The Honorable Ronald M.

George, Chief Justice

and the Honorable Associate Justices
September 21, 2001
Page 1

September 21, 2001

(415) 393-8388 T 95346-00011

VIA HAND DELIVERY

The Honorable Ronald M. George, Chief Justice

and the Honorable Associate Justices
California Supreme Court
350 McAllister Street
San Francisco, CA 94102-3600
America Online, Inc. v. Superior Court (Mendoza)
Re:
No. S094445

Dear Chief Justice George and Associate Justices:

We represent the Washington Legal Foundation ("WLF") as amicus curiae in the above-
captioned case, which is pending before this Court on America Online, Inc.'s Petition for Review
(filed July 30, 2001). Pursuant to California Rule of Court 14(b), WLF respectfully submits this
letter brief in support of America Online's Petition for Review.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 2

Introduction
I.

The Washington Legal Foundation is a national non-profit public interest law and policy
center based in Washington, D.C. with supporters nationwide, including many in California, who
are consumers and businesses that will be affected by the lower court's decision. WLF devotes
considerable resources promoting civil justice reform, limiting class action abuse, streamlining
the litigation process, and ensuring the proper and limited role of the judiciary in resolving
commercial disputes in a free market economy.

WLF has appeared as amicus curiae before the United States Supreme Court and this
Court in a variety of commercial law cases raising legal and public policy issues that have
nationwide significance. See, e.g., Cooper Industries v. Leatherman Tool Group Inc. (2001) 121
S.Ct. 1678; Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal. 4th 316; Diamond Multimedia
Systems, Inc. v. Superior Court (1999) 19 Cal. 4th 1036; Artiglio v. Corning, Inc. (1998) 18 Cal.
4th 604. WLF's Legal Studies Division has also published and disseminated educational
materials on these topics.

As discussed further herein, WLF believes that this Court should hear this case because it
raises important issues that affect businesses and consumers nationwide. WLF submits this
letter brief as an amicus curiae to bring to the Court's attention additional legal and policy
arguments that should be considered.
Court of Appeal's Decision
II.

America Online ("AOL") customer Al Mendoza brought a purported nationwide class

action on behalf of all AOL customers who terminated service with AOL at some time during
the past four years, but whose credit cards were allegedly charged for service after the
termination of service. See America Online, Inc. v. Superior Court (Mendoza) (2001) 90 Cal.
App. 4th 1, 5 ("AOL"). Mr. Mendoza brought his action in the Alameda County Superior Court,
alleging violations of California's unfair business practice statutes, the California Consumer
Legal Remedies Act ("CLRA"), common law conversion/trespass, and common law fraud. See
id. at 5-6.

AOL timely filed a motion to dismiss the action on the grounds that the customer
agreement between AOL and Mr. Mendoza requires Mr. Mendoza to bring any legal action
related to his service agreement with AOL in the courts of the Commonwealth of Virginia. See
id. at 6. Mr. Mendoza did not contest the existence of the forum selection clause in his service
agreement, or the applicability of that clause to his claims. See id. at 6-7. Instead, Mr. Mendoza
maintained that the service agreement was an unenforceable "adhesion" contract and that the
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 3

forum selection clause could not be enforced on account of an "anti-waiver" provision in the
Consumer Legal Remedies Act. See id.. The superior court agreed. See id. at 7.

The Court of Appeal focused on Mr. Mendoza's second argument, that the CLRA's "anti-
waiver" provision rendered the forum selection clause unenforceable even in the absence of any
showing of unconscionability. See generally id. at 7-21. The Court of Appeal held that,
although the burden of proof is normally on the party challenging a forum selection clause, the
anti-waiver provision changes the burden of proof such that, in order to secure enforcement of its
contractual forum selection clause, AOL would need to prove that enforcement of the forum
selection clause would not result in a significant diminution of rights of California consumers.
See id. at 9-11. The Court of Appeal then held that the CLRA's remedial provisions were
sufficiently important as a matter of law that a consumer simply could not agree to have these
claims heard in a different forum. See id. at 12-15. Although it deemed this next review
unnecessary to its decision, the Court of Appeal also conducted a comparison of Virginia and
California consumer protection laws and procedures and held that Virginia substantive and
procedural law provided an insufficient remedy for Mr. Mendoza. See id. at 15-18.
Issues Addressed by Amicus
III.

