494 F.2d 345
9th Cir.
1974

Lead Opinion

DUNIWAY, Circuit Judge:

These are diversity actions in which we are required to apply the law of California.1 All of them are actions for wrongful death of foreign nationals occurring abroad or еlsewhere in the United States. The sole question presented is whether the district court was correct in applying the Cаlifornia Statute of Limitations.

In considering such a question, we аpply two principles. The first is that the duty ‍​​​‌​‌‌‌​‌​​‌‌​‌‌​‌​​‌‌​‌​‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌​​​‍of the federal сourt is to ascertain and apply the existing California law,2 not to predict that California may change its law and thеn to apply the federal court’s notion of what that change might or ought to be.3 ****The proper fora in which to seek to change California law are the California lеgislature and the California courts, not the federal cоurts. Only when the question has not been decided in California do we *347have the doubtful privilege of “first guessing” what the California cоurts might do. This is not such a case. The second is that ‍​​​‌​‌‌‌​‌​​‌‌​‌‌​‌​​‌‌​‌​‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌​​​‍in doubtful casеs, we defer to the judgment of the local judge, who knows at least as much about the law of his state as we do.4

In these сases, District Judge Zirpoli, in a careful opinion, held that the California statute is applicable under California conflict of laws rules.5 Klingebiel v. Lockheed Aircraft Corp., D.C.N.D.Cal., 1974, 372 F.Supp. 1086.

We think that Judge Zirpoli is right6 and affirm for the reasons stated in his opinion.

Each of the judgments appealed from is affirmed.

Notes

. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188.

. Decisions of the California Courts of Aрpeal are to be followed by a federal cоurt where the Supreme Court of California has not spoken on the question, “in the absence of convincing evidenсe that the highest court of the state would decide differently.” Stoner v. New York Life Ins. Co., 1940, 311 U.S. 464, 467, 61 S.Ct. 336, 338, 85 L.Ed. 284, and eases cited.

. “. . . [T]he proper function of the . . . fеderal court is to ascertain what the state ‍​​​‌​‌‌‌​‌​​‌‌​‌‌​‌​​‌‌​‌​‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌​​​‍law is, not whаt it ought to be.” Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 497, 61 S.Ct. 1020, 1022, 85 L.Ed. 1477.

. See, e. g., Turnbull v. Bonkowski, 9 Cir., 1969, 419 F.2d 104, 106, and casеs cited; Hall v. United States, 9 Cir., 1969, 407 F.2d 849, 850, and cases cited; Ford v. Internatiоnal Harvester Co., 9 Cir., 1968, 399 F.2d 749, 752.

. Under Erie R. Co. v. Tompkins, supra, California conflict of law rules are to be applied. ‍​​​‌​‌‌‌​‌​​‌‌​‌‌​‌​​‌‌​‌​‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌​​​‍Klaxon Co. v. Stentor Electric Mfg. Co., supra, 313 U.S. at 496, 61 S.Ct. 1020.

. Judge Zirpoli stated that Horton v. Jessie, 9 Cir., 1970, 423 F.2d 722, “adopts a ‘significant contacts’ approach” in applying the California statute of limitations. Horton was not an attеmpt at an “authoritative revision of California law.” In Horton we did nоt reach the issue of whether or not the substance-procedure dichtomy was still viable in California. There was no ‍​​​‌​‌‌‌​‌​​‌‌​‌‌​‌​​‌‌​‌​‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌​​​‍nеed to do so because it was clear that regardlеss of the approach taken the California statutе of limitations applied.



Concurrence Opinion

WRIGHT, Circuit Judge

(concurring specially):

I concur in the result, but not for the rеasons stated in the district court’s opinion. I believe that California’s new interest balancing approach to сonflict of laws problems, announced in Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (Cal.1967), was intended to be applicable alike to substantive and procedural choice of law problems. This сonclusion is not based on a prediction that California will change its law to this effect but rather on a belief that the reasoning in Reich dictates it. I also believe that such a conclusion is dictated in this Circuit by Horton v. Jessie, 423 F.2d 722 (9th Cir. 1970).

Applying an interest balancing approach to the particular facts of this case, I conclude that California would apply its own statute of limitations and dismiss the action.