De Fontbrune v. Wofsy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINCENT SICRE DE FONTBRUNE; Nos. 19-16913

LOAN SICRE DE FONTBRUNE; ADEL 19-17024

SICRE DE FONTBRUNE; ANAIS SICRE

DE FONTBRUNE, in their capacity as D.C. No.

personal representatives of the Estate 5:13-cv-05957-

of YVES SICRE DE FONTBRUNE, EJD

Plaintiffs-Appellants/

Cross-Appellees,

OPINION

ov.

ALAN WOFSY; ALAN WOFSY &

ASSOCIATES,

Defendants-Appellees/

Cross-Appellanis.

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted February 8, 2022

San Francisco, California

Filed July 13, 2022

2 SICRE DE FONTBRUNE V. WOFSY

Before: Andrew D. Hurwitz and Lawrence VanDyke,

Circuit Judges, and Joan N. Ericksen,” District Judge.

Opinion by Judge Ericksen

ee

SUMMARY™

Foreign Judgments

The panel reversed the district court’s summary

judgment entered for defendants Alan Wofsy and Alan

Wofsy & Associates (collectively “Wofsy”) in an action

brought by Yves Sicre de Fontbrune in California state court

seeking recognition of a French money judgment.

The photographer Christian Zervos created the Zervos

Catalogue of the works of Pablo Picasso, which was

originally published under the label of Cahiers d'Art. In

1979, Sicre de Fontbrune acquired the rights for the business

capital of Cahiers d’Art. Wofsy produced a series of books,

titled “The Picasso Project,” that contained reproductions of

photographs from the Zervos Catalogue.

The French judgment found that Wofsy had viclated an

astreinte — a French legal device that imposed money

damages for the continued use of copyrighted photographs

of Pablo Picasso’s works. Sicre de Fontbrune had obtained

* The Honorable Joan N. Ericksen, United States District Judge for

the District of Minnesota, sitting by designation.

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

SICRE DE FONTBRUNE V. WOFSY

that astreintre as a form of relief in a 2001 French judgment

finding that the photographs’ copyrights were infringed.

The district court granted summary judgment for Wofsy

based on a defense to recognition under California’s

Uniform Foreign-Country Money Judgment Recognition

Act, Cal. Civ, Proc. Code §§ 1713-1725, namely, the defense

that the French judgment was repugnant to United States

public policy protecting free expression.

The panel held that in international diversity cases, such

as this one, the enforceability of foreign judgments is

generally governed by the law of the state in which

enforcement is sought; and the California Recognition Act

governed. The Recognition Act lists several grounds for

nonrecognition. Five statutory grounds for nonrecognition

of the French judgment are at issue in this appeal.

First, Sicre de Fontbrune challenged the district court’s

conclusion that the French judgment was repugnant to

United States public policy favoring free expression. The

fair use defense to copyright infringement is one of the built-

in First Amendment accommodations that ease the tension

between free expression and U.S. copyright law. As part of

its public policy defense, Wofsy asserted that the fair use

doctrine of U.S. copyright law — a feature that France’s

copyright scheme lacked — would have protected the copying

of the photographs at issue. The panel rejected this

contention. The fair use defense requires the analysis of four

statutory factors, and the panel examined the factors with

respect to the individual photographs in the catalogue at

issue. Concerning the first factor - the “purpose and

character” of the use, the panel held that the undisputed

evidence showed that the use of the copyrighted photographs

was commercial and non-transformative. This factor

weighed against a finding of fair use. For the second fair use

4 SICRE DE FONTBRUNE V. WOFSY

factor — the nature of the copyrighted work, the panel held

that the photographs’ creative qualities prevented this factor

from weighing heavily, if at all, in favor of fair use. With the

third factor — the amount and substantiality of the portion

used, the panel held this factor weighed against fair use

where the copying included the entirety of the copyrighted

photographs at issue and Wofsy did not transform the

photographs. With the fourth fair use factor — the effect on

potential market or value of the copyrighted work, the panel

held that this factor weighed against fair use where there was

no evidence countering the presumption of market harm,

which arose where the allegedly infringing use was both

commercial and non-transformative. After weighing the

four factors, the panel had serious doubts that a fair use

defense would protect the copying of the photographs at

issue, even if the nature of the copyrighted works were to

favor fair use. Wofsy’s inability to urge a fair use defense in

France did not place the French judgment in conflict with

fundamental American constitutional principles, and Sicre

de Fontbrune was therefore entitled to partial summary

judgment on this defense.

Second, both parties appealed the district court’s denial

of summary judgment concerning the assertion that the

French court lacked subject matter jurisdiction. The French

appellate courts did not evaluate whether the French trial

court, the Tribunal de Grande Instance de Paris (“TGI”),

had subject matter jurisdiction over the astreinte proceeding.

The panel held that the TGI’s subject matter jurisdiction did

not depend on Sicre de Fontbrune’s standing, and therefore

the district court erred in holding otherwise. There is no

indication that a plaintiff's lack of standing circumscribes

the judicial power — the subject matter jurisdiction — of

French courts. The panel concluded that Sicre de Fontbrune

is entitled to partial suramary judgment on this defense.

SICRE DE FONTBRUNE V. WOFSY

Third, Wofsy challenged the district court’s grant of

summary judgment to Sicre de Fontbrune regarding the

assertion that the French court lacked personal jurisdiction

over Wofsy. A court applying California’s Recognition Act

shall not refuse recognition of a foreign-country judgment

for lack of personal jurisdiction if the defendant “voluntarily

appeared in the proceeding.” Cal Civ. Proc. Code

§ 1717(a)(2). The panel agreed with the district court that .

Wofsy waived this defense through a voluntary appearance

when he petitioned the TGI to set aside a 2012 judgment.

The panel concluded that the district court properly granted

partial summary judgment to Sicre de Fontbrune regarding

the defense of lack of personal jurisdiction.

Fourth, Wofsy asserted that he was entitled to summary

judgment on the defense that he received inadequate notice

of the proceedings that resulted in the French judgment. The

California Supreme Court has not clarified the showing that

a defendant must make to prove the insufficient notice

defense. A California Court of Appeal has held that a mere

failure of actual notice does not prove the inadequate notice

defense. The panel accepted the Court of Appeal’s holding

that the insufficient notice defense requires the proponent to

prove the absence of a constitutionally adequate attempt at

actual notice. The panel considered whether the attempts to

serve Wofsy before the October 2011 hearing constituted

sufficient efforts at notice, despite their failure. The panel

held that the failed attempts to service process did not, by

themselves, disprove the notice defense. There was,

however, a factual dispute as to whether Wofsy received

actual notice of the pendency of the action and an

opportunity to present objections. The panel held that the

district court appropriately left to the finder of fact to

determine whether Wofsy “receive[d] notice of the

6 SICRE DE FONTBRUNE V. WOFSY

proceeding in sufficient time to enable [him] to defend.”

Cal. Civ. Proc. Code § 1716(c)(1).

Fifth, Wofsy argued that Sicre de Fontbrune obtained the

- French judgment by fraud that deprived Wofsy of an

adequate opportunity to present his case. The panel held that

even assuming that Sicre de Fontbrune deceived the TGI as

to his legal interest in the astreinte, Wofsy was not entitled

to summary judgment on the claim that the .

misrepresentation “deprived [him] of an adequate

opportunity to present [his] case.” See Cal. Civ. Code

§ 1716(c)(2). A question remains as to whether Wofsy

reasonably should have detected the alleged fraud during the

French proceedings, and therefore as to whether such fraud

deprived him of an adequate opportunity to present his case.

The panel concluded that the district court did not err by

denying Wofsy summary judgment on the fraud defense.

The panel held that Wofsy was not entitled to summary

judgment based on the public policy defense. No other

ground for nonrecognition at issue in this appeal supplied an

alternative basis for affirming the judgment below. The

panel reversed and remanded for further proceedings.

COUNSEL

Richard J. Mooney (argued), RJM Litigation Group, San

Francisco, California, for Plaintiffs-Appeliants.

Neil A.F. Popovié (argued), Jonathan G. Borle, and Matthew

G. Halgren, Sheppard Mullin Richter & Hampton LLP, San

Francisco, California, for Defendants-Appellees.