The Court of Appeal's interpretation of the "anti-waiver" provision of the Consumer

Legal Remedies Act effectively eviscerates bargained-for forum-selection and choice-of-law
provisions in all contracts between vendors and their customers, wherever in the country those
customers may be, so long as at least one customer is in California and that customer files a class
action in California courts invoking the CLRA. The Court of Appeal's decision conflicts with
prior decisions of this Court and those of the other Courts of Appeal, which have uniformly
supported the right of contracting parties to order their affairs and pick a contractually required
venue for their disputes. Indeed, viewing the Court of Appeal's decision here as a watershed, at
least one trial court has already reversed its own prior ruling upholding a venue selection clause
under California's precedents and rejected enforcement of a forum selection clause. The
Washington Legal Foundation requests that this Court grant review to resolve these issues before
other trial and appellate courts enter decisions based on the erroneous analysis provided in the
AOL opinion.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 4

Forum Selection Clauses Are Presumptively Enforceable

A.

Courts regularly recognize the value of forum selection clauses. The United States
Supreme Court has noted several potential benefits arising out of contractual forum selection
clauses, including reducing the number of potential fora in which a suit may be brought,
dispelling confusion about where suits arising from a contract should be brought, conserving
judicial and litigant resources associated with determining the appropriate forum after the filing
of an action, and saving money. See Carnival Cruise Lines v. Shute (1991) 499 U.S. 585, 593-
94. This last point is particularly important: as the Supreme Court observed, a customer
agreeing to a contractual forum selection provision is likely to benefit from the reduced costs
associated with limiting the locations in which a vendor may need to defend itself. See id. at
594. Here, Mr. Mendoza and millions of other AOL customers have already benefited from
AOL's ability to reduce costs and lessen uncertainty by limiting the fora in which AOL must
defend itself.

This Court has repeatedly enforced contractual forum selection clauses. Twenty-five
years ago, this Court wrote: "No satisfying reason of public policy has been suggested why
enforcement should be denied a forum selection clause appearing in a contract entered into
freely and voluntarily by parties who have negotiated at arm's length." Smith, Valentino &
Smith, Inc. v. Superior Court (1976) 17 Cal. 3d 491, 495-96. Less than ten years ago, this Court
specifically reaffirmed its position in favor of the enforcement of contractual forum selection
provisions. See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal. 4th 459, 464. And, earlier
this year, this Court applied Smith and Nedlloyd in the context of a consumer claim, holding that
a trial court must consider the effects of a contractual choice-of-law provision in determining
whether nationwide class certification is appropriate. See Washington Mutual Bank, F.A. v.
Superior Court (2001) 24 Cal. 4th 906. Simply put, it has been the policy of this Court for
decades to enforce contractual agreements, including forum selection clauses.
The Court of Appeal's Decision Is a Substantial Departure from
B.
Established Law

Rather than following the established precedent of this Court, the Court of Appeal
invented new rules for the standard of review and burden of proof, commingled discussions of
contractual provisions to select venue and those to choose applicable law to apply in the venue
and relied upon the Consumer Legal Remedies Act's "anti-waiver" provision to find AOL's
forum selection clause substantively invalid. Each of these findings is in error and any one of
them would merit review by this Court. The multiplicity of errors in the Court of Appeal's
opinion weighs even more heavily in favor of review.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 5

Standard of Review
1.

Acknowledging a "muddle" as to the appropriate standard of review, the Court of Appeal

weighed two different standards to apply to its review of the trial court's determination that
AOL's forum selection clause was invalid on account of the CLRA's anti-waiver provision. See
AOL, 90 Cal. App. 4th at 7-9. The Court specifically identified a split within the Courts of
Appeal, noting that Courts of Appeal for the Third and Sixth Districts have applied the
"substantial evidence" standard, while others have applied the "abuse of discretion" standard.
See id. For this reason alone, review would be warranted to provide guidance to the Courts of
Appeal concerning the appropriate standard for the review of forum selection clauses.

