Existing law establishes procedures for California courts to recognize money judgments of courts from other states, foreign countries, and tribal courts.

This bill would revise and recast these provisions.

Existing law, the Uniform Foreign-Country Money Judgments Recognition Act, requires a California court to recognize a foreign-country judgment unless a specified exception applies, including instances in which the foreign court lacks personal jurisdiction over the defendant.

This bill would specify that a foreign court lacks personal jurisdiction over a defendant if the court lacks personal jurisdiction under its own laws or Californias laws.

Existing law, the Tribal Court Civil Money Judgment Act, provides for the enforceability of tribal court money judgments in California, except as specified. That act, among other things, prescribes the procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, and requires this application to be executed under penalty of perjury. The act provides that it will remain in effect until January 1, 2018. After that date, tribal court money judgments will be governed by the above-described Uniform Foreign-Country Money Judgments Recognition Act.

This bill would eliminate the Tribal Court Civil Money Judgment Acts sunset date. By extending the provisions of the act, this bill would expand the scope of the crime of perjury and thus impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes procedures for California courts to recognize money judgments of courts from other states, foreign countries, and tribal courts.

This bill would revise and recast these provisions.

Existing law, the Uniform Foreign-Country Money Judgments Recognition Act, requires a California court to recognize a foreign-country judgment unless a specified exception applies, including instances in which the foreign court lacks personal jurisdiction over the defendant.

This bill would specify that a foreign court lacks personal jurisdiction over a defendant if the court lacks personal jurisdiction under its own laws or Californias laws.

Existing law, the Tribal Court Civil Money Judgment Act, provides for the enforceability of tribal court money judgments in California, except as specified. That act, among other things, prescribes the procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, and requires this application to be executed under penalty of perjury. The act provides that it will remain in effect until January 1, 2018. After that date, tribal court money judgments will be governed by the above-described Uniform Foreign-Country Money Judgments Recognition Act.

This bill would eliminate the Tribal Court Civil Money Judgment Acts sunset date. By extending the provisions of the act, this bill would expand the scope of the crime of perjury and thus impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes procedures for California courts to recognize money judgments of courts from other states, foreign countries, and tribal courts.

This bill would revise and recast these provisions.

Existing law, the Uniform Foreign-Country Money Judgments Recognition Act, requires a California court to recognize a foreign-country judgment unless a specified exception applies, including instances in which the foreign court lacks personal jurisdiction over the defendant.

This bill would specify that a foreign court lacks personal jurisdiction over a defendant if the court lacks personal jurisdiction under its own laws or Californias laws.

Existing law, the Tribal Court Civil Money Judgment Act, provides for the enforceability of tribal court money judgments in California, except as specified. That act, among other things, prescribes the procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, and requires this application to be executed under penalty of perjury. The act provides that it will remain in effect until January 1, 2018. After that date, tribal court money judgments will be governed by the above-described Uniform Foreign-Country Money Judgments Recognition Act.

This bill would eliminate the Tribal Court Civil Money Judgment Acts sunset date. By extending the provisions of the act, this bill would expand the scope of the crime of perjury and thus impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes procedures for California courts to recognize money judgments of courts from other states, foreign countries, and tribal courts.

This bill would revise and recast these provisions.

Existing law, the Uniform Foreign-Country Money Judgments Recognition Act, requires a California court to recognize a foreign-country judgment unless a specified exception applies, including instances in which the foreign court lacks personal jurisdiction over the defendant.

This bill would specify that a foreign court lacks personal jurisdiction over a defendant if the court lacks personal jurisdiction under its own laws or Californias laws.

Existing law, the Tribal Court Civil Money Judgment Act, provides for the enforceability of tribal court money judgments in California, except as specified. That act, among other things, prescribes the procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, and requires this application to be executed under penalty of perjury. The act provides that it will remain in effect until January 1, 2018. After that date, tribal court money judgments will be governed by the above-described Uniform Foreign-Country Money Judgments Recognition Act.

This bill would eliminate the Tribal Court Civil Money Judgment Acts sunset date. By extending the provisions of the act, this bill would expand the scope of the crime of perjury and thus impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 THIRD READING  

Bill No: AB 905

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/13/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 4/20/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: California Law Revision Commission

DIGEST:

This bill implements changes to the Tribal Court Civil Money Judgment Act and the Uniform Foreign Country Money Judgment Act recommended in a recent California Law Revision Commission Report mandated by the Legislature. This bill also makes other changes to the discretionary grounds for nonrecognition of a foreign-country or tribal court’s judgment.

ANALYSIS:

Existing law:

1. Provides that, as a general rule, the recognition of a tribal court order within U.S. federal courts is governed by the principles of comity. (Wilson v. Marchington (Wilson) (9th Cir. 1997) 127 F.3d 805.)
2. Provides that federal courts must neither recognize nor enforce tribal judgments, as follows: (a) if the tribal court did not have both personal and subject matter jurisdiction; or (b) if the defendant was not afforded due process of the law. (Wilson, at 810-11.)
3. Governs, pursuant to the Uniform Foreign-County Money Judgments Recognitions Act (California’s Uniform Act), the enforcement of judgments of foreign countries within California courts. It provides that a court of this state shall recognize a foreign-country judgment except as otherwise provided therein. (Code Civ. Proc. Sec. 1713 et seq.)^[1]
4. Applies, through California’s Uniform Act, to judgments that grant or deny recovery of a sum of money and is final, conclusive, and enforceable. It does not apply to a judgment for taxes; a fine or other penalty; or a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations. (Sec. 1715.)
5. Defines, in California’s Uniform Act, “foreign-country judgment” to mean a judgment of a court of a foreign country, as defined, specifically excluding federal recognized Indian tribes. This definition sunsets on January 1, 2018, at which point a definition that includes these tribes takes effect. (Sec. 1714.)
6. Governs, pursuant to the Tribal Court Civil Money Judgment Act (Tribal Court Judgment Act), the enforcement of tribal court money judgments for any federally recognized Indian tribe. It provides that the only valid grounds for objecting to an application for entry of tribal court judgments are those listed therein. (Sec. 1730 et seq.)
7. Provides grounds for both discretionary and mandatory nonrecognition for judgments under both California’s Uniform Act and the Tribal Court Judgment Act. (Secs. 1716, 1737.)
8. Provides that a court of this state is not required to recognize a foreign-country judgment if any of the following apply:

• 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;
• The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
• The judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state or of the United States;
• The judgment conflicts with another final and conclusive judgment;
• The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
• In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
• The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;
• The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or
• The judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions. (Sec. 1716(c).)

