Manco Contracting Co.(WLL) v. Bezdikian

KENNARD, J., Concurring and Dissenting.

This case raises two issues under a now repealed law, the Uniform Foreign Money-Judgments Recognition Act (Code Civ. Proc., former § 1713.1 et seq., repealed by Stats. 2007, ch. 212, eff. Jan. 1, 2008; hereafter the former act). The first issue is whether, within the meaning of a provision of that former act, a foreign country judgment is “final” while it is on appeal in the foreign jurisdiction. On that issue, the majority holds, as I understand it, that the term “final” as used in the former act has no fixed meaning, and that the foreign jurisdiction’s law must be consulted to determine both the meaning of the term “final” and whether, applying that definition, the foreign judgment is final while on appeal. I disagree. I conclude that as used in the former act the term “final” means not requiring further action other than enforcement in the rendering court (that is, ordinarily, the trial court) and that the foreign jurisdiction’s law should be consulted only to determine whether, applying that definition of finality, the foreign judgment is final while on appeal.

The second issue is the statute of limitations that applied to an action brought under the former act. On that issue, the majority holds that the statute of limitations was 10 years, the same as for an action on a sister state judgment. Here also, I disagree. I conclude that an action on a foreign-country judgment under the now repealed act was governed by the four-year “catch all” limitations period of Code of Civil Procedure section 343.

Although I disagree with the majority’s conclusions on both of these issues, I agree with its disposition, which effectively remands the matter for further proceedings in the trial court. As I will explain, I agree that, on the present record, defendant Bezdikian is not entitled to summary judgment.

I

Plaintiff Manco Contracting Company (W.L.L.) (Manco) sued defendant Krikor Bezdikian (a former partner of Manco) in Qatar, a Persian Gulf *211emirate. In November 1997, the Qatar trial court entered judgment against Bezdikian for some 15 million Qatari riyals (around $4.2 million). After filing an appeal, Bezdikian relocated to Lebanon and then to California. In May 2000, Qatar’s appellate court rendered its decision reducing the amount of the award to 13.6 million riyals (around $3.76 million), plus expenses and attorney fees.

In May 2004, Manco brought this action on the Qatari judgment in Los Angeles Superior Court. Bezdikian moved for summary judgment on the ground that the action was untimely. He argued that the statute of limitations was four years, that the limitations period began running in 1997 when the Qatar trial court entered judgment, and that it expired in 2001. Manco argued, to the contrary, that the applicable statute of limitations was 10 years, the same as for an action on a sister state judgment (Code Civ. Proc., § 337.5), because a provision of the former act stated that a foreign-country judgment was “enforceable in the same manner as the judgment of a sister state” (id., former § 1713.3). Manco also argued, in the alternative, that no statute of limitations applied. Finally, Manco argued that it was seeking recognition of the appellate court’s judgment, which had superseded the trial court’s judgment, and that the action on the appellate court’s judgment, having been brought less than four years after it was rendered, was timely under any potentially applicable limitations period. The parties each submitted an expert’s declaration describing various aspects of Qatari law. The trial court agreed with Bezdikian that the action was time-barred, and it granted summary judgment for Bezdikian. Manco appealed.

The Court of Appeal reversed, concluding that the statute of limitations did not begin to run if, under Qatari law, the trial court’s judgment was not final while on appeal, and that the expert declarations had raised a triable issue of fact on that point. The Court of Appeal declined to decide whether the limitations period was four years or 10 years.

II

In 1962, the National Conference of Commissioners on Uniform State Laws (Commissioners) promulgated the Uniform Foreign Money-Judgments Recognition Act (1962 Uniform Act). They explained that because many foreign countries’ courts applied a rule of reciprocity, codification of state rules on recognizing and enforcing foreign country judgments would increase the chances that those foreign courts would recognize and enforce our state court judgments. In 1967, California adopted the 1962 Uniform Act as Code of Civil Procedure sections 1713 to 1713.8. (Stats. 1967, ch. 503, § 1, p. 1847.) One of the provisions at issue here, former section 1713.2 of the Code of Civil Procedure (see § 2 of the 1962 Uniform Act), stated: “This chapter *212applies to any foreign judgment that is final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal.” (Italics added.) The first question to be decided is the meaning of the term “final” in this provision.

