Vincent De Fontbrune v. Alan Wofsy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VINCENT SICRE DE FONTBRUNE; Nos. 19-16913
LOAN SICRE DE FONTBRUNE; ADEL 19-17024
SICRE DE FONTBRUNE; ANAIS SICRE
DE FONTBRUNE, in their capacity as D.C. No.
personal representatives of the Estate 5:13-cv-05957-
of YVES SICRE DE FONTBRUNE, EJD
Plaintiffs-Appellants/
Cross-Appellees,
OPINION
v.

ALAN WOFSY; ALAN WOFSY &
ASSOCIATES,
Defendants-Appellees/
Cross-Appellants.

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding

Argued and Submitted February 8, 2022
San Francisco, California

Filed July 13, 2022
2 SICRE DE FONTBRUNE V. WOFSY

Before: Andrew D. Hurwitz and Lawrence VanDyke,
Circuit Judges, and Joan N. Ericksen, * District Judge.

Opinion by Judge Ericksen

SUMMARY **

Foreign Judgments

The panel reversed the district court’s summary
judgment entered for defendants Alan Wofsy and Alan
Wofsy & Associates (collectively “Wofsy”) in an action
brought by Yves Sicre de Fontbrune in California state court
seeking recognition of a French money judgment.

The photographer Christian Zervos created the Zervos
Catalogue of the works of Pablo Picasso, which was
originally published under the label of Cahiers d’Art. In
1979, Sicre de Fontbrune acquired the rights for the business
capital of Cahiers d’Art. Wofsy produced a series of books,
titled “The Picasso Project,” that contained reproductions of
photographs from the Zervos Catalogue.

The French judgment found that Wofsy had violated an
astreinte – a French legal device that imposed money
damages for the continued use of copyrighted photographs
of Pablo Picasso’s works. Sicre de Fontbrune had obtained

*
The Honorable Joan N. Ericksen, United States District Judge for
the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 SICRE DE FONTBRUNE V. WOFSY 3

that astreintre as a form of relief in a 2001 French judgment
finding that the photographs’ copyrights were infringed.
The district court granted summary judgment for Wofsy
based on a defense to recognition under California’s
Uniform Foreign-Country Money Judgment Recognition
Act, Cal. Civ. Proc. Code §§ 1713-1725, namely, the defense
that the French judgment was repugnant to United States
public policy protecting free expression.

The panel held that in international diversity cases, such
as this one, the enforceability of foreign judgments is
generally governed by the law of the state in which
enforcement is sought; and the California Recognition Act
governed. The Recognition Act lists several grounds for
nonrecognition. Five statutory grounds for nonrecognition
of the French judgment are at issue in this appeal.

First, Sicre de Fontbrune challenged the district court’s
conclusion that the French judgment was repugnant to
United States public policy favoring free expression. The
fair use defense to copyright infringement is one of the built-
in First Amendment accommodations that ease the tension
between free expression and U.S. copyright law. As part of
its public policy defense, Wofsy asserted that the fair use
doctrine of U.S. copyright law – a feature that France’s
copyright scheme lacked – would have protected the copying
of the photographs at issue. The panel rejected this
contention. The fair use defense requires the analysis of four
statutory factors, and the panel examined the factors with
respect to the individual photographs in the catalogue at
issue. Concerning the first factor - the “purpose and
character” of the use, the panel held that the undisputed
evidence showed that the use of the copyrighted photographs
was commercial and non-transformative. This factor
weighed against a finding of fair use. For the second fair use
4 SICRE DE FONTBRUNE V. WOFSY

factor – the nature of the copyrighted work, the panel held
that the photographs’ creative qualities prevented this factor
from weighing heavily, if at all, in favor of fair use. With the
third factor – the amount and substantiality of the portion
used, the panel held this factor weighed against fair use
where the copying included the entirety of the copyrighted
photographs at issue and Wofsy did not transform the
photographs. With the fourth fair use factor – the effect on
potential market or value of the copyrighted work, the panel
held that this factor weighed against fair use where there was
no evidence countering the presumption of market harm,
which arose where the allegedly infringing use was both
commercial and non-transformative. After weighing the
four factors, the panel had serious doubts that a fair use
defense would protect the copying of the photographs at
issue, even if the nature of the copyrighted works were to
favor fair use. Wofsy’s inability to urge a fair use defense in
France did not place the French judgment in conflict with
fundamental American constitutional principles, and Sicre
de Fontbrune was therefore entitled to partial summary
judgment on this defense.

Second, both parties appealed the district court’s denial
of summary judgment concerning the assertion that the
French court lacked subject matter jurisdiction. The French
appellate courts did not evaluate whether the French trial
court, the Tribunal de Grande Instance de Paris (“TGI”),
had subject matter jurisdiction over the astreinte proceeding.
The panel held that the TGI’s subject matter jurisdiction did
not depend on Sicre de Fontbrune’s standing, and therefore
the district court erred in holding otherwise. There is no
indication that a plaintiff’s lack of standing circumscribes
the judicial power – the subject matter jurisdiction – of
French courts. The panel concluded that Sicre de Fontbrune
is entitled to partial summary judgment on this defense.
 SICRE DE FONTBRUNE V. WOFSY 5

Third, Wofsy challenged the district court’s grant of
summary judgment to Sicre de Fontbrune regarding the
assertion that the French court lacked personal jurisdiction
over Wofsy. A court applying California’s Recognition Act
shall not refuse recognition of a foreign-country judgment
for lack of personal jurisdiction if the defendant “voluntarily
appeared in the proceeding.” Cal Civ. Proc. Code
§ 1717(a)(2). The panel agreed with the district court that
Wofsy waived this defense through a voluntary appearance
when he petitioned the TGI to set aside a 2012 judgment.
The panel concluded that the district court properly granted
partial summary judgment to Sicre de Fontbrune regarding
the defense of lack of personal jurisdiction.

Fourth, Wofsy asserted that he was entitled to summary
judgment on the defense that he received inadequate notice
of the proceedings that resulted in the French judgment. The
California Supreme Court has not clarified the showing that
a defendant must make to prove the insufficient notice
defense. A California Court of Appeal has held that a mere
failure of actual notice does not prove the inadequate notice
defense. The panel accepted the Court of Appeal’s holding
that the insufficient notice defense requires the proponent to
prove the absence of a constitutionally adequate attempt at
actual notice. The panel considered whether the attempts to
serve Wofsy before the October 2011 hearing constituted
sufficient efforts at notice, despite their failure. The panel
held that the failed attempts to service process did not, by
themselves, disprove the notice defense. There was,
however, a factual dispute as to whether Wofsy received
actual notice of the pendency of the action and an
opportunity to present objections. The panel held that the
district court appropriately left to the finder of fact to
determine whether Wofsy “receive[d] notice of the
6 SICRE DE FONTBRUNE V. WOFSY

proceeding in sufficient time to enable [him] to defend.”
Cal. Civ. Proc. Code § 1716(c)(1).

