensation claim under Taiwanese law alleging that the governmental authorities on Taiwan were liable for Peter Sun's death. Sun Decl. ¶ 12. The Ministry of the Interior of Taiwan denied the claim with a letter of explanation dated October 12, 1993. Id. at ¶ 13; see Reply Yang Decl., Ex. B (Denial Order) (defendants' translation).
On August 3, 1994, the Suns filed a Complaint in the Northern District of California seeking damages for the wrongful death of their son against defendants TECRO, the Overseas Chinese Affairs Commission ("OCAC"), and the China Youth Corps ("CYC"). OCAC was responsible for the general structure and preparation of the Study Tour, and CYC had responsibility for the daily operation and staffing of the Study Tour. Motion to Dismiss 2; Opposition 5-6. Both OCAC and CYC shared responsibility for the writing and production of the Study Tour brochure, application and itinerary. Motion to Dismiss 2. TECRO disseminated news announcements of the availability of the Study Tour, distributed applications, relayed submitted applications to OCAC, notified accepted applicants, and accepted tuition payments on behalf of the Study Tour. Third Amended Compl. ¶ 5.
TECRO "was established to function as a `Taiwan instrumentality'" for purposes of the Taiwan Relations Act, 22 U.S.C. § 3301, et seq. Id. at ¶ 4. A cosponsor of the Study Tour, OCAC is a "branch of the Executive Yuan (Cabinet) of" the governmental authorities on Taiwan. Id., at ¶ 6. CYC is an independent nonprofit organization that oversaw the day to day operations of the Study Tour. Id.
Before serving the complaint on any defendants, the Suns filed a First Amended Complaint naming only TECRO on August 29, 1994. Upon defendants' motion, this Court dismissed the First Amended Complaint for lack of subject matter jurisdiction, finding that plaintiffs had failed to state facts which would bring them under the commercial activities exception of the Foreign Sovereign Immunities Act ("FSIA"). Order of Dismissal with Leave to Amend (October 4, 1995). On October 19, 1995, the Suns filed a Second Amended Complaint. The Suns named defendants TECRO, OCAC, and CYC, and also added new defendant the Governmental Authorities on Taiwan ("Taiwan"). Defendants moved to dismiss. This Court dismissed the Suns' Second Amended Complaint, again for lack of subject matter jurisdiction. Order to Dismiss Plaintiff's Second Amended Complaint (October 15, 1998).
The Suns appealed the October 15, 1998 Order to the Ninth Circuit, which rendered a decision on February 3, 2000. See Sun v. Taiwan, 201 F.3d 1105 (9th Cir. 2000). The Ninth Circuit affirmed this Court's determination that the Study Tour qualified as a commercial activity within the meaning of the FSIA. Sun, 201 F.3d at 1108. The Ninth Circuit then considered the Court's determination that it lacked subject matter jurisdiction because there was an insufficient nexus between any commercial activity in the United States and the Suns' cause of action. In their briefs before the Ninth Circuit, the Suns raised a new theory of liability that was not considered by this Court. Id. at 1110. Finding that the "Suns cast the negligence language in their complaint broadly enough to cover this legal theory," the Ninth Circuit remanded to this Court to review whether subject matter jurisdiction exists under the new theory. Id. The Ninth Circuit declared the Suns' reformulated theory of negligence to be:
Relying primarily on California law, the Suns argue that, like other tour organizers, Taiwan was under an affirmative duty to exercise reasonable care by disclosing known information concerning prospective dangers on the tour and by not misleading prospective participants. Moreover, the Suns allege that Taiwan's requirement, made known to the Suns in the United States, that their son participate in the beach trip without disclosing the dangers constitutes the basis for their action for negligent misrepresentation. In the briefs, there is no longer any mention of negligent supervision.Sun, 201 F.3d at 1110.
