Recognition and Enforceability of a Foreign Judgment
International Diversity Case
Comity
Standing (Federal v. California Courts)
Subject Matter Jurisdiction
Service of Legal Process
Notice of the Proceeding
Mail Service
Summons
California Law
California version of the Uniform Foreign-Country Money Judgment Recognition Act, Cal. Civ. Proc. Code §§ 1713–1725
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (“Hague Service Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638
(…) Wofsy maintains that he was never served with process in the Astreinte Proceeding. Sicre de Fontbrune asserts that a huissier—a bailiff-like officer of the French court—sent the complaint and French equivalent of a summons to Wofsy through procedures consistent with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (“Hague Service Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638. The French court official requested service at addresses that the French courts already had on file: 401 China Basin Street in San Francisco, and P.O. Box 2210 in San Francisco. The U.S. process server, however, failed to effect service.
(…) Before Wofsy filed the Review Proceeding, though, Sicre de Fontbrune brought the instant action in the Superior Court of California in Alameda County in November of 2013, seeking recognition of the astreinte judgment. After Wofsy removed the action to federal court, the district court dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). We reversed, holding that the astreinte was not a penalty but rather a judgment for “a sum of money” cognizable under the Recognition Act. Sicre de Fontbrune, 838 F.3d at 1007.
“In international diversity cases such as this one, ‘enforceability of judgments of courts of other countries is generally governed by the law of the state in which enforcement is sought.’” Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 990 (9th Cir. 2013) (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1212 (9th Cir. 2006)). In this removed action, California law—the Recognition Act—governs.
California’s Recognition Act is modeled on the 2005 version of the Uniform Foreign-Country Money Judgments Recognition Act. AO Alfa-Bank v. Yakovlev, 230 Cal. Rptr. 3d 214, 221 (Ct. App. 2018), as modified on denial of reh’g (Apr. 3, 2018); see Unif. Foreign-Country Money Judgments Recognition Act (Nat’l Conf. of Comm’rs on Unif. State L. 2005). Amendments to California’s Recognition Act became effective in 2018. See Alfa-Bank, 230 Cal. Rptr. 3d at 221. But those amendments apply only to claims commenced after their effective date. Id. at 222. The district court was thus correct to apply the version of the state Recognition Act effective at the time Sicre de Fontbrune filed this action in 2013. A majority of states have adopted either the 1962 version of the Uniform Foreign-Country Money Judgments Recognition Act, or its 2005 update. Ohno, 723 F.3d at 990 n.8. Non-California authorities that interpret the 1962 or the 2005 uniform acts, or that apply principles of comity-based recognition to foreign judgments, carry persuasive value in the application of California’s Recognition Act. Alfa-Bank, 230 Cal. Rptr. 3d at 222–23 (citing Cal. Civ. Proc. Code § 1722). “Once coverage under the Uniform Act is established,” as it has been here,7 “the presumption in favor of enforcement applies,” and the party resisting recognition must establish a ground for nonrecognition. Ohno, 723 F.3d at 991 (quoting Cal. Civ. Proc. Code § 1716(d)). The Recognition Act lists several grounds for nonrecognition. Some grounds, if established, preclude recognition, Cal. Civ. Proc. Code § 1716(b), but others only confer discretion on courts to deny recognition, Cal. Civ. Proc. Code § 1716(c).
7 Given our previous opinion, the parties no longer dispute that the 2012 Astreinte Judgment falls within the coverage of the Recognition Act. See Sicre de Fontbrune, 838 F.3d at 1007.
Public Policy
The California Recognition Act allows a court to decline to recognize a foreign-country money judgment if the “judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of California or of the United States.” Cal. Civ. Proc. Code § 1716(c)(3). The United States undoubtedly has robust public policy favoring free expression. See Cohen v. California, 403 U.S. 15, 24 (1971) (“The constitutional right of free expression is powerful medicine.”). But “some restriction on expression is the inherent and intended effect of every grant of copyright.” Golan v. Holder, 565 U.S. 302, 327–28 (2012). The fair use defense to copyright infringement is one of the “built-in First Amendment accommodations” that ease the apparent tension between free expression and U.S. copyright law. See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
Lack of Subject Matter Jurisdiction
The applicable version of the California Recognition Act provides that a court “shall not” recognize a foreign-country judgment if the “foreign court did not have jurisdiction over the subject matter.” Cal. Civ. Proc. Code § 1716(b)(3). “Courts and commentators agree that subject matter jurisdiction must be assessed with reference to foreign law.” Tanya J. Monestier, Whose Law of Personal Jurisdiction? The Choice of Law Problem in the Recognition of Foreign Judgments, 96 B.U. L. Rev. 1729, 1747 (2016). “In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Fed. R. Civ. P. 44.1; Sicre de Fontbrune, 838 F.3d at 997.
(…) The plain language of California’s Recognition Act requires a proponent of the subject matter jurisdiction defense to establish that the foreign court “did not have jurisdiction over the subject matter.” Cal. Civ. Proc. Code § 1716(b)(3). We are aware of no authority holding that a procedural defect that produces a similar practical result can suffice.
