ORDER

We certify to the California Supreme Court the question set forth in Part III of this order.

We stay further proceedings in this court pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this court or the order declining to accept the certified question. If the California Supreme Court accepts the certified question, the parties shall file a joint report six months after date of acceptance and every six months thereafter, advising us of the status of the proceeding.

I

Pursuant to California Rule of Court 29.5, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the California Supreme Court a question of law concerning the proper interpretation of the amendments to Cal. Civ.Code § 1714.45 that became effective on January 1, 1998. The decisions of the California appellate courts provide no controlling precedent regarding the certified question, and the answer to the question will be determinative of this appeal. We respect fully request that the California Supreme Court answer the certified question presented below. Our phrasing of the issue is not meant to restrict the court’s consideration of the case. If the California Supreme Court declines certification, we will resolve the issue according to our perception of California law.

II

Betty Jean Myers is deemed the petitioner in this request because she is appealing the district court’s ruling on this issue. The caption of the case is:

The names and addresses of counsel for the parties are as follows:

III

The question of law to be answered is:

Do the amendments to Cal. Civ.Code § 1714.45 that became effective on January 1, 1998, apply to a claim that accrued after January 1,1998, but which is based on conduct that occurred prior to January 1,1998?

IV

The statement of facts is as follows:

Prior to its amendment in 1997, Cal. Civ.Code § 1714.45 provided tobacco manufacturers immunity from almost all product liability suits alleging injuries from cigarettes. At that time, § 1714.45 read:

Effective January 1, 1998, the California legislature amended § 1714.45 to strip tobacco manufacturers of this immunity. Section 1714.45 now reads:

After removing this case to the United States District Court for the Eastern District of California, the Tobacco Manufacturers moved, on April 13, 1999, to dismiss Myers’s complaint for failure to state a claim. On May 25, 1999, the district court granted the motion to dismiss, with leave to amend, on the ground that Cal. Civ. Code § 1714.45 barred Myers’s action for any injuries incurred prior to January 1, 1998. On June 30, 1999, Myers amended her complaint to allege that she was exposed to secondhand cigarette smoke between January 1, 1998 and April 8, 1998. On July 19, 1999, the Tobacco Manufacturers again moved to dismiss Myers’s complaint for failure to state a claim. On October 6, 1999, the district court again dismissed Myers’s complaint for failure to state of claim, this time without leave to amend, on the grounds that she had conceded that her lung cancer was not caused by her exposure to secondhand smoke after January 1, 1998, and, again, that pre-1998 exposures were not actionable. Myers filed a timely notice of appeal to the Ninth Circuit.

V

We respectfully submit that the question presented in Part III needs certification for the following reasons:

The Tobacco Manufacturers argue that Cal. Civ. Code § 1714.45 , despite the repeal of immunity from suit effective January 1, 1998, does not allow product liability claims against them to go forward which are based on their conduct prior to January 1, 1998. That is, they argue that Myers’s product liability claims are barred because her claims are based on injuries she sustained prior to the January 1, 1998, repeal of immunity. The Tobacco Manufacturers base this assertion on their views that

Myers takes the contrary position on each of these four arguments.

On October 18, 2000, the Supreme Court of California granted review in Naegele v. R.J. Reynolds Tobacco Co., 96 Cal.Rptr.2d 666 (Cal.Ct.App.2000). The Naegele case presents a similar issue of the retroactive application of § 1714.45, but with one important difference: in Naegele , the question presented is whether the 1998 amendments to § 1714.45 apply to claims that accrued prior to January 1, 1998, id. at 669; whereas, in this case, the question presented is whether the 1998 amendments to § 1714.45 apply to claims that accrued after January 1, 1998, but which are based on conduct occurring prior to January 1, 1998. This difference is significant because:

Moreover, there could be many more claims against tobacco manufacturers that have yet to accrue, but which are based on conduct prior to January 1, 1998. As a result, the distinctions between this case and Naegele might affect cases in California and federal courts for many years to come. Finally, as the California Supreme Court is already poised to consider the Naegele case, it might be efficient for the California Supreme Court to consider at the same time the similar issue presented in this case.

The California Supreme Court’s authoritative answer “may be determinative” of the question presented in Part III. Cal. Ct. R. 29.5(a)(2). If the California Supreme Court concludes that the 1998 amendments to § 1714.45 do not bar product liability claims that accrued after January 1, 1998, even though they are based on conduct that occurred prior to that date, then we will reverse, at least in part, the district court’s dismissal of Myers’s complaint and allow her suit to go forward. In contrast, if the California Supreme Court concludes that the 1998 amendments to § 1714.45 do bar product liability claims based on conduct that occurred prior to January 1, 1998, then we will affirm, at least in part, the district court’s dismissal of Myers’s complaint. Thus, the determination of the question presented for certification is dis- positive, with the one exception noted in footnote 1, of our pending decision in this appeal.

Moreover, “the decisions of the California appellate courts provide no controlling precedent concerning the certified question.” Cal. Ct. R. 29.5(a)(3). The only California appellate decision that interpreted the 1998 amendments to § 1714.45 was Naegele , which, as noted above, presented a different question of retroactivity than the question presented in this case. In any event, now that the California Supreme Court has granted review in Nae-gele, we must await the outcome of that review before proceeding with this case.

VI

The Clerk of Court is hereby directed to transmit forthwith to the California Supreme Court, under official seal of the Ninth Circuit, a copy of this order and request for certification and all relevant briefs and excerpts of record pursuant to California Rule of Court 29.5(c).

IT IS SO ORDERED.

. Myers's claims against the Tobacco Manufacturers include one claim based on fraud. The Tobacco Manufacturers argue that this claim was barred by the pre-1998 version of § 1714.45 along with all of Myers's other claims. Myers argues, however, that the pre-1998 version of § 1714.45 barred her from bringing only "product liability action[s],” which do not include fraud claims. We have deferred submission of her fraud claim pending the California Supreme Court’s review of the Naegele decision, which presents the issue in identical form. . See supra note 1.