With leave of Court, the Suns filed their Third Amended Complaint on September 1, 2000. The Third Amended Complaint named the same defendants as before and asserted only allegations that conformed to the theory of negligence contemplated by the Ninth Circuit. Defendants now move to dismiss this latest complaint on a number of grounds: (1) lack of subject matter jurisdiction under the FSIA, (2) expiration of the statute of limitations for wrongful death claims, (3) the Act of State doctrine, and (4) forum non conveniens.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), this Court must dismiss a complaint if the Court lacks subject matter jurisdiction over the claims asserted. "Ordinarily, where a jurisdictional issue is separable from the merits of a case," the Court is "free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). However, the Court may not resolve genuinely disputed facts to determine jurisdiction where resolution of such facts also goes to the merits of plaintiffs' claim. Id. Where jurisdiction and substantive claims are intertwined, the Court must assume the truth of jurisdictional allegations unless they are controverted by undisputed facts in the record. Id. Dismissal for lack of subject matter jurisdiction in such cases is appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). The Court essentially must decide defendants' motion to dismiss under the summary judgment standard of Rule 56. See Roberts, 812 F.2d at 1177; Bennett v. United States, 102 F.3d 486, 488 n. 1 (11th Cir. 1996) ("[W]here — as here — the existence of subject matter jurisdiction is inextricably intertwined with material facts affecting the merits of the claim, a district court must be guided by the standard for summary judgment motions under Fed.R.Civ.P. 56.").
A. Summary Judgment
The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that 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." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
B. Subject Matter Jurisdiction Under the Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 693 (1989). Federal courts presumptively lack jurisdiction over a claim against a foreign state, 28 U.S.C. § 1604, unless a specified exception applies.Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-489, 103 S.Ct. 1962, 1968-1969 (1983); see also 28 U.S.C. § 1605-1607 (listing exceptions). One such exception applies where the action is "based upon" defendants' commercial activity carried on in the United States, see 28 U.S.C. § 1605(a)(2). "In denoting conduct that forms the `basis,' or `foundation,' for a claim, . . . the phrase is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case." Nelson, 507 U.S. at 357, 113 S.Ct. at 1476;see also America West Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793, 796 (9th Cir. 1989) (there must be a nexus between the action and commercial activity). A plaintiff's entire case need not be based on the commercial activity carried on in the United States. Nelson, 507 U.S. at 358 n. 4. "[A]n action is based on commercial activity in the United States if an element of the plaintiff's claim consists in conduct that occurred in commercial activity carried on in the United States." Sugimoto v. Exportadora De Sal, S.A. De C.V., 19 F.3d 1309, 1311 (9th Cir. 1994).
DISCUSSION
A. Evidentiary Rulings
A court can only consider admissible evidence in deciding a motion for summary judgment. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
Both parties raise numerous objections to the other side's submitted evidence, all in the form of declarations. These objections will be addressed ad seriatim.
(1) Declaration of Tse Weio Pan ("Pan Declaration")
Plaintiffs object to the Pan Declaration for lack of personal knowledge, inadmissible lay opinion, and hearsay. As Director of defendant CYC's Overseas Division, Pan was in charge of CYC operations during the time of Peter Sun's death. Pan Decl. ¶ 1. CYC was responsible for the operation and supervision of the Little Bay Beach trip that Peter Sun attended. Id. at ¶ 2. Although Pan stated in boilerplate language that he has personal knowledge of all the matters in his declaration, id. at ¶ 1, Pan did not assert with particularity the basis of his personal knowledge. Pan was not present at Little Bay Beach the day of the accident. Sun Decl. ¶ 11. He thus could not have personal knowledge of the circumstances occurring on the day of the accident, and any statements to that effect are inadmissible. See Fed.R.Evid. 602. However, as one in charge of the supervision and planning of the trip, Pan could have personal knowledge of how the trip was set up, including any safety precautions taken. Any statements concerning the planning of the Little Bay Beach trip, including safety precautions taken, are admissible.
The Suns also argue that Exhibits A and B to the Pan Declaration lack proper foundation and violate the Best Evidence Rule. Exhibit A is admissible because Pan asserts that it is "[a] copy of the photo of the bilingual sign." Id. at ¶ 5; see also Fed.R.Evid. 901(b)(1) (authentication can be made by "[t]estimony that a matter is what it is claimed to be"). For the same reasons, the letter attached as Exhibit B is admissible. See Pan Decl. ¶ 26. Both Exhibits A and B are duplicates, and because the Suns raise no genuine question to their authenticity, Exhibits A and B are admissible "to the same extent as an original." Fed.R.Evid. 1003.
Exhibit A of the Pan Declaration is a copy of a photograph allegedly taken immediately after the accident on August 8, 1993, depicting a bilingual warning sign posted at the Little Bay Beach entrance path. Pan Decl. ¶ 5. Exhibit B is a letter dated May 26, 1999 from the Department of Interior Management and Construction Bureau of Ken-Ting National Park to the Overseas Chinese Affairs Commission, and obtained by CYC. Id. at ¶ 26.