Fifth, Wofsy argued that Sicre de Fontbrune obtained the
French judgment by fraud that deprived Wofsy of an
adequate opportunity to present his case. The panel held that
even assuming that Sicre de Fontbrune deceived the TGI as
to his legal interest in the astreinte, Wofsy was not entitled
to summary judgment on the claim that the
misrepresentation “deprived [him] of an adequate
opportunity to present [his] case.” See Cal. Civ. Code
§ 1716(c)(2). A question remains as to whether Wofsy
reasonably should have detected the alleged fraud during the
French proceedings, and therefore as to whether such fraud
deprived him of an adequate opportunity to present his case.
The panel concluded that the district court did not err by
denying Wofsy summary judgment on the fraud defense.

The panel held that Wofsy was not entitled to summary
judgment based on the public policy defense. No other
ground for nonrecognition at issue in this appeal supplied an
alternative basis for affirming the judgment below. The
panel reversed and remanded for further proceedings.

COUNSEL

Richard J. Mooney (argued), RJM Litigation Group, San
Francisco, California, for Plaintiffs-Appellants.

Neil A.F. Popović (argued), Jonathan G. Borle, and Matthew
G. Halgren, Sheppard Mullin Richter & Hampton LLP, San
Francisco, California, for Defendants-Appellees.
 SICRE DE FONTBRUNE V. WOFSY 7

Kathryn C. Thornton (argued), Ropes & Gray LLP,
Washington, D.C.; Marta F. Belcher, James R. Batchelder,
and Monica A. Ortel, Ropes & Gray LLP, East Palo Alto,
California; Corynne McSherry, Mitchell Stoltz, and
Alexandra Moss, Electronic Frontier Foundation, San
Francisco, California; Robert S. Adams IV and Avery
Gardiner, Center for Democracy & Technology,
Washington, D.C.; John Bergmayer, Public Knowledge,
Washington, D.C.; for Amici Curiae Project Gutenberg
Literary Archive Foundation, Electronic Frontier
Foundation, Center for Democracy and Technology, and
Public Knowledge.

OPINION

ERICKSEN, District Judge:

INTRODUCTION

Yves Sicre de Fontbrune brought this action in California
state court seeking recognition of a French money judgment.
The French judgment found that Defendants, Alan Wofsy
and Alan Wofsy & Associates (collectively, “Wofsy”), had
violated an astreinte—a French legal device that imposed
money damages for the continued use of copyrighted
photographs of Pablo Picasso’s works. Sicre de Fontbrune
had obtained that astreinte as a form of relief in a 2001
French judgment finding that the photographs’ copyrights
were infringed.

After removal, the district court considered motions for
summary judgment on eight defenses to recognition under
the California version of the Uniform Foreign-Country
Money Judgment Recognition Act, Cal. Civ. Proc. Code
§§ 1713–1725. The district court granted summary
8 SICRE DE FONTBRUNE V. WOFSY

judgment for Wofsy based on one of those defenses: that the
French judgment was repugnant to United States public
policy protecting free expression. Sicre de Fontbrune
appeals, 1 and Wofsy cross-appeals the denial of summary
judgment on other defenses. We conclude that summary
judgment was not proper, and we reverse and remand for
further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Starting in 1932, the photographer Christian Zervos
created a catalogue raisonné 2 (the “Zervos Catalogue”) of
the works of the Spanish artist Pablo Picasso. Sicre de
Fontbrune, 838 F.3d at 995. The catalogue ultimately
featured nearly 16,000 photographs of Picasso’s works. Id.
Zervos originally published this catalogue under the label of
Cahiers d’Art. Id. In 1979, Sicre de Fontbrune acquired the
rights to the business capital of Cahiers d’Art, including its
intellectual property. Id.

In 1991, Alan Wofsy Fine Arts LLC acquired permission
from the Estate of Pablo Picasso to publish a work
illustrating and describing works by Picasso. Wofsy then
produced a series of books on Picasso, titled “The Picasso
Project”—a chronological illustrated catalogue of Picasso’s

1
Sicre de Fontbrune died in 2015. His wife and children were later
substituted as successors in interest. Sicre de Fontbrune v. Wofsy, 838
F.3d 992, 996 n.3 (9th Cir. 2016), as amended on denial of reh’g and
reh’g en banc (Nov. 14, 2016). For convenience, we refer to them
collectively as “Sicre de Fontbrune.”
2
A catalogue raisonné is the “‘complete published catalogue of an
artist’s work.’” Sicre de Fontbrune, 838 F.3d at 995 n.1 (quoting The
Concise Oxford Dictionary of Art Terms Online (Michael Clarke &
Deborah Clarke eds., 2d ed. 2010)).
 SICRE DE FONTBRUNE V. WOFSY 9

works. The Picasso Project contained reproductions of
photographs from the Zervos Catalogue.

In 1996, at Sicre de Fontbrune’s request, French police
seized two volumes of The Picasso Project that were offered
for sale at a book fair in Paris. Sicre de Fontbrune then sued
Alan Wofsy in France for copyright infringement. Alan
Wofsy appeared, and Alan Wofsy & Associates intervened.
In 1998, a trial court, the Tribunal de Grande Instance de
Paris (“TGI”), determined that the photographs in the Zervos
Catalogue were documentary in nature and therefore
ineligible for copyright protection.

On September 26, 2001, the French Cour d’Appel (Court
of Appeal) reversed and entered judgment in favor of Sicre
de Fontbrune, determining that the photographs at issue did
not merely copy Picasso’s works, but rather added creative
features through “deliberate choice[s] of lighting, the lens,
filters, [and] framing or angle of view.” 3 The court also
confirmed that Sicre de Fontbrune had obtained “the
intellectual property rights on the intangible items attached
to the stock, to the [Zervos] catalogue and the photographs
that it contains” when he acquired the Cahiers d’Art business
in 1979. The Cour d’Appel found Wofsy “guilty of
infringement of copyright,” and awarded various relief to
Sicre de Fontbrune, including a legal device known as an
astreinte, under which Wofsy would be liable for damages
of 10,000 francs for each proven infraction of the prohibition
on using the photographs at issue. Wofsy appealed to the
Cour de Cassation (the French Civil Supreme Court), but
that court removed the appeal from its docket after Wofsy
did not pay the other damages and costs the Cour d’Appel

3
The original judgments appear in French. We refer to the certified
translations provided by the parties.
10 SICRE DE FONTBRUNE V. WOFSY

awarded to Sicre de Fontbrune. On December 20, 2001,
Sicre de Fontbrune sold his business capital in Cahiers d’Art,
including all its tangible and intangible components, to a
third party.