SICRE DE FONTBRUNE V. WOFSY

Kathryn C. Thornton (argued), Ropes & Gray LLP,

Washington, D.C.; Marta F. Belcher, James R. Batchelder,

and Monica A. Ortel, Ropes & Gray LLP, East Palo Alto,

California; Corynne McSherry, Mitchell Stoltz, and

Alexandra Moss, Electronic Frontier Foundation, San

Francisco, California; Robert S. Adams IV and Avery □

Gardiner, Center for Democracy & Technology,

Washington, D:C.; John Bergmayer, Public Knowledge,

Washington, D.C.; for Amici Curiae Project Gutenberg

Literary Archive Foundation, Electronic Frontier

Foundation, Center for Democracy and Technology, and

Public Knowledge.

OPINION

ERICKSEN, District Judge:

INTRODUCTION

Yves Sicre de Fontbrune brought this action in California

state court seeking recognition of a French money judgment.

The French judgment found that Defendants, Alan Wofsy

and Alan Wofsy & Associates (collectively, “Wofsy”), had

violated an astreinte—a French legal device that imposed

money damages for the continued use of copyrighted

photographs of Pablo Picasso’s works. Sicre de Fontbrune

had obtained that astreinte as a form of relief in a 2001

French judgment finding that the photographs’ copyrights

were infringed.

After removal, the district court considered motions for

summary judgment on eight defenses to recognition under

the California version of the Uniform Foreign-Country

Money Judgment Recognition Act, Cal. Civ. Proc. Code

§§ 1713-1725. The district court granted summary

8 SICRE DE FONTBRUNE V. WOFSY

judgment for Wofsy based on one of those defenses: that the

French judgment was repugnant to United States public

policy protecting free expression, Sicre de Fontbrune

appeals,! and Wofsy cross-appeals the denial of summary

judgment on other defenses. We conclude that summary

judgment was not proper, and we reverse and remand for

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Starting in 1932, the photographer Christian Zervos

created a catalogue raisonné’ (the “Zervos Catalogue”) of

the works of the Spanish artist Pablo Picasso. Sicre de

Fontbrune, 838 F.3d at 995. The catalogue ultimately

featured nearly 16,000 photographs of Picasso’s works. Id.

Zervos originally published this catalogue under the label of

Cahiers d’Art. Id. In 1979, Sicre de Fontbrune acquired the

rights to the business capital of Cahiers d’Art, including its

intellectual property. fd.

In 1991, Alan Wofsy Fine Arts LLC acquired permission

from the Estate of Pablo Picasso to publish a work

illustrating and describing works by Picasso. Wofsy then

produced a series of books on Picasso, titled “The Picasso

Project’—a chronological illustrated catalogue of Picasso’s

1 Sicre de Fontbrune died in 2015. His wife and children were [ater

substituted as successors in interest. Sicre de Fontbrune v. Wofsy, 838

F.3d 992, 996 n.3 (9th Cir. 2016), as amended on denial of reh'g and

reh'g en bane (Nov. 14, 2016). For convenience, we refer to them

collectively as “Sicre de Fontbrune.”

2 A catalogue raisonné is the “complete published catalogue of an

artist’s work.” Sicre de Fontbriune, 838 F.3d at 995 n.1 (quoting The

Concise Oxford Dictionary of Art Terms Online (Michael Clarke &

Deborah Clarke eds., 2d ed. 2010)).

SICRE DE FONTBRUNE V. WOFSY

works. The Picasso Project contained reproductions of

photographs from the Zervos Catalogue.

In 1996, at Sicre de Fontbrune’s request, French police

seized two volumes of The Picasso Project that were offered

for sale at a book fair in Paris. Sicre de Fontbrune then sued

Alan Wofsy in France for copyright infringement. Alan

Wofsy appeared, and Alan Wofsy & Associates intervened,

In 1998, a trial court, the Tribunal de Grande Instance de

Paris (“TGP’), determined that the photographs in the Zervos

Catalogue were documentary in nature and therefore

ineligible for copyright protection.

On September 26, 2001, the French Cour d’Appel (Court

of Appeal) reversed and entered judgment in favor of Sicre

de Fontbrune, determining that the photographs at issue did

not merely copy Picasso’s works, but rather added creative

features through “deliberate choice[s] of lighting, the lens,

filters, [and] framing or angle of view.” The court also

confirmed that Sicre de Fontbrune had obtained “the

intellectual property rights on the intangible items attached

to the stock, to the [Zervos] catalogue and the photographs

that it contains” when he acquired the Cahiers d’Art business

in 1979. The Cour d’Appel found Wofsy “guilty of

infringement of copyright,” and awarded various relief to

Sicre de Fontbrune, including a legal device known as an

astreinte, under which Wofsy would be liable for damages

of 10,000 francs for each proven infraction of the prohibition

on using the photographs at issue. Wofsy appealed to the

Cour de Cassation (the French Civil Supreme Court), but

that court removed the appeal from its docket after Wofsy

did not pay the other damages and costs the Cour d’Appel

3 The original judgments appear in French. We refer to the certified

translations provided by the parties.

10 SICRE DE FONTBRUNE V. WOFSY

awarded to Sicre de Fontbrune. On December 20, 2001,

Sicre de Fontbrune sold his business capital in Cahiers d’Art,

including all its tangible and intangible components, to a

third party.

Sicre de Fontbrune initiated a new lawsuit (the “Astreinte

Proceeding’) in the TG/ against Wofsy on July 22, 2011,

seeking to “liquidate” the astreinte awarded by the Cour

d’Appel in 2001. Sicre de Fontbrune claimed that copies of

The Picasso Project were offered for sale in a French

bookstore in 2011, and that 1,492 photographs from the

Zervos Catalogue were reproduced in these works in

violation of the astreinte.

Wofsy maintains that he was never served with process

in the Astreinte Proceeding. Sicre de Fontbrune asserts that

a huissier—a bailiff-like officer of the French court—sent

the complaint and French equivalent of a summons to Wofsy

through procedures consistent with the Convention on the

Service Abroad of Judicial and Extrajudicial Documents in

Civil or Commercial Matters, Nov. 15, 1965 (“Hague

Service Convention”), 20 U.S.T. 361, T.LA.S, No. 6638.

The French court official requested service at addresses that

the French courts already had on file: 401 China Basin Street

in San Francisco, and P.O. Box 2210 in San Francisco. The

U.S. process server, however, failed to effect service.

The 7G/ held a hearing in the Astreinfe Proceeding on

October 25, 2011. Wofsy did not appear. On November 15,

2011, the 7G/ ordered another hearing. The order contained

a brief description of the claim and proceedings to date and

the decision to reopen the proceedings for a hearing on

December 13, 2011, “for the production by [Sicre de

Fontbrune] of the certificate from the foreign authority

responsible for notification of the document instituting the

proceedings,” as requested in accordance with Article 6 of

SICRE DE FONTBRUNE V. WOFSY 11

the Hague Service Convention. Wofsy received a copy of

that order in late November 2011. A letter accompanying

the order explained the time limits for appealing the order.

At the December 2011 hearing, the TG/ accepted the

requested service certificates, and concluded that Wofsy had.

been “duly summoned” in accordance with the French Civil

Procedure Code. But Wofsy again failed to appear. The TG/

entered a default judgment against Wofsy on January 10,

2012, ordering Wofsy to pay 2,000,000 Euros to Sicre de

Fontbrune in liquidation of the astreinte.

While the Astreinte Proceeding was pending, Sicre de

Fontbrune commenced another lawsuit in the 7G/ on

September 20, 2011. The suit alleged copyright

infringement by Wofsy and two defendants not party to the

instant lawsuit: Alan Wofsy Fine Arts LLC, and the French

bookstore where copies of The Picasso Project had been

discovered for sale in 2011. In January 2013, the 7TG/ found

that on December 20, 2001, Sicre de Fontbrune had sold the

“commercial rights which [he] had acquired on May 31,

1979,” and that he no longer had standing to sue for

copyright infringement.

On February 25, 2014, Wofsy initiated a proceeding in

the TGI secking to vacate the 2012 astreinte judgment,

arguing that Sicre de Fontbrune’s transfer of copyrights in

December 2001 deprived him of standing to bring the

Astreinte Proceeding. The TG/ dismissed this “Review

Proceeding” in August 2014. Wofsy appealed, and the Cour

d’Appel affirmed the dismissal in April 2018, finding the

filing of the Review Proceeding untimely. The Cour de

12 SICRE DE FONTBRUNE V. WOFSY

Cassation affirmed that decision on October 17, 2019. ECF

Nos. 24 (Case No. 19-16913), 22 (Case No. 19-17024).4

Before Wofsy filed the Review Proceeding, though,

Sicre de Fontbrune brought the instant action in the Superior

Court of California in Alameda County in November of

2013, seeking recognition of the astreinte judgment. After

Wofsy removed the action to federal court, the district court

dismissed the case with prejudice pursuant to Federal Rule

of Civil Procedure 12(b)(6). We reversed, holding that the

astreinte was not a penalty but rather a judgment for “a sum

of money” cognizable under the Recognition Act. Sicre de

Fontbrune, 838 F.3d at 1007.

