Stanford Law School - Robert Crown Law Library

Filed 12/23/04

IN THE SUPREME COURT OF CALIFORNIA

ROBINSON HELICOPTER
COMPANY, INC.,
Plaintiff and Respondent,
S114054
v.
Ct.App. 2/3 B150963
DANA CORPORATION,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. YC036795

In this case, we decide whether the economic loss rule, which in some
circumstances bars a tort action in the absence of personal injury or physical
damage to other property, applies to claims for intentional misrepresentation or
fraud in the performance of a contract. Because plaintiff Robinson Helicopter
Company, Inc.’s (Robinson) fraud and intentional misrepresentation claim, with
respect to Dana Corporation’s (Dana) provision of false certificates of
conformance, is an independent action based in tort, we conclude that the
economic loss rule does not bar tort recovery.

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FACTS
The underlying facts are undisputed and largely immaterial to this question of
law. We therefore adopt our statement of facts from that of the Court of Appeal.1
Robinson is a manufacturer of helicopters. Its R22 model is a two-seat
helicopter used as a primary trainer for pilots. The R44 model is a heavier model
used for a wide variety of purposes. Both of these models use sprag clutches
manufactured by Dana’s Formsprag division. The sprag clutch on a helicopter
functions like the “free wheeling” clutch mechanism on a bicycle where the rider
transmits power to the rear wheel by operating the pedals, but when the rider stops
pedaling, the wheel continues to rotate. A sprag clutch is primarily a safety
mechanism. If a helicopter loses power during flight, the sprag clutch allows the
rotor blades to continue turning and permits the pilot to maintain control and land
safely by the “autorotating” of the rotor blades.[2] [¶] [] At all relevant times,
Dana’s Formsprag division was the only manufacturer of the sprag clutches that
Robinson required for its R22 and R44 helicopters.
All aircraft manufacturers in the United States, including Robinson, must
obtain a “type certificate” from the Federal Aviation Administration (FAA). The
type certificate freezes the design as of the date the certificate is issued. Every
aircraft made pursuant to the certificate must be produced exactly in accordance

1
Brackets together, in this manner [] without enclosing material, are used to
indicate deletions from the opinion of the Court of Appeal; brackets enclosing
material (other than publisher’s added parallel citations), are unless otherwise
indicated, used to denote our insertions or additions.
2
Robinson emphasizes that this is particularly important for the R22 model.
Since it is used as a trainer, it engages in autorotation on a regular basis. A
properly functioning sprag clutch is vital to the performance of this critical safety
function.
2

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with that certificate. Any proposed changes must first be submitted to and
approved by the FAA. The components of the sprag clutch must be ground to
precise tolerances, measured in thousandths of an inch, to avoid distortions that
lead to cracking and failure. Pursuant to the type certificate issued to Robinson by
the FAA for the R22 and R44 models, the parts of the sprag clutches, including the
sprag ears, were required to be ground at a particular level of hardness to assure
their metallurgical integrity. The required level of hardness of the R22 and the
R44 clutches, pursuant to the type certificates, was described as “50/55 Rockwell”
(50/55).
Between 1984 and July 1996, Robinson purchased 3,707 sprag clutches
from Dana. Each was ground to the required 50/55 level of hardness. There were
only three incidents of cracking or failure of these sprag ears, a rate of 0.03
percent. In July 1996, Dana changed its grinding process to a higher, “61/63
Rockwell” (61/63) level of hardness. Dana did not notify Robinson or the FAA of
this change.[3] After such change was made in the grinding process, Dana
nonetheless continued to provide written certificates to Robinson with each
delivery of clutches that the clutches had been manufactured in conformance with
Robinson’s written specifications (which specifications prohibited unapproved
changes in Dana’s manufacturing process).[]
In October 1997, again without notifying either Robinson or the FAA,
Dana changed its grinding process back to the 50/55 level of hardness that was
required by its contract with Robinson. Beginning in early 1998, the sprag clutch
ears that had been ground at the 61/63 level of hardness and sold to Robinson

3
It would appear that Robinson makes no claim in this case that Dana had
any fraudulent intent in changing its grinding standard. []
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experienced a failure rate of 9.86 percent.[] This compared with a failure rate for
clutches manufactured before July 1996 of 0.03 percent and 00.0 percent for
clutches manufactured after October 1997.
Between August 24, 1998, and November 30, 1998, Robinson sent several
letters to Dana reporting that 11 clutch assemblies with cracked sprags had been
returned to Robinson from its operator customers. Each of these assemblies was
ultimately traced to serial numbers of Dana sprag clutches that had been sold to
Robinson during the period that Dana was grinding the clutches to the higher
61/63 level of hardness. On November 30, 1998, during a conference call between
Robinson and Dana officials, Dana disclosed, for the first time, that it had used the
61/63 hardness level in its manufacturing process during the period July 1996 to
October 1997.
Although it was a disputed issue, the record reflects that substantial
evidence was presented at trial demonstrating that the higher failure rate of Dana’s
sprag clutches manufactured during the July 1996 to October 1997 period was due
to the higher hardness level to which they had been ground. Fortunately, these
clutch failures did not result in any helicopter accident and there were no incidents
of injury or property damage that were caused by any clutch defect or failure, nor
did any of the defective clutches cause any damage to other parts of the helicopters
in which they had been installed.
Nonetheless, Robinson was ultimately required by the FAA and its British
equivalent, the Air Accidents Investigation Branch of the United Kingdom’s
Department of Transport [], to recall and replace all of the faulty clutch assemblies
(i.e., those manufactured with Dana’s sprag clutches ground to the higher hardness
level of 61/63 rather than the 50/55 level required by the Robinson specifications).
This led to a total claimed expense to Robinson of $1,555,924, which represented
the cost of (1) replacement parts, and (2) substantial employee time spent
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investigating the cause of the malfunctioning parts and the identification and
replacement of parts on helicopters that had already been sold to customers.
There were approximately 990 sprag clutches that were ultimately
identified as having been manufactured at the higher nonconforming level of
hardness. It was important to Robinson that the defective clutches be identified as
soon as possible so that it could effect full replacements before any accident might
occur. Although Dana had disclosed on November 30, 1998, that it had previously
changed the hardness level, it did not provide Robinson with the necessary serial
and lot number information until February 12, 1999, despite repeated demands
therefor.[4]
When this information was finally provided and Robinson was able to
identify the clutch assemblies that had to be replaced, it submitted the necessary
orders to Dana,[5] together with a request that the issue as to which party would
bear the cost of such replacement parts be left for later determination. Dana,
however, disputed any liability, and, in fact, claimed that Robinson’s problems