Sicre de Fontbrune initiated a new lawsuit (the “Astreinte
Proceeding”) in the TGI against Wofsy on July 22, 2011,
seeking to “liquidate” the astreinte awarded by the Cour
d’Appel in 2001. Sicre de Fontbrune claimed that copies of
The Picasso Project were offered for sale in a French
bookstore in 2011, and that 1,492 photographs from the
Zervos Catalogue were reproduced in these works in
violation of the astreinte.

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.

The TGI held a hearing in the Astreinte Proceeding on
October 25, 2011. Wofsy did not appear. On November 15,
2011, the TGI ordered another hearing. The order contained
a brief description of the claim and proceedings to date and
the decision to reopen the proceedings for a hearing on
December 13, 2011, “for the production by [Sicre de
Fontbrune] of the certificate from the foreign authority
responsible for notification of the document instituting the
proceedings,” as requested in accordance with Article 6 of
 SICRE DE FONTBRUNE V. WOFSY 11

the Hague Service Convention. Wofsy received a copy of
that order in late November 2011. A letter accompanying
the order explained the time limits for appealing the order.

At the December 2011 hearing, the TGI accepted the
requested service certificates, and concluded that Wofsy had
been “duly summoned” in accordance with the French Civil
Procedure Code. But Wofsy again failed to appear. The TGI
entered a default judgment against Wofsy on January 10,
2012, ordering Wofsy to pay 2,000,000 Euros to Sicre de
Fontbrune in liquidation of the astreinte.

While the Astreinte Proceeding was pending, Sicre de
Fontbrune commenced another lawsuit in the TGI on
September 20, 2011. The suit alleged copyright
infringement by Wofsy and two defendants not party to the
instant lawsuit: Alan Wofsy Fine Arts LLC, and the French
bookstore where copies of The Picasso Project had been
discovered for sale in 2011. In January 2013, the TGI found
that on December 20, 2001, Sicre de Fontbrune had sold the
“commercial rights which [he] had acquired on May 31,
1979,” and that he no longer had standing to sue for
copyright infringement.

On February 25, 2014, Wofsy initiated a proceeding in
the TGI seeking to vacate the 2012 astreinte judgment,
arguing that Sicre de Fontbrune’s transfer of copyrights in
December 2001 deprived him of standing to bring the
Astreinte Proceeding. The TGI dismissed this “Review
Proceeding” in August 2014. Wofsy appealed, and the Cour
d’Appel affirmed the dismissal in April 2018, finding the
filing of the Review Proceeding untimely. The Cour de
12 SICRE DE FONTBRUNE V. WOFSY

Cassation affirmed that decision on October 17, 2019. ECF
Nos. 24 (Case No. 19-16913), 22 (Case No. 19-17024). 4

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.

On remand, the district court heard cross-motions for
summary judgment on eight defenses under the Recognition
Act. See Cal. Civ. Proc. Code § 1716. The district court
granted summary judgment for Wofsy on only one of those
defenses, determining that the astreinte judgment was
repugnant to public policy, and exercising its discretion to
decline recognition. Sicre de Fontbrune appeals the grant of
summary judgment to Wofsy on that issue, and appeals the
district court’s denial of partial summary judgment to Sicre
de Fontbrune on the defense of lack of subject matter
jurisdiction. Wofsy cross-appeals the grant of partial
summary judgment to Sicre de Fontbrune on the defense of
lack of personal jurisdiction, and appeals the denial of
summary judgment to Wofsy on the defenses based on lack
of subject matter jurisdiction, insufficient notice, and fraud.

4
We take judicial notice of the 2019 Cour de Cassation opinion and
its certified English translation.
 SICRE DE FONTBRUNE V. WOFSY 13

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court’s final
judgment under 28 U.S.C. § 1291. Our review extends to an
order denying partial summary judgment that has become
part of a final judgment. Scribner v. WorldCom, Inc.,
249 F.3d 902, 907 (9th Cir. 2001).

We review a summary judgment de novo. Id. We “view
the evidence in the light most favorable to the nonmoving
party, determine whether there are any genuine issues of
material fact, and decide whether the district court correctly
applied the relevant substantive law.” Animal Legal Def.
Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th
Cir. 2016) (en banc) (per curiam).

DISCUSSION

“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. 5

5
Although there is no contest about diversity of citizenship, the
district court determined that the defendants in this case are citizens and
residents of California—a finding not disputed on appeal. Although a
defendant’s citizenship in the state where an action is brought ordinarily
prevents removal, 28 U.S.C. § 1441(b)(2), that rule is “procedural, or
non-jurisdictional,” Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939
(9th Cir. 2006). Removal is unchallenged here.
14 SICRE DE FONTBRUNE V. WOFSY

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. 6

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

6
As in the district court’s order, all citations to the Recognition Act
in this opinion refer to the version of the Recognition Act in effect at the
time this suit began in 2013, unless otherwise noted. See Cal. Civ. Proc.
Code §§ 1713 et seq. (West 2013).

Given our previous opinion, the parties no longer dispute that the
7

2012 Astreinte Judgment falls within the coverage of the Recognition
Act. See Sicre de Fontbrune, 838 F.3d at 1007.
 SICRE DE FONTBRUNE V. WOFSY 15

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).

Five statutory grounds for nonrecognition are at issue in
this appeal. First, Sicre de Fontbrune challenges the district
court’s conclusion that the French judgment was repugnant
to U.S. public policy favoring free expression, and argues
that he was entitled to partial summary judgment on this
issue. Second, both parties appeal the district court’s denial
of summary judgment concerning the assertion that the
French court lacked subject matter jurisdiction. Third,
Wofsy challenges the district court’s grant of partial
summary judgment to Sicre de Fontbrune regarding the
assertion that the French court lacked personal jurisdiction
over Wofsy. Fourth, Wofsy asserts that he was entitled to
summary judgment on the defense that he received
inadequate notice of the proceedings that resulted in the
French judgment. And fifth, Wofsy argues that Sicre de
Fontbrune obtained the French judgment by fraud that
deprived Wofsy of an adequate opportunity to present his
case.