On remand, the district court heard cross-motions for

summary judgment on eight defenses under the Recognition

Act. See Cal. Civ. Proc. Code § 1716. The district court

granted summary judgment for Wofsy on only one of those

defenses, determining that the astreinte judgment was

repugnant to public policy, and exercising its discretion to

decline recognition. Sicre de Fontbrune appeals the grant of

summary judgment to Wofsy on that issue, and appeals the

district court’s denial of partial summary judgment to Sicre

de Fontbrune on the defense of lack of subject matter

jurisdiction. Wofsy cross-appeals the grant of partial

summary judgment to Sicre de Fontbrune on the defense of

lack of personal jurisdiction, and appeals the denial of

summary judgment to Wofsy on the defenses based on lack

of subject matter jurisdiction, insufficient notice, and fraud.

ee

4 We take judicial notice of the 2019 Cow de Cassation opinion and

its certified English translation.

SICRE DE FONTBRUNE V. WOFSY 13

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court’s final

judgment under 28 U.S.C. § 1291. Our review extends to an

order denying partial summary judgment that has become

part of a final judgment. Scribner v. WorldCom, Inc.,

- 249 F.3d 902, 907 (9th Cir. 2001).

We review a summary judgment de novo. Id. We “view

the evidence in the light most favorable to the nonmoving

party, determine whether there are any genuine issues of

material fact, and decide whether the district court correctly

applied the relevant substantive law.” Animal Legal Def.

Fund vy. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th

Cir, 2016) (en banc) (per curiam).

DISCUSSION

“In international diversity cases such as this one,

. ‘enforceability of judgments of courts of other countries is

generally governed by the law of the state in which —

enforcement is sought.’” Naoko Ohno v. Yuko Yasuma,

723 F.3d 984, 990 (9th Cir. 2013) (quoting Yahoo! Inc. v. La

Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199,

1212 (9th Cir. 2006)). In this removed action, California

law—the Recognition Act—governs.*

5 Although there is no contest about diversity of citizenship, the

district court determined that the defendants in this case are citizens and

residents of California—a finding not disputed on appeal. Although a

defendant’s citizenship in the state where an action is brought ordinarily

prevents removal, 28 U.S.C. § 1441(b)(2), that rule is “procedural, or

non-jurisdictional,” Lively v. Wild Oats Markets, Inc., 456 F.3d 933,939 -

(9th Cir. 2006). Removal is unchallenged here.

14 SICRE DE FONTBRUNE V. WOFSY

California’s Recognition Act is modeled on the 2005

version of the Uniform Foreign-Country Money Judgments

Recognition Act. AO Alfa-Bank v. Yakovlev, 230 Cal. Rptr.

3d 214, 221 (Ct. App. 2018), as modified on denial of reh’g

(Apr. 3, 2018); see Unif. Foreign-Country Money

Judgments Recognition Act (Nat’l Conf. of Comm’rs on

Unif. State L. 2005). Amendments to California’s

Recognition Act became effective in 2018. See Alfa-Bank,

230 Cal. Rptr. 3d at 221. But those amendments apply only

to claims commenced after their effective date. fd. at 222.

The district court was thus correct to apply the version of the

state Recognition Act effective at the time Sicre de

Fontbrune filed this action in 2013.°

A majority of states have adopted either the 1962 version

of the Uniform Foreign-Country Money Judgments

Recognition Act, or its 2005 update. Ohno, 723 F.3d at 990

n.8. Non-California authorities that interpret the 1962 or the

2005 uniform acts, or that apply principles of comity-based

recognition to foreign judgments, carry persuasive value in

the application of California’s Recognition Act. Alfa-Bank,

230 Cal. Rptr. 3d at 222-23 (citing Cal. Civ. Proc. Code

§ 1722).

“Once coverage under the Uniform Act is established,”

as it has been here,’ “the presumption in favor of

enforcement applies,” and the party resisting recognition

® Ag in the district court’s order, all citations to the Recognition Act

in this opinion refer to the version of the Recognition Act in effect at the

time this suit began in 2013, unless otherwise noted. See Cal. Civ. Proc.

Code §§ 1713 et seg. (West 2013).

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

2012 Astreinte Judgment falls within the coverage of the Recognition

Act. See Sicre de Fontbrune, 838 F.3d at 1007.

SICRE DE FONTBRUNE V. WOFSY 15

must establish a ground for nonrecognition. Ohno, 723 F.3d

at 991 (quoting Cal. Civ. Proc. Code § 1716(d)). The

Recognition Act lists several grounds for nonrecognition.

Some grounds, if established, preclude recognition, Cal. Civ.

Proc. Code § 1716(b), but others only confer discretion on

courts to deny recognition, Cal. Civ. Proc. Code § 1716(c).

- Five statutory grounds for nonrecognition are at issue in

this appeal. First, Sicre de Fontbrune challenges the district

court’s conclusion that the French judgment was repugnant

to U.S. public policy favoring free expression, and argues

that he was entitled to partial summary judgment on this

issue. Second, both parties appeal the district court’s denial

of summary judgment concerning the assertion that the

French court lacked subject matter jurisdiction. Third,

Wofsy challenges the district court’s grant of partial

summary judgment to Sicre de Fontbrune regarding the

assertion that the French court lacked personal jurisdiction

over Wofsy. Fourth, Wofsy asserts that he was entitled to

summary judgment on the defense that he received

inadequate notice of the proceedings that resulted in the

French judgment. And fifth, Wofsy argues that Sicre de

Fontbrune obtained the French judgment by fraud that

deprived Wofsy of an adequate opportunity to present his

case.

We conclude that Sicre de Fontbrune—not Wofsy—was

entitled to summary judgment on the defense of repugnancy

to public policy. We also conclude that no other defenses

raised on appeal provide an alternate basis to affirm the grant

of summary judgment. See Spencer v. Peters, 857 F.3d 789,

797 n.3 (9th Cir. 2017). Accordingly, we reverse the district

court’s judgment and remand for further proceedings.

16 SICRE DE FONTBRUNE V. WOFSY

I. Public Policy

The California Recognition Act allows a court to decline

to recognize a foreign-country money judgment if the

“judgment or the cause of action or claim for relief on which

the judgment is based is repugnant to the public policy of

[California] or of the United States.” Cal. Civ. Proc. Code

§ 1716(c)(3). The United States undoubtedly has robust

public policy favoring free expression. See Cohen v.

California, 403 U.S. 15, 24 (1971) (“The constitutional right

of free expression is powerful medicine[.]”). But “some

restriction on expression is the inherent and intended effect

of every grant of copyright.” Golan v. Holder, 565 U.S. 302,

327-28 (2012). The fair use defense to copyright

infringement is one of the “built-in First Amendment

accommodations” that ease the apparent tension between

free expression and U.S. copyright law. See Eldred v.

Ashcroft, 537 U.S. 186, 219 (2003).

The district court determined that. Wofsy would have

prevailed on a fair use defense to the copyright infringement

claim on which the astreinte jadgment was based. The court

also concluded that French law’s failure to allow for

Wofsy’s fair use defense made the judgment repugnant to

U.S. public policy protecting expression.

“California courts have set a high bar for repugnancy

under the Uniform Act.” Ohno, 723 F.3d at 1002. The issue

is not simply whether the “foreign judgment or cause of

action is contrary to our public policy.” Jd Rather, the

question is whether cither is “so offensive to our public

policy as to be prejudicial to recognized standards of

morality and to the general interests of the citizens.”

Hyundai Sec. Co. v. Lee, 182 Cal. Rptr. 3d 264, 272 (Ct.

App. 2015) (cleaned up), as modified (Jan. 14, 2015). Under

this standard, a “difference in law, even a marked one, is not

SICRE DE FONTBRUNE V. WOFSY 17

sufficient to raise a public policy issue. Nor is it relevant

that the foreign law allows a recovery that the forum state

would not allow.” Jd. (cleaned up). Instead, public policy is

violated “only if recognition or enforcement of the foreign-

country judgment would tend clearly to injure public health,

the public morals, or the public confidence in the

administration of law, or would undermine that sense of

security for individual rights, whether of personal liberty or

of private property, which any citizen ought to feel.” Jd.

(cleaned up).