4
Robinson placed great emphasis on this delay, contending that Dana had
had the necessary information all along, but had withheld it. For example, the
record reflects that there were two copies of a letter sent by Dana to Robinson,
dated December 3, 1998, listing the hardness of the lots of sprag clutches sold to
Robinson. The copy sent to Robinson did not show the serial numbers. The copy
later discovered in Dana’s possession did reflect the serial numbers. Robinson
draws the rather speculative inference that Dana knew those numbers on
December 3, 1998, and must have “whited” them out. Dana’s officer, however,
testified that when he ultimately determined the serial numbers he simply added
them to his copy of the December 3 letter, rather than preparing a new letter.
Whatever the truth on this issue, the jury apparently accepted Robinson’s
argument that Dana had intentionally withheld this information.
5
As already noted, Dana was Robinson’s sole supplier of the sprag clutches
needed for the manufacture of its helicopters.
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were due to its own inadequate designs that placed too much stress on the clutch
assemblies. Dana refused to ship any new clutches except on a COD or other
assured payment basis.
Having no alternative, Robinson went forward, incurred the costs described
above, purchased the new clutches, and effected the necessary replacements. It
then filed this action alleging causes of action for breach of contract, breach of
warranty and negligent and intentional misrepresentations. After a nine-day trial,
the jury returned a verdict in favor of Robinson for $1,533,924 in compensatory
damages and $6 million in punitive damages. The jury found that Dana had not
only breached its contract with Robinson and the warranties made thereunder, but
also had made false misrepresentations of fact and had knowingly misrepresented
or concealed material facts with the intent to defraud. The award of punitive
damages was based on this latter finding.[6]
Dana appealed. The Court of Appeal affirmed the judgment on the contract
and warranty causes of actions. However, applying the economic loss rule, the
Court of Appeal held that because Robinson suffered only economic losses, it
could not recover in tort. Accordingly, the Court of Appeal reversed the judgment
in part, based on the misrepresentation claims. As a result, the Court of Appeal
held the punitive damages award could not be maintained.
Robinson seeks review of the Court of Appeal’s application of the
economic loss rule to its fraud and intentional misrepresentation claims.
DISCUSSION
Robinson contends the Court of Appeal erred in its decision because the
economic loss rule does not bar its fraud and intentional misrepresentation claims.

6
This ends our quotation from the Court of Appeal.
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We conclude that, with respect to Dana’s provision of false certificates of
conformance, Robinson is correct.
We begin with a brief background on the economic loss rule. Economic loss
consists of “ ‘ “ ‘damages for inadequate value, costs of repair and replacement of
the defective product or consequent loss of profits—without any claim of personal
injury or damages to other property. . . .’ ” ’ [Citation.]” (Jimenez v. Superior
Court (2002) 29 Cal.4th 473, 482.) Simply stated, the economic loss rule
provides: “ ‘ “[W]here a purchaser’s expectations in a sale are frustrated because
the product he bought is not working properly, his remedy is said to be in contract
alone, for he has suffered only ‘economic’ losses.” ’ This doctrine hinges on a
distinction drawn between transactions involving the sale of goods for commercial
purposes where economic expectations are protected by commercial and contract
law, and those involving the sale of defective products to individual consumers
who are injured in a manner which has traditionally been remedied by resort to the
law of torts.” (Neibarger v. Universal Cooperatives, Inc. (Mich. 1992) 486
N.W.2d 612, 615, fns. omitted.) The economic loss rule requires a purchaser to
recover in contract for purely economic loss due to disappointed expectations,
unless he can demonstrate harm above and beyond a broken contractual promise.
(Redarowicz v. Ohlendorf (Ill. 1982) 441 N.E.2d 324, 327.) Quite simply, the
economic loss rule “prevent[s] the law of contract and the law of tort from
dissolving one into the other.” (Rich Products Corp. v. Kemutec, Inc. (E.D.Wis.
1999) 66 F.Supp.2d 937, 969.)
In Jimenez v. Superior Court, supra, 29 Cal.4th 473, we set forth the
rationale for the economic loss rule: “ ‘The distinction that the law has drawn
between tort recovery for physical injuries and warranty recovery for economic
loss is not arbitrary and does not rest on the ‘luck’ of one plaintiff in having an
accident causing physical injury. The distinction rests, rather, on an understanding
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of the nature of the responsibility a manufacturer must undertake in distributing
his products.’ [Citation.] We concluded that the nature of this responsibility
meant that a manufacturer could appropriately be held liable for physical injuries
(including both personal injury and damage to property other than the product
itself), regardless of the terms of any warranty. [Citation.] But the manufacturer
could not be held liable for ‘the level of performance of his products in the
consumer’s business unless he agrees that the product was designed to meet the
consumer’s demands.’ [Citation.]” (Id. at p. 482.)
In Jimenez, we applied the economic loss rule in the strict liability context.
We explained the principles surrounding the economic loss rule in that context:
“[R]ecovery under the doctrine of strict liability is limited solely to ‘physical harm
to person or property.’ [Citation.] Damages available under strict products
liability do not include economic loss, which includes ‘ “ ‘damages for inadequate
value, costs of repair and replacement of the defective product or consequent loss
of profits—without any claim of personal injury or damages to other
property. . . .’ ” ’ [Citation.] [¶] . . . [¶] In summary, the economic loss rule
allows a plaintiff to recover in strict products liability in tort when a product defect
causes damage to ‘other property,’ that is, property other than the product itself.
The law of contractual warranty governs damage to the product itself.” (Jimenez
v. Superior Court, supra, 29 Cal.4th at pp. 482-483.) We have also applied the
economic loss rule to negligence actions. (See Aas v. Superior Court (2000) 24
Cal.4th 627, 640; Seely v. White Motor Co. (1965) 63 Cal.2d 9.)
In support of its argument that the economic loss rule does not apply to its
case, Robinson argues that its claims for fraud and deceit were based on an
independent duty that Dana breached. In Erlich v. Menezes (1999) 21 Cal.4th 543,
551, we held that a party’s contractual obligation may create a legal duty and that
a breach of that duty may support a tort action. We stated, “[C]onduct amounting
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to a breach of contract becomes tortious only when it also violates a duty
independent of the contract arising from principles of tort law. [Citation.]” (Ibid.)
We went on to describe several instances where tort damages were permitted
in contract cases. “Tort damages have been permitted in contract cases where a
breach of duty directly causes physical injury [citation]; for breach of the covenant
of good faith and fair dealing in insurance contracts [citation]; for wrongful
discharge in violation of fundamental public policy [citation]; or where the
contract was fraudulently induced. [Citation.]” (Id. at pp. 551-552.) “[I]n each of
these cases, the duty that gives rise to tort liability is either completely
independent of the contract or arises from conduct which is both intentional and
intended to harm. [Citation.]” (Id. at p. 552; see also Harris v. Atlantic Richfield
Co. (1993) 14 Cal.App.4th 70, 78 [“when one party commits a fraud during the
contract formation or performance, the injured party may recover in contract and
tort”].)
With respect to situations outside of those set forth above, we stated:
“Generally, outside the insurance context, ‘a tortious breach of contract . . . may
be found when (1) the breach is accompanied by a traditional common law tort,
such as fraud or conversion; (2) the means used to breach the contract are tortious,
involving deceit or undue coercion; or (3) one party intentionally breaches the
contract intending or knowing that such a breach will cause severe, unmitigable
harm in the form of mental anguish, personal hardship, or substantial
consequential damages.’ [Citation.] Focusing on intentional conduct gives
substance to the proposition that a breach of contract is tortious only when some
independent duty arising from tort law is violated. [Citation.] If every negligent
breach of a contract gives rise to tort damages the limitation would be
meaningless, as would the statutory distinction between tort and contract
remedies.” (Erlich v. Menezes, supra, 21 Cal.4th at pp. 553-554.)
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Robinson’s misrepresentation and fraud claims were based on: (1) Dana’s
provision of false certificates of conformance; (2) Dana’s failure to provide the
serial numbers of affected clutches until five months after the clutches failed; and
(3) Robinson’s claim that a Dana employee redacted reference to the hardness of
the clutches on a list of products requested by Robinson. At trial, the jury found
that Dana had (1) made false representations of material fact; (2) knowingly
misrepresented or concealed material facts with intent to defraud; (3) and by clear
and convincing evidence was guilty of oppression, fraud, or malice in its
intentional misrepresentations and concealments.
For purposes of our decision, we focus solely on the fraud and
misrepresentation claim based on Dana’s provision of the false certificates of
conformance. The elements of fraud are: (1) a misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge of falsity (or
scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and
(5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Dana’s issuance of the false certificates of conformance were unquestionably
affirmative misrepresentations that Robinson justifiably relied on to its detriment.
But for Dana’s affirmative misrepresentations by supplying the false certificates of
conformance, Robinson would not have accepted delivery and used the
nonconforming clutches over the course of several years, nor would it have
incurred the cost of investigating the cause of the faulty clutches. Accordingly,
Dana’s tortious conduct was separate from the breach itself, which involved
Dana’s provision of the nonconforming clutches. In addition, Dana’s provision of
faulty clutches exposed Robinson to liability for personal damages if a helicopter
crashed and to disciplinary action by the FAA. Thus, Dana’s fraud is a tort
independent of the breach. (Erlich v. Menezes, supra, 21 Cal.4th at pp. 553-554.)
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We hold the economic loss rule does not bar Robinson’s fraud and
intentional misrepresentation claims because they were independent of Dana’s
breach of contract. (See Erlich v. Menezes, supra, 21 Cal.4th at pp. 552-554.)7
Because Dana’s affirmative intentional misrepresentations of fact (i.e., the
issuance of the false certificates of conformance) are dispositive fraudulent