We conclude that Sicre de Fontbrune—not Wofsy—was
entitled to summary judgment on the defense of repugnancy
to public policy. We also conclude that no other defenses
raised on appeal provide an alternate basis to affirm the grant
of summary judgment. See Spencer v. Peters, 857 F.3d 789,
797 n.3 (9th Cir. 2017). Accordingly, we reverse the district
court’s judgment and remand for further proceedings.
16 SICRE DE FONTBRUNE V. WOFSY

I. 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).

The district court determined that Wofsy would have
prevailed on a fair use defense to the copyright infringement
claim on which the astreinte judgment was based. The court
also concluded that French law’s failure to allow for
Wofsy’s fair use defense made the judgment repugnant to
U.S. public policy protecting expression.

“California courts have set a high bar for repugnancy
under the Uniform Act.” Ohno, 723 F.3d at 1002. The issue
is not simply whether the “foreign judgment or cause of
action is contrary to our public policy.” Id. Rather, the
question is whether either is “so offensive to our public
policy as to be prejudicial to recognized standards of
morality and to the general interests of the citizens.”
Hyundai Sec. Co. v. Lee, 182 Cal. Rptr. 3d 264, 272 (Ct.
App. 2015) (cleaned up), as modified (Jan. 14, 2015). Under
this standard, a “difference in law, even a marked one, is not
 SICRE DE FONTBRUNE V. WOFSY 17

sufficient to raise a public policy issue. Nor is it relevant
that the foreign law allows a recovery that the forum state
would not allow.” Id. (cleaned up). Instead, public policy is
violated “only if recognition or enforcement of the foreign-
country judgment would tend clearly to injure public health,
the public morals, or the public confidence in the
administration of law, or would undermine that sense of
security for individual rights, whether of personal liberty or
of private property, which any citizen ought to feel.” Id.
(cleaned up).

The standard is not lower where the asserted repugnancy
arises from inconsistency with constitutional principles
rather than with statutes or common law. Ohno, 723 F.3d
at 1004. In such cases, “only judgments presenting a direct
and definite conflict with fundamental American
constitutional principles will be denied recognition because
repugnant.” Id. at 1004–05 (emphasis added) (noting cases
finding repugnancy to the First Amendment where the
foreign judgments “would unquestionably violate the
Constitution were they issued here with respect to domestic
activity”). Thus, in Ohno, this Court determined that a
judgment was not repugnant to public policy in part because
the defendant’s position—that imposing tort liability on a
church’s religious practice was incompatible with the
religion clauses of the California and United States
constitutions—was debatable. Id. at 1009.

Wofsy’s public policy defense rests on two assertions:
first, that the fair use doctrine of U.S. copyright law—a
feature that France’s copyright scheme lacks—would have
protected the copying of the photographs at issue; and
second, that a judgment imposing copyright liability based
on copying that would qualify as fair use is repugnant to our
public policy. For the reasons below, we reject the first of
18 SICRE DE FONTBRUNE V. WOFSY

these contentions, and therefore need not reach the second.
See S.A.R.L. Louis Feraud Int’l v. Viewfinder, Inc., 489 F.3d
474, 483 (2d Cir. 2007) (“If the publication of photographs
of copyrighted material in the same manner as [the
defendant] has done in this case would not be fair use under
United States law, then the French intellectual property
regime sanctioning the same conduct certainly would not be
repugnant to public policy.”).

The fair use defense under U.S. copyright law requires
the analysis of four statutory factors. Campbell v. Acuff-
Rose Music, Inc., 510 U.S. 569, 578 (1994). They are
“(1) the purpose and character of the use, . . . (2) the nature
of the copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential market
for or value of the copyrighted work.” 17 U.S.C. § 107.

While Wofsy claims fair use of the Zervos Catalogue as
a whole, the individual photographs within the Zervos
Catalogue are at issue in this case. The 2001 Cour d’Appel
decision held that these photographs were eligible for
copyright protection in France and that that the copyright
had been infringed. And the astreinte provided for damages
of 10,000 francs for each violation of the prohibition on
further use of the photographs. The 2012 astreinte judgment
recognized damages of 14,920,000 francs, 8 based on the
1,492 photographs copied from the Zervos Catalogue. We
accordingly examine the fair use factors with respect to the
photographs, and need not analyze fair use with respect to
the Zervos Catalogue as a whole.

8
The court limited the actual astreinte award to the amount that
Sicre de Fontbrune had sought—2,000,000 Euros.
 SICRE DE FONTBRUNE V. WOFSY 19

A. Purpose and character of use

The “purpose and character” of an allegedly infringing
use may indicate fair use, depending in part on “whether
such use is of a commercial nature or is for nonprofit
educational purposes.” 17 U.S.C. § 107. Commercial use
“‘tends to weigh against a finding of fair use.’” Campbell,
510 U.S. at 585 (quoting Harper & Row Publ’ers, Inc. v.
Nation Enters., 471 U.S. 539, 562 (1985)). It is “not
conclusive . . . but rather a fact to be weighed along with
others in fair use decisions.” Id. (citing Sony Corp. of Am.
v. Universal City Studios, Inc., 464 U.S. 417, 448–49 (1984))
(cleaned up). The “central purpose” of considering the
“purpose and character” of the work is to determine whether
the new work is “transformative”—that is, whether it “adds
something new, with a further purpose or different character,
altering the first with new expression, meaning, or message.”
Id. at 579.

Wofsy concedes that The Picasso Project is a
commercial venture. But the district court observed that The
Picasso Project was “intended for libraries, academic
institutions, art collectors, and auction houses,” and
concluded that The Picasso Project’s purpose aligned with
the “criticism, comment, news reporting, teaching . . . ,
scholarship, or research” purposes that Section 107
characterizes as non-infringing. See 17 U.S.C. § 107. The
district court relied on that conclusion to find that the first
fair use factor weighed “strongly” in favor of fair use.

We disagree. The “use” at issue is the allegedly
infringing one—the reproduction of copyrighted
photographs in a book offered for sale. The “end-user’s
utilization of the product is largely irrelevant.” Zomba
Enters., Inc. v. Panorama Recs., Inc., 491 F.3d 574, 582 (6th
Cir. 2007); see also Princeton Univ. Press v. Michigan
20 SICRE DE FONTBRUNE V. WOFSY

Document Servs., Inc., 99 F.3d 1381, 1386 (6th Cir. 1996)
(rejecting a fair use defense where a college-town copy shop
copied portions of books and sold them to students in
“coursepacks” intended for educational use).

