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MARSH v. BURRELL

October 26, 1992

ROGER MARSH and FRANS MERKX, Plaintiffs,
v.
STANLEY K. BURRELL, a/k/a M.C. HAMMER or HAMMER; BUSTIN' MANAGEMENT, INC.; BUSTIN' RECORDS, INC.; BUSTIN' PRODUCTIONS, INC.; BUSTIN' TOURING, INC.; and BUSTIN' MANAGEMENT/CAPITOL RECORDS-THORN EMI JOINT VENTURE, Defendants.



The opinion of the court was delivered by: MARILYN HALL PATEL

 This is a diversity action alleging claims for assault and battery, intentional infliction of emotional distress, negligent hiring and negligent infliction of emotional distress. Plaintiffs Roger Marsh and Frans Merkx are, respectively, citizens of the United Kingdom and of the Netherlands. Defendant Stanley K. Burrell a/k/a Hammer or M.C. Hammer ("Burrell") is an internationally-known "rap" performer who is a citizen of California. The remaining defendants, except Bustin' Management/Capitol Records-Thorn EMI Joint Venture *fn1" (collectively, "business defendants"), are California corporations with their principal places of business in California.

 The matter is currently before the court on the parties' submissions regarding whether the law of the Kingdom of the Netherlands or of California governs the amount and types of damages which plaintiffs may recover if they prevail in this action. For the reasons set forth below, the court finds that, under applicable choice of law principles, California law governs damages in this action.

 BACKGROUND

 The complaint contains the following allegations. On or about April 3, 1991, plaintiffs and one Andrew Jackson were approached by a group of men outside the American Hotel on the Liedseplein in Amsterdam, the Netherlands (the "Hotel"). Complaint P 12. This group consisted of Burrell and his agents and/or employees ("employees"), who are also agents and/or employees of the business defendants. Id. P 13. After Burrell and his employees shouted threats to plaintiffs, additional Burrell employees emerged from the hotel and, led by Burrell, punched and beat plaintiffs and Andrew Jackson, who had attempted to protect plaintiffs. Id. PP 14-18.

 On the next day, after talking with the Amsterdam police, plaintiffs and Jackson returned to the Hotel to talk to the manager about the alleged assault of the previous day. Id. P 19. At the Hotel, Burrell and several of his employees again attacked plaintiffs. Id. PP 20-24. In the course of this attack, Burrell struck Marsh in the jaw with a glove-like device resembling "brass knuckles" while two employees held Marsh down. Id. PP 22-23. This blow fractured Marsh's jaw and required an extended hospital stay. Id. P 24. In the course of the same attack, Merkx was physically assaulted, battered and thrown out into the street by other Burrell employees. Id.

 Plaintiffs further allege that Burrell and his employees were dangerous and had violent propensities. Id. P 35. According to the complaint, the business defendants knew or reasonably should have known of these tendencies, but negligently hired and failed to restrict the activities of Burrell and the employees. Id. P 36-37.

 Based on these allegations, the complaint states its claims for assault and battery, negligent hiring, and negligent and intentional infliction of emotional distress. Plaintiffs pray for general damages, medical and incidental expenses, compensation for lost wages and earning capacity, and punitive damages.

 LEGAL STANDARD

 In a diversity action, a federal court sitting in California must apply California choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477 , 61 S. Ct. 1020 (1941); Strassberg v. New England Mutual Life Ins. Co., 575 F.2d 1262, 1263 (9th Cir. 1978). The choice of law principles of the forum state must be applied even when diversity, as in this action, is based on foreign citizenship. Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 46 L. Ed. 2d 3 , 96 S. Ct. 167 (1975).

 California courts decide choice of law questions by means of the "governmental interests" analysis. In re Yagman, 796 F.2d 1165, 1170 (9th Cir. 1986), cert. denied, 484 U.S. 963, 98 L. Ed. 2d 390 , 108 S. Ct. 450 (1987). This choice of law analysis embodies the presumption that California law applies unless the proponent of foreign law can show otherwise. Browne v. McDonnell Douglas Corp., 504 F. Supp. 514, 517 (N.D. Cal. 1980) ("Under the government interest analysis, California will apply its own law unless it is shown that there is a compelling reason to displace forum law."); Kasel v. Remington Arms Co., 24 Cal. App. 3d 711, 731, 101 Cal. Rptr. 314 (1972). In general, California will apply its own law, unless a party timely invokes the law of a foreign jurisdiction. Hurtado v. Superior Court, 11 Cal. 3d 574, 581, 114 Cal. Rptr. 106 , 522 P.2d 666 (1974). When a litigant invokes foreign law, he or she must "demonstrate that the [foreign] rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply . . . ." Id.; Beech Aircraft Corp. v. Superior Court, 61 Cal. App. 3d 501, 522, 132 Cal. Rptr. 541 (1976). The burden of proving that a foreign jurisdiction's law applies is therefore on the party invoking the foreign rule of decision. McGhee v. Arabian American Oil Co., 871 F.2d 1412, 1422 (9th Cir. 1989).

 California's governmental interests analysis involves a three step process. Liew v. Official Receiver and Liquidator, 685 F.2d 1192, 1196 (9th Cir. 1982).

 First, the court must determine whether the substantive laws of California and the foreign jurisdiction differ on the issue before it. Id.

 Second, if the laws do differ, then the court must determine what interests, if any, the competing jurisdictions have in the application of their respective laws. Id.; Hurtado, 11 Cal. 3d at 581 (the forum court determines "whether either or both states have an interest in applying their policy to the case" (quoting Herma Hill Kay, Comments on Reich v. Purcell, 15 U.C.L.A. L. Rev. 584, 585 (1968))). To determine what interest a jurisdiction has in the application of its law, the forum court undertakes an examination of the policies underlying the particular law and asks whether those policies will be served by applying that law in the action before the forum. Hurtado, 11 Cal. 3d at 581.

 It is only when both jurisdictions have a policy interest in the application of their laws that a "true conflict" exists. Liew, 685 F.2d at 1196. California courts then proceed to the third step in California's governmental interests analysis, known as the "comparative impairment" test. Id. If and when a court reaches this step, it must determine which jurisdiction's interest would be most impaired if its policies were subordinated to those of the other jurisdiction. Id.; see also Offshore Rental Co. v. Continental Oil Co., 22 Cal. 3d 157, 161, 148 Cal. Rptr. 867 , 583 P.2d 721 (1978); Bernhard v. Harrah's Club, 16 Cal. 3d 313, 320, 128 Cal. Rptr. 215 , 546 P.2d 719 (1976); Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484-86 (9th Cir. 1987).

 DISCUSSION

 I. Different Damages ...


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