M&C Wins By Demurrer in International Kidnapping Case
January 1, 2010
Guy R. Gruppie, Eric P. Weiss, and Corine Zygleman won a Demurrer in a case that addressed the responsibilities of an airline in instances of the kidnapping of a minor. Plaintiff, Patrick Braden, is the father of four year-old Melissa Hinako Braden. Melissa’s mother, Ryoko Uchiyama, is a dual citizen of the United States and Japan. Although the parents were never married, Braden obtained joint legal and joint physical custody of Melissa, pursuant to a court order dated March 6, 2006. As a result of Braden’s concern that Uchiyama would take Melissa to Japan, he also obtained a court order requiring Uchiyama to surrender her passport and an order preventing her from traveling outside the state. Ten days later, Uchiyama allegedly flew on an All Nippon Airways (“ANA”) flight from Los Angeles, California, to Tokyo, Japan, with Melissa. Uchiyama did not obtain Braden’s consent and intentionally violated the court order. Braden has not seen Melissa since the flight. The Federal Bureau of Investigations and various California law enforcement agencies have issued arrest warrants against Uchiyama for international kidnapping.
On March 14, 2008, Braden filed a lawsuit against ANA, alleging that ANA should have had a policy requiring joint parental consent when minors travel abroad with only one parent. On December 17, 2008, the Honorable Judge William F. Fahey granted ANA’s Motion for Judgment on the grounds that ANA did not have a duty to obtain joint parental consent. However, The Court granted plaintiff leave to amend the complaint, to add more specific facts showing that Uchiyama’s conduct was foreseeable.
The First Amended Complaint alleged that Japan is the only G-9 country that is not a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which seeks to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. It also alleged that the government of Japan has instituted a policy promoting international child abduction of Japanese children born abroad, and that airlines like ANA were complicit in this policy. Lastly, it added Melissa as a plaintiff and asserted three causes of action on her behalf (Negligence, Intentional Interference with Custodial Relations, and False Imprisonment).
On February 9, 2009, Judge Fahey sustained, without leave to amend, ANA’s Demurrer to the First Amended Complaint. The judge adopted ANA’s argument that the additional facts alleged did not give rise to a duty by ANA to require joint parental consent. Furthermore, the judge agreed with ANA that all of the claims in the First Amended Complaint are preempted by the Federal Airline Deregulation Act of 1978. As a result, the Court dismissed the action. ANA expects plaintiffs to appeal.