Nor does the evidence support a finding of
transformative use that could rebalance this factor in
Wofsy’s favor. 9 It is true that even exact copies can be
transformative. For example, this Court has recognized
transformative use in the replication of copyrighted
photographs as low-resolution thumbnails for an internet
search engine, because the thumbnails “served an entirely
different function,” i.e., improving access to information.
Kelly v. Arriba Soft Corp., 336 F.3d 811, 818–19 (9th Cir.
2003). The reduction in resolution made it “unlikely that
anyone would use [the] thumbnails for [the] illustrative or
aesthetic purposes” of the protected works. Id. at 819.

Wofsy argues that he used the photographs only as
documentation of Picasso’s works, without regard to the
photographs’ creative qualities. But a mere “‘difference in
purpose is not quite the same thing as transformation.’”
Monge v. Maya Mags., Inc., 688 F.3d 1164, 1176 (9th Cir.
2012) (quoting Infinity Broad. Corp. v. Kirkwood, 150 F.3d
104, 108 (2d Cir. 1998)). Moreover, the purposes of the
works overlap. The Picasso Project and the photographs
both present the works of Picasso. This much is evident
from the fact that the photographs—though deemed by the
French Cour d’Appel to include creative or artistic qualities

9
Wofsy argues that Sicre de Fontbrune waived any argument about
transformative use by failing to address it in the district court. But as the
party resisting recognition of the French judgment, Wofsy bore the
burden to establish a ground for nonrecognition. Ohno, 723 F.3d at 991;
Cal. Civ. Proc. Code § 1716(d).
 SICRE DE FONTBRUNE V. WOFSY 21

of their own—originally were published as part of a
catalogue raisonné documenting Picasso’s works. The
exact copies in this case therefore did not serve an “entirely
different function” than the originals. Cf. Kelly, 336 F.3d
at 818–19.

The fact that The Picasso Project included informative
captions and organized the photographs so as to facilitate
research does not change our conclusion. Adding
informative captions does not necessarily transform
copyrighted works. See Monge, 688 F.3d at 1174 (finding
that “neither minor cropping nor the inclusion of headlines
or captions transformed” copyrighted photographs).

In sum, the undisputed evidence shows that the use of the
copyrighted photographs was commercial and non-
transformative. This factor therefore weighs against a
finding of fair use.

B. Nature of the copyrighted work

The second fair use factor considers “two aspects of the
work: the extent to which it is creative and whether it is
unpublished.” Id. at 1177. The “scope of fair use is narrower
with respect to unpublished works” than with respect to
published ones. Harper & Row, 471 U.S. at 564. The parties
agree that the photographs were published in the Zervos
Catalogue. Accordingly, the district court properly focused
its inquiry on creativity.

“Photos are generally viewed as creative, aesthetic
expressions of a scene or image and have long been the
subject of copyright.” Monge, 688 F.3d at 1177. This is so
“especially when they are created for public viewing.” VHT,
Inc. v. Zillow Grp., Inc., 918 F.3d 723, 743 (9th Cir. 2019).
Even “point-and-shoot” photographs that are “not highly
22 SICRE DE FONTBRUNE V. WOFSY

artistic” can merit copyright protection. Monge, 688 F.3d
at 1177.

Wofsy emphasizes the documentary purpose of the
Zervos Catalogue. But that purpose does not negate any
creative character displayed by the photographs themselves.
Wofsy points to the expert declaration of a prominent art
historian opining that photographs in catalogues raisonnes,
in general, lack an artistic purpose, and that the photographs
in the Zervos Catalogue are “not themselves works of art.”
Yet, the French Cour d’Appel recognized that the
photographs have creative elements reflecting deliberate
choices of lighting, filters, framing, and angle of view. The
fact that gallery owners and readers of Cahiers d’Art (rather
than Zervos himself) may have created some of the disputed
photographs does not contradict the French court’s finding
that the photographs exhibit creativity.

The photographs’ creative qualities prevent this factor
from weighing heavily, if at all, in favor of fair use. 10

C. Amount and substantiality of the portion used

The third fair use factor is “the amount and substantiality
of the portion used in relation to the copyrighted work as a
whole.” 17 U.S.C. § 107. “[C]opying an entire work
militates against a finding of fair use.” VHT, 918 F.3d at 744
(quoting Worldwide Church of God v. Phila. Church of God,
Inc., 227 F.3d 1110, 1118 (9th Cir. 2000)) (cleaned up). But,

10
The Second Circuit has concluded, albeit in dicta, that copied
works’ ineligibility for copyright in the United States does not, by itself,
suffice to establish repugnancy of a judgment based on that copying.
Louis Feraud, 489 F.3d at 483. Wofsy does not argue on this appeal that
the photographs would be uncopyrightable under U.S. law, and we
therefore do not address the issue.
 SICRE DE FONTBRUNE V. WOFSY 23

because the purpose of the copying informs the analysis,
copying entire works can qualify as fair use in some
circumstances, as where the copying is transformative. See
Kelly, 336 F.3d at 821.

The district court focused on the fact that The Picasso
Project reproduced only 1,492 photographs out of the
roughly 16,000 photographs in the Zervos Catalogue. But
the copying included the entirety of the copyrighted
photographs at issue. And especially in view of our
conclusion that Wofsy did not transform the photographs,
we are unpersuaded that this is a case like Kelly in which
copying the entirety of each photograph was necessary. See
id. This factor weighs against fair use.

D. Effect on potential market or value

The fourth fair use factor is “the effect of the use upon
the potential market for or value of the copyrighted work.”
17 U.S.C. § 107. “This last factor is undoubtedly the single
most important element of fair use.” Harper & Row,
471 U.S. at 566. We consider not only the effect of the
allegedly infringing work itself, but also “whether
unrestricted and widespread conduct of the sort engaged in
by the defendant would result in a substantially adverse
impact on the potential market for the original.” Campbell,
510 U.S. at 590 (cleaned up).

Wofsy offered evidence that auction prices for the
Zervos Catalogue have increased during the time that The
Picasso Project has been on the market. While this is
circumstantial evidence that The Picasso Project has not
depressed the market for the Zervos Catalogue, it proves
nothing about the effect on the market for licensing the
disputed photographs. The record supplies no evidence that
widespread appropriation of those photographs in published
24 SICRE DE FONTBRUNE V. WOFSY

books would only negligibly affect the market for the
photographs.

Furthermore, where the allegedly infringing use is both
commercial and non-transformative, a presumption of
market harm arises. Disney Enters., Inc. v. VidAngel, Inc.,
869 F.3d 848, 861 (9th Cir. 2017) (citing Leadsinger, Inc. v.
BMG Music Pub., 512 F.3d 522, 531 (9th Cir. 2008)). We
have concluded that The Picasso Project’s use of the
photographs was commercial and non-transformative. With
no evidence countering the resulting presumption of market
harm, this factor weighs against fair use.