(2) Supplemental Declaration of Chih Ming Fang ("Fang Declaration")
Police officer Chih Ming Fang ("Officer Fang") was assigned to escort the Little Bay Beach trip and was present at the swimming activity and Peter Sun's accident. Reply Yang Decl., Ex. D (Fang Decl. ¶¶ 1-2). Officer Fang also interviewed witnesses to gather information concerning the circumstances surrounding Peter Sun's drowning. The Suns first objected to paragraph 4 and all attached exhibits of the original declaration by Officer Fang. Defendants thereafter submitted a supplemental declaration by Officer Fang.See Suppl. Yang Decl., Ex. C (Suppl. Fang Decl.). The Supplemental Declaration is essentially the same as its predecessor, with the exception of some new foundational facts and additional attachments of signed deposition transcripts (in Mandarin) of four Study Tour participants who witnessed Peter Sun's drowning. The Suns now object to paragraph 10 and all the attached exhibits in the Supplemental Declaration as inadmissible hearsay.
Paragraph 4 of the original Fang Declaration is restated as paragraph 10 in the Supplemental Declaration. Exhibits A and B of the original declaration are now Exhibit C. Exhibits A and B of the Supplemental Declaration are the new attachments of deposition transcripts.
Paragraph 10 of the Supplemental Fang Declaration describes Officer Fang's diagram of the accident scene (attached as Exhibit C). It does not present an out of court statement to prove the truth of the matter asserted. Paragraph 10 therefore is admissible. Officer Fang drew the diagram of the accident scene based on his interviews with witnesses at the scene. Suppl. Yang Decl., Ex. C (Suppl. Fang Decl. ¶ 11). Defendants have provided accurate and properly authenticated translations of the diagram from Mandarin to English. See Suppl. Yang Decl., Ex. D and E; Fed.R.Evid. 604 and 901. Therefore, the diagram is admissible under the hearsay exception for police reports because it constitutes "a statement . . . in any form . . . setting forth factual findings resulting from an investigation made pursuant to authority granted by law." Fed.R.Evid. 803(8).
Exhibits A and B of the Supplemental Fang Declaration (the signed depositions of witnesses) are presented in Mandarin. No authenticated English translation was provided. The Court therefore cannot rely on these depositions, and they have not been admitted. However, properly authenticated translations of these depositions were submitted separately in Suppl. Yang Decl., Ex. D. These documents are admissible.
(3) Declaration of Her Ping Chang ("Chang Declaration")
The Suns object to paragraph 17 in the Chang Declaration on grounds of lack of personal knowledge, inadmissible lay opinion and hearsay. Paragraph 17 summarizes findings of an investigation by the Ken-Ting National Park Management Division ("Park Management") into Peter Sun's drowning accident. Chang was in charge of the Park Management in August 1993. Reply Yang Decl., Ex. A (Chang Decl. ¶ 2). Given Chang's position and his assertion that he had personal knowledge of the matters asserted, the Court finds that Chang has personal knowledge of the contents of the investigation records and can thus summarize such contents as done in paragraph 17.
However, paragraph 17 is hearsay because it is being offered to prove the contents of the out of court investigation records. Although paragraph 17 sets forth factual findings of an investigation, defendants have not set forth facts establishing that the investigation was "made pursuant to authority granted by law." Fed.R.Evid. 803(8)(c). Paragraph 17 is thus inadmissible hearsay.
(4) Declarations of Chin Gon Lin, Cheng Hui Yeh, and Seng Tsan Kuo ("Lin Declaration," "Yeh Declaration," and "Kuo Declaration," respectively)
The Suns' sole objection to these declarations is that they are not signed. Defendants have cured that defect, thus mooting the Suns' objection. See Second Supplemental Declaration of David Yang ¶ 4 and Ex. A.
(5) Declaration of Judy Yeh ("Yeh Declaration")
Defendants object to several aspects of the Yeh Declaration, filed in opposition to the motion to dismiss. In particular, defendants object to the statement: "The counselors stated that there were no lifeguards on duty, and that it was dangerous to go swimming there." Yeh Decl. ¶ 3. The statement is admissible because it recounts an admission by a party opponent and is not hearsay. See Fed.R.Evid. 801(d)(2).