(…) Even if we were to assess subject matter jurisdiction with reference to domestic law, we could not say that a lack of standing necessarily deprives a court of subject matter jurisdiction. To be sure, a party must show the “irreducible constitutional minimum of standing” to vest an Article III federal court with subject matter jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). But California is one of numerous states whose judiciaries’ subject matter jurisdiction does not depend on standing. Jasmine Networks, Inc. v. Super. Ct., 103 Cal. Rptr. 3d 426, 432 (Ct. App. 2009); Weatherford v. City of San Rafael, 395 P.3d 274, 278 (Cal. 2017) (observing that California’s “state constitution has no case or controversy requirement imposing an independent jurisdictional limitation on our standing doctrine”); Tax Found. of Hawai’i v. State, 439 P.3d 127, 143 (Haw. 2019) (collecting examples of states where “standing is a prudential concern and not an issue of subject matter jurisdiction”).
Lack of Personal Jurisdiction
A court applying California’s Recognition Act must refuse to recognize a foreign-country judgment if the “foreign court did not have personal jurisdiction over the defendant.” Cal. Civ. Proc. Code § 1716(b)(2). But a court shall not refuse recognition for lack of personal jurisdiction if the defendant “voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant.” Cal. Civ. Proc. Code § 1717(a)(2).
Courts applying other states’ analogues to Section 1717(a)(2) have recognized that a voluntary appearance may occur “in the proceeding” either before or after judgment. See CIBC Mellon Tr. Co. v. Mora Hotel Corp. N.V., 792 N.E.2d 155, 162 (N.Y. 2003) (quoting Restatement (Second) of Conflict of Laws § 33, cmt. b) (noting that a defendant may be deemed to have submitted to a court’s jurisdiction by “taking steps in the action after judgment either in the trial court or in an appellate court”); S.C. Chimexim S.A. v. Velcro Enters. Ltd., 36 F. Supp. 2d 206, 215 (S.D.N.Y. 1999) (defense waived where one of defendant’s arguments in appellate proceedings in the foreign forum “concerned the merits of the underlying dispute”); In re Transamerica Airlines, Inc., No. CIV.A. 1039-VCP, 2007 WL 1555734, at *10 (Del. Ch. May 25, 2007) (waiver where one of defendant’s arguments on appeal went “to the merits” of the contested judgment). We have confirmed that this principle applies to California’s Recognition Act. See In re Rejuvi Lab’y, Inc., 26 F.4th 1129, 1134 (9th Cir. 2022) (holding that a defendant “waived its personal jurisdiction challenge by voluntarily appearing in the trial court that had entered a default judgment in its attempt to set aside the default judgment”).
Insufficient Notice
The Recognition Act provides that a court may refuse to recognize a foreign judgment if the “defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend.” Cal. Civ. Proc. Code § 1716(c)(1). The district court determined that issues of fact precluded summary judgment regarding this defense. Only Wofsy challenges that determination. The parties dispute the adequacy of two efforts at notice: a failed effort to serve the summons and complaint for the Astreinte Proceeding, and a letter that the French TGI mailed to Wofsy after the first hearing in the Astreinte Proceeding but before the TGI entered judgment.
A California Court of Appeal has held that a mere failure of actual notice does not prove the inadequate notice defense. Rather, the proponent of this defense must show the absence of notice “‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Alfa-Bank, 230 Cal. Rptr. 3d at 224 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). The applicable standard, in other words, aligns with the constitutional minimum for due process. See id. at 233. Under that standard, where “notice is a person’s due,” the “means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 225 (quoting Mullane, 339 U.S. at 315).
(…) In Isack, the Court of Appeals of Michigan—interpreting the analogous provision of that state’s codification of the Uniform Act—concluded that “recognition of a judgment may be declined where the defendant was aware, or waived notice, of the litigation, but where the defendant was not notified of certain actions taken within the suit.” 733 N.W. 2d at 86–87; see also Restatement (Fourth) of Foreign Relations Law § 484 (2018) (recognizing that “the notice requirement governs not just the initiation of a proceeding, but relevant actions taken within the suit”).
(…) We begin by considering whether the attempts to serve Wofsy before the October 2011 hearing constituted sufficient efforts at notice, despite their failure. An officer of the French TGI attempted to serve both defendants through procedures established in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (“Hague Service Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638. The Hague Service Convention was “intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). Its “primary innovation” is a requirement that each state party designate a “Central Authority” that can receive foreign requests for service of process and arrange for service on an addressee. Id. at 698–99; Hague Service Convention, 20 U.S.T. 361, art. 2.
