FILED
NOT FOR PUBLICATION OCT 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FIDELITY NATIONAL FINANCIAL No. 08-16967
INC.,
D.C. No. 2:03-cv-01222-RCB
Plaintiff - Appellee,
FIDELITY EXPRESS NETWORK INC., MEMORANDUM *
Claimant - Appellee,
v.
COLIN H. FRIEDMAN and HEDY
KRAMER FRIEDMAN, individually and
as trustee of the Friedman Family Trust
UDT, dated July 23, 1987,
Defendants - Appellants,
and
ANITA MESHKATAI, individually and
as a trustee of the Anita Kramer Living
Trust, dated July 23, 1987,
Defendant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding
Argued December 11, 2009
Resubmitted October 27, 2010
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Colin and Hedy Freidman (collectively “Appellants”) appeal the court’s
denial of their motion to quash the enforcement of a 2002 California fraud
judgment. Although the California judgment was registered in Arizona, Appellants
claim the judgment was not renewed pursuant to Arizona law within five years of
its entry and had consequently expired by 2008. Fidelity argues the California
judgment was renewed by certain collection activities in Arizona and by a related
racketeering lawsuit in California. We certified these questions to the Arizona
Supreme Court and now adopt their answers. See Fidelity Nat’l Fin., Inc. v.
Friedman, No. CV-10-0096-CQ, slip op. at 14 (Ariz. filed August 19, 2010).
Arizona law provides that “an execution or other process shall not be issued
upon a judgment . . . [unless] an action is brought on it within five years from the
date of [its] entry . . . .” Ariz. Rev. Stat. Ann. § 12-1551(B); see id. § 12-1611
(“A judgment may be renewed by action thereon at any time within five years after
the date of the judgment.”).
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Fidelity claims that, under Section 1-215, which defines “action” to include
“any matter or proceeding in a court, civil or criminal,” certain collection activities
undertaken by Fidelity in Arizona constitute “actions on” the original judgment.
Id. § 1-215. But these collection activities—filing for a writ of garnishment,
applying for orders from the court to inspect a safety deposit box, and requiring a
debtor’s exam—“were attempts to collect upon the 2002 judgment, not to renew
it.” Fidelity, No. CV-10-0096-CQ at 14. To “renew” a judgment pursuant to § 12-
1551(B) or § 12-1611, a party must bring a traditional “common law action on
[the] judgment,” not simply pursue an action to enforce the judgment. See id. at
8–9 (“The main purpose of an action on a judgment is to obtain a new judgment
which will facilitate the ultimate goal of securing the satisfaction of the original
cause of action. . . . [T]he amount sought is the outstanding liability on the original
judgment.” (internal citations omitted; emphasis added)).
Additionally, the California racketeering lawsuit “clearly was not a common
law action on the judgment; it did not simply recite the amount owed and seek a
judgment on that debt.” Fidelity, No. CV-10-0096-CQ at 14. Instead, the suit
sought remedies under federal and California law merely relating to the California
judgment, which does not effect renewal. Id.; see id. at 10 (“These statutes . . .
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[require] not simply an action in some way related to the earlier judgment, but
rather a specific form of suit—the common law action on a judgment.”).
Fidelity also questions (1) whether it successfully renewed the judgment by
affidavit in 2008, and (2) whether its 2007 registration of the final California
judgment also renewed the judgment. Because these issues were not considered by
the district court and the parties did not provide comprehensive briefing to inform
our review, we do not consider them on appeal. See Golden Gate Hotel Ass’n v.
San Francisco, 18 F.3d 1482, 1487 (9th Cir. 1994) (“As a general rule, ‘a federal
appellate court does not consider an issue not passed upon below.’”) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
Since Fidelity did not file a common law action for renewal on the 2002
judgment within five years of its entry, the judgment expired by 2008. See § 12-
1551(B) (“An execution or other process shall not be issued upon a judgment after
the expiration of five years from the date of its entry unless the judgment is
renewed . . . .”).
We accordingly REVERSE.
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