Defendants also object to the statement: "When I learned that Peter Sun had died during the swimming activity at Little Bay Beach, I was very surprised that the program scheduled such an activity because of the dangerous condition there." Id. at ¶ 5. Defendants argue that Yeh did not have personal knowledge of the conditions at Little Bay Beach on the date of Peter Sun's drowning accident. However, the statement does not, on its face, indicate that Yeh thought that Little Bay Beach was dangerous on the date of Peter Sun's drowning accident. Rather, the statement expresses Yeh's general surprise that there was an activity scheduled at Little Bay Beach, due to Yeh's own belief that the beach was dangerous. This statement is admissible.
(6) Declarations of Floy Chang Campbell, Ken Pong and Keith Pon ("Campbell Declaration," "Pong Declaration," and "Pon Declaration," respectively)
Defendants argue that the Campbell, Pong and Pon Declarations contradict these declarants' earlier sworn testimony made to a Taiwanese police officer three days after Peter Sun's drowning. According to defendants, these declarants contradicted themselves by now stating that "there were no lifeguards; lifesaving equipment; warning signs; that lifeguards failed to try to save Peter Sun; that Peter Sun was swimming at the designated area when the accident occurred." Defendants' Objections to Plaintiffs' Evidence 5. A party cannot create a genuine issue of material fact to overcome summary judgment by submitting testimony that contradicts, without explanation, his earlier sworn testimony. Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543-44 (9th Cir. 1975); Jack v. Transworld Airlines, Inc., 854 F. Supp. 654, 659-660 (N.D. Cal. 1994).
Having carefully examined the challenged declarations, the Court does not find them to contradict earlier testimony given to the Taiwanese police. The declarations are therefore admissible.
(7) Declaration of Tei Van Sun ("Sun Declaration")
Defendants object to paragraphs 14 and 15 in the Sun Declaration. Paragraph 14 asserts reasons for the counselors' and life guards' unwillingness to go into the water to rescue Peter Sun. It is inadmissible for lack of foundation. Paragraph 15 states that the beach where Peter Sun died is the location of strong waves and undertow, locally known as "mad dog." This paragraph is also inadmissible for lack of foundation.
Defendants also object to Exhibits 4 and 5 and all references to them in the Sun Declaration. Exhibit 4 is an English translation of the Taiwanese compensation claim filed by the Suns after their son's death. Exhibit 5 is an English translation of the corresponding Denial Order. Translations of evidence from a foreign language must be authenticated by showing that they are accurate and done by a competent translator. See Fed.R.Evid. 604 and 901; Jack v. Transworld Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994). Sun described the translations as "my free translation," omitting to indicate who did the translations and the translator's competency. Sun Decl. ¶ 12. Plaintiffs have failed to properly authenticate Exhibits 4 and 5, and both are therefore inadmissible.
Subsequent to oral argument, the Suns submitted a properly authenticated English translation of the Denial Order. The Court will consider this latest translation for purposes of the current motion.
Defendants have also submitted a properly authenticated English translation of the same Denial Order. See Suppl. Yang Decl., Ex. E. The Court admits defendants' translation and the Suns' translation for purposes of this motion.
B. Subject Matter Jurisdiction for FSIA Cause of Action
The Suns' Third Amended Complaint asserted a theory of tort negligence identical to the theory the Ninth Circuit formulated in its order of remand. The Suns claimed that defendants were obliged to abide by two duties when disseminating advertising material, application brochures, and itineraries for the Study Tour. According to the Suns, defendants had:
(1) "an affirmative duty to exercise reasonable care in the United States by disclosing known information concerning prospective dangers on the Tour," and
(2) a "duty to exercise reasonable care . . . not to make negligent misrepresentations . . . regarding the safety of the Tour itinerary, including a required swimming activity at Ken-Ting Beach."
Third Amended Compl. ¶¶ 16, 17; see also Sun, 201 F.2d at 1110. Subject matter jurisdiction under the FSIA exists if defendants breached these duties by some act or inaction having a sufficient nexus to the United States. The Suns alleged that defendants breached these duties by representing that the Study Tour would be "tightly structured, closely supervised, and safe" id. at ¶ 18, but failing to disclose the following dangers that defendants knew or should have known of:
(1) that Ken-Ting Beach was not officially open to the public as a beach for swimming and that the TAIWAN Department of Interior had not issued a permit for use of the area as a swimming beach;
(2) that the Taiwan Department of Interior at Ken-Ting Beach did not provide lookouts or life guards, lifesaving equipment, including life preservers, life jackets, or rescue boats; and
(3) that Ken-Ting Beach was unprotected and exposed to severe undertow, high waves, and strong surf.Id.; see also Opposition 4. Defendants argue that the Suns have failed to raise a genuine issue of material fact to demonstrate the existence of these dangers. On the contrary, defendants claim that the evidence affirmatively shows that the alleged dangers did not exist. Defendants argue therefore that they cannot be held liable for misrepresenting or failing to disclose nonexistent dangers.