1. Provides that a superior court may, in its discretion, decline to recognize and enter a tribal court money judgment on any of the following grounds:

• The defendant in the proceeding in the tribal court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
• The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
• The judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of the state or of the United States;
• The judgment conflicts with another final and conclusive judgment;
• The proceeding in the tribal court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that tribal court;
• In the case of jurisdiction based on personal service only, the tribal court was a seriously inconvenient forum for the trial of the action;
• The judgment was rendered under circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;
• The specific proceeding in the tribal court leading to the judgment was not compatible with the requirements of due process of law; or
• The judgment includes recovery for a claim of defamation, unless the court determines that the defamation law applied by the tribal court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions. (Sec. 1737(c).)

1. Provides that a court must not recognize a foreign-country judgment or a tribal court money judgment if any of the following apply:

• The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
• The foreign court did not have personal jurisdiction over the defendant/respondent; or
• The foreign court did not have jurisdiction over the subject matter. (Secs. 1716(b), 1737(b).)

1. Provides that a foreign-country judgment shall not be refused recognition for lack of personal jurisdiction if any of the following bases apply:

• The defendant was served with process personally in the foreign country;
• 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;
• The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
• The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
• The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action or claim for relief arising out of business done by the defendant through that office in the foreign country;
• The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action or claim for relief arising out of that operation; or
• Other circumstances not listed that the court recognizes as a basis for personal jurisdiction. (Sec. 1717.)

1. Provides that if a judgment was rendered in an action for defamation in a foreign country against a person who is a resident of California or a person or entity amenable to jurisdiction in California, and declaratory relief with respect to liability for the judgment or a determination that the judgment is not recognizable in California is sought, a court has jurisdiction to determine the declaratory relief action as well as personal jurisdiction over the person or entity who obtained the foreign-country judgment if both of the following apply:

• The publication at issue was published in California; and
• The person who is a resident, or the person or entity who is amenable to jurisdiction in California, either has assets in California that might be subject to an enforcement proceeding to satisfy the foreign-country defamation judgment, or may have to take actions in California to comply with the foreign-country defamation judgment. (Sec. 1717(c).)

This bill:

1. Amends California’s Uniform Act to specifically exclude a federally recognized Indian nation, tribe, pueblo, band, or Alaska Native village from the definition of “foreign country.”
2. Eliminates the discretionary ground for nonrecognition of judgments that include recovery for defamation claims from California’s Uniform Act. This bill instead provides that a court of this state shall not recognize a foreign-country judgment for defamation if that judgment is not recognizable under Section 4102 of Title 28 of the United States Code (the SPEECH Act).
3. Amends the current provisions regarding the remaining discretionary grounds for nonrecognition in both California’s Uniform Act and the Tribal Court Judgment Act (Section 1737(c)). This bill instead mandates nonrecognition if any of those bases applies, but allows the court discretion to still recognize the judgment if the party seeking to enforce the judgment establishes good cause that outweighs the ground for nonrecognition. There is one exception for the discretionary ground of nonrecognition where the judgment conflicts with another final and conclusive judgment. This bill continues to treat this basis as a discretionary ground for nonrecognition.
4. Amends California’s Uniform Act to provide that a foreign court lacks personal jurisdiction if either (a) the foreign court lacks personal jurisdiction under its own law, or (b) the foreign court lacks a basis for exercising personal jurisdiction that would be sufficient according to the standards governing personal jurisdiction in this state. This bill provides that the current, non-exclusive list of bases that establish personal jurisdiction, found in Section 1717(a), applies only to this latter category regarding standards in this state.
5. Removes the sunsets from current Section 1714 and Section 1742.
6. Makes minor technical and non-substantive amendments, including the renaming of various sections and the relocation of some provisions.

Background

California state courts generally recognize tribal court judgments under the principles of comity, as they do the judgments of foreign country tribunals. Claims to recognize money judgments of foreign country tribunals, including of tribal courts, were traditionally governed by the California’s Uniform Act, Code of Civil Procedure Section 1713 et seq. SB 406 (Evans, Chapter 243, Statutes of 2014) established a new legal framework known as the Tribal Court Civil Money Judgment Act (Tribal Court Judgment Act). The Tribal Court Judgment Act provides the rules and procedures for seeking recognition of a tribal court money judgment in California state courts. In response to concerns, amendments were taken that placed a sunset and required the California Law Revision Commission (CLRC) to conduct a study of the due process requirements in both the Tribal Court Judgment Act and California’s Uniform Act and to release a report on its findings.

CLRC released that report last year, and this bill, sponsored by CLRC, implements some of the recommendations found in that report and removes the sunset. (NOTE: See the Senate Judiciary Committee analysis for a detailed background of this bill.)

Comments

The author writes:

This bill would make clarifying changes to the laws governing the recognition of foreign and tribal court money judgments. … [T]his bill would amend the laws governing recognition of foreign and tribal court money judgments to clarify that, when certain grounds for nonrecognition apply, the judgment at issue must be denied recognition unless the party seeking recognition demonstrates good reason to recognize the judgment that outweighs the ground for nonrecognition. This change adds clarity to the statutes and appears to be consistent with how the laws are operating in practice

Implementing CLRC recommendations regarding California’s Uniform Act

SB 406 tasked the CLRC with conducting a study of the standards for recognition of a tribal court or a foreign court judgment under the Tribal Court Judgment Act and California’s Uniform Act respectively. CLRC published that study last year, entitled Recognition of Tribal and Foreign Court Money Judgments (CLRC Report). The CLRC identified a few areas that could cause confusion. To address these weaknesses, the CLRC proposed changes to clarify the statutory language. This bill implements those suggestions.

