Court of Appeal, Second District, Division 5, California.

FEDERAL EXPRESS CORPORATION, et al., Petitioners,

v.

The SUPERIOR COURT of Los Angeles County, Respondent;

Steve Cohen, Real Party in Interest.

No. B219795.

(Super.Ct.No. BC401452).

 

March 12, 2010.

 

TURNER, P.J.

 

Defendants, Federal Express Corporation, FedEx Corporate Services, Inc., FedEx Customer Information Services, Inc., FedEx Corporation and FedEx Ground Package System, Inc., filed an amended mandate petition to set aside to set aside an August 27, 2009 order overruling their demurrers to the first amended class action complaint of plaintiff, Steve Cohen. Defendants are correct-the fourth cause for unfair competition in violation of Business and Professions Code section 17200 is preempted by the title 49 United States Code section 41713(b)(1) which is part of the Airline Deregulation Act. ( American Airlines, Inc. v. Wolens (1995) 513 U.S. 219, 222, 232.) We cannot verify, at the demurrer stage, that any of plaintiff’s remaining claims, which may yield only contract breach damages, are preempted the Airline Deregulation Act.   (Id. at pp. 229-232;Power Standards Lab., Inc. v. Federal Express Corp . (2005) 127 Cal.App.4th 1039, 1044.) The result is the same under the Federal Aviation Administration Act of 1994 and the Carmack Amendment which involves damage to shipped goods. ( Rowe v. New Hampshire Motor Transport. Assn. (2008) 552 U.S. 364, 370;Adams Express Co. v. Croninger (1913) 226 U.S. 491, 504.) In light of entirely clear well settled United States Supreme Court preemption authority, this is an appropriate case for issuance of a peremptory writ of mandate in the first instance. ( Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1261;Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171, 180.)

 

The amended mandate petition is granted as to the fourth cause of action only. Upon remittitur issuance, the demurrer is to be sustained as to the fourth cause of action without leave to amend only. The amended petition is denied in all other respects. All parties are to bear their own costs incurred in connection with these extraordinary writ proceedings.

 

We concur: ARMSTRONG, J. and WEISMAN, J.FN*

 

FN* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.