7
The dissent relies on Aas v. Superior Court, supra, 24 Cal.4th 627 and the
concurring and dissenting opinion of Justice Brown in Jimenez v. Superior Court,
supra, 29 Cal.4th 473, 490, for the contrary proposition that the economic loss rule
should be broadly construed to bar tort recovery in every case where only
economic damages occur. While the bright-line rule the dissent advocates has the
advantage of being clear and easily applied, it is worth noting that the rule’s
development in the context of product liability claims and its extension to claims
for negligent breach of contract were not mere fortuities. Dealing with affirmative
acts of fraud and misrepresentation raises different policy concerns than those
raised by negligence or strict liability claims.
Aas was a negligence action brought by homeowners against the developer,
contractor, and subcontractors who constructed their dwellings. The homeowners
sought damages for construction defects that had not caused any property damage.
(Aas v. Superior Court, supra, 24 Cal.4th at p. 632.) We concluded the defects
must cause property damage prior to being actionable in negligence. (Id. at
p. 650.) The language in Jimenez cited by the dissent deals with the propriety of
applying the economic loss rule as a bar in strict liability actions “ ‘[w]hen no
safety concerns are implicated because the damage is limited to the product
itself.’ ” (Dis. opn., post, at p. 9, quoting Jimenez v. Superior Court, supra, 29
Cal.4th 473, 490 (conc. & dis. opn. of Brown, J.).) In both circumstances,
“ ‘recourse . . . in contract law to enforce the benefit of the bargain’ ” is sufficient.
(Ibid.) In contrast, Robinson’s claims are based on Dana’s intentional and
affirmative misrepresentations that risked physical harm to persons. Robinson’s
helicopters are flown by and carry people. A properly functioning sprag clutch is
vital to the safe performance of the aircraft and compliance with the certificate
requirement is part of an integrated regulatory scheme intended to ensure their safe
operation. The economic loss rule is designed to limit liability in commercial
activities that negligently or inadvertently go awry; not to reward malefactors who
affirmatively misrepresent and put people at risk.

