Filed 4/22/15 Gibson v. United Parcel Service CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


ROBERT D. GIBSON,
         Plaintiff and Appellant,
                                                                     A141645
v.
UNITED PARCEL SERVICE, INC.,                                         (Alameda County
                                                                     Super. Ct. No. RG13669413)
         Defendant and Respondent.


         Robert D. Gibson appeals from the trial court’s dismissal of his action against
United Parcel Service, Inc. (UPS) after the court sustained without leave to amend UPS’s
demurrer to Gibson’s second amended complaint. We affirm.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         Gibson initiated this case by filing a complaint against UPS in March 2013. UPS
demurred to the complaint, but Gibson filed a first amended complaint before the trial
court ruled on the demurrer. In the first amended complaint, Gibson alleged he instructed
a member of his family to post a parcel from Sacramento to an address in Charlotte,
North Carolina. The family member posted the parcel at a UPS store in Sacramento for
overnight delivery by next-day air service. The parcel weighed 67 pounds, cost $373.45
to ship, was assigned parcel No. 53596568, and was given a tracking number.
         Exhibit A to the first amended complaint is an investigation report authored by
Special Agent Brian Fichtner of the State Bureau of Narcotic Enforcement (Bureau). In
it, Agent Fichtner states he received a call from a UPS security representative at the UPS
shipping facility in Sacramento and was told that a parcel had been audited and found to
contain money. Agent Fichtner went to the facility and was presented with parcel
No. 53596568, which he described as a heavily-taped, brown cardboard box
approximately 18 inches in cubic dimensions. The box listed the sender as “Josh
Howell,” with the return address as the UPS Store at Natomas Crossing Drive in
Sacramento, and the recipient was listed as “Jeff Howell” at an address in Charlotte,
North Carolina.1 Agent Fichtner saw, in plain view inside the box, nine large, clear
vacuum-packed, heat-sealed, food-saver bags containing United States currency. He
deployed his narcotic trained dog to sniff the parcel, and the dog alerted positively to the
presence of a narcotic odor. Agent Fichtner then photographed the money, gave a
property receipt to UPS personnel, and took the parcel to the Bureau’s Sacramento office
for safekeeping. The money was later transported to the Bank of America where it was
counted and converted to a cashier’s check in the amount of $658,830.2 Agent Fichtner
referred the case to the United States Attorney’s Office for purposes of forfeiture.3
       The first amended complaint alleged that UPS personnel acted as “agents of law
enforcement, and without a court’s order or warrant did actively entered [sic] into a
conspiracy with law enforcement.” It asserted causes of action for breach of contract,


       1
        In the first amended complaint, Gibson alleged that he is otherwise known as
“Jeff Howell.”
       2
          Although the report concludes the owner of the money has yet to be identified,
Fichtner described in his report how in the days immediately following his seizure of the
parcel he received telephone calls from an individual identifying himself as both “Jason
Howell” and “Jeff Howell” asking about the whereabouts of the parcel. But when Agent
Fichtner finally told the caller that damage to the parcel had revealed it contained money,
the caller hung up and did not call back, and Agent Fichtner was unable to reach him.
       3
         Subsequently, the United States filed a verified complaint for forfeiture in rem
against the $658,830. Gibson filed a claim to the currency and an answer to the
complaint for forfeiture. On October 15, 2012, the United States District Court for the
Eastern District of California entered a final judgment of forfeiture in favor of the United
States and ordered “all right, title, and interest of Robert D. Gibson” in the currency
“shall be forfeited to the United States.” This judgment was later affirmed by the Ninth
Circuit Court of Appeals.