E. Conclusion on fair use and public policy

Fair use may depend on factual findings, but the ultimate
question of whether facts indicate fair use is legal in nature.
Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199
(2021). After weighing the four factors above, we have
serious doubts that a fair use defense would protect the
copying of the photographs at issue, even if the nature of the
copyrighted works were to favor fair use. Because it is at
least highly debatable—if not absolutely clear—that a fair
use defense would not protect the conduct underlying the
judgment of which Sicre de Fontbrune seeks recognition,
Wofsy’s inability to urge a fair use defense in France does
not place the French judgment in “direct and definite conflict
with fundamental American constitutional principles.”
Ohno, 723 F.3d at 1004. Sicre de Fontbrune is therefore
entitled to partial summary judgment on this defense. 11

11
We leave for another day the question of whether a defendant’s
lack of opportunity to assert a clearly meritorious fair use defense would
render a foreign judgment repugnant to the public policy of the United
States or of California.
 SICRE DE FONTBRUNE V. WOFSY 25

II. 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 district court determined that the French court’s
jurisdiction over the subject matter of the 2012 Astreinte
Proceeding depended on Sicre de Fontbrune’s standing; that
his standing depended on whether he retained rights in the
astreinte; and that whether he retained rights in the astreinte
turned on the disputed question of whether Sicre de
Fontbrune had transferred those rights. Our conclusion
regarding the first of those assertions diverges from the
district court’s view and disposes of the subject matter
jurisdiction defense.

The French appellate courts did not evaluate whether the
TGI had subject matter jurisdiction over the Astreinte
Proceeding. Instead, they concluded that Wofsy’s effort to
set aside the Astreinte Judgment was untimely. We therefore
lack an authoritative statement from the French courts as to
whether the TGI possessed subject matter jurisdiction over
the Astreinte Proceeding.
26 SICRE DE FONTBRUNE V. WOFSY

The parties’ submissions and our own research,
however, assure us that the TGI’s subject matter jurisdiction
did not depend on Sicre de Fontbrune’s standing. Wofsy’s
own expert explained that French courts assess standing in
terms of “admissibility,” rather than jurisdiction. The
French Code of Civil Procedure provides, as translated, that
no claim is “admissible” unless brought by a person who has
the right to act; and that the right to act is “available to all
those who have a legitimate interest in the success or
dismissal of a claim.” Code de Procédure Civile arts. 31, 32
(Fr.).

We acknowledge, as the district court emphasized, that
the “practical result” of a lack of standing in French courts
resembles that of a failure of subject matter jurisdiction in
the federal courts of the United States: dismissal without a
decision on the merits. See Brownback v. King, 141 S. Ct.
740, 749 (2021) (quoting Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101–02 (1998)) (“Ordinarily, a court
cannot issue a ruling on the merits ‘when it has no
jurisdiction’ because ‘to do so is, by very definition, for a
court to act ultra vires.’”). But 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.

Our own research similarly yields no indication that a
plaintiff’s lack of standing circumscribes the judicial
power—the subject matter jurisdiction—of French courts.
The provisions of the Code of Civil Procedure that set forth
the requirements for standing appear within Title II of the
Code, titled “L’action” (“The Action”). Code de Procédure
 SICRE DE FONTBRUNE V. WOFSY 27

Civile tit. II (Fr.). A separate title addresses the
“compétence” (competence) of the courts, including their
jurisdiction. Code de Procédure Civile tit. III (Fr.).

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”).

Wofsy’s arguments on the subject matter jurisdiction
defense rest entirely on the assertion that Sicre de Fontbrune
had transferred his rights in the astreinte at the time he
sought to liquidate it. That assertion, even if proven, does
not establish a defect in the French courts’ subject matter
jurisdiction over the Astreinte Proceeding. Sicre de
Fontbrune is entitled to partial summary judgment on this
defense.

III. Lack of Personal Jurisdiction

A court applying California’s Recognition Act must
refuse to recognize a foreign-country judgment if the
28 SICRE DE FONTBRUNE V. WOFSY

“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). We agree with the district court that
Wofsy waived this defense through a voluntary appearance.

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”).
 SICRE DE FONTBRUNE V. WOFSY 29

Wofsy “voluntarily appeared in the proceeding” by
petitioning the TGI to set aside the 2012 Judgment. Wofsy
does not specify the French procedural mechanism through
which he brought the Review Proceeding in 2014, but
contends that it was a “collateral attack” without a direct
analogue in American law. The Cour d’Appel in 2018,
however, characterized the application to set aside the 2012
Judgment as a recours en révision pursuant to Article 593
and subsequent provisions of the French Code of Civil
Procedure. That chapter of the Code explains that this
procedure is available only to one who has been a party to
the judgment of which review is sought, and only for a
limited set of reasons, including the discovery of false
statements or certain documents. Code de Procédure Civile
arts. 593–95 (Fr.). In this sense, a recours en révision—
loosely translated as an “appeal for review”—resembles a
motion to set aside a judgment under Rule 60 of the Federal
Rules of Civil Procedure. We reject the argument that the
Review Proceeding constituted a wholly separate action. Cf.
CIBC Mellon, 792 N.E.2d at 162 (treating an application to
a court to set aside its judgment as a voluntary appearance
“in the proceedings”). The mere fact that the French courts
viewed the Review Proceeding as untimely did not convert
it into a separate “proceeding” from the one that resulted in
the judgment.

Wofsy’s voluntary appearance also reached beyond
“protecting property seized or threatened with seizure in the
proceeding or . . . contesting the jurisdiction of the court over
the defendant[.]” See Cal. Civ. Proc. Code § 1717(a)(2). In
the Review Proceeding, Wofsy argued that Sicre de
Fontbrune had transferred his interest in the astreinte; that,
therefore, the 2012 Judgment rested on a flawed assertion of
standing; and that the judgment should be set aside. That
effort does not fit within the safe harbor for protecting seized
30 SICRE DE FONTBRUNE V. WOFSY

property or disputing personal jurisdiction. 12 It therefore
precludes Wofsy from asserting the personal jurisdiction
defense to recognition. See id.

The district court properly granted partial summary
judgment to Sicre de Fontbrune regarding the defense of lack
of personal jurisdiction.

IV. 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.
Although the district court reserved issues for the fact finder
that should have been decided as a matter of law, we agree
with the district court’s ultimate conclusion regarding this
defense.