Indeed, a review of the Court of Appeal's decision suggests that the appropriate standard
of review should be de novo rather than either of the two standards discussed by the Court of
Appeal. The fundamental question before the Court of Appeal was whether the anti-waiver
provision of the CLRA must invalidate a forum selection clause in an otherwise valid contract.
There was no dispute concerning the language of the contractual forum selection clause, nor was
there testimony or other factual evidence that had to be weighed in order to adjudicate this
question. An appellate court's review of purely legal questions is, of course, de novo. See, e.g.,
In re Collins (2001) 86 Cal. App. 4th 1176, 1181. Accordingly, de novo review should have
been applied to the fundamental legal question here. This Court should grant review of the AOL
decision if only to provide guidance in this concededly confused area of law.
Burden of Proof
2.

Applying the "abuse of discretion" standard, the Court of Appeal next turned to the
question of which party bears the burden of proof when the enforcement of a contractual forum
selection clause is challenged. See AOL, 90 Cal. App. 4th at 9-11. The Court of Appeal
recognized this Court's long-established direction that "the burden of proof is on the party
challenging the enforcement of a contractual forum selection clause." Id., citing Smith, 17 Cal.
3d at 496. Nonetheless, the Court of Appeal declined to follow this Court's decision in Smith,
concluding instead that AOL bore the burden of proof on the basis of Wimsatt v. Beverly Hills
Weight Etc. Internat., Inc. (1995) 32 Cal. App. 4th 1511. See AOL, 90 Cal. App. 4th at 10-11.

The Wimsatt case involved an attempt to enforce a forum selection clause in a franchise
agreement. See Wimsatt, 32 Cal. App. 4th at 1513-14. Forum selection clauses in franchise
contracts are presumptively invalid under California law. See Cal. Bus. & Prof. Code 20040.5
("A provision in a franchise agreement restricting venue to a forum outside this state is void with
respect to any claim arising under or relating to a franchise agreement involving a franchise
business operating within this state"). The Wimsatt court's decision that the party seeking to
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 6

enforce a forum selection clause in a franchise contract bears the burden of proving that the
presumption against enforcement should be overcome is not surprising.

Here, unlike Wimsatt, there is no California law that prohibits or restricts the use of
forum selection clauses in contracts between internet service providers and their customers. To
the contrary, there is a strong public policy in favor of the enforcement of contractual forum
selection clauses. See supra, sec. III.A. Nevertheless, the Court of Appeal extended Wimsatt to
hold that a party against whom a Consumer Legal Remedies Act claim is alleged bears the
burden of proof for that reason alone. Observing that California's franchise law, like the CLRA,
includes an "anti-waiver" provision, the Court of Appeal held that the burden of proof must
necessarily shift. See AOL, 90 Cal. App. 4th at 10-11. But the Court of Appeal failed to explain
why the CLRA's general reservation of rights, in the absence of any specific text concerning
forum selection clauses themselves (as in the franchise law), should trump California' policy in
favor of the enforcement of forum selection clauses.

The implication of the Court of Appeal's decision is that it found a public policy against
the enforcement of contractual forum selection clauses in the context of a claim under the
CLRA. This holding, if permitted to stand, would mark a significant departure from Smith,
Wimsatt, and other long-standing California precedent for at least three reasons: (1) there is no
specific, statutory prohibition on forum selection clauses in the CLRA; (2) the prohibition on
forum selection clauses in franchise contracts is necessarily limited to a specific group of
contracts that are readily identifiable (that is, there was no dispute in Wimsatt that a franchise
agreement was at issue), while the use of a CLRA allegation to change the burden of proof
would allow any consumer to shift the burden of proof as to any forum selection clause simply
by alleging a CLRA claim, whether or not that claim is valid; and (3) California courts have long
held that the legislative branch, not the judicial branch, determines public policy, see, e.g.,
Sharon v. Sharon (1888) 75 Cal. 1, 13. Because the Court of Appeal's decision here, to create a
new public policy against enforcement of forum selection clauses in cases involving the CLRA,
is without precedent and threatens all forum selection clauses in cases involving at least one
California consumer, this Court should grant review.
Commingling of Choice-of-Forum and Choice-of-Law Issues
3.