                                              2
fraudulent transfer of property, conspiracy to defraud, constructive trust, “assumpsit
bailee contract,” and damages for bailment and conversion in the amount of
“$658,830.00 and 25% interest per annum.”
       UPS filed a demurrer to the first amended complaint contending that the claims
were vague and conclusory; that the state-law claims were preempted by federal law; that
Gibson lacked standing to assert a claim against UPS; and that Gibson could not recover
for shipment of prohibited items. The trial court sustained the demurrer. Although it
gave leave to amend, it ordered Gibson not to “allege causes of action not alleged in the
first amended complaint. Most importantly, Plaintiff shall allege facts to show he has
standing to sue and that his claims are not barred by federal law and the terms of the UPS
shipping contract which prohibits shipment of prohibited items.”
       Gibson then filed a second amended complaint. In it, he alleged he had instructed
his brother and other family members to pack up and arrange for the shipping of his
deceased father’s household goods and the liquidation of his assets. He asserted that
“During this process there was a mix up and or misunderstandings as to the cash
proceeds, and the wrong property was shipped via UPS. The Plaintiff Robert Gibson
filled out/addressed the Broker Agreement and signed it, without full knowledge or
express agreement that Cash/Currency was a prohibited item, under the Defendant’s
policy/tariff, because it was never the deliberate intent by the Plaintiff to ship currency.”
Gibson also alleged that the shipping terms were not “clear and conspicuous and
intelligible,” and he did not knowingly agree to any waiver of liability in regard to
“Prohibited Items.” Gibson asserted standing under 49 United States Code section
13102(18) as a “shipper” because “this Plaintiff is the lawful assignee based upon the
seller[’]s receipt and order.”4


       4
         “The term ‘individual shipper’ means any person who— [¶] (A) is the shipper,
consignor, or consignee of a household goods shipment; [¶] (B) is identified as the
shipper, consignor, or consignee on the face of the bill of lading; [¶] (C) owns the goods
being transported; and [¶] (D) pays his or her own tariff transportation charges.”
(49 U.S.C.A. § 13102(13).)


                                              3
       UPS filed a demurrer on the same grounds it had demurred to the first amended
complaint. It noted that Gibson had, contrary to the trial court’s directions, added new
causes of action, including a claim for intentional infliction of emotional distress. After
briefing was complete, the court issued a tentative ruling in UPS’s favor. Gibson
contested the tentative ruling and appeared in propria persona by telephone at the
hearing.5 After hearing oral argument, the trial court filed an order entitled “Order,
Demurrer Sustained” the same day, in which it affirmed its tentative ruling, sustained the
demurrer, denied leave to amend, and dismissed the case. The order stated, “After
several opportunities Plaintiff has failed to state facts sufficient to constitute a cognizable
cause or causes of action against Defendant. Most importantly, Plaintiff has failed to
allege facts to show he has standing to sue and that his claims are not barred by federal
law and the terms of the UPS shipping contract which prohibits shipment of prohibited
items.” UPS filed a notice of entry of order on demurrer and dismissal of the case on
April 21, 2014.6
                                         DISCUSSION
A.     Standards of Review
       In an appeal from a judgment entered upon a demurrer sustained without leave to
amend, we review the operative complaint de novo to determine whether it alleges facts
sufficient to state a cause of action under any legal theory. (McClain v. Octagon Plaza,
LLC (2008) 159 Cal.App.4th 784, 791-792.) In doing so, we must assume the truth of
“(1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the
complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that
reasonably may be inferred.” (Neilson v. City of California City (2005) 133 Cal.App.4th

       5
           No reporter’s transcript of the hearing appears in the appellate record.
       6
          An appeal may not ordinarily be taken from an order sustaining a demurrer but
only from the order of dismissal or final judgment that follows. (Kong v. City of
Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1032, fn. 1.)
Although no separate order of dismissal or final judgment appears to have been issued in
this case, the challenged order states in pertinent part, “The case is DISMISSED.” Thus,
we construe the challenged order as an appealable order of dismissal.