Under California law, the word “final” has various meanings as applied to a judgment. (See generally 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 7, pp. 551-552 [listing various meanings of “final judgment”].) In one sense, all California state court judgments are final because finality is part of the definition of a judgment. (See Code Civ. Proc., § 577 [“A judgment is the final determination of the rights of the parties in an action or proceeding.”].) In another sense, no California judgment is ever final because a judgment can always be modified or revised to correct clerical error or set aside for extrinsic fraud or for lack of subject matter jurisdiction. (See Olivera v. Grace (1942) 19 Cal.2d 570, 573-576 [122 P.2d 564].) As applied to judgments, a common understanding of the term “final” is “not subject to being changed or set aside to correct ordinary error of fact or law, or for abuse of discretion.” Even under that definition, however, there remains an ambiguity because a judgment may be final as to the trial court (once the trial court has lost jurisdiction to grant a new trial, a judgment notwithstanding the verdict, or a statutory motion to vacate) but not as to the appellate courts, and a Court of Appeal decision may be final as to that court but not as to the California Supreme Court (see Cal. Rules of Court, rules 8.264(b), 8.512(b)-(c)).

The term “final” in former section 1713.2 of the Code of Civil Procedure might have any of these meanings, or perhaps another meaning altogether, but like all statutory terms it must have some definite meaning. The majority appears to conclude, however, that the term “final” in former section 1713.2 has no single fixed meaning but instead, chameleonlike, it takes on whatever meaning the term has in the law of the foreign country where the judgment to be enforced was rendered. I do not understand how this can be so.

If the foreign jurisdiction’s laws are similar to California’s, the term “final,” as applied to a judgment or decision, will be ambiguous, carrying multiple possible meanings. How is a court in California to determine which of these meanings to apply? The problem is even more intractable when, as here, the foreign jurisdiction’s law is written in a language other than English. (The official language of Qatar is Arabic.) Before an expert can determine whether the foreign-country judgment is “final” within the meaning of former section 1713.2 of the Code of Civil Procedure, the term “final” must be translated into the foreign language, and this can be done only if the term is first given a single, unambiguous meaning.

Here, both parties submitted declarations from experts on the law of Qatar. Defendant Bezdikian’s expert properly refrained from characterizing the *213Qatari trial court judgment at issue as final or not final. Instead, he explained that the judgment of the Grand Civil Court of Qatar in favor of plaintiff Manco and against Bezdikian was dated November 16, 1997, that it “conclusively adjudicated the rights of both parties in the matters pending before the Grand Civil Court,” that it was immediately enforceable, that it could be and was appealed to the court of appeal in Qatar, that the appeal did not revoke or stay the judgment, and that after the appeal was taken Manco remained free to initiate enforcement proceedings, although the court of appeal had discretion to grant an application by Bezdikian to stay enforcement.

Manco’s expert, in his declaration, did not take issue with this description of Qatari law and the status of the judgment against Bezdikian rendered by the Grand Civil Court of Qatar. Manco’s expert, however, gave his opinion that “as a matter of Qatari law, the trial court judgment in this matter was not final, nor was any judgment final until the [Qatari] Court of Appeal entered its judgment on May 23, 2000.” He further explained that “unless made final by agreement or statute, a judgment under Qatari law by definition becomes final only when the time for appeal has expired or the Court of Appeal has entered its judgment.” (Original underscoring.) Applying his understanding of finality under Qatari law, the expert concluded that the Qatari judgment “did not become final until the [Qatari] Court of Appeal entered its judgment on May 23, 2000.” He also stated that, under Qatari law, when the Qatari court of appeal has entered its judgment, “the appellate judgment completely supersedes the trial court judgment.”

From a reading of this declaration, it is apparent that to Manco’s expert “final” meant not subject to reversal, modification, or correction by any court for ordinary errors of law or fact or for abuse of discretion, or something very close to that definition. Manco’s expert does not explain how he arrived at that definition, and his conclusion about the finality of the Qatari grand civil court’s judgment would no doubt be altered if he were to apply a substantially different definition of finality.