Defendants also note that the Suns argued in their appellate brief before the Ninth Circuit that "Little Bay Beach had been closed by the same Taiwanese government because it was unsafe for swimming." This is distinct from the Suns' allegation in the Third Amended Complaint, "[t]hat Ken-Ting Beach was not officially open to the public as a beach for swimming and that the TAIWAN Department of Interior had not issued a permit for use of the area as a swimming beach." Defendants thus suggest an estoppel argument, claiming that summary judgment must be granted "if this Court finds that Little Bay Beach was not closed by the Taiwanese government because it was unsafe for swimming." Motion to Dismiss 16. The Court declines to accept defendants' unsupported argument. The Third Amended Complaint alleged facts that fit squarely within the reformulated theory of negligence as cast by the Ninth Circuit for consideration by this Court on remand. The reformulated theory is based on failure to disclose known or reasonably knowable "dangers." Sun, 201 F.3d at 1110. The Ninth Circuit did not specify which "dangers" Taiwan allegedly failed to disclose in the reformed theory. Thus, it was appropriate for the Suns to allege new, or modified, undisclosed dangers in an amended pleading.
(1) Dangers Concerning Ken-Ting Little Bay Beach
The Suns claim that defendants should have disclosed the danger "[t]hat Ken-Ting Beach was not officially open to the public as a beach for swimming and that the TAIWAN Department of Interior had not issued a permit for use of the area as a swimming beach." Third Amended Comp. ¶ 18. The Ministry of the Interior's Denial Order of the Suns' national compensation claim stated that the area where Peter Sun drowned was a natural and open area that was accessible to the general public; no fees were collected from users. See Denial Order (Suns' translation) 1 ("a natural and open ocean area, it is a facility accessible to the general public, water dabblers have never been charged any fees"); Suppl. Yang Decl., Ex. E (Denial Order 1) (defendants' translation) ("Little Bay is a natural and open water area . . . [and] is accessible to the public and no fee is collected from users."). Neither translation reveals an admission by Taiwan that Little Bay Beach was, as the Suns allege, "not officially open to the public as a beach for swimming." Third Amended Compl. ¶ 18.
The Denial Order explained that Little Bay Beach was not an "ocean beach," meaning it was not established and licensed for commercial purposes. Suppl. Yang Decl., Ex. E (Denial Order 1) (defendants' translation); Denial Order (Suns' translation) 1;see also Pan Decl. ¶ 4; Reply Yang Decl., Ex. A (Chang Decl. ¶ 3-4). Instead, Little Bay Beach is a "natural and open water area . . . accessible to the public and no fee is collected from users." Suppl. Yang Decl., Ex. E (Denial Order 1) (defendants' translation), at 1; accord Denial Order (Suns' translation) 1. Both natural beaches and ocean beaches can be open to the public. The primary distinction is the commercial nature of ocean beaches. Reply Yang Decl., Ex. A (Chang Decl. ¶¶ 3-4), Ex. B (Lee Decl., Ex. B, at 1). The Taiwan Provincial Ocean Beach Management Regulations apply only to "ocean beaches," which can operate only with a state-issued permit. Reply Yang Decl., Ex. A (Chang Decl. ¶¶ 6-8). As part of Ken-Ting National Park, Little Bay Beach is under the exclusive jurisdiction of the Park Management and is not regulated by the Taiwan Provincial Ocean Beach Management Regulations. Id. at Ex. A (Chang Decl. ¶ 7). Consequently, natural beaches like Little Bay Beach can operate without having a state-issued permit in accordance with the Taiwan Provincial Ocean Beach Management Regulations. Suppl. Yang Decl., Ex. A (Chang Decl. ¶¶ 3-4); Pan Decl. ¶ 4; Reply Yang Decl., Ex. B (Lee Decl., Ex. B, at 1).