                                               4
1296, 1305.) But we do not accept the truth of legal contentions, conclusions of law, or
deductions drawn from those contentions or conclusions. (Ibid.) We may affirm on any
basis stated in the demurrer, regardless of the ground on which the trial court based its
ruling. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
       We review the court’s refusal to allow leave to amend under the abuse of
discretion standard. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) In
applying this standard, “we decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
B.     The Trial Court Properly Sustained the Demurrer
       In his second amended complaint, Gibson alleges UPS is liable for the seizure by
law enforcement officials of the contents of the parcel, and he seeks damages under
multiple causes of action under state contract and tort law. We conclude, however, that
the trial court properly sustained UPS’s demurrer without leave to amend because
Gibson’s claims are preempted by federal law, and Gibson cannot amend the complaint
to state a claim under federal law.
       UPS handled the package as either a motor carrier and freight forwarder because
the parcel was seized before it was shipped by air or as an air carrier because the delivery
service purchased was UPS next-day air service. If UPS was acting as a motor carrier
and freight forwarder, any claim against it is governed by the federal Carmack
Amendment to the Interstate Commerce Act (49 U.S.C. § 14706). If UPS was acting as
an air carrier, any claim against it is governed by the preemptive provisions of the federal
Airline Deregulation Act (ADA) (49 U.S.C. § 41713) and federal common law. In either
case, Gibson’s state-law claims are preempted.
       The Carmack Amendment governs the liability of motor carriers under receipts
and bills of lading and provides “ ‘a uniform national liability policy for interstate
carriers.’ ” (Hall v. North American Van Lines, Inc (9th Cir. 2007) 476 F.3d 683, 687.)
Thus, if UPS acted as a motor carrier in transporting the parcel to its shipping facility in


                                              5
Sacramento, all state claims against it related to the loss, damage, or delay of the parcel
are completely preempted by the Carmack Amendment. (Hall, at p. 689 [“It is well
settled that the Carmack Amendment constitutes a complete defense to common law
claims alleging all manner of harms[,]” including “delay,” “mistaken delivery,” “loss,”
and “fraud and conversion”]; see White v. Mayflower Transit, L.L.C. (9th Cir. 2008)
543 F.3d 581, 584-585 [Carmack Amendment “completely preempts state[-]law claims
alleging delay, loss, failure to deliver and damage to property” and “constitutes a
complete defense to common law claims against interstate carriers for negligence, fraud
and conversion”].) Similarly, if UPS acted as an air carrier in accepting the parcel for
delivery by next-day air service, any claim against it is governed by the ADA. (Cf.
Power Standards Lab, Inc. v. Federal Express Corp. (2005) 127 Cal.App.4th 1039, 1044-
1045 [essence of Federal Express service is the transportation of freight by air, plaintiff’s
lawsuit is “clearly founded on the unsatisfactory manner in which Federal Express
performed that service,” therefore lawsuit was “related to a service of an air carrier” for
purposes of ADA preemption].) The ADA preempts all state “law[s], regulation[s], or
other provision[s] having the force and effect of law related to a price, route, or service of
an air carrier” (49 U.S.C. § 41713(b)(1)), including state common-law rules and causes of
action where, as here, they relate to an air carrier’s service of shipping parcels by air.
(See Northwest, Inc. v. Ginsberg (2014) ___ U.S. ___ [134 S.Ct. 1422, 1430] [concluding
that “ ‘other provision having the force and effect of law’ [under ADA] includes
common-law claims”].) Thus, regardless of UPS’s status, the trial court properly
sustained the demurrer on federal preemption grounds.
       Because Gibson’s state-law claims are preempted under applicable federal law,
any claim Gibson has against UPS lies, if at all, under the Carmack Amendment or
federal common law.7 (Read-Rite Corp. v. Burlington Air Express, Ltd. (1999) 186 F.3d




       7
          For purposes of analysis only, we assume Gibson could establish standing to
assert a federal claim, a point which UPS hotly disputes.