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conduct related to the performance of the contract, we need not address the issue
of whether Dana’s intentional concealment constitutes an independent tort.
California’s public policy also strongly favors this holding. “[C]ourts will
generally enforce the breach of a contractual promise through contract law, except
when the actions that constitute the breach violate a social policy that merits the
imposition of tort remedies.” (Freeman & Mills, Inc. v. Belcher Oil Co. (1995)
11 Cal.4th 85, 107 (conc. & dis. opn. of Mosk, J.).) Similarly, “ ‘[c]ourts should
be careful to apply tort remedies only when the conduct in question is so clear in
its deviation from socially useful business practices that the effect of enforcing
such tort duties will be . . . to aid rather than discourage commerce.’ ” (Erlich v.
Menezes, supra, 21 Cal.4th at p. 554.) “In pursuing a valid fraud action, a plaintiff
advances the public interest in punishing intentional misrepresentations and in
deterring such misrepresentations in the future. [Citation.] Because of the extra
measure of blameworthiness inhering in fraud, and because in fraud cases we are
not concerned about the need for ‘predictability about the cost of contractual
relationships’ [citation], fraud plaintiffs may recover ‘out-of-pocket’ damages in
addition to benefit-of-the bargain damages.” (Lazar v. Superior Court, supra, 12
Cal.4th at p. 646.) In addition, “California also has a legitimate and compelling
interest in preserving a business climate free of fraud and deceptive practices.”
(Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036,
1064.) Needless to say, Dana’s fraudulent conduct cannot be considered a
“ ‘socially useful business practice[].’ ” (Erlich, at p. 554.) As one court stated,
“Simply put, a contract is not a license allowing one party to cheat or defraud the
other.” (Grynberg v. Citation Oil & Gas Corp. (S.D. 1997) 573 N.W.2d 493,
501.) Allowing Robinson’s claim for Dana’s affirmative misrepresentation
discourages such practices in the future while encouraging a “business climate free
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of fraud and deceptive practices.” (Diamond Multimedia Systems, Inc., at p.
1064.)
Dana urges this court to apply the economic loss rule to Robinson’s fraud
and intentional misrepresentation claims in light of the public policy of promoting
predictability in contracts in commercial transactions. Dana contends Robinson’s
fraud and misrepresentation claims are not independent of the contract but are
simply part of the alleged breach of contract. We disagree.
A breach of contract remedy assumes that the parties to a contract can
negotiate the risk of loss occasioned by a breach. “ ‘[W]hen two parties make a
contract, they agree upon the rules and regulations which will govern their
relationship; the risks inherent in the agreement and the likelihood of its breach.
The parties to the contract in essence create a mini-universe for themselves, in
which each voluntarily chooses his contracting partner, each trusts the other’s
willingness to keep his word and honor his commitments, and in which they define
their respective obligations, rewards and risks. Under such a scenario, it is
appropriate to enforce only such obligations as each party voluntarily assumed,
and to give him only such benefits as he expected to receive; this is the function of
contract law.’ ” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994)
7 Cal.4th 503, 517.) However, “[a] party to a contract cannot rationally calculate
the possibility that the other party will deliberately misrepresent terms critical to
that contract.” (Tourek et al., Bucking the “Trend”: The Uniform Commercial
Code, the Economic Loss Doctrine, and Common Law Causes of Action for Fraud
and Misrepresentation (1999) 84 Iowa L.R. 875, 894.) No rational party would
enter into a contract anticipating that they are or will be lied to. “While parties,
perhaps because of their technical expertise and sophistication, can be presumed to
understand and allocate the risks relating to negligent product design or
manufacture, those same parties cannot, and should not, be expected to anticipate
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fraud and dishonesty in every transaction.” (Id. at p. 909.) Dana’s argument
therefore proposes to increase the certainty in contractual relationships by
encouraging fraudulent conduct at the expense of an innocent party. No public
policy supports such an outcome.8
Nor do we believe that our decision will open the floodgates to future
litigation. Our holding today is narrow in scope and limited to a defendant’s
affirmative misrepresentations on which a plaintiff relies and which expose a
plaintiff to liability for personal damages independent of the plaintiff’s economic
loss. In addition, “[i]n California, fraud must be pled specifically; general and
conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal
construction of the pleadings . . . will not ordinarily be invoked to sustain a
pleading defective in any material respect.’ ” [Citation.] [¶] This particularity
requirement necessitates pleading facts which “show how, when, where, to whom,
and by what means the representations were tendered.” ’ ” (Lazar v. Superior
Court, supra, 12 Cal.4th at p. 645.) We trust the trial courts of this state to enforce
this pleading requirement.

8
In footnote 1, the dissent argues our conclusion that Dana’s provision of
false certificates of conformance is an independent tort will result in anomalous
consequences. (Dis. opn., post, at p. 8.) We disagree. A decision to breach a
contract and then acknowledge it has different consequences than a decision to
defraud, and we fail to see how Dana’s actions could be deemed “commercially
desirable.”
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CONCLUSION
Had Dana simply been truthful and declined to provide a certificate for the
nonconforming orders, Robinson could have refused to accept them, thereby
avoiding the damages it later suffered when it had to mitigate and replace the
defective clutches. Dana’s action denied Robinson this opportunity. Because the
Court of Appeal erred by applying the economic loss rule to Robinson, we reverse
and remand for proceedings consistent with this opinion.9
BROWN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.

9
We only address the Court of Appeal’s application of the economic loss
rule to Dana’s affirmative misrepresentation and do not decide any other issues.
We remand for consideration of other issues raised below but not addressed by the
Court of Appeal.
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DISSENTING OPINION BY WERDEGAR, J.
To reach an outcome that allows a party engaged in wrongdoing to be
punished is undeniably appealing, but sometimes sound reasons exist for resisting
the urge. This is such a case. In structuring its holding to allow the punishment of
this defendant, the majority has embarked on a path previously wisely rejected. In
the guise of permitting punitive damages for torts independent of a contract
breach, the majority breathes new life into the heretofore moribund doctrine of bad
faith denial of breach of contract. I respectfully dissent.
I
Dana Corporation (Dana) entered into a commercial contract with
Robinson Helicopter Company, Inc. (Robinson) to supply helicopter parts. It
warranted that the parts would be manufactured in conformance with particular
specifications. It later changed its manufacturing process and began delivering
parts that no longer conformed to the contract specifications, accompanied by
contractually required certificates of compliance that represented the parts were
still being manufactured according to those specifications. Robinson discovered
the manufacturing change and was forced to replace the nonconforming parts.
Was this a contract breach? Absolutely. The contract called for a particular
performance, and the breaching party, Dana, failed to deliver that performance.
Was this conduct also a basis for tort damages? As the majority notes,
Robinson makes no claim that Dana had any fraudulent intent when it changed its
manufacturing process. (Maj. opn., ante, at p. 3, fn. 3.) Thus, Robinson’s
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misrepresentation claim rests in its entirety on a series of form certificates of
compliance typically providing: “This is to certify that . . . pieces of part number
. . . related to your purchase order . . . have been processed, fabricated and
received final inspection in accordance with the applicable blueprint specifications
and the purchase order requirements, with pertinent date relative thereto,
maintained and on file.” By providing these certificates, Dana represented that its
parts satisfied the contract. In effect, it refused to admit that it was breaching the
contract while in fact it was doing so. If Dana misrepresented its compliance
intentionally, with knowledge that its parts did not satisfy the contract, then its
conduct might be described variously as a bad faith breach of contract, a breach of
contract by fraudulent means, or a bad faith denial of breach.
Until today, we have rejected the notion that such conduct could give rise to
punitive damages. As a matter of both statute and common law, a breach of a
commercial contract cannot be the basis for punitive damages. (Civ. Code,
§ 3294, subd. (a); Applied Equipment Corp. v. Litton Saudia Arabia Ltd. (1994) 7
Cal.4th 503, 516 (Applied Equipment); Foley v. Interactive Data Corp. (1988) 47
Cal.3d 654, 698 (Foley).) The law eschews inquiry into a breaching party’s
motives; whether acting in good faith or bad faith, a party that breaches a
commercial contract must pay only contract damages. (Applied Equipment, at
p. 516; Foley, at p. 699; see Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th
70, 82 [“The imposition of tort remedies for ‘bad’ breaches of commercial
contracts is a substantial deviation from the traditional approach which was blind
to the motive for breach”].) This rule applies even when the breach is
accomplished in a fraudulent manner. (See Hunter v. Up-Right, Inc. (1993) 6
Cal.4th 1174 (Hunter) [wrongful termination accomplished through fraudulent
misrepresentation is not independently tortious].)
2