In accordance with that procedure, the French court’s officer sent the complaint and the French equivalent of a summons to the United States’ Central Authority, and requested service on the defendants at their addresses as listed in the summons. The summons listed the address of Alan Wofsy & Associates as 401 China Basin Street in San Francisco. For Alan Wofsy himself, the summons listed Post Office Box 2210 in San Francisco. Article 6 of the Hague Convention requires the Central Authority (or another designee of the state where process is to be served) to send to the applicant for service a certificate stating the method, place, date, and recipient of service, or the reasons that have prevented service. Hague Service Convention, 20 U.S.T. 361, art. 6. Accordingly, the huissier’s requests for service also included requests for these certificates. The U.S. process server’s attempt to serve Alan Wofsy & Associates failed. The process server—a contractor of the U.S. Central Authority—issued a certificate of non-service dated August 12, 2011, attesting that service had been attempted at 401 China Basin Street; that no such address existed; and that the process server had confirmed on the U.S. Postal Service website that the address was “non deliverable.”
(The delivery trouble apparently arose from the fact that San Francisco renamed the old China Basin Street as “Terry Francois Boulevard” in the 1990s, and reassigned the name “China Basin Street” to a newly built road at some point after 2010. But it is undisputed that Wofsy continued to receive mail addressed to 401 China Basin Street for years after the Astreinte Proceeding. In any event, Sicre de Fontbrune offers no indication that Wofsy was obligated to apprise Sicre de Fontbrune or the French courts of any change of address at the time the Astreinte Proceeding commenced. Thus, there is no indication that Wofsy is to blame for the huissier’s use of an outdated address or for the process server’s failure to effect service. Cf. Alfa-Bank, 230 Cal. Rptr. 3d at 230 (holding that a Russian court’s mail service to a defendant’s last known address was adequate notice, where the defendant was required by a surety agreement to keep his address up to date with the Russian government). (Fn. 14).)
Upon learning of a failure of notice, “deciding to take no further action is not what someone desirous of actually informing the addressee would do; such a person would take further reasonable steps if any were available.” Jones v. Flowers, 547 U.S. 220, 230 (2006) (internal quotation omitted). The Supreme Court accordingly held that a state failed to afford constitutionally adequate notice where the state sold a tax-delinquent property after the state’s certified-mail notice to the property owner was returned unclaimed and the state failed to take further reasonable and available steps to accomplish notice. Id. at 239. “Although the State may have made a reasonable calculation” of how to reach the property owner, the state had “good reason to suspect when the notice was returned that the addressee was ‘no better off than if the notice had never been sent.’” Id. at 230.
(…) (Quoting Malone v. Robinson, 614 A.2d 33, 37 (D.C. 1992)); see also United States v. Ritchie, 342 F.3d 903, 911 (9th Cir. 2003) (“When initial personal notice letters are returned undelivered, the government must make reasonable additional efforts to provide personal notice.”). Since the French huissier had requested a certificate of service in accordance with the Hague Service Convention, the absence of any confirmation of successful service signaled a problem. And the issuance of a certificate of non-service left no doubt that service had failed. It thus triggered an obligation to take any available and reasonable further steps to give notice of the proceeding to Alan Wofsy & Associates. See Jones, 547 U.S. at 230.
Before considering whether such steps were available or pursued, we turn to the process server’s attempt to inform Alan Wofsy himself. It unfolded similarly. When the Astreinte Proceeding was filed in July 2011, the U.S. Central Authority received a request to serve process at “POB 2210 San Francisco”—the address listed for Alan Wofsy on the French summons. The U.S. process server eventually issued a certificate of non-service, indicating that a server had attempted to contact Alan Wofsy at 401 China Basin Street on October 22, 2011, but had found “no such address.” The certificate of nonservice did not issue until October 31—six days after the October merits hearing in the TGI. Under these circumstances, the failed service on Alan Wofsy was as insufficient an attempt at notice as was the failed service on Alan Wofsy & Associates. The request for a certificate of service was unfulfilled at the time of the first astreinte hearing. That should have alerted the huissier that Wofsy might have lacked notice of the proceedings, and that actual notice therefore might require further reasonable efforts if any were available. Moreover, the certificate of non-service issued more than two months before the TGI entered judgment.
(…) The Supreme Court has “repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.” Tulsa Pro. Collection Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988). The Hague Service Convention allows mail service directly to a defendant—circumventing the Central Authority—if the receiving country has not objected to mail service and if mail service is authorized by otherwise applicable law. Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1513 (2017). The applicable law in California permits service via mail, with acknowledgment of receipt, at a Post Office box. Cal. Civ. Proc. Code § 415.30.
(…) 39 C.F.R. § 265.6(d)(5)(ii) (2011) (current version at 39 C.F.R. § 265.14(d)(5)(ii)) (permitting disclosure of post office boxholder name and information to a person authorized to serve legal process).
(…) Wofsy directs us to Julen v. Larson, 101 Cal. Rptr. 796, 798 (Ct. App. 1972), for the proposition that notice, to be adequate, must be given in the “language of the jurisdiction in which the defendant is served,” among other requirements. In Julen—unlike here—the foreign legal documents were written in German, which no one argued the defendant could read. Id. And Alfa-Bank later clarified that Julen did not “define constitutional ‘requirements’ for adequate notice.” 230 Cal. Rptr. 3d at 232. (Fn. 16).
(U.S. Court of Appeals for the Ninth Circuit, July 13, 2022, Vincent de Fontbrune v. Alan Wofsy, Docket No. 19-16913, for Publication)
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