The standard is not lower where the asserted repugnancy

arises from inconsistency with constitutional principles

rather than with statutes or common law. Ohno, 723 F.3d

at 1004. In such cases, “only judgments presenting a direct

and definite conflict with fundamental American

constitutional principles will be denied recognition because

repugnant.” Jd. at 1004-05 (emphasis added) (noting cases

finding repugnancy to the First Amendment where the

foreign judgments “would unquestionably violate the

Constitution were they issued here with respect to domestic

activity”). Thus, in Ohno, this Court determined that a

judgment was not repugnant to public policy in part because

the defendant’s position—that imposing tort liability on a

church’s religious practice was incompatible with the

religion clauses of the California and United States

constitutions—was debatable. Jd. at 1009,

Wofsy’s public policy defense rests on two assertions:

first, that the fair use doctrine of U.S. copyright law—a

feature that France’s copyright scheme lacks—would have

protected the copying of the photographs at issue; and

second, that a judgment imposing copyright liability based

on copying that would qualify as fair use is repugnant to our

public policy. For the reasons below, we reject the first of

18 SICRE DE FONTBRUNE V. WOFSY

these contentions, and therefore need not reach the second.

See SA.R.L. Louis Feraud Int'l y. Viewfinder, Inc., 489 F.3d

474, 483 (2d Cir. 2007) (“If the publication of photographs

of copyrighted material in the same manner as [the

defendant] has done in this case would not be fair use under

United States law, then the French intellectual property

regime sanctioning the same conduct certainly would not be

repugnant to public policy.”).

The fair use defense under U.S. copyright law requires

the analysis of four statutory factors. Campbell v. Acuff-

Rose Music, Inc., 510 U.S. 569, 578 (1994). They are

“(1) the purpose and character of the use, . . . (2) the nature

of the copyrighted work; (3) the amount and substantiality

of the portion used in relation to the copyrighted work as a

' whole; and (4) the effect of the use upon the potential! market

for or value of the copyrighted work.” 17 U.S.C. § 107.

While Wofsy claims fair use of the Zervos Catalogue as

a whole, the individual photographs within the Zervos

Catalogue are at issue in this case. The 2001 Cour d’Appel

decision held that these photographs were eligible for

copyright protection in France and that that the copyright

had been infringed. And the astreinte provided for damages

of 10,000 francs for each violation of the prohibition on

further use of the photographs. The 2012 astreinte judgment

recognized damages of 14,920,000 francs,*® based on the

1,492 photographs copied from the Zervos Catalogue. We

accordingly examine the fair use factors with respect to the

photographs, and need not analyze fair use with respect to

the Zervos Catalogue as a whole.

8 The court limited the actual astreinte award to the amount that

Sicre de Fontbrune had sought—2,000,000 Euros.

SICRE DE FONTBRUNE V. WOFSY 19

A. Purpose and character of use

The “purpose and character” of an allegedly infringing

use may indicate fair use, depending in part on “whether

such use is of a commercial nature or is for nonprofit

educational purposes.” 17 U.S.C. § 107. Commercial use

“tends to weigh against a finding of fair use.”” Campbell,

510 U.S. at 585 (quoting Harper & Row Publ’ers, Inc. v.

Nation Enters., 471 U.S. 539, 562 (1985)). It is “not

conclusive ... but rather a fact to be weighed along with

others in fair use decisions.” /d. (citing Sony Corp. of Am.

v. Universal City Studios, Inc., 464 U.S. 417, 448-49 (1984))

(cleaned up). The “central purpose” of considering the

“purpose and character” of the work is to determine whether

the new work is “transformative”—that is, whether it “adds

something new, with a further purpose or different character,

altering the first with new expression, meaning, or message.”

Id. at 579.

Wofsy concedes that The Picasso Project is a

commercial venture. But the district court observed that The

Picasso Project was “intended for libraries, academic

institutions, art collectors, and auction houses,” and

concluded that The Picasso Project’s purpose aligned with

the “criticism, comment, news reporting, teaching ...,

scholarship, or research” purposes that Section 107

characterizes as non-infringing. See 17 U.S.C. § 107. The

district court relied on that conclusion to find that the first

fair use factor weighed “strongly” in favor of fair use.

We disagree. The “use” at issue is the allegedly

infringing one—the reproduction of copyrighted

photographs in a book offered for sale. The “end-user’s

utilization of the product is largely irrelevant.” Zomba

Enters., Ine. v. Panorama Recs., Inc., 491 ¥ 3d 574, 582 (6th

Cir. 2007); see also Princeton Univ. Press vy. Michigan

20 SICRE DE FONTBRUNE V. WOFSY

Document Servs., Inc., 99 F.3d 1381, 1386 (6th Cir. 1996)

(rejecting a fair use defense where a college-town copy shop

copied portions of books and sold them to students in

“coursepacks” intended for educational use).

Nor does the evidence support a finding of

transformative use that could rebalance this factor in

Wofsy’s favor.’ It is true that even exact copies can be

transformative. For example, this Court has recognized

transformative use in the replication of copyrighted

photographs as low-resolution thumbnails for an internet

search engine, because the thumbnails “served an entirely

different function,” i.e., improving access to information.

Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19 (9th Cir.

2003). The reduction in resolution made it “unlikely that

anyone would use [the] thumbnails for [the] illustrative or

aesthetic purposes” of the protected works. Jd. at 819.

Wofsy argues that he used the photographs only as

documentation of Picasso’s works, without regard to the

photographs’ creative qualities. But a mere “difference in

purpose is not quite the same thing as transformation.’”

Monge v. Maya Mags., Inc., 688 F.3d 1164, 1176 (9th Cir.

2012) (quoting Infinity Broad. Corp. v. Kirkwood, 150 F.3d

104, 108 (2d Cir. 1998)). Moreover, the purposes of the

works overlap. The Picasso Project and the photographs

both present the works of Picasso. This much is evident

from the fact that the photographs—though deemed by the

: French Cour d’Appel to include creative or artistic qualities

® Wofsy argues that Sicre de Fontbrune waived any argument about

transformative use by failing to address it in the district court. But as the

party resisting recognition of the French judgment, Wofsy bore the

burden to establish a ground for nonrecognition. Ohno, 723 F 3d at 991;

Cal. Civ. Proc. Code § 1716(d).

SICRE DE FONTBRUNE V. WOFSY 21

of their own—originally were published as part of a

catalogue raisonné documenting Picasso’s works. The

exact copies in this case therefore did not serve an “entirely

different function” than the originals. Cf Kelly, 336 F.3d

at 818-19.

The fact that The Picasso Project included informative

captions and organized the photographs so as to facilitate

research does not change our conclusion. Adding

informative captions does not necessarily transform

copyrighted works. See Monge, 688 F.3d at 1174 (finding

that “neither minor cropping nor the inclusion of headlines

or captions transformed” copyrighted photographs).

In sum, the undisputed evidence shows that the use of the

copyrighted photographs was commercial and non-

transformative. This factor therefore weighs against a

finding of fair use.

B. Nature of the copyrighted work

The second fair use factor considers “two aspects of the

work: the extent to which it is creative and whether it is

unpublished.” Jd. at 1177. The “scope of fair use is narrower

with respect to unpublished works” than with respect to

published ones. Harper & Row, 471 U.S. at 564. The parties

agree that the photographs were published in the Zervos

Catalogue. Accordingly, the district court properly focused

its inquiry on creativity.

“Photos are generally viewed as creative, aesthetic

expressions of a scene or image and have long been the

subject of copyright.” Monge, 688 F.3d at 1177. This is so

“especially when they are created for public viewing.” VHT,

Inc. v. Zillow Grp., Inc., 918 F.3d 723, 743 (9th Cir. 2019).

Even “point-and-shoot” photographs that are “not highly

22 SICRE DE FONTBRUNE V. WOFSY

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

at 1177.

Wofsy emphasizes the documentary purpose of the

Zervos Catalogue. But that purpose does not negate any

creative character displayed by the photographs themselves.

Wofsy points to the expert declaration of a prominent art

historian opining that photographs in catalogues raisonnes,

in general, lack an artistic purpose, and that the photographs

in the Zervos Catalogue are “not themselves works of art.”

Yet, the French Cour d’Appel recognized that the

photographs have creative elements reflecting deliberate

choices of lighting, filters, framing, and angle of view. The

fact that gallery owners and readers of Cahiers d’Art (rather

than Zervos himself) may have created some of the disputed

photographs does not contradict the French court’s finding

that the photographs exhibit creativity.

The photographs’ creative qualities prevent this factor

from weighing heavily, if at all, in favor of fair use."