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For a limited time in the 1980’s and 1990’s, this court recognized the tort of
bad faith denial of the existence of a contract (see Seaman’s Direct Buying
Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, overruled by Freeman &
Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85 (Freeman & Mills)), but even
then, we declined to extend tort liability to the bad faith denial of liability under a
contract. Indeed, one of the problems with Seaman’s was that it required courts to
do the “impossible[,] to draw a principled distinction between a tortious denial of a
contract’s existence and a permissible denial of liability under the terms of the
contract.” (Oki America, Inc. v. Microtech Int’l, Inc. (1988) 872 F.2d 312, 315
(conc. opn. of Kozinski, J.); see Freeman & Mills, at pp. 101-102 [critiques of
Seaman’s “emphasize the extreme difficulty courts experience in distinguishing
between tortious denial of a contract’s existence and permissible denial of liability
under the terms of the contract”].) The rule precluding tort liability for the denial
of a breach of contract has remained unchanged. “Our decisions in Foley, Hunter,
and Applied Equipment each contain[] language that strongly suggests courts
should limit tort recovery in contract breach situations to the insurance area, at
least in the absence of violation of an independent duty arising from principles of
tort law other than denial of the existence of, or liability under, the breached
contract.” (Freeman & Mills, at p. 95, italics added.)
These decisions reflect a circumspect approach to attaching tort liability to
conduct occurring in the course of contract performance. As we have frequently
explained, the reason for this justifiable circumspection is the value commercial
parties place on predictable potential costs and the chilling effect tort exposure in
routine breach cases would have on commercial enterprise. (Erlich v. Menezes
(1999) 21 Cal.4th 543, 553 (Erlich); Freeman & Mills, supra, 11 Cal.4th at pp. 97,
102-103; Applied Equipment, supra, 7 Cal.4th at p. 520; Hunter, supra, 6 Cal.4th
at pp. 93-94; Foley, supra, 47 Cal.3d at pp. 683, 696-699; White v. Western Title
3

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Ins. Co. (1985) 40 Cal.3d 870, 900-901 & fn. 2 (conc. & dis. opn. of Kaus, J.); see
also Harris v. Atlantic Richfield Co., supra, 14 Cal.App.4th at p. 77; DuBarry
Internat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552,
569.) As we have said in the context of rejecting tort liability for interference with
one’s own contract, if every breach creates a potentially triable tort claim, “the
potential consequences of any breach of contract—efficient or inefficient, socially
desirable or undesirable—become uncertain and unpredictable. Tort liability may
or may not follow, depending on a myriad of imponderable factors. As a result, a
business fearful of unfathomable tort exposure might lose the ability to respond
flexibly to changing economic conditions or hesitate to enter into contracts at all in
fast-moving aspects of commercial enterprise.” (Applied Equipment, at p. 520.)
Restricting parties to contract damages in the wide run of cases “promote[s]
contract formation by limiting liability to the value of the promise.” (Harris v.
Atlantic Richfield Co., at p. 77.)
The challenged conduct in this case is a breach of contract accompanied by
false contractually required representations that the party was not in breach. This,
the majority holds, is enough to allow a jury to inquire into whether the breaching
party knew it was breaching the contract at the time and, if so, whether such a
knowing misrepresentation might appropriately give rise to punitive damages. Of
course, rare is the commercial contract that does not involve ongoing statements
by the parties relating to their performance. In all such cases, under the majority’s
rule, it is now possible to plead a fraud claim. This raises the specter that every
alleged breach will yield satellite litigation over whether contemporaneous
remarks by one side or the other amounted to intentional misrepresentations about
the existence of a breach, thus subjecting the breaching party to the possibility of
punitive damages for such conduct. The implications of such a result for
commercial predictability and certainty are considerable.
4

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I do not disagree with the majority’s desire to sanction deceit in commercial
relationships. Commercial parties should be entitled to rely on the representations
their contractual partners make. Indeed, the stability of commercial relationships
depends on such trust, and the legal rules governing those relationships should
foster it. The problem is not with the principle but the practice. (Cf. White v.
Western Title Ins. Co., supra, 40 Cal.3d at p. 900, fn. 2 [“The problem is not so
much the theory of the bad faith cases, as its application”].) Allowing a tort claim
to be pleaded in every case where a breach is accompanied by representations
about performance forces all parties, not just those engaged in malfeasance, to
bargain in the shadow of potential tort liability. That cannot be a good thing.
II
How, then, to sanction deceitful representations about one’s performance
without chilling commercial relationships? As it happens, a solution to this
problem exists: the economic loss rule.
We first developed and applied the economic loss rule in the context of
product liability claims. A manufacturer “can appropriately be held liable for
physical injuries caused by defects by requiring his goods to match a standard of
safety defined in terms of conditions that create unreasonable risks of harm. He
cannot be held for the level of performance of his products in the consumer’s
business unless he agrees that the product was designed to meet the consumer’s
demands. A consumer should not be charged at the will of the manufacturer with
bearing the risk of physical injury when he buys a product on the market. He can,
however, be fairly charged with the risk that the product will not match his
economic expectations unless the manufacturer agrees that it will. Even in actions
for negligence, a manufacturer’s liability is limited to damages for physical
injuries and there is no recovery for economic loss alone.” (Seely v. White Motor
Co. (1965) 63 Cal.2d 9, 18 (Seely); see also Jimenez v. Superior Court (2002) 29
5

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Cal.4th 473, 482-483; Aas v. Superior Court (2000) 24 Cal.4th 627, 639-640.)
The function of the economic loss rule is to prevent tort law from shifting back to
sellers a specific risk that better rests with buyers—the risk that a product will not
perform to a particular level beyond that warranted by the seller. If a buyer desires
protection against this risk, she can and should negotiate for a higher warranty or
seek it out from other sellers in the marketplace. (See Seely, at pp. 18, 19.)
We have extended the economic loss rule to claims for negligent breach of
contract. (Aas v. Superior Court, supra, 24 Cal.4th at pp. 642-643.) In Aas, we
explained that the rule preserves “the fundamental difference between, on the one
hand, the consumer’s contractual interest in having a product of the expected,
bargained-for value and quality, and, on the other hand, the consumer’s tort
interest in not suffering property damage or personal injury due to negligence in
the manufacturing process.” (Id. at p. 642.) Thus, while we recognized “conduct
amounting to a breach of conduct becomes tortious when it also violates a duty
independent of the contract arising from principles of tort law” (id. at p. 643,
citing Erlich, supra, 21 Cal.4th at p. 551), we held that recourse for violation of
that duty is “limited by the rule in Seely, supra, 63 Cal.2d 9, 18, which bars
recovery of economic damages representing the lost benefit of a bargain” (Aas v.
Superior Court, at p. 643).
These principles should apply here. Robinson had a contractual interest in
receiving clutches of a particular quality. It had a tort interest in not suffering
liability for damages to persons or property as a result of any negligence, fraud, or
defective product manufactured by Dana. Only the first interest was burdened
here; Dana failed to deliver clutches of the warranted quality. Robinson’s
damages consisted exclusively of the costs associated with identifying and
replacing the defective product, costs that fall squarely within the definition of
economic loss. (See Jimenez v. Superior Court, supra, 29 Cal.4th at p. 482.)
6