There is no genuine dispute that Little Bay Beach was open to the public for use as a swimming venue. Therefore, contrary to the Suns' allegation, defendants were not obligated to disclose the non-fact that Little Bay Beach was "not officially open to the public as a beach for swimming." The Suns' claim for negligent misrepresentation cannot be supported on this allegation.
There also is no genuine dispute that the Taiwan Provincial Ocean Beach Management Regulations do not apply to Little Bay Beach because it is not a commercially-developed "ocean beach." Pan Decl. ¶ 4; Reply Yang Decl., Ex. A (Chang Decl. ¶¶ 3-4). The Suns alleged that defendants had a duty to disclose the "danger" that the Ministry of the Interior did not issue a permit for Little Bay Beach to be used as an area for swimming. Third Amended Compl. ¶ 18. The Suns note that beaches receiving a permit under the Taiwan Provincial Ocean Beach Management Regulations are required to have lifesaving equipment available and to provide lifeguards. See Brodsky Decl., Ex. 3. From this fact, the Suns reason that, "[a]s an unregulated beach, no such equipment and personnel was required at Little Bay Beach." Opposition 18. The Suns therefore conclude that Little Bay Beach was dangerous because it did not have a permit. Id.
The Suns' reasoning is flawed. Little Bay Beach was exempt from the Taiwan Provincial Ocean Beach Management Regulations, and thus was not required to have a permit in order to operate. Instead, Ken-Ting National Park Management controlled and maintained Little Bay Beach. This does not mean that Little Bay Beach was a dangerous swimming area, as the Suns alleged. As discussed in the next section, there were numerous measures and precautions taken to protect the safety of visitors to Little Bay Beach. Defendants did not breach a duty to disclose dangers by omitting to disclose the fact that Little Bay Beach did not have a permit, because the lack of a permit does not prove that the beach was dangerous.
The Suns therefore cannot base their claims of negligent misrepresentation or failure to disclose on defendants' failure to disclose a non-fact — that Little Bay Beach was "not officially open to the public for swimming" — or a non-danger — that "the Taiwan Department of Interior had not issued a permit for use of the area as a swimming beach." See Third Amended Compl. ¶ 18.
(2) Lack of Lifeguards and Lifesaving Equipment
The Suns also claimed that defendants failed to disclose "[t]hat the Taiwan Department of Interior at Ken-Ting Beach did not provide lookouts or lifeguards, lifesaving equipment, including life preservers, life jackets, or rescue boats." Third Amended Compl. ¶ 18. The gist of this claim is the failure to disclose a lack of safety personnel or safety equipment at the beach, but the evidence submitted by plaintiffs on this point does not support it. According to a Study Tour participant present at the drowning accident, "[a]t no time, did any lifeguards, who we were told were on duty at the Ken-Ting beach, enter the water to attempt to save Peter Sun's life." Brodsky Decl., Ex. 6 (Wang Decl. ¶ 7); see also id. at Ex. 9 (Pong Decl. ¶ 5) ("The lifeguards on duty did not enter the water to attempt to save Peter Sun's life."). Another Study Tour participant observed that any lifeguards, if present, were not "conspicuously designated." Campbell Decl. ¶ 6. These declarations may well raise questions about the adequacy of the lifeguards' services on that day, but they do not raise a genuine issue of fact as to thepresence of lifeguards or safety equipment at the beach. Neglect or inaction by the lifeguards on duty, however tragic the consequences, is different from the claim that no lifeguards were present at the beach.
The source of the protection — whether from the Taiwan Department of Interior or Ken-Ting National Park Management, or from the Study Tour itself — does not appear to be material to this claim. Rather, it is the existence of the protection which was placed at issue.
Indeed, the undisputed evidence shows that lifeguards and lifesaving equipment were present at the beach on the day Peter Sun drowned. Three lifeguards testified to being on duty to protect the Study Tour group on that day. See Reply Yang Decl., Exs. F, G and H (Lin, Yeh and Kuo Decls., respectively). Officer Fang, who was hired by the Study Tour to supervise safety at the beach trip, "personally assigned four certified lifeguards . . . to position themselves on the beach in front of the designated swimming area." Suppl. Yang Decl., Ex. C (Suppl. Fang Decl. ¶ 4);see also Reply Yang Decl., Ex. C (Hu Decl. ¶ 14). Additionally, Officer Fang knew that the lifeguards were equipped with "standard lifesaving equipment." Suppl. Yang Decl., Ex. C (Suppl. Fang Decl. ¶ 4). Officer Fang furthermore made arrangements to have a fire truck equipped with a rescue boat and related lifesaving equipment stationed at the beach. Id. Lifesaving equipment was also kept at the adjacent Park Management Police Station and Fire Department. Reply Yang Decl., Ex. C (Hu Decl. ¶ 9).