C. Amount and substantiality of the portion used

The third fair use factor is “the amount and substantiality

of the portion used in relation to the copyrighted work as a

whole.” 17 U.S.C. § 107. “{C]opying an entire work

militates against a finding of fair use.” VHT, 918 F.3d at 744

(quoting Worldwide Church of God v. Phila. Church of God,

Jne., 227 F.3d 1110, 1118 (9th Cir. 2000)) (cleaned up). But,

10 The Second Circuit has conchided, albeit in dicta, that copied

works’ ineligibility for copyright in the United States does not, by itself,

suffice to establish repugnancy of a judgment based on that copying.

Louis Feraud, 489 F.3d at 483, Wofsy does not argue on this appeal that

the photographs would be uncopyrightable under U.S. law, and we

therefore do not address the issue.

SICRE DE FONTBRUNE V. WOFSY 23

because the purpose of the copying informs the analysis,

copying entire works can qualify as fair use in some .

circumstances, as where the copying is transformative. See

Kelly, 336 F.3d at 821.

The district court focused on the fact that The Picasso

Project reproduced only 1,492 photographs out of the

roughly 16,000 photographs in the Zervos Catalogue. But

the copying included the entirety of the copyrighted

photographs at issue. And especially in view of our

conclusion that Wofsy did not transform the photographs,

we are unpersuaded that this is a case like Kedly in which

copying the entirety of each photograph was necessary. See

id. This factor weighs against fair use.

D. Effect on potential market or value

The fourth fair use factor is “the effect of the use upon

the potential market for or value of the copyrighted work.”

17 U.S.C. § 107. “This last factor is undoubtedly the single

most important element of fair use.” Harper & Row,

471 U.S. at 566. We consider not only the effect of the

allegedly infringing work itself, but also “whether

unrestricted and widespread conduct of the sort engaged in

by the defendant would result in a substantially adverse

impact on the potential market for the original.” Campbell,

510 U.S. at 590 (cleaned up).

Wofsy offered evidence that auction prices for the

Zervos Catalogue have increased during the time that The

Picasso Project has been on the market... While this is

circumstantial evidence that The Picasso Project has not

depressed the market for the Zervos Catalogue, it proves

nothing about the effect on the market for licensing the

. disputed photographs. The record supplies no evidence that

widespread appropriation of those photographs in published

24 SICRE DE FONTBRUNE V. WOFSY

books would only negligibly affect the market for the

photographs. _

Furthermore, where the allegedly infringing use is both

commercial and non-transformative, a presumption of

market harm arises. Disney Enters., Inc. v. VidAngel, Inc.,

869 F.3d 848, 861 (9th Cir, 2017) (citing Leadsinger, Inc. v.

BMG Music Pub., 512 F.3d 522, 531 (9th Cir. 2008)). We

have concluded that The Picasso Project’s use of the

photographs was commercial and non-transformative. With

no evidence countering the resulting presumption of market

harm, this factor weighs against fair use.

E. Conclusion on fair use and public policy ,

Fair use may depend on factual findings, but the ultimate

question of whether facts indicate fair use is legal in nature.

Google LLC v. Oracle Am., Inc., 141 8, Ct. 1183, 1199

(2021). After weighing the four factors above, we have

serious doubts that a fair use defense would protect the

copying of the photographs at issue, even if the nature of the

copyrighted works were to favor fair use. Because it is at

least highly debatable-—if not absolutely clear—that a fair

use defense would not protect the conduct underlying the

judgment of which Sicre de Fontbrune seeks recognition,

Wofsy’s inability to urge a fair use defense in France does

not place the French judgment in “direct and definite conflict

with fundamental American constitutional principles.”

Ohno, 723 F.3d at 1004. Sicre de Fontbrune is therefore

entitled to partial summary judgment on this defense."

11 We leave for another day the question of whether a defendant’s

lack of opportunity to assert a clearly meritorious fair use defense would

render a foreign judgment repugnant to the public policy of the United

States or of California.

SICRE DE FONTBRUNE V. WOFSY 25

Il. Lack of Subject Matter Jurisdiction

The applicable version of the California Recognition Act

provides that a court “shall not” recognize a foreign-country

judgment if the “foreign court did not have jurisdiction over

the subject matter.” Cal. Civ. Proc. Code § 1716(b)(3).

“Courts and commentators agree that subject matter

jurisdiction must be assessed with reference to foreign law.”

Tanya J. Monestier, Whose Law of Personal Jurisdiction?

The Choice of Law Problem in the Recognition of Foreign

Judgments, 96 B.U. L. Rev. 1729, 1747 (2016). “In

determining foreign law, the court may consider any relevant

material or source, including testimony, whether or not

submitted by a party or admissible under the Federal Rules

of Evidence.” Fed. R. Civ. P. 44.1; Siere de Fontbrune,

838 F.3d at 997.

The district court determined that the French court’s

jurisdiction over the subject matter of the 2012 Astreinte

Proceeding depended on Sicre de Fontbrune’s standing; that

his standing depended on whether he retained rights in the

astreinte; and that whether he retained rights in the astreinte

turned on the disputed question of whether Sicre de

Fontbrune had transferred those rights. Our conclusion

regarding the first of those assertions diverges from the

district court’s view and disposes of the subject matter

jurisdiction defense.

The French appellate courts did not evaluate whether the

TGI had subject matter jurisdiction over the Astreinte

Proceeding. Instead, they concluded that Wofsy’s effort to

set aside the Astreinte Judgment was untimely. We therefore

lack an authoritative statement from the French courts as to

whether the TG/ possessed subject matter jurisdiction over

the Astreinte Proceeding.

26 SICRE DE FONTBRUNE V. WOFSY

The parties’ submissions and our own research,

however, assure us that the TG/’s subject matter jurisdiction

did not depend on Sicre de Fontbrune’s standing. Wofsy’s

own expert explained that French courts assess standing in

terms of “admissibility,” rather than jurisdiction. The

French Code of Civil Procedure provides, as translated, that

no claim is “admissible” unless brought by a person who has

the right to act; and that the right to act is “available to all

those who have a legitimate interest in the success or

dismissal ofa claim.” Code de Procédure Civile arts. 31, 32

(Fr.).

We acknowledge, as the district court emphasized, that

the “practical result” of a lack of standing in French courts

resembles that of a failure of subject matter jurisdiction in

the federal courts of the United States: dismissal without a

decision on the merits. See Brownback v. King, 141 8. Ct.

740, 749 (2021) (quoting Steel Co. v. Citizens for a Better □

Env’t, 523 U.S. 83, 101-02 (1998)) (“Ordinarily, a court

cannot issue a ruling on the merits ‘when it has no

jurisdiction’ because ‘to do so is, by very definition, for a

court to act ultra vires.’”). But the plain language of

California’s Recognition Act requires a proponent of the

subject matter jurisdiction defense to establish that the

foreign court “did not have jurisdiction over the subject

matter.” Cal. Civ. Proc. Code § 1716(6)(G). We are aware

of no authority holding that a procedural defect that produces

a similar practical result can suffice.

Our own research similarly yields no indication that a

plaintiff's lack of standing circumscribes the judicial

power—the subject matter jurisdiction-——of French courts.

The provisions of the Code of Civil Procedure that set forth

the requirements for standing appear within Title II of the

Code, titled action” (“The Action”). Code de Procédure

SICRE DE FONTBRUNE V. WOFSY 27

Civile tit. Il (Fr). A separate title addresses the

“compétence” (competence) of the courts, including their

jurisdiction. Code de Procédure Civile tit. IMI (Fr.).

Even if we were to assess subject matter jurisdiction with

reference to domestic law, we could not say that a lack of

standing necessarily deprives a court of subject matter

jurisdiction. To be sure, a party must show the “irreducible

constitutional minimum of standing” to vest an Article HII -

federal court with subject matter jurisdiction. Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560 (1992). But California is one

of numerous states whose judiciaries’ subject matter

jurisdiction does not depend on standing. Jasmine Networks,

Inc. v. Super. Ct, 103 Cal. Rptr. 3d 426, 432 (Ct. App.

2009); Weatherford v. City of San Rafael, 395 P.3d 274, 278

(Cal. 2017) (observing that California’s “state constitution

has no case or controversy requirement imposing an

independent jurisdictional limitation on our standing

doctrine”); Tax Found. of Hawai'i v. State, 439 P.3d 127,

143 (Haw. 2019) (collecting examples of states where

“standing is a prudential concern and not an issue of subject

matter jurisdiction”).

Wofsy’s arguments on the subject matter jurisdiction

defense rest entirely on the assertion that Sicre de Fontbrune

had transferred his rights in the astreinfe at the time he

sought to liquidate it. That assertion, even if proven, does

not establish a defect in the French courts’ subject matter

jurisdiction over the Astreinte Proceeding. Sicre de

Fontbrune is entitled to partial summary judgment on this

defense.