The Court of Appeal's unprecedented decision may have followed from a confusion
between contractual choice-of-forum and choice-of-law provisions. The issue before the Court
of Appeal was whether the action filed by Mr. Mendoza against AOL should be tried in
California or in Virginia. See AOL, 90 Cal. App. 4th at 4 (noting that AOL "exclusively relied
on a forum selection clause" in support of motion to dismiss). Yet the Court of Appeal's
decision turned on the basis of cases involving choice-of-law clauses, and for reasons that follow
from an analysis of the applicable law, not the applicable forum. See id. at 12-18.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 7

The Court of Appeal concluded that the forum selection clause would not be enforced
because the CLRA's remedial provisions were "at least as important" as those of the Corporate
Securities Law of 1968, and another Court of Appeal had decided not to enforce a forum
selection clause on the basis that to do so would deny the protections of the Corporate Securities
Law of 1968. See AOL, 90 Cal. App. 4th at 13-15, citing Hall v. Superior Court (1983) 150 Cal.
App. 3d 411. Even if Hall represents good law and AOL's Petition for Review provides good
arguments why it may not the decision in AOL does not necessarily follow from Hall. As the
Court of Appeal recognized here, the Hall court's decision included the conclusion that in that
case, if the forum were transferred, the law of a State other than California would apply. See
AOL, 90 Cal. App. 4th at 14. Here, there is no basis for that conclusion. There is nothing in the
record to suggest that a Virginia court would be unwilling or unable to apply California law, if it
(as the contractually designated forum) were to conclude that the CLRA's anti-waiver provision
would, in fact, prevent application of some other State's laws to the CLRA claims brought by
AOL's California customers. Indeed, if the concern were choice of law rather than choice of
forum, the trial court might have asked AOL to stipulate to the application of California law.

The Court of Appeal's decision, then, is based on an analysis of what would happen if
Virginia law were applied, not if a Virginia forum were used. In the absence of a finding that a
Virginia forum necessarily requires application of Virginia law, the Court of Appeal's decision
rests on faulty reasoning and should be reviewed.
Substantive Validity
4.

Most importantly, AOL's forum selection clause does not violate public policy. This
Court has long held that public policy is derived from the California Constitution and statutes.
See, e.g., Sharon, 75 Cal. at 13. It is undisputed that there is no statute specifically prohibiting
the use of forum selection clauses in contracts with consumers. Yet under AOL, all forum
selection clauses in consumer contracts will be invalidated as soon as a consumer decides to file
a CLRA claim. As is discussed more fully in section III.A above, California law favors freedom
of contract, including the freedom to agree or not to agree to include a forum selection clause
in a contract.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 8

Allowing the Decision Below to Stand Will Have Significant Adverse

C.
Consequences

The Court of Appeal's decision, if permitted to stand, would upend California's well-
established tradition of enforcing contractual forum selection provisions without any basis in the
California Constitution or statutes. Mr. Mendoza's exception for CLRA claims, accepted by the
Court of Appeal, would effectively rewrite every consumer contract to eliminate any forum
selection (and likely also any choice-of-law) provisions because any consumer can allege a
CLRA claim, and such an allegation is apparently enough to shift the (impossible) burden of
proof to the party seeking to enforce the contractual provision.

Indeed, both the novelty and the danger of the AOL decision have been noted by trial
courts in decisions since AOL was published. Earlier this year, a trial court in Riverside,
California, issued an order dismissing an action on the grounds that a contractual venue selection
clause was valid under California's long-established precedents and required the plaintiff to bring
his action in Washington. After the AOL decision was published, the plaintiff in that case moved
for reconsideration simply by citing to the AOL decision. On this basis, and despite defense
counsel's agreement not to object to the application of California law by a Washington court, the
trial court reversed itself and denied the request to enforce the contractual forum selection
agreement. See Freeman v. Microsoft, Case No. 354600, pending in the Superior Court of the
State of California, County of Riverside.

As this one recent example indicates, if the decision below is permitted to stand, it
threatens to invalidate all forum selection clauses even if California law would be applied in the
out-of-state forum. Such a result runs counter to this Court's precedents in favor of private
ordering and separation of powers, threatens to discourage business in California while harming
consumers, and threatens to make California courts the arbiters of disputes for all consumers
nationwide.
The Court of Appeal's Decision Defeats Private Ordering
1.