No inquiry into Qatari law can ever determine the meaning of “final” in former section 1713.2 of the Code of Civil Procedure (§ 2 of the 1962 Uniform Act). Instead, the meaning of the California statute presents an issue of statutory construction for California courts to resolve using California law.

A rather strong indication of what “final” means in former section 1713.2 of the Code of Civil Procedure (§ 2 of the 1962 Uniform Act) is the language of that provision itself. It stated: “This chapter applies to any foreign judgment that is final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal.” {Ibid., italics added.) By stating that the pendency of an appeal does not preclude a *214determination of finality, the language implies that the term “final” refers to finality in the trial court, and not to finality as to appellate courts as well. This interpretation is reinforced by former section 1713.6 of the Code of Civil Procedure (§ 6 of the 1962 Uniform Act), which gave a California court the power to stay the recognition action pending the outcome of an appeal in the foreign jurisdiction.

This definition of the word “final” is consistent with an official comment to the Uniform Foreign-Country Money Judgments Recognition Act (the revised act), which California adopted in 2007, effective January 1, 2008, as Code of Civil Procedure sections 1713 to 1724, superseding the former act.1 (See Stats. 2007, ch. 212, § 2.) The purpose of the revised act, according to a Commissioners’ note, was “not to depart from the basic rules or approach of the 1962 Act, which have withstood well the test of time, but rather to update the 1962 Act, to clarify its provisions, and to correct problems created by the interpretation of the provisions of that Act by the courts over the years since its promulgation.” (13 pt. II West’s U. Laws Ann. (2008 supp.) U. Foreign-Country Money Judgments Recognition Act, Prefatory Note, pp. 5-6.) Like section 2 of the 1962 Uniform Act (Code Civ. Proc., former § 1713.2), section 3 of the revised act (Code Civ. Proc., § 1715, subd. (a)(2)) requires that the foreign-country judgment be “final, conclusive, and enforceable.” The official comment to section 3 states: “In order to come within the scope of this Act, a foreign-country judgment must be final, conclusive, and enforceable under the law of the foreign country in which it was rendered. This requirement contains three distinct, although inter-related concepts. A judgment is jinal when it is not subject to additional proceedings in the rendering court other than execution. A judgment is conclusive when it is given effect between the parties as a determination of their legal rights and obligations. A judgment is enforceable when the legal procedures of the state to ensure that the judgment debtor complies with the judgment are available to the judgment creditor to assist in collection of the judgment.” (13 pt. II West’s U. Laws Ann., supra, U. Foreign-Country Money Judgments Recognition Act, com. 3 to § 3, pp. 9-10, italics added.)

In summary, the former act provided that an appeal from the foreign-country judgment does not preclude a finding of finality, and it allowed the California court to stay the recognition action while that appeal is pending. Also, the revised act’s official comment states that a judgment is final when it is not subject to additional proceedings in the rendering court other than execution. From these circumstances, I conclude that the term “final” in former section 1713.2 of the Code of Civil Procedure refers to finality in the foreign jurisdiction’s rendering court (that is, ordinarily, the trial court) and *215means that the judgment is not subject to additional proceedings other than execution in the foreign-country court that rendered the judgment.

m

More than a century ago, in Dore v. Thornburgh (1891) 90 Cal. 64 [27 P. 30], this court held that an action on a foreign-country judgment is governed by the four-year “catch all” limitations period of Code of Civil Procedure section 343, which governs actions for which no other limitations period is specified. This court has never overruled that holding, and the Legislature has abrogated it only as to actions filed after January 1, 2008. I conclude that it remains controlling authority on this point of law for actions filed before that date.

In reaching a different conclusion, the majority relies on former section 1713.3 of the Code of Civil Procedure (§ 3 of the 1962 Uniform Act), which, as amended, provided: “Except as provided in Section 1713.4, a foreign judgment meeting the requirements of Section 1713.2 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit, except that it may not be enforced pursuant to the provisions of Chapter 1 (commencing with Section 1710.10) of this title.” (As amended by Stats. 1974, ch. 211, §5, p. 409, italics added.)