The California Supreme Court has not clarified the
showing that a defendant must make to prove the insufficient
notice defense. But we “will ordinarily accept the decision

12
We need not conclude—as the district court did—that Wofsy
challenged the merits of the 2012 Judgment. We simply observe that
Wofsy argued issues other than the two that Section 1717(a)(2) exempts
from triggering waiver of a defense based on lack of personal
jurisdiction.
 SICRE DE FONTBRUNE V. WOFSY 31

of an intermediate appellate court as the controlling
interpretation of state law, unless we find convincing
evidence that the state’s supreme court likely would not
follow it.” Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am.,
15 F.4th 885, 889 (9th Cir. 2021) (cleaned up).

A California Court of Appeal 13 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).

Wofsy urges us to depart from this rule and hold instead
that a failure of actual notice proves this defense. He argues
that if a failure of actual notice does not suffice, then this
defense collapses into the “lack of personal jurisdiction”
defense. According to Wofsy, that interpretation of the
statute would render the insufficient notice defense mere

13
A decision of a California Court of Appeal that is not in conflict
with another appellate decision binds all inferior courts across the state.
Auto Equity Sales, Inc. v. Super. Ct. of Santa Clara Cnty., 369 P.2d 937,
940 (Cal. 1962) (en banc).
32 SICRE DE FONTBRUNE V. WOFSY

surplusage—a result that should be avoided. See Delaney v.
Super. Ct., 50 Cal. 3d 785, 799 (1990).

But we do not see “convincing evidence,” Mudpie,
15 F.4th at 889, that the California Supreme Court would
reject the Court of Appeal’s interpretation of the insufficient
notice defense. In Alfa-Bank, the Court of Appeal
considered that the “notice ground may have broader
application than the service of process prerequisite for
personal jurisdiction.” Alfa-Bank, 230 Cal. Rptr. 3d at 233
(citing Isack v. Isack, 733 N.W.2d 85 (Mich. Ct. App.
2007)). 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”). Although the insufficient notice and
personal jurisdiction defenses “overlap[ped]” under the
particular facts of Alfa-Bank, the Court of Appeal recognized
that they would not always do so. See Alfa-Bank, 230 Cal.
Rptr. 3d at 233. We therefore accept the Court of Appeal’s
conclusion that the insufficient notice defense requires the
proponent to prove the absence of a constitutionally
adequate attempt at actual notice. See id.

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
 SICRE DE FONTBRUNE V. WOFSY 33

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
34 SICRE DE FONTBRUNE V. WOFSY

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.” 14

Upon learning of a failure of notice, “[d]eciding 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

14
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).
 SICRE DE FONTBRUNE V. WOFSY 35

(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) (“[W]hen 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 “[n]o 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
36 SICRE DE FONTBRUNE V. WOFSY

non-service issued more than two months before the TGI
entered judgment.

Wofsy suggests several “further reasonable steps” to
accomplish notice, see id., that were available but went
unpursued. For example, it is undisputed that both
defendants were successfully served in the instant
proceedings at Alan Wofsy’s residence, and that since 1998
the website of Alan Wofsy Fine Arts LLC has listed its
gallery address on Geary Boulevard in San Francisco, where
staff are available to accept deliveries during workdays. The
record does not indicate any attempt to deliver notice of the
Astreinte Proceeding at either of those addresses.

Sicre de Fontbrune claims that copies of the summons
and complaint were mailed to Wofsy at P.O. Box 2210. But
Wofsy contends that no such documents ever arrived. 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.

But the record does not support a finding that notice was
mailed. It contains no evidence of any attempt at mail
service apart from the failed attempt to send process to Alan
Wofsy through the U.S. Central Authority. Indeed, Sicre de
Fontbrune’s brief specifies that the supposed mail service
 SICRE DE FONTBRUNE V. WOFSY 37

was performed “via the Hague Convention Central
Authority for the United States.” 15

Even if the U.S. process server had mailed notice to P.O.
Box 2210, our conclusion as to the sufficiency of the service
efforts would not change. The certificates requested
pursuant to the Hague Service Convention revealed that
neither defendant had been served. Taking no further steps
to give notice would not have been the response of one
“desirous of actually informing” the addressee. Jones,
547 U.S. at 229; see also Mullane, 339 U.S. at 315. The
failed attempts to serve process do not, by themselves,
disprove the notice defense.

There is, however, a factual dispute as to whether Wofsy
received actual notice of the “pendency of the action and . . .
an opportunity to present [his] objections.” Alfa-Bank,
230 Cal. Rptr. 3d at 224; see Cal. Civ. Proc. Code
§ 1716(c)(1). Wofsy received mail correspondence from the

15
Some confusion may originate from the huissier’s request to serve
Alan Wofsy at his U.S. Post Office box. The record contains no direct
evidence that either the U.S. Central Authority or its process service
contractor responded to that request by attempting mail service. To the
contrary, it contains a form indicating that the U.S. process server sent
the San Francisco postmaster as many as three requests for “boxholder
information needed for service of legal process.” See 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). The Postal Service, in turn,
provided an address for Alan Wofsy at 401 China Basin Street. That is
where the certificate of nonservice on Alan Wofsy shows that the process
server unsuccessfully attempted service. The documentation in the
record is thus consistent with the possibility that the U.S. process server
simply dispatched an agent to attempt personal service at the street
address provided by the Postal Service, without ever attempting service
by mail at P.O. Box 2210.
38 SICRE DE FONTBRUNE V. WOFSY

TGI in November 2011. The correspondence included a
letter, dated November 16, 2011, accompanying a brief
written order of the TGI based on the October 2011 astreinte
hearing. That order included a half-page description of the
October 2011 hearing that had occurred on Sicre de
Fontbrune’s claim for liquidation of the astreinte. It
announced that because Wofsy had not appeared and Sicre
de Fontbrune had failed to prove that Wofsy had been
served, the proceedings would be reopened for another
hearing on December 13, 2011, “for the production by [Sicre
de Fontbrune] of the certificate from the foreign authority
responsible for notification of the document instituting the
proceedings,” in accordance with Article 6 of the Hague
Service Convention. The correspondence was entirely in
French. Wofsy testified at a deposition in the present
litigation, however, that he could “reasonably” read
French. 16

“Notice to be effective must be informative.” Julen,
101 Cal. Rptr. at 798. The letter and order stated that a
proceeding was pending. But the correspondence nowhere
mentioned any remaining opportunity to argue the merits of
Sicre de Fontbrune’s claim for liquidation of the astreinte,
even at the December 2011 hearing. The letter provided
instructions only as to how to appeal the order. Because the
letter omitted any mention of an opportunity to participate in
the proceedings in the TGI—and, indeed, stated that the

16
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 “defin[e]
constitutional ‘requirements’ for adequate notice.” 230 Cal. Rptr. 3d
at 232.
 SICRE DE FONTBRUNE V. WOFSY 39

reopening of the hearing was for a specific purpose that did
not include Wofsy appearing—we cannot say as a matter of
law that the letter was “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.” See Alfa-Bank, 230 Cal. Rptr. 3d at 224
(citation omitted).

