Appellants Fail to Get Past First Base Because They Did Not Establish Material Difference in the Laws of California and Bermuda.
Defendants/appellants succeeded in getting the trial court to strike a tardy amended complaint. Defendants then argued that under Bermuda law, they were entitled to fees of $105,237.30 as the prevailing parties. Defendants argued that Bermuda law tracked English law, and that under English law, "loser pays.” The trial court denied the motion for attorney’s fees, and an appeal followed. Kenneth Barton v. Zafar Khan, B214665 (5th Dist., Div. 5 July 20, 2010) (unpublished).
Unfortunately for defendants, they failed to cite authority that Bermuda law follows English common law precedents on the issue of attorney fees specifically.
The first step in California choice of law conflicts analysis is that, “the party advocating for foreign law must identify the applicable law of each jurisdiction and show how the foreign law materially differs from that of California.” In a 3-0 opinion authored by Justice Armstrong, the Court concluded, “Defendants did not identify or provide the trial court with the Bermuda law which, they maintain, applied to Barton’s claims. They thus necessarily failed to demonstrate any material difference between Bermuda and California substantive law.” Therefore, absent the establishment of a conflict of law, the trial court properly applied California law. Result: Judgment affirmed.
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