Personal jurisdiction analysis under California’s Uniform Act

The CLRC Report points out the possibility that current law could force a court to recognize a foreign-court judgment if any of the list of bases in Section 1717 applies even if the foreign court issuing the judgment did not have personal jurisdiction under its own laws. To address this issue, this bill amends the relevant section of California’s Uniform Act to provide that a foreign court lacks personal jurisdiction if the foreign court lacks personal jurisdiction under its own law. It further provides that such a court lacks jurisdiction if the foreign court “lacks a basis for exercising personal jurisdiction that would be sufficient according to the standards governing personal jurisdiction in this state.” The non-exclusive list of bases that establish personal jurisdiction continues to apply, but only to this latter category.

Foreign-court defamation judgments

California’s Uniform Act provides a list of bases in Section 1716(c) upon which a court has the discretion to not recognize a foreign-country judgment. Included therein is when it includes a claim of defamation. In 2010, the SPEECH Act, 28 U.S.C. Section 4101 et seq., was passed to address growing concerns about “libel tourism,” where plaintiffs forum shop for litigation destinations with plaintiff-friendly defamation laws. The SPEECH Act bars the enforcement of foreign judgments for defamation in domestic courts unless (1) the defamation law applied provides at least as much protection for freedom of speech and press as provided by the U.S. Constitution and the constitution of the domestic court’s state; or (2) the party opposing recognition would have been liable under the First Amendment of the United States Constitution and the constitution and law of the state in which the domestic court is located. There is some inconsistency between California’s Uniform Act and the SPEECH Act. To address this inconsistency, this bill removes the discretionary nonrecognition provision from Section 1716(c) and inserts a provision requiring courts not to recognize a foreign-country judgment for defamation if that judgment would not be recognizable under the SPEECH Act.

Creating a presumption of nonrecognition

California’s Uniform Act provides that a court of this state “is not required to” recognize a foreign-country judgment if certain bases apply. The Tribal Court Judgment Act provides that a superior court “may, in its discretion,” decline to recognize and enter a tribal court money judgment if certain bases apply. The bases provided in each Act are nearly identical. This bill changes certain provisions to require nonrecognition if any of the listed bases in the statute applies, with exceptions. However, this bill further provides that a court “may nonetheless recognize a [judgment] if the [party seeking recognition] demonstrates good reason to recognize the judgment that outweighs the ground for nonrecognition.”

NOTE: See Senate Judiciary Committee analysis for a full discussion of this bill.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/26/17)

California Law Revision Commission (source)

California Nations Indian Gaming Association

Chicken Ranch Rancheria of Me-Wuk Indians of California

Judicial Council

Rincon Band of Luiseño Indians

Yurok Tribe

OPPOSITION: (Verified 6/26/17)

One individual

ARGUMENTS IN SUPPORT: Judicial Council writes in support that this bill “will help ensure, on an ongoing basis, appropriate recognition of tribal court civil money judgments in state courts in a manner that will benefit both court systems.”

ARGUMENTS IN OPPOSITION: The opposition states, “[U]nder the plain language of CCCP 1737(c), a Californian can be haled into a tribal court, deprived of due process within the tribal court, and still see a money judgment from that tribal court proceeding enforced against them by a California superior court.”

ASSEMBLY FLOOR: 74-0, 4/20/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Brough, Choi, Gallagher, Mathis, Patterson, Ridley-Thomas

Prepared by:

6/27/17 16:32:01

**** END ****

1. All further statutory references are to the Code of Civil Procedure unless otherwise stated. ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 905 (Author:Maienschein)

Version: March 13, 2017

Hearing Date: June 13, 2017

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Money judgments of other jurisdictions

DESCRIPTION

This bill would implement changes to the Tribal Court Civil Money Judgment Act and the Uniform Foreign Country Money Judgment Act recommended in a recent California Law Revision Commission Report mandated by the Legislature. This bill would also make other changes to the discretionary grounds for nonrecognition of a foreign-country or tribal court’s judgment.

BACKGROUND

Native American tribes are “nations that exercise inherent sovereign authority over their members and territories.” (Cal. Jur. 3d. Indians Sec. 2.) For a tribal court to hear a case, it must have both subject matter jurisdiction (the power to hear the specific kind of claim that is brought to that court), and personal jurisdiction (the requirement that a defendant have certain minimum contacts with the forum in which the court sits) over the defendant.

At times, just as a party may seek to enforce another state’s judgment against a resident of California by bringing their judgment to a California court, a party who has obtained a tribal court judgment may turn to California courts to seek recognition and enforcement of the party’s tribal court judgment against a California resident. In contrast to the full faith and credit that is constitutionally required to be given to the judgments rendered by sister states’ courts, under existing law, California state courts generally recognize tribal court judgments under the principles of comity, as they do the judgments of foreign country tribunals.

Comity, as described by the Ninth Circuit in Wilson v. Marchington (9th Cir. 1997) 127 F.3d 805, 809-810, “‘is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.’” The court reasoned:

As a general policy, comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.” At its core, comity involves a balancing of interests. “It is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.” Although the status of Indian tribes as “dependent domestic nations” presents some unique circumstances, comity still affords the best general analytical framework for recognizing tribal judgments.

(Id. (citations omitted).) The court made clear that “[c]omity does not require that a tribe utilize judicial procedures identical to those used in the United States Courts.” (Id. at 811).

Claims to recognize money judgments of foreign country tribunals, including of tribal courts, were traditionally governed by the Uniform Foreign Country Money Judgment Act (California’s Uniform Act), Code of Civil Procedure Section 1713 et seq. That process, however, was considered costly and time-consuming. In 2012, the Judicial Council, upon recommendation of several of its committees, including the California Tribal Court/State Court Forum and the Civil and Small Claims Advisory Committee, adopted a proposal that would provide “a discrete procedure for recognizing and enforcing tribal court civil judgments, providing for swifter recognition of such judgments while continuing to apply the principles of comity appropriate to judgments of sovereign tribes.” (Report to the Judicial Council: Judicial Council-sponsored Legislation: Tribal Court Civil Judgment Act, October 26, 2012.)

Based on that proposal, Senator Evans, then the Chair of this Committee, authored a bill, SB 406 (Evans, Chapter 243, Statutes 2014), sponsored by Judicial Council and Blue Lake Rancheria, that established a new legal framework known as the Tribal Court Civil Money Judgment Act (Tribal Court Judgment Act). The Tribal Court Judgment Act provides the rules and procedures for seeking recognition of a tribal court money judgment in California state courts. The Tribal Court Judgment Act does a number of things, including the following: (1) provides timelines for both submitting an application for recognition and timely objecting to recognition; (2) provides rules for proper venue; (3) specifies notice requirements; (4) lists the requisite contents of an application and supporting documentation; (5) mandates grounds for declining recognition and provides discretionary grounds for declining recognition; and (6) specifies grounds for staying enforcement of a judgment.