Ill. Lack of Personal Jurisdiction

A court applying California’s Recognition Act must

refuse to recognize a foreign-country judgment if the

28 SICRE DE FONTBRUNE V. WOFSY

“foreign court did not have personal jurisdiction over the

defendant.” Cal. Civ. Proc. Code § 1716(b)(2). But a court

shall not refuse recognition for lack of personal jurisdiction

if the defendant “voluntarily appeared in the proceeding,

other than for the purpose of protecting property seized or

threatened with seizure in the proceeding or of contesting the

jurisdiction of the court over the defendant.” Cal. Civ, Proc.

Code § 1717{a)(2). We agree with the district court that

Wofsy waived this defense through a voluntary appearance.

Courts applying other states’ analogues to Section

1717(a)(2) have recognized that a voluntary appearance may

occur “in the proceeding” either before or after judgment.

See CIBC Mellon Tr. Co. v. Mora Hotel Corp. N.V.,

792 N.E.2d 155, 162 (N.Y. 2003} (quoting Restatement

(Second) of Conflict of Laws § 33, cmt. b} (noting that a

defendant may be deemed to have submitted to a court’s

jurisdiction by “taking steps in the action after judgment

either in the trial court or in an appellate court’); S.C.

Chimexim S.A. v. Velcro Enters. Ltd, 36 F. Supp. 2d 206,

215 (S.D.N.Y. 1999) (defense waived where one of

defendant’s arguments in appellate proceedings in the

foreign forum “concerned the merits of the underlying

dispute”); In re Transamerica Airlines, Inc., No. CIV.A.

1039-VCP, 2007 WL 1555734, at *10 (Del. Ch. May 25,

2007) (waiver where one of defendant’s arguments on

appeal went “to the merits” of the contested judgment). We

have confirmed that this principle applies to California’s

Recognition Act. See Inre Rejuvi Lab’y, Inc.,26 F .4th 1129,

1134 (9th Cir, 2022) (holding that a defendant “waived its

personal jurisdiction challenge by voluntarily appearing in

[the trial court that had entered a default judgment] in its

attempt to set aside the default judgment”).

SICRE DE FONTBRUNE V. WOFSY

Wofsy “voluntarily appeared in the proceeding” by

petitioning the 7G/ to set aside the 2012 Judgment. Wofsy

does not specify the French procedural mechanism through

which he brought the Review Proceeding in 2014, but

contends that it was a “collateral attack” without a direct

analogue in American law. The Cour d’Appel in 2018,

however, characterized the application to set aside the 2012

Judgment as a recours en révision pursuant to Article 593

and subsequent provisions of the French Code of Civil

Procedure. That chapter of the Code explains that this

procedure is available only to one who has been a party to

the judgment of which review is sought, and only for a

limited set of reasons, including the discovery of false

statements or certain documents. Code de Procédure Civile

arts. 593-95 (Fr.). In this sense, a recours en révision—

loosely translated as an “appeal for review”—resembles a

motion to set aside a judgment under Rule 60 of the Federal

Rules of Civil Procedure. We reject the argument that the

Review Proceeding constituted a wholly separate action. Cf

CIBC Mellon, 792 N.E.2d at 162 (treating an application to

a court to set aside its judgment as a voluntary appearance .

“in the proceedings”). The mere fact that the French courts

viewed the Review Proceeding as untimely did not convert

it into a separate “proceeding” from the one that resulted in

the judgment.

Wofsy’s voluntary appearance also reached beyond

“protecting property seized or threatened with seizure in the

proceeding or. . . contesting the jurisdiction of the court over

the defendant].]” See Cal. Civ. Proc. Code § 1717(a)(2). In

the Review Proceeding, Wofsy argued that Sicre de

Fontbrune had transferred his interest in the astreinie; that,

therefore, the 2012 Judgment rested on a flawed assertion of

standing: and that the judgment should be set aside. That

effort does not fit within the safe harbor for protecting seized

30 SICRE DE FONTBRUNE V. WOFSY

property or disputing personal jurisdiction.’ It therefore

precludes Wofsy from asserting the personal jurisdiction

defense to recognition. See id.

The district court properly granted partial summary

judgment to Sicre de Fontbrune regarding the defense of lack

of personal jurisdiction.

IV. Insufficient Notice

The Recognition Act provides that a court may refuse to

recognize a foreign judgment if the “defendant in the

proceeding in the foreign court did not receive notice of the

proceeding in sufficient time to enable the defendant to

defend.” Cal. Civ. Proc. Code § 1716(c)(1). The district

court determined that issues of fact precluded summary

judgment regarding this defense. Only Wofsy challenges

that determination. The parties dispute the adequacy of two

efforts at notice: a failed effort to serve the summons and

complaint for the Astreinte Proceeding, and a letter that the

French 7G/ mailed to Wofsy after the first hearing in the

Astreinte Proceeding but before the 7G/ entered judgment.

Although the district court reserved issues for the fact finder

that should have been decided as a matter of law, we agree

with the district court’s ultimate conclusion regarding this

defense.

The California Supreme Court has not clarified the

showing that a defendant must make to prove the insufficient

notice defense. But we “will ordinarily accept the decision

2 We need not conclude—as the district court did—that Wofsy

challenged the merits of the 2012 Judgment. We simply observe that

Wofsy argued issues other than the two that Section 1717(a)(2) exempts

from triggering waiver of a defense based on lack of personal

jurisdiction.

SICRE DE FONTBRUNE V. WOFSY wa

of an intermediate appellate court as the controlling

interpretation of state law, unless we find convincing

evidence that the state’s supreme court likely would not

follow it.” Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am.,

15 F.4th 885, 889 (9th Cir. 2021) (cleaned up).

"A California Court of Appeal? has held that a mere

failure of actual notice does not prove the inadequate notice

defense. Rather, the proponent of this defense must show

the absence of notice “‘reasonably calculated, under al! the

circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their

objections.’” Alfa-Bank, 230 Cal. Rptr. 3d at 224 (quoting

Mullane vy. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

314 (1950)). The applicable standard, in other words, aligns

with the constitutional minimum for due process. See id.

at 233. Under that standard, where “notice is a person’s

due,” the “means employed must be such as one desirous of -

actually informing the absentee might reasonably adopt to

accomplish it.” fd at 225 (quoting Mullane, 339 US.

at 315).

Wofsy urges us to depart from this rule and hold instead

that a failure of actual notice proves this defense. He argues

that if a failure of actual notice does not suffice, then this

defense collapses into the “lack of personal jurisdiction”

defense. According to Wofsy, that interpretation of the

statute would render the insufficient notice defense mere

9 A decision of a California Court of Appeal that is not in conflict

with another appellate decision binds all inferior courts across the state.

Auto Equity Sales, Ine. v. Super. Ct. of Santa Clara Caty,, 369 P.2d 937,

940 (Cal. 1962) (en banc).

32 SICRE DE FONTBRUNE V. WOFSY

surplusage——a result that should be avoided. See Delaney v.

Super. Ct., 50 Cal. 3d. 785, 799 (1990).

But we do not see “convincing evidence,” Mudpie,

15 F.4th at 889, that the California Supreme Court would

reject the Court of Appeal’s interpretation of the insufficient

notice defense. In Alfa-Bank, the Court of Appeal

considered that the “notice ground may have broader

application than the service of process prerequisite for

personal jurisdiction.” Alfa-Bank, 230 Cal. Rptr. 3d at 233

(citing Isack v. Isack, 733 N.W.2d 85 (Mich. Ct. App.

2007)). In Zsack, the Court of Appeals of Michigan—

interpreting the analogous provision of that state’s

codification of the Uniform Act—concluded _ that

“recognition of a judgment may be declined where the

defendant was aware, or waived notice, of the litigation, but

where the defendant was not notified of certain actions taken

within the suit.” 733 N.W.2d at 86-87; see also Restatement

(Fourth) of Foreign Relations Law § 484 (2018)

(recognizing that “the notice requirement governs not just

the initiation of a proceeding, but relevant actions taken

within the suit”). Although the insufficient notice and

personal jurisdiction defenses “overlap[ped]” under the

particular facts of Alfa-Bank, the Court of Appeal recognized

that they would not always do so. See Alfa-Bank, 230 Cal.

Rptr. 3d at 233. We therefore accept the Court of Appeal’s

conclusion that the insufficient notice defense requires the

proponent to prove the absence of a constitutionally

adequate attempt at actual notice. See id.