The decision below effectively removes a bargained-for provision from all consumer
contracts in the United States (assuming at least one customer in California who brings a class
action); namely, any forum selection clause. This Court's precedents not only disfavor rewriting
contracts after the fact, but also forcing parties before the fact to make agreements with (or
without) particular provisions.

This Court has noted the substantial benefits of private ordering. In Bily v. Arthur
Young & Co. (1992) 3 Cal. 4th 370, 402-03, this Court titled a section of its opinion "The
Prospect of Private Ordering" and provided strong justifications for parties, not courts, to make
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 9

their own decisions: "As a matter of economic and social policy, third parties should be
encouraged to rely on their own prudence, diligence, and contracting power, as well as other
informational tools. This kind of self-reliance promotes sound investment and credit practices
and discourages the careless use of monetary resources." Id. at 403. Indeed, the late Justice
Mosk once dissented in a case, in large part because the majority's decision would have defeated
private ordering. See Credit Ins. Gen. Agents Ass'n of Calif., Inc. v. Payne (1976) 16 Cal. 3d
651, 662 ("underlying . . . the present case is the concept that administrative agencies, unless
specifically directed to by statute, should not interfere with the private ordering of parties").

If the AOL decision stands, it will prevent consumers from being able to agree to forum
selection clauses in their contracts. Mr. Mendoza had the opportunity to read AOL's terms and
conditions carefully and, if Mr. Mendoza did not wish to have his complaints heard in Virginia
courts, he could have selected a different internet service provider. That Mr. Mendoza does not
now like the agreement that he made is no reason to deny all future consumers the right to
bargain for forum selection provisions.
The Court of Appeal's Decision Substitutes Judicial Will for
2.
Legislative Decisionmaking

The California Legislature has articulated no public policy opposing the use of forum
selection clauses in contracts between consumers and vendors. As this Court stated more than a
century ago, however: "The public policy of the state can only be ascertained by reference to the
constitution and statutes. The courts cannot create a policy, and then declare, in support of the
policy so created, that the legislature must have meant what it has not said." Sharon v. Sharon
(1888) 75 Cal. 1, 13. More recently, this Court noted the difficulties faced by courts seeking to
determine "public policy," stating: "'[P]ublic policy' as a concept is notoriously resistant to
precise definition, and . . . courts should venture into this area, if at all, with great care and due
deference to the judgment of the legislative branch, 'lest they mistake their own predilections for
public policy which deserves recognition at law.'" Cel-Tech Communications, Inc. v.
Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 185, citing Gantt v. Sentry Insurance
(1992) 1 Cal. 4th 1083, 1095.

Here, the Court of Appeal has invented a public policy against forum selection clauses
out of a provision that is designed to preserve, not limit, a consumer's rights. If the Legislature
intended to prohibit forum selection clauses in consumer agreements, it could have done so
specifically. Indeed, the Legislature did prohibit forum selection clauses in franchise
agreements. See Cal. Bus. & Prof. Code 20040.5. This provision conclusively demonstrates
that the Legislature is well aware of the language necessary to render forum selection clauses
unenforceable. That the California Legislature did not take similar action to prohibit forum
selection clauses in consumer contracts suggests quite strongly that the Legislature does not
intend for forum selection clauses to be prohibited per se in consumer contracts. Certainly,
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 10

nothing in the CLRA purports to expressly outlaw forum selection clauses. In the absence of
such express legislative direction, the California courts are not free to invalidate terms of private
contracts for reasons discerned on a completely ad hoc and standardless basis. The Court of
Appeal's decision, if unreviewed, will place the judicial view of "public policy" above that
expressed by the legislature.
The Court of Appeal's Decision Will Harm Both Businesses
3.
and Consumers

The decision below threatens to increase uncertainty for businesses doing business in
California, thus possibly discouraging some from continuing or starting to do business here. As
this Court has observed, it is important to provide certainty to California businesses to know, to a
reasonable certainty, what conduct California prohibits and what it permits. See Cel-Tech, 20
Cal. 4th at 185. Forum selection clauses help to reduce uncertainty by specifying at the time of
contracting where any future disputes will be resolved. See Shute, 499 U.S. at 594. AOL
threatens even more uncertainty than a simple prohibition on forum selection clauses in all
consumer contracts, for under AOL, forum selection clauses may be valid if a consumer fails to
bring a claim under the CLRA.