There is no genuine dispute that lifeguards and lifesaving equipment were present and available at Little Bay Beach for the Study Tour trip. This cannot be made the basis of a claim of non-disclosure in the United States.
(3) Ken-Ting Beach Was Unprotected and Exposed
The Suns also alleged that Taiwan failed to disclose the danger "[t]hat Ken-Ting Beach was unprotected and exposed to severe undertow, high waves, and strong surf." Third Amended Compl. ¶ 18.
Little Bay Beach is "a natural and open beach" accessible to the general public. Reply Yang Decl., Ex. A (Chang Decl. ¶ 4) and Ex. B (Lee Decl., Ex. B, at 1). Many precautions were taken to protect the public at Little Bay Beach, including patrolling rangers, bilingual signs, and designated safe swimming areas. Id. at Ex. A (Chang Decl. ¶¶ 11-13). Little Bay Beach had designated swimming areas separated by floating buoys that are generally free from high waves and undertow. Id. at Ex. A (Chang Decl. ¶ 12). A Mandarin/English bilingual sign placed at the beach entrance provides safety information and instructions. Id. at Ex. A (Chang Decl. ¶ 13), Ex. C (Hu Decl. ¶ 7), Ex. E (Lin Decl. ¶ 7); Suppl. Yang Decl., Ex. C (Suppl. Fang Decl. ¶ 10(a)), Ex. E (Denial Order 2) (defendants' translation). The Park Management posts other warning signs according to the conditions of the beach and any dangers present. Reply Yang Decl., Ex. A (Chang Decl. ¶ 14). In addition, the adjacent police station and fire department are both equipped with lifesaving equipment. Id. at Ex. A (Chang Decl. ¶ 15). The Suns offer no admissible evidence to establish that Little Bay Beach was "unprotected." The evidence instead indicates to the contrary, that Little Bay Beach was a protected swimming area.
The Suns' allegation that Little Bay Beach was "exposed to severe undertow, high waves, and strong surf" also fails to support their negligent misrepresentation and failure to disclose tort claims. Assuming the truth of the allegation, the fact that Little Bay Beach was exposed to such elements does not constitute a danger that needed to be disclosed. Defendants did not have a duty to warn the Suns of every possible danger that their son might encounter on the Study Tour. Rookard v. Mexicoach, 680 F.2d 1257, 1263 (9th Cir. 1982) ("A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel."). Severe undertow, high waves, and strong surf are potential dangers that can occur at almost any beach, depending on weather conditions. California courts have uniformly held that, in the exercise of ordinary care, one is under no duty to warn another of a danger equally obvious to both. Mautino v. Sutter Hospital Assn., 211 Cal. 556, 561 (1931); Goldstein v. Healy, 187 Cal. 206, 211 (1921); Morales v. L. W. Blinn Lumber Co., 9 Cal.App.2d 292, 295 (1935); see also Tradewind Transportation Co. v. Taylor, 267 F.2d 185, 188 (9th Cir.), cert. denied, 361 U.S. 829 (1959) (tour operator had duty of ordinary care to warn participants of any unreasonable risk of harm);McCollum v. Friendly Hills Travel Center, 172 Cal.App.3d 83, 95 (1985) (travel agent had no duty to disclose obvious dangers to travelers). Almost any beach can be said to be "exposed" to extreme water forces, and thus such hazards at a beach is obvious. Thus, the fact that Little Bay Beach was "exposed" to severe tow, high waves and strong surf, standing alone, does not make it a danger that required disclosure.
Defendants' objected to the Suns' reliance on California law to provide the rules for failure to disclose and negligent misrepresentation torts in the tour operator context. See Motion to Dismiss 20-22. Although the Court applies relevant California law for purposes of this motion only, the Court emphasizes that it has not determined that California law is the correct choice of law to govern the Suns' tort claims.