Before SB 406 was enacted, concerns were raised by various stakeholders largely regarding possible due process deficiencies. In response, amendments were taken that placed a sunset date of January 1, 2018 on the provisions of the bill and that required the California Law Revision Commission (CLRC) to conduct a study of the due process requirements in both the Tribal Court Judgment Act and California’s Uniform Act. The chaptered bill provided:

The California Law Revision Commission shall, within existing resources, conduct a study of the standards for recognition of a tribal court or a foreign court judgment, under the Tribal Court Civil Money Judgment Act (Title 11.5 (commencing with Section 1730) of Part 3 of the Code of Civil Procedure) and the Uniform Foreign-Country Money Judgments Recognition Act (Chapter 2 (commencing with Section 1713) of Title 11 of Part 3 of the Code of Civil Procedure).

SB 406 required the CLRC to report its findings, on or before January 1, 2017, along with any recommendations for improvement of those standards, to the Legislature and the Governor. CLRC released that report last year; it was entitled Recognition of Tribal and Foreign Court Money Judgments. This bill, sponsored by CLRC, would implement some of the recommendations found in that report, amending both the Tribal Court Judgment Act and California’s Uniform Act and lifting the sunset date. This bill would also make changes to how certain discretionary grounds for nonrecognition of judgments are treated.

CHANGES TO EXISTING LAW

Existing federal case law provides that, as a general rule, the recognition of a tribal court order within U.S. federal courts is governed by the principles of comity. (Wilson v. Marchington (Wilson) (9th Cir. 1997) 127 F.3d 805.)

Existing federal case law provides that federal courts must neither recognize nor enforce tribal judgments, as follows: (1) if the tribal court did not have both personal and subject matter jurisdiction; or (2) if the defendant was not afforded due process of the law. (Wilson, at 810-11.)

Existing law, the Uniform Foreign-County Money Judgments Recognitions Act (California’s Uniform Act), governs the enforcement of judgments of foreign countries within California courts. It provides that a court of this state shall recognize a foreign-country judgment except as otherwise provided therein. (Code Civ. Proc. Sec. 1713 et seq.)^[1]

Existing law, California’s Uniform Act, applies to judgments that grant or deny recovery of a sum of money and is final, conclusive, and enforceable. It does not apply to a judgment for taxes; a fine or other penalty; or a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations. (Sec. 1715.)

Existing law, California’s Uniform Act, defines “foreign-country judgment” to mean a judgment of a court of a foreign country, as defined, specifically excluding federal recognized Indian tribes. This definition sunsets on January 1, 2018, at which point a definition that includes these tribes takes effect. (Sec. 1714.)

Existing law, the Tribal Court Civil Money Judgment Act (Tribal Court Judgment Act), governs the enforcement of tribal court money judgments for any federally recognized Indian tribe. It provides that the only valid grounds for objecting to an application for entry of tribal court judgments are those listed therein. (Sec. 1730 et seq.)

Existing law provides grounds for both discretionary and mandatory nonrecognition for judgments under both California’s Uniform Act and the Tribal Court Judgment Act. (Secs. 1716, 1737.)

Existing law provides that a court of this state is not required to recognize a foreign-country judgment if any of the following apply:

• 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;
• the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
• the judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state or of the United States;
• the judgment conflicts with another final and conclusive judgment;
• the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
• in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
• the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;
• the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or
• the judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions. (Sec. 1716(c).)

Existing law provides that a superior court may, in its discretion, decline to recognize and enter a tribal court money judgment on any of the following grounds:

• the defendant in the proceeding in the tribal court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
• the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
• the judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of the state or of the United States;
• the judgment conflicts with another final and conclusive judgment;
• the proceeding in the tribal court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that tribal court;
• in the case of jurisdiction based on personal service only, the tribal court was a seriously inconvenient forum for the trial of the action;
• the judgment was rendered under circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;
• the specific proceeding in the tribal court leading to the judgment was not compatible with the requirements of due process of law; or
• the judgment includes recovery for a claim of defamation, unless the court determines that the defamation law applied by the tribal court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions. (Sec. 1737(c).)

Existing law provides that a court must not recognize a foreign-country judgment or a tribal court money judgment if any of the following apply:

• the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
• the foreign court did not have personal jurisdiction over the defendant/respondent; or
• the foreign court did not have jurisdiction over the subject matter. (Secs. 1716(b), 1737(b).)

Existing law provides that a foreign-country judgment shall not be refused recognition for lack of personal jurisdiction if any of the following bases apply:

• the defendant was served with process personally in the foreign country;
• 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;
• the defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
• the defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
• the defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action or claim for relief arising out of business done by the defendant through that office in the foreign country;
• the defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action or claim for relief arising out of that operation; or
• other circumstances not listed that the court recognizes as a basis for personal jurisdiction. (Sec. 1717.)

Existing law provides that if a judgment was rendered in an action for defamation in a foreign country against a person who is a resident of California or a person or entity amenable to jurisdiction in California, and declaratory relief with respect to liability for the judgment or a determination that the judgment is not recognizable in California is sought, a court has jurisdiction to determine the declaratory relief action as well as personal jurisdiction over the person or entity who obtained the foreign-country judgment if both of the following apply:

• the publication at issue was published in California; and
• the person who is a resident, or the person or entity who is amenable to jurisdiction in California, either has assets in California that might be subject to an enforcement proceeding to satisfy the foreign-country defamation judgment, or may have to take actions in California to comply with the foreign-country defamation judgment. (Sec. 1717(c).)

This bill would amend California’s Uniform Act to specifically exclude a federally recognized Indian nation, tribe, pueblo, band, or Alaska Native village from the definition of “foreign country.”

This bill would eliminate the discretionary ground for nonrecognition of judgments that include recovery for defamation claims from California’s Uniform Act. This bill would instead provide that a court of this state shall not recognize a foreign-country judgment for defamation if that judgment is not recognizable under Section 4102 of Title 28 of the United States Code (the SPEECH Act).