This bizarre outcome, where a consumer's mere allegations may determine the validity of
particular contractual provisions, may lead some businesses to discontinue doing business in
California. Although California is a large state with numerous consumers, business may
nonetheless reduce their activities if strong anti-business policies prevail. Moreover, anti-
business rules ultimately raise costs for consumers. The United States Supreme Court has
recognized that forum selection clauses help consumers by lowering the costs to business, which,
in a competitive marketplace, are savings returned to customers. Shute, 499 U.S. at 594.

AOL presumably sees some value in a forum selection clause, or it would not include one
in its contracts. AOL is in a competitive marketplace, where numerous internet service
providers vie for the same internet users. Those users, in turn, are free not to patronize any ISP
with whose terms and conditions, including choice of forum and law clauses, they disagree. One
would expect that the savings AOL realizes as a result of its forum selection clause have already
been passed on to Mr. Mendoza and other AOL customers. If the decision below is not reviewed
and AOL's forum selection clause is held invalid, the costs associated with defending cases in
multiple jurisdictions will necessarily be passed along to AOL consumers. Indeed, all California
consumers who have agreed to forum selection clauses will lose the benefits of their agreements,
forced to pay the higher costs associated with the defense of claims in multiple jurisdictions.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 11

The Court of Appeal's Decision Makes California a Catch-All

4.
for All Cases

The decision below threatens to make California a "catch-all" jurisdiction for consumers
nationwide. Mr. Mendoza claims to bring his action on behalf of all AOL customers whose
accounts were improperly debited, not merely those in the State of California. See 90 Cal. App.
4th at 5. Thus, the AOL decision purports to allow all consumers, nationwide, to invalidate any
forum selection clauses in their contracts so long as they find at least one California consumer
who will allege a violation of the CLRA. In this very case, many of the consumers who will
now be litigating their claims in California reside in States that would have respected AOL's
forum selection clause and required the consumer to proceed in Virginia.

The AOL decision therefore threatens to bring every plaintiff's lawyer in America to
California. If one does not wish to be in the forum specified in a valid contract, one need only
find a consumer in California and file a class action here in order to avoid the enforcement of the
forum selection provision. California courts could be swamped attempting to resolve cases that
otherwise would have been heard in the courts of other states.

There are obvious federalism and comity problems with the decision below. A California
court has purported to change the lawfully entered contracts between AOL, a Virginia company,
and its consumers in New York, Texas, Florida, Pennsylvania, and every other state in the Union
even including Virginia. California courts would doubtless question any attempt by Virginia
to change lawfully-entered contracts between California companies and their California
customers; Virginia courts are likely to analyze the AOL decision in the same way. Indeed,
courts in other States might decline to enforce forum selection clauses favoring California,
reasoning that to allow a consumer to refile in California would permit the consumer to violate
the public policy of that State in favor of California law. AOL threatens to start a domino effect
that could terminate all forum selection clauses nationwide.

IV.
Conclusion

The AOL decision is a leap into the unknown. The Court of Appeal disregarded decades
of precedent in the process of inventing entirely new rules applicable to forum selection clauses,
which until now have been enforceable. To protect California courts, consumers, businesses,
and decades of precedent, amicus Washington Legal Foundation respectfully submits that this
Court should grant review of the AOL decision.
The Honorable Ronald M. George, Chief Justice
and the Honorable Associate Justices
September 21, 2001
Page 12

Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP

Mark A. Perry, SBN 212532
G. Charles Nierlich, SBN 196611

WASHINGTON LEGAL FOUNDATION

Daniel J. Popeo, Of Counsel
Paul D. Kamenar, Of Counsel

By:___________________________
Mark A. Perry

Counsel for Amicus Curiae

Washington Legal Foundation

Clerk of the Court of Appeal, First Appellate District, Division Two

cc:
Alameda County Superior Court
All Counsel