At oral argument, counsel for the Suns argued that defendants had a duty to disclose the "hazard" that certain nonobvious pockets of Little Bay Beach contained dangerously strong undertow. See also Opposition 17 ("[T]he dangerous wave and undertow that caused Peter Sun's death were not obvious."). California courts do not impose a duty on beach operators to warn guests of general dangers in the ocean. See Swann v. Olivier, 22 Cal.App.4th 1324, 1326 (1994) (beach owner had no duty to warn party guest of riptides, submerged rocks, and hazardous drop-off in ocean beyond beach); Princess Hotels International, Inc. v. Pearson, 33 Cal.App.4th 645, 647 (1995) (hotel had no duty to warn guests of danger of swimming in ocean off public beach); see also Adika v. Beekman Towers, Inc., 633 So.2d 1170, 1171 (Fla. Dist.Ct.App. 1994) (an innkeeper "has no duty to warn its guests of naturally occurring surf conditions off of a public beach."). However, beach operators who invite the public to swim at their beach have a duty to warn of particularly uncommon or abnormal dangers. For instance, in Pacheco v. United States, 220 F.3d 1126 (9th Cir. 2000), the Ninth Circuit held that there was a duty to warn of "particularly hazardous surf with strong riptides and undercurrents" at a beach where "visitors allegedly have been carried out to sea; only a couple of months before this incident one man had to be rescued by helicopter." Id. at 1128.
The Suns' Third Amended Complaint stated only that defendants were under a duty to disclose "potential dangers." Third Amended Compl. ¶ 18. The Court makes no distinction between a "hazard" and a "danger." The same rules of tort liability apply whether the risk of harm is called a hazard or a potential danger.
The Suns fail to raise a genuine dispute as to whether the alleged pockets of severe undertow actually existed at Little Bay Beach in a way that was uncommon to beaches generally. There also is no evidence to show that defendants knew of such a hazard, assuming it existed. The Suns rely on a declaration by Judy Yeh, who was a Study Tour participant in 1987. See Opposition 17. According to Yeh, Study Tour counselors prohibited participants from swimming at Little Bay Beach that year: "The counselors stated that there were no life guards on duty, and that it was dangerous to go swimming there." Yeh Decl. ¶ 3. This statement is at best equivocal, since the lack of lifeguards at that point may have been the reason that "it was dangerous" to swim there. In any event, this single statement does not support the existence of abnormal and nonobvious dangers at the Little Bay Beach. Additionally, the Denial Order issued to the Suns stated that Park Management posted extra warning signs "when there are high waves," indicating that water conditions at Little Bay Beach are not abnormally severe. See Denial Order 2 (Suns' translation);accord Reply Yang Decl., Ex. E (Denial Order 2) (defendants' translation). The Suns have failed to raise a genuine issue to demonstrate the existence of a "hazard" that defendants were required to disclose. Accordingly, defendants cannot be held liable for failing to disclose such a hazard.
The evidence tends to show that Peter Sun's drowning was caused, not by inherent conditions of the beach, but by factors, conditions or negligence occurring specifically at Little Bay Beach on August 8, 1993. The factors cited by the Suns as contributing to Peter Sun's drowning all involve actions or omissions occurring at Little Bay Beach:
(a) "Peter Sun and his companions checked in with a counselor, Willie Lee, upon their arrival at Little Bay Beach and before entering the water to swim";
(b) "Peter Sun and his companions were not warned of any unsafe water or weather conditions by any Study Tour personnel, either before or when they arrived";
(c) "When Peter Sun and his companions arrived at the swimming activity, they observed other Study Tour participants swimming in the ocean, and proceeded to swim in the designated area, in full view of the Study Tour staff";
(d) "There were no attempts by lifeguards, if present, to rescue Peter Sun"; and
(e) "The warning sign, if present, did not contain any warnings with respect to the wave conditions that caused Peter Sun to drown."
Opposition 19-20. Assuming these facts to be true, they do not sustain the theory of negligent misrepresentation and failure to disclose as stated in the Suns' Third Amended Complaint. Those claims alleged that defendants failed to disclose known or reasonably knowable dangers about Little Bay Beach in the Study Tour application materials and correspondence to the Suns; virtually no evidence has been presented to support that claim. The disputed issues listed above raise issues of negligent action or inaction committed in Taiwan. Such claims of negligence committed in Taiwan are not cognizable before this Court.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendants' motion to dismiss the Third Amended Complaint for lack of subject matter jurisdiction under the FSIA. Accordingly, the Court need not reach defendants' arguments for dismissal due to expiration of the statute of limitations, the Act of State Doctrine, or forum non conveniens. The Third Amended Complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.