Whether it actually resulted in notice, however, is
disputed. Wofsy avers that the correspondence led him to
believe that it was already too late to raise a defense in the
proceedings. But some evidence suggests that the letter,
despite its deficiencies, may have accomplished actual
notice. The declaration of Sicre de Fontbrune’s French
counsel—cited by Sicre de Fontbrune in his response, and
unchallenged in Wofsy’s reply—indicates that French
procedural rules in fact would not have precluded Wofsy
from asserting a defense on the merits even after he received
the November 2011 mailing. And past copyright litigation
had given Wofsy more than five years of familiarity with
French litigation.

There accordingly remains a factual dispute about the
effect of the November 2011 correspondence on Wofsy’s
knowledge of his options. The district court appropriately
left to the finder of fact to determine whether Wofsy
“receive[d] notice of the proceeding in sufficient time to
enable [him] to defend.” Cal. Civ. Proc. Code § 1716(c)(1).

V. Fraud

A court may refuse to recognize a foreign judgment if
the judgment “was obtained by fraud that deprived the losing
party of an adequate opportunity to present its case.” Cal.
Civ. Proc. Code § 1716(c)(2). Wofsy challenges the district
court’s determination that disputes of material fact precluded
40 SICRE DE FONTBRUNE V. WOFSY

summary judgment in Wofsy’s favor based on alleged fraud
in the French proceeding. Wofsy asserts that Sicre de
Fontbrune falsely represented to the TGI in the Astreinte
Proceeding that he owned the copyrights to the photographs
at issue, and that Sicre de Fontbrune failed to disclose that
he no longer had an interest in liquidating the astreinte that
would make his claim admissible. See Code de Procédure
Civile arts. 31, 32 (Fr.).

The comments to the 2005 Uniform Act—on which
California’s Recognition Act is based, Alfa-Bank, 230 Cal.
Rptr. 3d at 221—explain that the language used in Section
1716(c)(2) refers only to “extrinsic fraud.” Unif. Foreign-
Country Money Judgments Recognition Act § 4 cmt. 7
(Nat’l Conf. of Comm’rs on Unif. State L. 2005). Examples
of extrinsic fraud include instances where “the plaintiff
deliberately had the initiating process served on the
defendant at the wrong address, deliberately gave the
defendant wrong information as to the time and place of the
hearing, or obtained a default judgment against the
defendant based on a forged confession of judgment.” Id.
Extrinsic fraud differs from intrinsic fraud, which includes
“false testimony of a witness or admission of a forged
document into evidence during the foreign proceeding.” Id.
Those are concerns that “should be raised and dealt with in
the rendering court.” Id.

California caselaw indicates that concealing material
information from a court can, in some circumstances,
constitute extrinsic fraud. For example, in Pentz v.
Kuppinger, a plaintiff sought restitution for “assertedly
excessive amounts collected by defendant under a Mexican
judgment” that the defendant had obtained against the
plaintiff. 107 Cal. Rptr. 540, 541 (Ct. App. 1973). The court
held that the plaintiff had alleged extrinsic fraud against the
 SICRE DE FONTBRUNE V. WOFSY 41

creditor of the foreign judgment, because the judgment-
creditor had failed to disclose to the plaintiff or to the courts
that the judgment-creditor already had received payments
that would have reduced the amount of the foreign judgment.
Id. at 544–45. The plaintiff allegedly had inquired about
some of these payments while the foreign action was
pending, but the defendant’s attorney had denied knowledge
of them. Id. at 544 n.5. As to other payments, the Court of
Appeal observed that the plaintiff “had not even a suspicion
that credit should have been given.” Id. at 544. Taking the
complaint’s allegations as true, then, the “plaintiff was
denied the opportunity to acquaint the [Mexican] court” with
information crucial to her case. Id. at 545. The court
accepted that this conduct would constitute extrinsic fraud,
concluding that on the alleged facts of the case, the plaintiff
“was denied her day in court as to all of the issues tendered
by her pleading[.]” Id. (italicization in original).

Sicre de Fontbrune stated in his 2011 complaint in the
Astreinte Proceeding that he owned the copyrights to the
photographs that the resulting judgment found to have been
copied. In fact, as the French Cour d’Appel later confirmed
in a separate copyright infringement proceeding, Sicre de
Fontbrune had transferred those copyrights in December
2001 to a business entity. Whether this false representation
mattered depends on whether Sicre de Fontbrune
nonetheless retained a legal interest in liquidating the
astreinte after transferring the relevant intellectual property
that the astreinte was awarded to protect. That is, at least in
part, a question of French law.

We need not resolve it in this appeal. Even assuming
that Sicre de Fontbrune deceived the TGI as to his legal
interest in the astreinte, Wofsy is not entitled to summary
judgment on the claim that the misrepresentation “deprived
42 SICRE DE FONTBRUNE V. WOFSY

[him] of an adequate opportunity to present [his] case.” See
Cal. Civ. Proc. Code § 1716(c)(2). The misrepresentation
may have enabled Sicre de Fontbrune to obtain the astreinte
judgment. But unlike the party asserting fraud in Pentz,
Wofsy did not participate in the proceeding to liquidate the
astreinte. He accordingly did not request evidence that was
denied. Cf. Pentz, 107 Cal. Rptr. at 544 n.5. Moreover, Sicre
de Fontbrune affirmatively represented in his complaint that
he owned the copyrights. That fact suggests that if Wofsy
had participated in the Astreinte Proceeding, he might have
had occasion to question that assertion. Cf. id. at 544 (losing
party “had not even a suspicion” regarding the concealed
information). For the reasons discussed with respect to the
notice defense, whether Wofsy had a valid explanation for
failing to mount a defense in the Astreinte Proceeding is
subject to factual dispute.

A question thus remains as to whether Wofsy reasonably
should have detected the alleged fraud during the French
proceedings—and, therefore, as to whether such fraud
deprived him of an adequate opportunity to present his case.
The district court did not err by denying Wofsy summary
judgment on the fraud defense.

CONCLUSION

Wofsy was not entitled to summary judgment based on
the public policy defense. No other ground for
nonrecognition at issue in this appeal supplies an alternative
basis for affirming the judgment below. We therefore
REVERSE and REMAND for further proceedings
consistent with this opinion.

REVERSED AND REMANDED.