This bill would amend the current provisions regarding the remaining discretionary grounds for nonrecognition in both California’s Uniform Act (Section 1716(c)) and the Tribal Court Judgment Act (Section 1737(c)). This bill would instead mandate nonrecognition if any of those bases applies, but allow the court discretion to still recognize the judgment if the party seeking to enforce the judgment establishes good cause that outweighs the ground for nonrecognition. There is one exception for the discretionary ground of nonrecognition where the judgment conflicts with another final and conclusive judgment. This bill would continue to treat this basis as a discretionary ground for nonrecognition.

This bill would amend California’s Uniform Act to provide that a foreign court lacks personal jurisdiction if either (1) the foreign court lacks personal jurisdiction under its own law, or (2) the foreign court lacks a basis for exercising personal jurisdiction that would be sufficient according to the standards governing personal jurisdiction in this state. This bill would provide that the current, non-exclusive list of bases that establish personal jurisdiction, found in Section 1717(a), would apply only to this latter category regarding standards in this state.

This bill would remove the sunset from current Section 1714 of the Code of Civil Procedure and repeal the section that was to take its place upon sunset. It would also remove the sunset on the Tribal Court Judgment Act in Section 1742.

This bill makes minor technical and non-substantive amendments, including the renaming of various sections and the relocation of some provisions.

COMMENT

1. Stated need for the bill

According to the author:

This bill would make clarifying changes to the laws governing the recognition of foreign and tribal court money judgments. In 2014, the Legislature directed the California Law Revision Commission (CLRC) to study the standards governing the recognition of such judgments. For the most part, the CLRC concluded that the standards were operating well in practice, but the CLRC proposed clarifying reforms to reduce the possibility of confusion. This bill would implement the following reforms recommended by the CLRC:

(1) Conform California’s law on recognition of foreign defamation judgments to the more recently enacted, stricter federal SPEECH Act.

(2) Clarify that, where a foreign court lacks personal jurisdiction under its own laws, the resulting judgment is not entitled to recognition.

(3) Make technical and organizational changes to the laws governing judgment recognition, including repeal of the sunset of the Tribal Court Civil Money Judgment Act [].

In addition, this bill would amend the laws governing recognition of foreign and tribal court money judgments to clarify that, when certain grounds for nonrecognition apply, the judgment at issue must be denied recognition unless the party seeking recognition demonstrates good reason to recognize the judgment that outweighs the ground for nonrecognition. This change adds clarity to the statutes and appears to be consistent with how the laws are operating in practice.

Judicial Council writes in support that this bill “will help ensure, on an ongoing basis, appropriate recognition of tribal court civil money judgments in state courts in a manner that will benefit both court systems.”

Writing in support, the Tribal Council for the Chicken Ranch Rancheria of Me-Wuk Indians of California states that this bill “provides a streamlined process for recognition of a tribal court money judgment that reduces the time and costs that state courts would otherwise incur to relitigate the case.”

2. Implementing the California Law Revision Commission Report recommendations regarding California’s Uniform Act

SB 406 (Evans, Chapter 243, Statutes of 2014) tasked the CLRC with conducting a study of the standards for recognition of a tribal court or a foreign court judgment under the Tribal Court Judgment Act and California’s Uniform Act respectively. CLRC published that study last year, entitled Recognition of Tribal and Foreign Court Money Judgments (CLRC Report). The CLRC concluded that the exceptions were generally working well in practice. However, there were a few areas the CLRC identified that could cause confusion, mainly in California’s Uniform Act. To address these weaknesses, the CLRC proposed a series of changes to clarify the statutory language. This bill would implement those suggestions.

1. Personal jurisdiction analysis under California’s Uniform Act

Currently, California’s Uniform Act requires nonrecognition of a foreign country’s judgment if the foreign court did not have personal jurisdiction over the defendant. The Act additionally lays out, in Section 1717 of the Code of Civil Procedure, that a foreign-court judgment shall not be refused recognition for lack of personal jurisdiction if any of a laundry list of bases apply, including personal service in the country and voluntary appearance in the proceeding. Section 1717 also indicates that the list is not exclusive and affords the court some discretion.

The CLRC Report points out that this leaves the possibility that current law would force a court to recognize a foreign-court judgment if any of the list of bases in Section 1717 applies even though the foreign court issuing the judgment did not have personal jurisdiction over the defendant under its own laws. There is no sound public policy reason for enforcing foreign-court judgments when they would not be properly enforceable at home.

To address this issue, this bill would amend the relevant section of California’s Uniform Act to provide that a foreign court lacks personal jurisdiction if the foreign court lacks personal jurisdiction under its own law. It would further provide that such a court lacks jurisdiction if the foreign court “lacks a basis for exercising personal jurisdiction that would be sufficient according to the standards governing personal jurisdiction in this state.” The non-exclusive list of bases that establish personal jurisdiction in current law would continue to apply, but only to this latter category regarding standards in this state.

No analogous change is required in the Tribal Court Judgment Act because it does not contain the non-exclusive list of bases for jurisdiction that would potentially restrict a court from basing nonrecognition on the original court’s lack of personal jurisdiction.

1. Foreign-court defamation judgments

California’s Uniform Act provides a list of bases in Section 1716(c) upon which a court has the discretion to not recognize a foreign-country judgment. Included therein is the following basis: “The judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions.”

In 2010, the Federal government enacted the “Securing the Protection of Our Enduring and Established Constitutional Heritage Act” (SPEECH Act), 28 U.S.C. Section 4101 et seq. The SPEECH Act was passed to address growing concerns about “libel tourism,” a trend in which plaintiffs will forum shop for litigation destinations with the most plaintiff-friendly defamation laws. The SPEECH Act bars the enforcement of foreign judgments for defamation in domestic courts unless either (1) the defamation law applied in the foreign court provides at least as much protection for freedom of speech and press as would be provided by the United States Constitution and the constitution of the state in which the domestic court is located; or (2) the party opposing recognition would have been liable for defamation by the domestic court applying the First Amendment of the United States Constitution and the constitution and law of the state in which the domestic court is located.

