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Kohan v. Cohan9/21/1988
diction of Ohio courts places an unreasonable burden on interstate commerce in violation of the commerce clause. Said the court: "Although statute of limitations defenses are not a fundamental right [citation], it is obvious that they are an integral part of the legal system and are relied upon to project the liabilities of persons and corporations active in the commercial sphere. The State may not withdraw such defenses on conditions repugnant to the Commerce Clause. Where a state denies ordinary legal defenses or like privileges to out-of-state persons or corporations engaged in commerce, the State law will be reviewed under the Commerce Clause to determine whether the denial is discriminatory on its face or an impermissible burden on commerce. The State may not condition the exercise of the defense on the waiver or relinquishment of rights that the foreign corporation would otherwise retain. [Citations.] [ para. ] . . . State interests that are legitimate for equal protection or due process purposes may be insufficient to withstand Commerce Clause scrutiny." (Bendix Corp. v. Midwesco Enterprises, supra, 486 U.S. 888, 893-894 [100 L.Ed.2d 896, 903-904]; fn. omitted; italics added.) The Bendix case does not aid defendants. That acts giving rise to the causes of action herein occurred in Iran while defendants were residents of that country does not affect either interstate commerce or commerce between the United States and Iran, nor does it establish that defendants were engaged in interstate commerce by any definition of that term. (See Atlanta Motel v. United States (1964) 379 U.S. 241, 253-258 [13 L.Ed.2d 258, 266-269, 85 S.Ct. 348].)
II
Plaintiffs' Cross-appeal
On their cross-appeal plaintiffs challenge that portion of the order granting new trial which determined that while defendant expressly repudiated the parties' agreement, there was no express nullification of the repudiation. That issue is not before us inasmuch as plaintiffs did not cross-appeal from the new trial order, but from the summary judgment. (Cal. Rules of
Court, rule 3(c).) The cross-appeal from the judgment is operative only if the order granting the new trial is reversed thus reinstating the judgment. (Freeman v. LaMorte (1957) 148 Cal. App. 2d 670, 675 [307 P.2d 734].) Because we affirm the order granting new trial, plaintiffs' cross-appeal from the summary judgment becomes moot and must be dismissed. (Kramer v. Gaddis (1976) 56 Cal. App. 3d 837, 843 [128 Cal. Rptr. 860]; Mehling v. Schield (1967) 253 Cal. App. 2d 55, 61 [61 Cal. Rptr. 159]; Freeman v. LaMorte, supra, 148 Cal. App. 2d at p. 675.)
The order granting plaintiffs' motion for new trial is affirmed. Plaintiffs' cross-appeal from the summary judgment is dismissed. Plaintiffs shall recover their costs on appeal.
Disposition
The order granting plaintiffs' motion for new trial is affirmed. Plaintiffs' cross-appeal from the summary judgment is dismissed. Plaintiffs shall recover their costs on appeal.
Judges Footnotes
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