                                               6
1190, 1195 [“federal common law applies to loss of or damage to goods by interstate
common carriers by air”].)8 Gibson cannot establish such a claim for several reasons.
       First, to establish a prima facie claim against UPS under federal law, Gibson must
prove (1) delivery of goods in good condition, (2) goods arrived in damaged condition or
were lost, and (3) damages. (See Missouri Pacific Railroad Co. v. Elmore & Stahl
(1964) 377 U.S. 134, 138.) Here, Gibson cannot amend the complaint to state a viable
claim for damages because any possessory interest Gibson may have had in the goods
(i.e., the currency seized) has been forfeited to the federal government. (See fn. 3, ante.)
       In addition, under well-settled federal common law, a common carrier is not an
absolute insurer, but “is liable for damage to goods transported by it unless it can show
that the damage was caused by ‘(a) the act of God; (b) the public enemy; (c) the act of the
shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.’ ”
(Missouri Pacific Railroad Co. v. Elmore & Stahl, supra, 377 U.S. at p. 137, italic
added.) In this case, the cause of any “loss” was the seizure of the currency by a law
enforcement official who believed it was “for the purchase of, or . . . the proceeds from
the sales of narcotics.” Because any loss was due to an act of public authority, Gibson
cannot amend the complaint to state a viable claim against UPS. (See ibid. [under federal
common law, carrier is not liable for loss to goods transported if loss was caused by one
of five “excepted causes relieving the carrier of liability,” including “public authority”];
see also Beta Spawn, Inc. v. FFE Transportation Services, Inc. (3d Cir. 2001) 250 F.3d
218, 226 [“Once a plaintiff has established a prima facie case under the Carmack

       8
         Whereas courts have developed the contours of Carmack Amendment
preemption, the amendment itself specifically provides a remedy enforceable in state
court for loss or damage to goods limited to “the actual loss or injury to the property.”
(See 49 U.S.C.A. § 11706(a), (d)(1).) In comparison, the ADA specifically preempts
state laws relating to the service of an air carrier but contains a savings clause preserving
“any other remedies provided by law” (49 U.S.C. § 40120(a), (c)), which courts have
construed as “preserving the clearly established federal common law cause of action
against air carriers for lost shipments.” (Sam L. Majors Jewelers v. ABX, Inc. (5th Cir.
1997) 117 F.3d 922, 929; see Power Standards Lab, Inc. v. Federal Express Corp.,
supra, 127 Cal.App.4th at pp. 1050-1051.)


                                              7
Amendment, the burden shifts to the carrier to prove that it was free from negligence and
that the damage was caused solely” by public authority or other excepted cause].)9 Thus,
Gibson has failed to show the trial court abused its discretion in sustaining the demurrer
without leave to amend. (See Gutkin v. University of Southern California (2002)
101 Cal.App.4th 967, 976 [“[I]f no liability exists as a matter of law, we must affirm that
part of the judgment sustaining the demurrer, and if the plaintiff cannot show an abuse of
discretion, the trial court’s order sustaining the demurrer without leave to amend must be
affirmed. [Citation.] ‘The burden is on the plaintiff . . . to demonstrate the manner in
which the complaint might be amended’ ”].)
       In sum, the trial court properly granted UPS’s demurrer to the second amended
complaint and did not abuse its discretion in denying further leave to amend.10
                                        DISPOSITION
       The judgment is affirmed.




       9
          Furthermore, we note under federal common law that the carrier’s tariff
“governs not only the nature and extent of [the carrier’s] liability but also the nature and
extent of the shipper’s right of recovery.” (North American Phillips Corp. v. Emery Air
Freight Corp. (2nd Cir. 1978) 579 F.2d 229, 233; see also King Jewelry, Inc. v. Federal
Express Corp. (9th Cir. 2003) 316 F.3d 961, 964 [airbill and service guide formed the
contract between the parties].) Here, the applicable UPS tariff (effective July 12, 2010) is
included in the clerk’s transcripts. We do not consider it, however, because it was not a
part of the relevant complaint, and the trial court did not take judicial notice of it. Still,
while the tariff is not a basis for affirming the trial court ruling on the demurrer, we
cannot help but observe that it appears to be another insurmountable impediment to a
federal common law claim for contract damages.
       10
          In his reply brief, Gibson contends we “must view this entire case under the
analysis of the Fourth Amendment” and argues that seizure of the package by the Bureau
of Narcotics Enforcement after an “unlawful drug dog sniff” violated the Fourth
Amendment. This argument, raised for the first time in the reply brief, is irrelevant to
any claim against UPS in this appeal.


                                              8
                                _________________________
                                Humes, P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




                            9