California’s Uniform Act provides for discretionary nonrecognition if the foreign-court judgment was based on defamation law at least as protective as the defamation laws applied in California courts. Therefore, there is some inconsistency with the SPEECH Act’s mandated nonrecognition of such judgments. To address this inconsistency, this bill would remove the discretionary nonrecognition provision from Section 1716(c) and insert a provision requiring courts not to recognize a foreign-country judgment for defamation if that judgment would not be recognizable under the SPEECH Act.

This bill would also relocate the provision allowing for a declaratory judgment regarding defamation judgments rendered in foreign courts under California’s Uniform Act, but would not make substantive changes to the provision.

3. Removing the sunset clause

As discussed above, SB 406 was amended in response to various concerns about the due process requirements under both the Tribal Court Judgment Act and California’s Uniform Act. The amendments called for the CLRC study and report and placed a sunset on the legislation on January 1, 2018. According to the committee analysis recommending it, the sunset date would allow the Legislature to use the CLRC study to “more thoroughly and knowledgably consider the concerns that have been raised.” (Assembly Judiciary Committee, SB 406 Analysis, 2014.)

The CLRC Report has been published. In it, the CLRC provides the recommendation that, with the amendments suggested, the sunset clauses should be removed from both Acts. Given this Committee’s support of the previous legislation, the amendments suggested only further strengthen these pieces of legislation.

4. Creating a presumption of nonrecognition

Amendments taken to this bill in the Assembly would slightly shift the approach to applying the discretionary grounds for nonrecognition of a foreign-court judgment under California’s Uniform Act and the Tribal Court Judgment Act.

Currently, California’s Uniform Act provides that a court of this state “is not required to” recognize a foreign-country judgment if any of a series of bases applies. The Tribal Court Judgment Act provides that a superior court “may, in its discretion,” decline to recognize and enter a tribal court money judgment if any of a series of bases applies. The bases provided in each Act are nearly identical. This bill would change these provisions to require nonrecognition if any of the listed bases applies, with a few exceptions discussed below. However, this bill would further provide that a court “may nonetheless recognize a [judgment] if the [party seeking recognition] demonstrates good reason to recognize the judgment that outweighs the ground for nonrecognition.”

These changes recognize the deep concerns that arise from these various circumstances. Many of these bases evidence possible due process deficiencies and other problematic elements that upset central principles of our justice system. The amendments would create a presumption of nonrecognition when these circumstances exist. However, judicial discretion would still be retained for those circumstances where good cause exists. The new provision would place more of a burden on the party seeking enforcement to establish for the court sufficient cause for overlooking these grounds for nonrecognition.

There are a few exceptions to these changes. First, the discretionary ground for defamation under California’s Uniform Act will be amended as discussed in section 2b above. The second exception is for when the “judgment conflicts with another final and conclusive judgment.” This ground would remain a discretionary basis for nonrecognition of a judgment pursuant to both Acts.

Support: California Nations Indian Gaming Association; Chicken Ranch Rancheria of Me-Wuk Indians of California; Judicial Council; Rincon Band of Luiseño Indians; Yurok Tribe

Opposition: None Known

HISTORY

Source: California Law Revision Commission

Related Pending Legislation: None Known

Prior Legislation: SB 406 (Evans, Chapter 243, Statutes 2014) See Background.

Prior Vote:

Assembly Floor (Ayes 74, Noes 0)

Assembly Appropriations Committee (Ayes 17, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

1. All further statutory references are to the Code of Civil Procedure unless otherwise stated. ↑

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 905

Author:(Maienschein) – As Amended Ver:March 13, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill revises the standards for recognizing money judgments under the Tribal Court Civil Money Judgment Act (TCCMJA) and the Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA), and eliminates the sunset date for the TCCMJA. Specifically, this bill:

1. Enacts various clarifying and technical recommendations made by the California Law Revision Commission (CLRC), and the recommendation of CLRC to eliminate the sunset date for TCCMJA.
2. Creates a presumption that a court does not recognize a foreign or tribal money judgment if specific reasons exist, such as the defendant not being notified with sufficient time to defend himself or herself, and judgements obtained by fraud or under circumstances that raise substantial doubt about the integrity of the rendering court. However, allows the court to recognize a judgment even if a specific reason exists to not recognize it if the applicant demonstrates that is more reasonable than non-recognition under the circumstances.

FISCAL EFFECT:

By removing the sunset date, courts would continue to benefit from time and costs savings of the TCCMJA.

COMMENTS:

1. Background. In 2014, the Legislature established the TCCMJA through SB 406 (Evans), Chapter 243, Statutes of 2014, to govern the process of enforcing tribal court money judgments in California courts. As part of SB 406 and as the result of due process concerns raised about both the TCCMJA and the UFCMJRA applicable to money judgments from foreign countries, the Legislature directed the CLRC to look at the due process requirements for recognition of money judgments of both the TCCMJA and the UFCMJRA. SB 406 also sunsetted the TCCMJA in three years to allow the Legislature, with a thoughtful and thorough review by the CLRC, to better consider the concerns that have been raised. The CLRC study “Recognition of Tribal and Foreign Court Money Judgments”, was completed in September 2016 and found for the most part that the due process provisions in both acts were sound, but could benefit from clarifying amendments or commentary.
2. Purpose. This bill, sponsored by the CLRC, would enact various clarifying amendments to both the TCCMJA and the UFCMJRA as recommended by the CLRC. In addition, as recommended by the CLRC the bill would remove the sunset date for the TCCMJA.
3. Staff Comments. The Judicial Council notes that the TCCMJA saves time and reduces costs to courts and litigants. Removing the sunset date, therefore, would continue these time and cost savings in the future.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:(Maienschein) – As Ver:

PROPOSED CONSENT

SUBJECT:

KEY ISSUE: SHOULD THE CALIFORNIA LAW REVISION COMMISSION'S RECOMMENDATIONS BE ADOPTED FOR MODEST CHANGES REGARDING SUBSTANTIVE STANDARDS FOR RECOGNITION OF FOREIGN AND TRIBAL COURT MONEY JUDGEMENTS AND SHOULD THE SUNSET BE LIFTED ON THE TRIBAL COURT CIVIL MONEY JUDGEMENT ACT?