We begin by considering whether the attempts to serve

Wofsy before the October 2011 hearing constituted

sufficient efforts at notice, despite their failure. An officer

of the French TG/ attempted to serve both defendants

through procedures established in accordance with the

SICRE DE FONTBRUNE V. WOFSY 33

Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters,

Nov. 15, 1965 (“Hague Service Convention”), 20 U.S.T.

361, T.LA.S. No. 6638, The Hague Service Convention was

“intended to provide a simpler way to serve process abroad,

to assure that defendants sued in foreign jurisdictions would

receive actual and timely notice of suit, and to facilitate

proof of service abroad.” Volkswagenwerk

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988), Its

“primary innovation” is a requirement that each state party

designate a “Central Authority” that can receive foreign

requests for service of process and arrange for service on an

addressee. Jd. at 698-99; Hague Service Convention,

20 U.S.T. 361, art. 2.

In accordance with that procedure, the French court’s

officer sent the complaint and the French equivalent of a

summons to the United States’? Central Authority, and

requested service on the defendants at their addresses as

listed in the summons. The summons listed the address of

Alan Wofsy & Associates as 401 China Basin Street in San

Francisco. For Alan Wofsy himself, the summons listed

Post Office Box 2210 in San Francisco.

Article 6 of the Hague Convention requires the Central

Authority (or another designee of the state where process is

to be served) to send to the applicant for service a certificate

stating the method, place, date, and recipient of service, or

the reasons that have prevented service. Hague Service

Convention, 20 U.S.T. 361, art. 6. Accordingly, the

huissier’s requests for service also included requests for

these certificates.

The U.S. process server’s attempt to serve Alan Wofsy

& Associates failed. The process server—a contractor of the

U.S. Central Authority—issued a certificate of non-service

34 SICRE DE FONTBRUNE V. WOFSY

dated August 12, 2011, attesting that service had been

attempted at 401 China Basin Street; that no such address

existed; and that the process server had confirmed on the

U.S. Postal Service website that the address was “non

deliverable.”

Upon learning of a failure of notice, “[djeciding to take

no further action is not what someone desirous of actually :

informing [the addressee] would do; such a person would

take further reasonable steps tf any were available.” Jones

v. Flowers, 547 U.S. 220, 230 (2006) (internal quotation

omitted). The Supreme Court accordingly held that a state

failed to afford constitutionally adequate notice where the

state sold a tax-delinquent property after the state’s certified-

mail notice to the property owner was returned unclaimed

and the state failed to take further reasonable and available

steps to accomplish notice. Id. at 239. “Although the State

may have made a reasonable calculation” of how to reach

the property owner, the state had “good reason to suspect

when the notice was returned that [the addressee] was ‘no

better off than if the notice had never been sent.’” Id. at 230

The delivery trouble apparently arose from the fact that San

Francisco renamed the old China Basin Street as “Terry Francois

Boulevard” in the 1990s, and reassigned the name “China Basin Street”

to a newly built road at some point after 2010. But it is undisputed that

Wofsy continued to receive mail addressed to 401 China Basin Street for

years after the Astreinte Proceeding. In any event, Sicre de Fontbrune

offers no indication that Wofsy was obligated to apprise Sicre de

Fontbrune or the French courts of any change of address at the time the

Astreinte Proceeding commenced. Thus, there is no indication that

Wofsy is to blame for the Awissier ’s use of an outdated address or for the

process server’s failure to effect service. Cf Alfa-Bank, 230 Cal. Rptr.

3d at 230 (holding that a Russian court’s mail service to a defendant's

last known address was adequate notice, where the defendant was

required by a surety agreement to keep his address up to date with the

Russian government).

SICRE DE FONTBRUNE ¥. WOFSY 35

(quoting Malone v. Robinson, 614 A.2d 33, 37 (D.C. 1992));

see also United States v. Ritchie, 342 F.3d 903, 911 (9th Cir.

2003) (“[W]hen initial personal notice letters are returned

undelivered, the government must make reasonable

additional efforts to provide personal notice.”).

Since the French Auissier had requested a certificate of

service in accordance with the Hague Service Convention,

the absence of any confirmation of successful service

signaled a problem. And the issuance of a certificate of non-

service left no doubt that service had failed. It thus triggered

an obligation to take any available and reasonable further

steps to give notice of the proceeding to Alan Wofsy &

Associates. See Jones, 547 U.S. at 230.

Before considering whether such steps were available or

pursued, we turn to the process server’s attempt to inform

Alan Wofsy himself. It unfolded similarly. When the

Astreinte Proceeding was filed in July 2011, the U.S. Centra!

Authority received a request to serve process at “POB 2210

San Francisco”—the address listed for Alan Wofsy on the

French summons. The U.S. process server eventually issued

a certificate of non-service, indicating that a server had

attempted to contact Alan Wofsy at 401 China Basin Street

on October 22, 2011, but had found “[nJo such address.”

The certificate of nonservice did not issue until October

31—six days after the October merits hearing in the 7G/.

Under these circumstances, the failed service on Alan

Wofsy was as insufficient an attempt at notice as was the

failed service on Alan Wofsy & Associates. The request for

a certificate of service was unfulfilled at the time of the first

astreinte hearing. That should have alerted the Auissier that

Wofsy might have lacked notice of the proceedings, and that

actual notice therefore might require further reasonable

efforts if any were available. Moreover, the certificate of

36 SICRE DE FONTBRUNE V. WOFSY

non-service issued more than two months before the TG/

entered judgment. .

Wofsy suggests several “further reasonable steps” to

accomplish notice, see id., that were available but went

unpursued. For example, it is undisputed that both

defendants were successfully served in the instant

proceedings at Alan Wofsy’s residence, and that since 1998

the website of Alan Wofsy Fine Arts LLC has listed its

gallery address on Geary Boulevard in San Francisco, where

staff are available to accept deliveries during workdays. The

record does not indicate any attempt to deliver notice of the

Astreinte Proceeding at cither of those addresses.

Sicre de Fontbrune claims that copies of the summons

and complaint were mailed to Wofsy at P.O. Box 2210. But

Wofsy contends that no such documents ever arrived. The

Supreme Court has “repeatedly recognized that mail service

is an inexpensive and efficient mechanism that is reasonably

calculated to provide actual notice.” Tulsa Pro, Collection

Servs., Ine. v. Pope, 485 U.S. 478, 490 (1988). The Hague

Service Convention allows mail service directly to a

defendant—circumventing the Central Authority---if the

receiving country has not objected to mail service and if mail

service is authorized by otherwise applicable law. Water

Splash, Inc. v. Menon, 137 8. Ct. 1504, 1513 (2017). The

applicable law in California permits service via mail, with

acknowledgment of receipt, at a Post Office box. Cal. Civ.

Proc. Code § 415.30.

But the record does not support a finding that notice was

mailed. It contains no evidence of any attempt at mail

service apart from the failed attempt to send process to Alan

Wofsy through the U.S. Central Authority. Indeed, Sicre de

Fontbrune’s brief specifies that the supposed mail service

SICRE DE FONTBRUNE V. WOFSY 37

was performed “via the Hague Convention Central

Authority for the United States.”!S

Even if the U.S. process server had mailed notice to P.O.

Box 2210, our conclusion as to the sufficiency of the service

efforts would not change. The certificates requested

pursuant to the Hague Service Convention revealed that

- neither defendant had been served. Taking no further steps

to give notice would not have been the response of one

“desirous of actually informing” the addressee. Jones,

547 U.S. at 229: see also Mullane, 339 U.S. at 315. The

failed attempts to serve process do not, by themselves,

disprove the notice defense.

There is, however, a factual dispute as to whether Wofsy

received actual notice of the “pendency of the action and...

an opportunity to present [his] objections.” Alfa-Bank,

230 Cal. Rptr. 3d at 224; see Cal. Civ. Proc. Code

§ 1716(c)(1). Wofsy received mail correspondence from the

15 Some confusion may originate from the /uissier 's request to serve

Alan Wofsy at his U.S. Post Office box. The record contains no direct

evidence that either the U.S. Central Authority or its process service

contractor responded to that request by attempting mail service. To the

contrary, it contains a form indicating that the U.S. process server sent

the San Francisco postmaster as many as three requests for “boxholder

information needed for service of legal process.” See 39 C.F.R.