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Because Robinson suffered only economic loss, its recovery should have been
limited to contract damages under its breach of contract and breach of warranty
claims.
This application of the economic loss rule solves the problem of how to
sanction deceit without chilling commercial relationships. It allows tort liability in
those instances where a misrepresentation may have led to actual property damage
or personal injury and, in doing so, both sanctions and deters opprobrious conduct.
But by excluding tort recovery in those cases, like this one, where the only
damages are economic, it preserves the valuable distinction between tort and
contract remedies and avoids the problems that would arise if every routine breach
were susceptible to both tort and contract claims.
III
Where does the majority go wrong? The problem lies in its application of a
test—whether a tort is independent of the contract breach (maj. opn., ante, at
pp. 8-11)—that supplies only a necessary, not a sufficient, condition for the
imposition of tort liability.
The majority relies principally on Erlich, supra, 21 Cal.4th 543, a decision
that barred emotional distress damages for negligent breach of contract. Erlich
acknowledged that it was “difficult to categorize” those cases where breach of a
contractual promise could also give rise to tort damages. (Id. at p. 552.) However,
borrowing from a Justice Mosk concurring and dissenting opinion, it identified
three categories of cases where the breach of a contractual promise could also give
rise to tort damages. (Id. at pp. 553-554, citing Freeman & Mills, supra, 11
Cal.4th at p. 105 (conc. & dis. opn. of Mosk, J.).) It also reiterated the long-
standing rule that “conduct amounting to a breach of contract becomes tortious
only when it also violates a duty independent of the contract arising from
principles of tort law.” (Erlich, at p. 551.)
7

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The majority holds that Dana committed an independent tort, fraud, and
therefore may be liable in tort. (Maj. opn., ante, at p. 11.) But the commission of
an independent tort, although a necessary condition for the imposition of tort
liability, is not sufficient. Thus, that Robinson has shown an independent tort is
only the beginning of the discussion, not the end.1 As we held in Aas, even when
an independent tort has been committed, the economic loss rule may still apply.
(Aas v. Superior Court, supra, 24 Cal.4th at p. 643.) Likewise, the Erlich/Justice
Mosk taxonomy of contract cases where tort liability may be found is descriptive,
not prescriptive. It offers no specific rationale for the characteristics shared by
past cases allowing tort recovery, nor does it purport to say that all cases that fall
within one or another category will necessarily give rise to tort liability. It thus
does not advance the analysis.
The majority purports to limit its holding to cases in which a
misrepresentation exposes a plaintiff to a risk of liability for personal damage.
(Maj. opn., ante, at p. 14.) The problem with this asserted limiting principle is
that, unlike the requirement that there actually be noneconomic damage, this
requirement is no limit at all. It is safe to say that in a large percentage of denial

1
Moreover, even this preliminary conclusion that Dana’s provision of
certificates of compliance constituted an independent tort has anomalous
consequences. The certificates of compliance Dana provided were mandated by
Robinson’s purchase orders. Had Dana withheld the certificates, it would have
committed a second breach of contract, subjecting itself to (at most) contract
damages. According to the majority, Dana, by instead choosing to comply with its
contractual obligation to provide the certificates and thus breach the contract in
only one way, not two, committed an independent tort that could subject it to
punitive damages. Such an interpretation of the independent tort requirement
creates perverse incentives for parties to either (a) breach existing contractual
obligations to provide performance assurances, or (b) henceforth refuse to agree to
provide such assurances. Neither outcome is commercially desirable.
8

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of breach cases, a plaintiff will be able to plead and perhaps prove that it was
exposed to at least the risk of liability for personal damage by virtue of the
defendant’s failure to immediately confess its sins. In Aas, we expressly rejected
an approach that would have carved out an exception to the economic loss rule
whenever a tort created a serious risk of personal injury or property damage. (Aas
v. Superior Court, supra, 24 Cal.4th at pp. 649-651.) Nothing has changed in the
intervening four years to persuade me that such an approach is any sounder today.
Instead, we ought to continue to apply the economic loss rule in the absence of
actual injury or property damage, adhering to the principle that “[w]hen no safety
concerns are implicated because the damage is limited to the product itself, the
[commercial party]’s recourse is in contract law to enforce the benefit of the
bargain.” (Jimenez v. Superior Court, supra, 29 Cal.4th at p. 490 (conc. & dis.
opn. of Brown, J.).)
IV
One final aspect of the majority’s decision merits comment. Robinson
argued for tort liability based on two distinct theories: (1) Dana fraudulently
misrepresented that its parts conformed to the contract specifications, and (2) it
fraudulently concealed its breach. The jury was given a special verdict form that
included the following question as the sole basis for tort liability: “QUESTION
NUMBER 4 [¶] Did [Dana] knowingly misrepresent or conceal a material fact
with an intent to defraud Robinson which caused damage to Robinson?” (Italics
added.) The jury answered yes, 11 to 1.
Because the question is phrased in the disjunctive, we cannot determine
whether the award of punitive damages rests on a finding that Dana fraudulently
misrepresented facts or that it fraudulently concealed facts. If either theory is
barred by the economic loss rule and thus legally deficient, the jury verdict cannot
stand. (Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 472, 480; see People v.
9

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Guiton (1993) 4 Cal.4th 1116, 1125.) Thus, contrary to the majority’s assertion,
Dana’s alleged intentional misrepresentations are not “dispositive fraudulent
conduct” (maj. opn., ante, at p. 11); for all we know, the jury rejected punitive
damages on this basis and imposed them only because of Dana’s alleged later
concealments.
The majority disavows any views on application of the economic loss rule
to fraudulent concealment, leaving the issue to the Court of Appeal on remand.
(Maj. opn., ante, at p. 15, fn. 9.) On remand, the Court of Appeal will have a
choice between applying the economic loss rule to bar recovery, thereby setting up
a distinction between deceit by misrepresentation on the one hand and deceit by
nondisclosure on the other, or holding that nondisclosures can also be tortious.
The issue ultimately will have to be decided, in this or a future case.
Whenever the issue is settled, today’s decision will leave no easy options.
On the one hand, if fraudulent concealment is not tortious, the distinction between
tortious misrepresentation and nontortious concealment may prove untenable and
virtually impossible to administer. If a party makes statements that are true but
incomplete and that may or may not have false implications, is this a tortious
misrepresentation or a nontortious nondisclosure? Such line drawing will not be
easy for parties seeking to order their affairs, judges obligated to instruct juries, or
juries forced to split hairs by such a set of rules.
On the other hand, if the majority’s decision is taken to its logical
conclusion, then deceit by nondisclosure is a tort independent of any breach, just
like deceit by misrepresentation. (See Civ. Code, § 1710, subds. (1), (3).) If so,
every litigator can be expected to attach such a piggyback tort claim to each
breach of contract claim, and every breach case can be expected to focus on when
a party learned it was in breach and why it failed to disclose that fact to the other
10

