Appellate Law

Ninth Circuit certifies another question to the California Supreme Court: Klein v. United States

By Kimberly A. Kralowec

On July 30, 2008, the Ninth Circuit certified another question to the California Supreme Court under Rule of Court 8.548:

Does California Civil Code § 846, California?s recreational land use statute, immunize a landowner from liability for acts of vehicular negligence committed by the landowner?s employee in the course and scope of his employment that cause personal injury to a recreational user of that land?

Klein v. United States, ___ F.3d ___ (9th Cir. July 30, 2008) (slip op. at 9647). The order certifying the question has this to say about the binding effect of intermediate California Court of Appeal opinions on the federal courts:

When ?there is no relevant precedent from the state?s highest court, but ... there is relevant precedent from the state?s intermediate appellate court,? we ?must follow the state intermediate appellate court decision unless [we] find[ ] convincing evidence that the state?s supreme court likely would not follow it.? Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007) (emphasis omitted); see also Munson, 522 F.3d at 1002 (certifying a question to the California Supreme Court, and having that certified question accepted, where our court was ?in doubt about whether the California Supreme Court would follow? an earlier state intermediate appellate court decision). Here, we have grave concern that Shipman did not state California law correctly, and there is ?convincing evidence? that leads us to believe that the California Supreme Court likely would not follow Shipman. That evidence makes us hesitant to follow it as well. .... However, because we are ?in doubt? about how the Supreme Court of California would resolve this important question of California law concerning immunity of a landowner for its employee?s negligent vehicle operation on its land harming a recreational user of such land, we prefer if possible to let that court speak to the issue rather than making our best prediction of what it would say. See Munson, 522 F.3d at 1002.

Id. at 9652-53 (emphasis added) (alteration in original). [Via California Appellate Report.]

Full post as published by The Appellate Practitioner on August 07, 2008 (boomark / email).