In their “Prefatory Note” to the 1962 Uniform Act, the Commissioners stated: “The Act does not prescribe a uniform enforcement procedure. Instead, the Act provides that a judgment entitled to recognition will be enforceable in the same manner as the judgment of a court of a sister state which is entitled to full faith and credit.” (13 pt. II West’s U. Laws Ann. (2002) U. Foreign Money Judgments Recognition Act, Prefatory Note, p. 41.) Accordingly, the provision on which the majority relies was intended to specify what happens after the state court recognizes the foreign-country judgment. It concerns the enforcement mechanisms available to the judgment creditor, not the statute of limitations for bringing the recognition action. An official comment to section 9 of the revised act reinforces this point by stating that “[t]he 1962 Act did not contain a statute of limitations.” (13 pt. II West’s U. Laws Ann. (2008 supp.) U. Foreign-Country Money Judgments Recognition Act com. to § 9, p. 18.) Indeed, the Commissioners recognized that one of “the more significant issues that have arisen under the 1962 Act” was “the need to establish a statute of limitations for recognition actions.” (13 pt. II West’s U. Laws Ann. (2002) U. Foreign Money Judgments Recognition Act, Prefatory Note, p. 6.) Under section 9 of the revised act, which California has adopted for actions commenced after January 1, 2008, an action on a *216foreign-country judgment must “be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or 10 years from the date that the foreign-country judgment became effective in the foreign country.” (Code Civ. Proc., § 1721.)

Had the Legislature, when it adopted the former act, intended to abrogate the four-year statute of limitations that this court established in Dore v. Thornburgh, supra, 90 Cal. 64, it would have used equally plain language. It might have said, for example, that the foreign judgment is enforceable “in the same manner and within the same time” as a sister state judgment. (See, e.g., Code Civ. Proc., § 597 [using similar language for appeals from interlocutory judgments on special defenses].) Or the Legislature could have amended Code of Civil Procedure section 337.5 to make its 10-year limitations period applicable to actions on foreign judgments as well as to actions on sister state judgments. It took none of these actions.

I therefore conclude that until it enacted Code of Civil Procedure section 1721 in 2007, which codified the revised act’s statute of limitations, the Legislature did not abrogate Dore v. Thornburgh, supra, 90 Cal. 64, under which the four-year “catchall” limitations period of Code of Civil Procedure section 343 applied to actions on foreign-country judgments, including those brought under the former act.

IV

I now apply these conclusions about the former act to the facts before the trial court when it ruled on Bezdikian’s motion for summary judgment. Manco’s complaint sought enforcement of two foreign-country judgments: the judgment of the Grand Civil Court of Qatar and the judgment of the Qatari court of appeal.

The judgment of the Grand Civil Court of Qatar for Manco and against Bezdikian was final, conclusive, and enforceable, within the meaning of former section 1713.2 of the Code of Civil Procedure, when it was rendered on November 16, 1997, and the statute of limitations for an action on that judgment in California began to run on that date. The applicable statute of limitations at that time was the “catchall” four-year provision (Code Civ. Proc., § 343), which expired in November 2001, and Manco’s action, commenced thereafter in May 2004, was barred by the statute of limitations insofar as it sought enforcement of the Qatari grand civil court’s judgment.

*217Manco appealed from the judgment of the Grand Civil Court of Qatar, and the Qatari court of appeal issued its decision on that appeal on May 23, 2000. According to the declaration of Manco’s expert on Qatari law, the Qatari court of appeal’s decision took the form of a judgment that completely superseded the judgment of the grand civil court. If the Qatari court of appeal’s decision is properly regarded as a new, separate, and enforceable judgment, its rendition commenced a new four-year limitations period, and Manco’s California action, filed on May 20, 2004, was timely under the former act as an action on that judgment. On this basis, I agree with the majority that the matter should be remanded to the trial court for further proceedings.

The former act continues to apply to actions commenced before January 1, 2008. (Code Civ. Proc., § 1724.)