SYNOPSIS

In 2014, the Legislature established the Tribal Court Civil Money Judgment Act (TCCMJA) to govern the process of enforcing tribal court money judgments in California courts. (SB 406 (Evans), Chap. 243, Stats. 2014.) As part of that bill and as the result of due process concerns raised about both the TCCMJA and the Uniform Foreign-Country Money Judgment Recognition Act (UFCMJRA) applicable to money judgments from foreign countries, the Legislature directed the California Law Revision Commission (CLRC) to look at the due process requirements for recognition of money judgments of both the TCCMJA and the UFCMJRA. That bill also sunsetted the TCCMJA in three years to allow the Legislature, with a thoughtful and thorough review by the CLRC, to better consider the concerns that have been raised.

The CLRC study, Recognition of Tribal and Foreign Court Money Judgments, completed in September, 2016, found for the most part that the due process provisions in both acts were sound, but could benefit from clarifying amendments or commentary. This bill, sponsored by the CLRC, seeks to do just that by making various clarifying amendments to both the TCCMJA and the UFCMJRA and by lifting the sunset on the TCCMJA. The bill is supported by California Nations Indian Gaming Association and the Rincon Band of Luiseno Indians, and has no reported opposition.

SUMMARY: Revises the standards for recognizing money judgments under the Tribal Court Civil Money Judgment Act (TCCMJA) and the Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA). Specifically, this bill:

1. Creates a presumption that a court does not recognize a foreign or tribal money judgment if any of the following reasons exist (unless the court finds that recognition of the judgment is more reasonable than non-recognition under the circumstances):
   1. The defendant did not receive notice of the proceeding in sufficient time to enable the defendant to defend himself or herself;
   2. The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present his or her case;
   3. The judgment or the cause of action on which the judgment is based is repugnant to the public policy of California or the United States;
   4. The proceeding in the tribal or foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined other than by proceedings in that court;
   5. In the case of jurisdiction based on personal service only, the foreign or tribal court was a seriously inconvenient forum for the trial;
   6. The judgment was rendered under circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
   7. The specific proceeding in the foreign or tribal court leading to the judgment was not compatible with the due process of law.
2. Clarifies that a court is not required to recognize a tribal or foreign judgment that conflicts with another final and conclusive judgment.
3. Clarifies that a judgment for defamation may not be recognized if the judgment is not recognizable under federal law, which requires that there be at least as much protection for freedom of speech and press as would be provided by the First Amendment to the U.S. Constitution and by California or the defendant would have been found liable for defamation in California.
4. Clarifies that a foreign court lacks personal jurisdiction over a defendant if either the foreign court lacks a basis for jurisdiction that would be a sufficient basis for jurisdiction under California law, or the foreign court lacks jurisdiction under its own laws; and, if so, provides that a California court cannot recognize a judgment obtained in these circumstances.
5. Eliminates the sunset and allows the TCCMJA to continue indefinitely.
6. Makes technical and organizational changes to the TCCMJA and the UFCMJRA.

EXISTING LAW:

1. Requires, under federal law, that each state give full, faith and credit to the public acts, records and judicial proceedings of every other state. (U.S. Constitution, Art. IV, Section 1; 28 U.S.C. Section 1738.)
2. Provides that, under federal law, as a general rule, the recognition of a tribal court order within U.S. federal courts is governed by the principles of comity. Provides that federal courts must neither recognize nor enforce tribal judgments if: (1) the tribal court did not have both personal and subject matter jurisdiction; or (2) the defendant was not afforded due process of the law. Provides that a federal court may, in its discretion, decline to recognize and enforce a tribal judgment on specified grounds. (Wilson v. Marchington (9th Cir. 1997) 127 F.3d 805.)
3. Governs, through the UFCMJRA, the enforcement of judgments of foreign countries within California courts. Does not apply to a judgment for taxes; a fine or other penalty; or a family law judgment. Excludes tribes from the Uniform Foreign-Country Money Judgment Recognition Act. (Code of Civil Procedure Section 1713 et seq. Unless stated otherwise, all further statutory references are to that code.)
4. Governs, through the TCCMJA, the recognition and enforcement of money judgments, as defined, of federally recognized Indian tribes in California state courts. Specifies that to the extent not inconsistent with the TCCMJA, the Code of Civil Procedure applies. Sunsets the TCCMJA on January 1, 2018. (Section 1730 et seq.)
5. Provides mandatory and discretionary grounds for nonrecognition of a foreign country money judgment under the UFCMJRA and the TCCMJA. (Sections 1716, 1737.)
6. Requires a court to decline recognition and entry of a foreign or tribal court money judgment in any of the following circumstances:
   1. The court did not have personal jurisdiction over the respondent;
   2. The court did not have subject matter jurisdiction; or
   3. The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law. (Id.)
7. Permits the court, in its discretion, to decline recognition and entry of a foreign or tribal court money judgment on any of the following grounds:
   1. The defendant in the foreign country or tribal court proceeding did not receive notice of the proceeding in sufficient time to enable the defendant to defend himself or herself;
   2. The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present his or her case;
   3. The judgment or the cause of action on which the judgment is based is repugnant to the public policy of California or the United States;
   4. The judgment conflicts with another final and conclusive judgment;
   5. The proceeding in the foreign country or tribal court was contrary to an agreement between the parties under which the dispute in question was to be determined other than by proceedings in that court;
   6. In the case of jurisdiction based on personal service only, the foreign or tribal court was a seriously inconvenient forum for the trial;
   7. The judgment was rendered under circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;
   8. The specific proceeding in the foreign or tribal court leading to the judgment was not compatible with the due process of law; or
   9. The judgment includes recovery for a claim of defamation, unless the court determines that the defamation law applied by the foreign or tribal court provided at least as much protection for freedom of speech and the press as provided by both the U.S. and California Constitutions. (Id.)
8. Defines "due process" under the TCCMJA to include, but not be limited to, the right to be represented by counsel, to receive reasonable notice and an opportunity for a hearing, to call and cross-examine witnesses, and to present evidence and argument to an impartial decisionmaker. (Section 1732.)
9. Under the federal SPEECH Act, bars courts in the United States from recognizing a foreign defamation suit if either there was not at least as much protection for freedom of speech and press as would be provided by the First Amendment to the U.S. Constitution and by the state in which the recognition suit was brought or the defendant would have been found liable for defamation in the state in which the recognition suit was brought. (28 U.S.C. Section 4102.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: In 2014, the Legislature established the TCCMJA to govern the process of enforcing tribal court money judgments in California state courts. (SB 406 (Evans), Chap. 243, Stats. 2014.) As part of that bill and as the result of due process concerns raised about both the TCCMJA and the UFCMJRA applicable to money judgments from foreign countries, the Legislature directed the California Law Revision Commission (CLRC) to look at the due process requirements of both the TCCMJA and the UFCMJRA. That bill also sunsetted the TCCMJA in three years to allow the Legislature, with an in-depth review by the CLRC, to more thoroughly and thoughtfully consider the due process concerns that have been raised.