§ 265.6(d)(5)(ii) (2011) (current version at 39 C.F.R. § 265.14(d}(5)(ii))

(permitting disclosure of post office boxholder name and information to

a person authorized to serve legal process). The Postal Service, in turn,

provided an address for Alan Wofsy at 401 China Basin Street. That is

where the certificate of nonservice on Alan Wofsy shows that the process

server unsuccessfully attempted service. The documentation in the

record is thus consistent with the possibility that the U.S. process server

simply dispatched an agent to attempt personal service at the street

address provided by the Postal Service, without ever attempting service

by mail at P.O, Box 2210.

38 SICRE DE FONTBRUNE V. WOFSY

TGI in November 2011. The correspondence included a

letter, dated November 16, 2011, accompanying a brief

written order of the 7G/ based on the October 2011 asireinie

hearing. That order included a half-page description of the

October 2011 hearing that had occurred on Sicre de

Fontbrune’s claim for liquidation of the astreinte. It

announced that because Wofsy had not appeared and Sicre

de Fontbrune had failed to prove that Wofsy had been

served, the proceedings would be reopened for another

hearing on December 13, 2011, “for the production by [Sicre

de Fontbrune] of the certificate from the foreign authority

responsible for notification of the document instituting the

proceedings,” in accordance with Article 6 of the Hague

Service Convention. The correspondence was entirely in

French. Wofsy testified at a deposition in the present

litigation, however, that he could “reasonably” read

French. !®

“Notice to be effective must be informative.” Julen,

101 Cal. Rptr. at 798. The letter and order stated that a

proceeding was pending. But the correspondence nowhere

mentioned any remaining opportunity to argue the merits of

Sicre de Fontbrune’s claim for liquidation of the astreinte,

even at the December 2011 hearing. The letter provided

instructions only as to how to appeal the order. Because the

letter omitted any mention of an opportunity to participate in

the proceedings in the 7Gf—and, indeed, stated that the

16 Wofsy directs us to Jaen v. Larson, 101 Cal. Rptr. 796, 798 (Ct.

App. 1972), for the proposition that notice, to be adequate, must be given

in the “language of the jurisdiction in which [the defendant] is served,”

among other requirements. In Ju/en—unlike here—the foreign legal

documents were written in German, which no one argued the defendant

could read. dd And Alfa@-Bank later clarified that Jaen did not “definfe]

constitutional ‘requirements’ for adequate notice.” 230 Cal. Rptr. 3d

at 232.

SICRE DE FONTBRUNE V. WOFSY 39

reopening of the hearing was for a specific purpose that did

not include Wofsy appearing-—we cannot say as a matter of

law that the letter was “reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their

objections.” See Alfa-Bank, 230 Cal. Rptr. 3d at 224

(citation omitted).

Whether it actually resulted in notice, however, is

disputed. Wofsy avers that the correspondence led him to

believe that it was already too late to raise a defense in the

proceedings. But some evidence suggests that the letter,

despite its deficiencies, may have accomplished actual

notice. The declaration of Sicre de Fontbrune’s French

counsel—cited by Sicre de Fontbrune in his response, and

unchallenged in Wofsy’s reply—indicates that French

procedural rules in fact would not have precluded Wofsy

from asserting a defense on the merits even after he received

the November 2011 mailing. And past copyright litigation

had given Wofsy more than five years of familiarity with

French litigation.

There accordingly remains a factual dispute about the

effect of the November 2011 correspondence on Wofsy’s

knowledge of his options. The district court appropriately

left to the finder of fact to determine whether Wofsy

“receive[d] notice of the proceeding in sufficient time to

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

V. Fraud

A court may refuse to recognize a foreign judgment if

the judgment “was obtained by fraud that deprived the losing

party of an adequate opportunity to present its case.” Cal.

Civ. Proc. Code § 1716(c)(2). Wofsy challenges the district

court’s determination that disputes of material fact precluded

40 SICRE DE FONTBRUNE V. WOFSY

summaty judgment in Wofsy’s favor based on alleged fraud

in the French proceeding. Wofsy asserts that Sicre de

Fontbrune falsely represented to the TG/ in the Astreinte

Proceeding that he owned the copyrights to the photographs

at issue, and that Sicre de Fontbrune failed to disclose that

he no longer had an interest in liquidating the astreinte that

would make his claim admissible. See Code de Procédure

Civile arts. 31, 32 (Fr.).

The comments to the 2005 Uniform Act-—on which

California’s Recognition Act is based, Alfa-Bank, 230 Cal.

Rptr. 3d at 221——explain that the language used in Section

1716(c)(2) refers only to “extrinsic fraud.” Unif. Foreign-

Country Money Judgments Recognition Act § 4 cmt. 7

(Nat?! Conf. of Comm’rs on Unif. State L. 2005). Examples

of extrinsic fraud include instances where “the plaintiff

deliberately had the initiating process served on the

defendant at the wrong address, deliberately gave the

defendant wrong information as to the time and place of the

hearing, or obtained a default judgment against the

defendant based on a forged confession of judgment.” Jd.

Extrinsic fraud differs from intrinsic fraud, which includes

“false testimony of a witness or admission of a forged

document into evidence during the foreign proceeding.” Jd.

Those are concerns that “should be raised and dealt with in

the rendering court.” fd.

California caselaw indicates that concealing material

information from a court can, in some circumstances,

constitute extrinsic fraud. For example, in Pentiz v.

Kuppinger, a plaintiff sought restitution for “assertedly

excessive amounts collected by defendant under a Mexican

judgment” that the defendant had obtained against the

plaintiff. 107 Cal. Rptr. 540, 541 (Ct. App. 1973). The court

held that the plaintiff had alleged extrinsic fraud against the

SICRE DE FONTBRUNE V. WOFSY 4]

creditor of the foreign judgment, because the judgment-

creditor had failed to disclose to the plaintiff or to the courts

that the judgment-creditor already had received payments

that would have reduced the amount of the foreign judgment.

Id. at 544-45. The plaintiff allegedly had inquired about

some of these payments while the foreign action was

pending, but the defendant’s attorney had denied knowledge

of them. id. at 544n.5. As to other payments, the Court of

Appeal observed that the plaintiff “had not even a suspicion

that credit should have been given.” Jd. at 544. Taking the

complaint’s allegations as true, then, the “plaintiff was

denied the opportunity to acquaint the [Mexican] court” with

information crucial to her case. Jd, at 545. The court

accepted that this conduct would constitute extrinsic fraud,

concluding that on the alleged facts of the case, the plaintiff

“was denied her day in court as to of the issues tendered

by her pleading[.]” Jd. (italicization in original).

Sicre de Fontbrune stated in his 2011 complaint in the

Astreinte Proceeding that he owned the copyrights to the

photographs that the resulting judgment found to have been

copied. In fact, as the French Cour d’Appel later confirmed

in a separate copyright infringement proceeding, Sicre de

Fontbrune had transferred those copyrights in December

2001 to a business entity. Whether this false representation

mattered depends on whether Sicre de Fontbrune

nonetheless retained a legal interest in liquidating the

astreinte after transferring the relevant intellectual property

that the astreinte was awarded to protect. That is, at least in

part, a question of French law.

We need not resolve it in this appeal. Even assuming

that Sicre de Fontbrune deceived the 7G/ as to his legal

interest in the astreinfe, Wofsy is not entitled to summary

judgment on the claim that the misrepresentation “deprived

42 SICRE DE FONTBRUNE V. WOFSY

[him] of an adequate opportunity to present [his] case.” See

Cal. Civ. Proc. Code § 1716(c)(2). The misrepresentation

may have enabled Sicre de Fontbrune to obtain the astreinte

judgment. But unlike the party asserting fraud in Peniz,

Wofsy did not participate in the proceeding to liquidate the

astreinte. He accordingly did not request evidence that was

denied. Cf Peniz, 107 Cal. Rptr. at 544.5. Moreover, Sicre

de Fontbrune affirmatively represented in his complaint that

he owned the copyrights. That fact suggests that if Wofsy

had participated in the Astreinte Proceeding, he might have

had occasicn to question that assertion. Cf id. at 544 (losing

party “had not even a suspicion” regarding the concealed

information). For the reasons discussed with respect to the

notice defense, whether Wofsy had a valid explanation for

failing to mount a defense in the Astreinte Proceeding is

subject to factual dispute.

A question thus remains as to whether Wofsy reasonably

should have detected the alleged fraud during the French

proceedings—and, therefore, as to whether such fraud

deprived him of an adequate opportunity to present his case.

The district court did not err by denying Wofsy summary

judgment on the fraud defense.

CONCLUSION

Wofsy was not entitled to summary judgment based on

the public policy defense. No other ground for

nonrecognition at issue in this appeal supplies an alternative

basis for affirming the judgment below. We therefore

REVERSE and REMAND for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

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