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side. The threat of tort damages in every such instance can do no good for parties
weighing the likely benefits and risks before entering any commercial contract.
V
Let us be clear: what Dana did was not admirable. A jury awarded
Robinson $1.5 million in compensatory damages. Dana’s conduct should be
sanctioned, and it has been. But to allow tort recovery for bad faith denial of a
breach that led only to economic damages is to prescribe a cure worse than the
disease. Today’s decision greatly enhances the ease with which every breach of
contract claim can don tort clothes. I fear that in doing so, it opens a Pandora’s
box better left sealed. Because I would not do so, I respectfully dissent.
WERDEGAR, J.
11

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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Robinson Helicopter Company v. Dana Corporation
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 105 Cal.App.4th 749
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S114054
Date Filed: December 23, 2004

__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Jean E. Matusinka

__________________________________________________________________________________

Attorneys for Appellant:

Orrick, Herrington & Sutcliffe, Edwin V. Woodsome, Jr., D. Barclay Edmundson; Howrey Simon Arnold
& White, David G. Meyer, Michael L. Resch; Bowman and Brooke, Lawrence R. Ramsey; Cardelli, Hebert
& Lanfear and Thomas G. Cardelli for Defendant and Appellant.

Quinn Emanuel Urquhart Oliver & Hedges, Fred G. Bennett, Robert J. Becher and Sarah J. Cole for
Northrop Grumman Corporation and The California Manufacturers & Technology Association as Amici
Curiae on behalf of Defendant and Appellant.

Greines, Martin, Stein & Richland and Robert A. Olson for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Defendant and Appellant.

Deborah J. La Fetra and Timothy Sandefur for Pacific Legal Foundation as Amicus Curiae on behalf of
Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Tim A. Goetz; Waller Lansden Dortch & Davis, Raymond E. Hane III; and Edward J. Horowitz for
Plaintiff and Respondent.

Kaye Scholer, George T. Caplan, Steven Rosenthal and Julian Brew for EADS Astrium, S.A.S. and EADA
Astrium, Ltd., as Amici Curiae on behalf of Plaintiff and Respondent.

Parker, Milliken, Clark, O’Hara & Samuelian and Brenton F. Goodrich for California State Association of
Counties and Los Angeles County Metropolitan Transportation Authority as Amici Curiae on behalf of
Plaintiff and Respondent.

1

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Page 2 - S114054 - counsel continued

Attorneys for Respondent:

James C. Sturdevant for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and
Respondent.

Lieff, Cabraser, Heimann & Bernstein, Elizabeth J. Cabraser, Jonathan D. Selbin and Lisa J. Leebove as
Amici Curiae on behalf of Plaintiff and Respondent.

Milberg Weiss Bershad Hynes & Lerach, Eric A. Isaacson, Pamela M. Parker, Kevin K. Green; Hagens
Berman and Kevin P. Roddy for National Association of Shareholder and Consumer Attorneys as Amicus
Curiae on behalf of Plaintiff and Respondent.

2

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Edwin V. Woodsome, Jr.
Orrick, Herrington & Sutcliffe
777 S. Figueroa Street, Suite 3200
Los Angeles, CA 90071
(213) 629-2020

Edward J. Horowitz
P.O. Box 967
Pacific Palisades, CA 90272
(310) 826-6619
3

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Opinion Information

Date:	Docket Number:
Thu, 12/23/2004	S114054

Disposition
Dec 23 2004	Opinion: Reversed

Dockets
Mar 4 2003	Petition for review filed   counsel for respondent ROBINSON HELICOPTER CO., INC.,
Mar 6 2003	Record requested
Mar 6 2003	Received Court of Appeal record   one doghosue.
Mar 12 2003	Request for depublication (petition for review pending)   non party, Law Firm of Henderson, Hunphrey & Robert.
Mar 24 2003	Answer to petition for review filed   appellant, Dana Corporation
Mar 25 2003	Opposition filed   By Respondent {Robinson Helicopter Company} to request for depublication filed by the Law Firm of Henderson, Humphrey & Robert (NON-PARTY).
Apr 2 2003	Reply to answer to petition filed   respondent Robinson Helicopter Company, Inc.
Apr 25 2003	Time extended to grant or deny review   To June 2, 2003.
May 14 2003	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
May 28 2003	Certification of interested entities or persons filed   counsel for respondent, Dana Corporation
May 30 2003	Certification of interested entities or persons filed   Respondent {Robinson Helicopter Co.,}.
Jun 11 2003	Request for extension of time filed   to file Robinson Helicopter Co.'s opening brief/merits asking to July 13, 2003.
Jun 13 2003	Received document entitled:   respondent Dana Corps' response to extension request.
Jun 16 2003	Extension of time granted   To July 14, 2003 to file Respondent's Opening Brief on the Merits. No further extensions will be granted.
Jul 14 2003	Opening brief on the merits filed   by counsel for respondent Robinson Helicopter Company, Inc.
Jul 18 2003	Request for extension of time filed   by counsel for appellant Dana Corporation to file appellant's answer brief on the merits to Sept. 12, 2003. faxed to sf
Jul 25 2003	Received:   supplemental declaration of Edwin V.. Woodsome, csl for resp Dana Corp. re extension of time
Jul 31 2003	Extension of time granted   To September 12, 2003 to file Appellant's Answer Brief on the Merits. No further extensions will be granted.
Aug 5 2003	Received:   subsitution of attorney for Edwin Woodsome, Jr. & Lisa Wurster, Dana Corp.
Sep 12 2003	Answer brief on the merits filed   appellant Dana Corporation
Oct 2 2003	Reply brief filed (case fully briefed)   respondent Robinson Helicopter Company, Inc.
Oct 31 2003	Received application to file Amicus Curiae Brief   Of Pacific Legal Foundation in support of Appellant {Dana Corporation}.
Oct 31 2003	Received application to file Amicus Curiae Brief   of Consumer Attorneys of California and Lieff, Cabraser, Heimann & Bernstein LLP., in support of Respondent {Robinson Helicopter Company Inc.,}.
Nov 3 2003	Received application to file amicus curiae brief; with brief   Joint App. of Northrop Grumman Corp and The California Manufacturers & Technology Asso. app & brief under separate covers --- supports appellant -- Dana Corporation.
Nov 3 2003	Received application to file amicus curiae brief; with brief   Corning Netoptix, Inc. & Optical Filter Corp -- supporting appellant Dana Corp. app./brf under same cover.
Nov 3 2003	Received application to file amicus curiae brief; with brief   Eads Astrium & Eads Astrium Ltd. Brief and Appliation under separate covers supports Appellant Robinson Helicopter Company, Inc.
Nov 3 2003	Received application to file Amicus Curiae Brief   National Association of Shareholder and Consumer Attorneys in support of Respondent. Received in San Diego. Application and brief under same cover.
Nov 3 2003	Received application to file amicus curiae brief; with brief   California State Association of Counties, Los Angeles County Metropolitan Transportation Authority app. and brief under separate covers.
Nov 4 2003	Received application to file Amicus Curiae Brief   of The Chamber of Commerce of the United States of America in support of Respondent {Robinson Helicopter Company}./ 40(K).
Nov 4 2003	Received application to file Amicus Curiae Brief   of Southern California Defense Counsel in support of Appellant {Dana Corporation} / 40(K).
Nov 5 2003	Permission to file amicus curiae brief granted   Pacific Legal Foundation in support of appellant.
Nov 5 2003	Amicus curiae brief filed   Pacific Legal Foundation in support of appellant {Dana Corporation}. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   Consumer Attorneys of California and Lieff, Cabraser, Heimann & Bernstein, LLP. in support of respondent.
Nov 14 2003	Amicus curiae brief filed   Consumer Attorneys of California and Lieff, Cabraser, Heimann & Bernstein, LLP in support of respondent. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   The Association of Southern California Defense Counsel in support of Appellant.
Nov 14 2003	Amicus curiae brief filed   The Association of Southern California Defense Counsel in support of Appellant. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   Corning NetOptix, Inc., and Optical Filter Corporation in suppor of appellant.
Nov 14 2003	Permission to file amicus curiae brief granted   Corning NetOptix, Inc., and Optical Filter Corporation in support of appellant. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   California State Association of Counties and Los Angeles County Metropolitan Transportation Authority in support of Respondent.
Nov 14 2003	Amicus curiae brief filed   California State Association of Counties and Los Angeles County Metropolitan Transportation Authority in support of Respondent. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   The Chamber of Commerce of the United States of America in support of Appellant.
Nov 14 2003	Amicus curiae brief filed   The Chamber of Commerce of the United States of America in support of Appellant. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   Northrop Grumman Corporation and The California Manufacturers & Technology Association.
Nov 14 2003	Amicus curiae brief filed   Northrop Grumman Corporation and The California Manufacturers & Technology Association in support of Appellant. Answer is due within twenty days.
Nov 14 2003	Permission to file amicus curiae brief granted   EADS Astrium, S.A.S and EADS Astrium, LTD., in support of Respondent.
Nov 14 2003	Amicus curiae brief filed   EADS Astrium, S.A.S and EADS Astrium, LTD. in support of Respondent. Answer is due within twenty days.
Nov 20 2003	Request for extension of time filed   By counsel for Respondent {Robinson Helicopter Company Inc.} asking until December 4, 2003 to file a consolidated Response to all AC Briefs including AC brief filed by Pacific Legal Foundation.
Nov 26 2003	Permission to file amicus curiae brief granted   National Association of Shareholder and Consumer Attorneys in support of Respondent.
Nov 26 2003	Amicus curiae brief filed   National Association of Shareholder and Consumer Attorneys in support of Respondent. Answer is due within twenty days.
Dec 1 2003	Extension of time granted   To December 4, 2003 to file Respondent's consolidated response to AC Briefs.
Dec 4 2003	Response to amicus curiae brief filed   appellant Dana Corp./ responding to amicus brief of California State Association of Counties and Los Angeles County MTA
Dec 4 2003	Response to amicus curiae brief filed   Robinson Helicopter Company to amicus briefs of Pacific Legal Foundation; Association of Southern California Defense Counsel >>> Chamber of Commerce of the U.S.; Corning Netoptix, Inc., Optical Filter Corp., Northrup Grumman Corp. and Manufacturers & Technology Assoc.
Jan 23 2004	Received:   appelant, Dana Corp's."supplement" to the answer brief/merits.
Apr 28 2004	Change of contact information filed for:   Counsel for Amicus Curiae {Pacific Legal Foundation}.
May 21 2004	Received:   letter from counsel for Amici National Associaton of Shareholder and Consumer Attorneys, formerly of Milberg, Weiss, Berhsad Hynes & Lerach LLP, same address.
Sep 1 2004	Case ordered on calendar   10/5/04 @ 9am - Los Angeles
Sep 24 2004	Filed:   appellant, Dana Corp's - 2nd. supplemental brief. [add'l authorities]
Sep 27 2004	Received:   letter from counsel for respondent {Robinson Helicopter Company} dated September 24, 2004 re: additional authorities.
Oct 5 2004	Cause argued and submitted
Oct 26 2004	Received:   from counsel for Amicus Curiae National Assoc., of Shareholder and Consumrer Attorneys "Notice of Change of Firm Name"
Dec 23 2004	Opinion filed: Judgment reversed   and remanded for proceedings consistent with this opinion. Majority Opinion by Brown, J. ----- Joined by George, CJ., Kennard, Baxter, Chin and Moreno, JJ. Dissenting Opinion by Werdegar, J.
Jan 7 2005	Rehearing petition filed   appellant, Dana Corp.
Jan 11 2005	Time extended to consider modification or rehearing   To March 23, 2005.
Mar 16 2005	Rehearing denied   Brown, J., was absent and did not participate.
Mar 16 2005	Remittitur issued (civil case)
Mar 24 2005	Received:   Receipt for Remittitur.
Apr 20 2005	Returned record   To 2 DCA. (2 DOGHOUSES).

Briefs
Jul 14 2003	Opening brief on the merits filed
Sep 12 2003	Answer brief on the merits filed
Oct 2 2003	Reply brief filed (case fully briefed)
Nov 5 2003	Amicus curiae brief filed
Nov 14 2003	Amicus curiae brief filed
Nov 14 2003	Amicus curiae brief filed
Nov 14 2003	Amicus curiae brief filed
Nov 14 2003	Amicus curiae brief filed
Nov 14 2003	Amicus curiae brief filed
Nov 14 2003	Amicus curiae brief filed
Nov 26 2003	Amicus curiae brief filed
Dec 4 2003	Response to amicus curiae brief filed
Dec 4 2003	Response to amicus curiae brief filed

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