The CLRC study, Recognition of Tribal and Foreign Court Money Judgments, completed in September, 2016, found for the most part that the due process provisions in both acts were sound, but could benefit from clarifying amendments or commentary. This bill seeks to do just that. In support of the bill, the author writes:

The CLRC studied the substantive standards governing judgment recognition. For both foreign and tribal court judgments, California’s substantive standards for recognition are derived from the 2005 Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA) and its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act. The CLRC reviewed academic literature and case law arising under the Uniform Acts and did not find problems with the operation of these standards in practice. However, CLRC found that certain standards could benefit from clarifying amendments . . . [and] Assembly Bill 905 would provide such clarification.

Distinction Between Full, Faith & Credit Given to Other States and Comity Given to Other Countries and Tribes: The U.S. Constitution requires that each state give full, faith and credit to the public acts, records and judicial proceedings of every other state and territory. Thus a judgment in one state can be fully enforced in any other state.

Tribal judgments are generally treated like judgments from other countries and are governed by comity: "No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call 'the comity of nations.'" (Hilton v. Guyot (1895) 159 U.S. 113, 163.) Comity is "neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, on the other." (Id. at 163-64.)

Mandatory and Discretionary Grounds for Nonrecognition of Foreign and Tribal Court Money Judgment Orders: Under both the TCCMJA and the UFCMJRA, a court today must decline recognition of a foreign country or tribal court if: (1) the court did not have either personal or subject matter jurisdiction; or (2) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law. Additionally, the courts of this state have discretion to decline recognition for any of nine reasons, including:

• The defendant in the proceeding in the foreign country or tribal court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
• The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
• 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 the U.S.;
• In the case of jurisdiction based on personal service, the foreign or tribal court was a seriously inconvenient forum;
• The judgment was rendered under circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
• The specific proceeding in the foreign or tribal court leading to the judgment was not compatible with the due process of law.

When SB 406 was heard in 2014, Stand Up For California (SUFC) opposed the bill, arguing that the discretionary grounds for nonrecognition of tribal court orders should be made mandatory. SUFC wrote that the discretionary grounds “are just as serious (e.g., fraud, doubts about the integrity of the judgment, etc.)” as the mandatory grounds for nonrecognition and thus “should be among those grounds that can be raised and proved up by the respondent, with a mandatory duty on the court to not recognize the tribal court money judgment if any of these grounds are demonstrated.” This Committee, in its analysis of SB 406, wrote:

Even a cursory review of the grounds for discretionary nonrecognition raise legitimate questions as to the fairness and due process provided in the underlying action and what should the appropriate standard be for recognition in state court. For example, the bill (and the UFCMJRA) allows a court, in its discretion, to recognize and enforce a tribal court money judgment even when the specific proceedings in the tribal court leading to the judgment were not compatible with due process of law. Currently the bill – and the UFCMJRA – require mandatory nonrecognition of a tribal order if it was rendered under a judicial system that does not provide procedures compatible with the requirements of due process. However, if the system provides procedures that, at least on paper, provide due process of law, but the actual procedures used in a particular case do not, the defendant has not been afforded due process of the law and thus, the proceeding would not, under the Ninth Circuit decision in Wilson v. Marchington [(9th Cir. 1997) 127 F.3d 805)], be entitled to recognition in federal court. Is it reasonable policy – under both this bill and the UFCMJRA – to permit such an order to be enforced by a California court? This is obviously a very important question calling for further study.

CLRC Study Found Due Process Exceptions to Recognition Generally Reasonable, But Recommended Clarifying Amendments: The CLRC, after studying the existing mandatory and discretionary nonrecognition provisions, determined that, for the most part, the exceptions were appropriate. For the mandatory nonrecognition provisions, the CLRC recommended clarification that a foreign or tribal court lacks personal jurisdiction over a defendant if either the foreign country or tribal court lacked a basis for jurisdiction that would be a sufficient basis for jurisdiction under California law, or that court lacked jurisdiction under its own laws; and, if either is true, provides that a California court cannot recognize that judgment.

For the nine discretionary grounds for nonrecognition, the CLRC first determined more generally that the while it "expects that instances where equitable considerations will warrant recognition in spite of an applicable exception will be rare," a court should nonetheless "not be precluded from recognizing a judgment when those circumstances exist." (CLRC, Recognition of Tribal and Foreign Court Money Judgments 7 (Sept. 2016).) Examples provided by the CLRC included where the defendant may have unclean hands. The CLRC went on to recommend specific changes to the defamation exception, consistent with the federal SPEECH Act (28 U.S.C. Section 4101 et seq.) It also recommended adding clarifying commentaries for several other discretionary exemptions to ensure that they are properly understood and followed appropriately.

In addition, the author has, in the latest amendments, made clear that the discretionary grounds for nonrecognition are presumptively appropriate and that a California court should not recognize a foreign or tribal order if any of the discretionary grounds for nonrecognition exist, unless the court finds that recognition of the judgment is more reasonable than nonrecognition under the circumstances. This change still gives a court the necessary discretion to decide if a foreign or tribal court money judgment should be recognized, but should help ensure that any instances of recognition will indeed be very rare.

ARGUMENTS IN SUPPORT: The 31 member tribes of the California Nations Indian Gaming Association support the bill because it allows tribal governments to more easily collect tribal court-ordered money judgments: "For far too long, tribes had very little recourse on collecting debts without clogging up state courts to uphold tribal rulings. Over the last three years the pilot program has worked as envisioned."

REGISTERED SUPPORT / OPPOSITION:

Support

California Law Revision Commission (sponsor)

California Nations Indian Gaming Association

Rincon Band of Luiseno Indians

Opposition

None on file

Analysis Prepared by: