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Court of Appeal, Second District, Division 1, California.

 NISSAN MOTOR CORPORATION IN U.S.A., et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Paula MEIER, etc., et al., Real Parties in Interest.

No. B040894.

Decided: May 26, 1989

 Elliott D. Olson, Roy G. Weatherup, Thomas N. Charchut, Robert E. Boone III and Haight, Brown & Bonesteel, Santa Monica, for petitioners. No appearance for respondent. Thomas Kallay and Harney & Packer, Los Angeles, for real parties in interest.


The petition for writ of mandate, filed March 24, 1989, and the opposition thereto, filed May 23, 1989, have been read and considered.

As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.”  (Code Civ.Proc., § 1088.)   Opposition was requested by letter, and the parties were notified by the same letter, dated May 11, 1989, as to the court's intention to issue a peremptory writ.  (Palma v. U.S. Industrial Fasteners (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.)

Petitioners, an automobile manufacturer and other defendants in an underlying wrongful death action, seek review of an order of respondent court (Hon. Lawrence Waddington), denying their motion for summary adjudication of the issue that the “no air bag” claim is preempted by federal law.

 In their complaint for wrongful death, real parties allege that the 1982 Datsun Stanza automobile, driven by their husband/father, was defective in that it failed to have an automatic air bag and that the three-point restraint system was defective.   Petitioners moved for summary adjudication of the issue that the “no air bag” claim is preempted by the federal government.   The Federal Motor Vehicle Safety Standard 208, revised by the Department of Transportation in 1972 to include passive restraints established requirements for the occupant restraint system in the 1982 automobile involved in the underlying action;  it required the 3–point safety belt system Nissan installed or an air bag;  it has never required air bags.   The National Traffic and Motor Vehicle Safety Act section 1392, subdivision (d), requires all state vehicle safety standards to be identical to federal vehicle safety standards;  a state common law requirement for air bags would be contrary to the federal requirements and, therefore, preempted.

Federal law provides that compliance with any federal motor vehicle safety standard does not exempt any person from common law liability (15 U.S.C. § 1397, subd. (c)) and does not expressly exempt non-identical state motor vehicle safety standards.   However, in Wood v. General Motors Corp. (1988) 865 F.2d 395, 401, the First Circuit Court of Appeals determined that, while there was no express preemption, a state tort claim for failure to install passive restraints is impliedly preempted.

One California case has permitted a California action to allege a common law action despite the manufacturer's compliance with federal standards.   In Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 540–541, 132 Cal.Rptr. 605, the court determined that federal regulations are supplementary to the common law of products liability and a defendant's compliance with federal safety standards does not preclude imposition of common law liability for a defective product.

This court is not bound by decisions of other California Courts of Appeal.   This court also is not bound by the interpretation of federal law by federal courts lower than the United States Supreme Court (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129;  People v. Rooney (1985) 175 Cal.App.3d 634, 644, 221 Cal.Rptr. 49), and decisions of federal courts on federal issues are merely persuasive.  (Graham v. Scissor–Tail, Inc. (1981) 28 Cal.3d 807, 830, 171 Cal.Rptr. 604, 623 P.2d 165;  Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759, 764, 336 P.2d 521.)   However, we are persuaded that the “no air bag” issue is preempted by federal law.

To hold otherwise would be to allow a potential flood of actions against manufacturers that have been following the custom of the industry and  acting in compliance with federal regulations.   The result would not only work a hardship to manufacturers, but also might so encourage litigation as to hamper the administration of justice.  (See Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 258 Cal.Rptr. 592, 772 P.2d 1059;  Peterson v. Superior Court (1982) 31 Cal.3d 147, 152–153, 181 Cal.Rptr. 784, 642 P.2d 1305;  Mark v. Pacific Gas and Electric Co. (1972) 7 Cal.3d 170, 177–178, 101 Cal.Rptr. 908, 496 P.2d 1276.)

This modification does not effect any change in the judgment.

The opinion and order in the above entitled matter, filed May 26, 1989, was not certified for publication in the Official Reports.   For good cause, it now appears that the opinion and order should be published in the Official Reports, and it is so ordered.


Let a peremptory writ of mandate issue, commanding respondent court to vacate its January 23, 1989 order, denying summary adjudication of the issue that the “no air bag” claim is preempted by federal law entered in Los Angeles Superior Court case No. WEC 103437, and enter a new and different order granting same.



THE COURT: * FN* Before SPENCER, P.J., and L. THAXTON HANSON and ORTEGA, JJ., concur.

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