before enactment of the FSIA, law prescribed “absolute immunity from execution upon assets of a foreign state outside the United States”
How later courts described this case
- before enactment of the FSIA, law prescribed “absolute immunity from execution upon assets of a foreign state outside the United States”
- “threats of suit alone are considered within a party’s rights, and not characterized as wrongful ... Also it is well known that the ‘right’ to file a lawsuit has limits, namely the boundaries of the torts of malicious prosecution and abuse of process ... If damaging publicity is inevitable as a result of a lawsuit filed in good faith, surely the filing itself cannot be said to constitute impermissible ... extortion; yet under some circumstances courts have found such duress to exist when the person threatens such publicity before suit or when the lawsuit is not perceived to be brought in good faith”
Written by the judges who cited it.
The opinion
FOGEL, J. *
I concur fully with Justice Cottle’s thorough and well-reasoned opinion. I write separately only for the purpose of acknowledging the larger context in which this matter has arisen.
There is an injustice in this case: the Philippine people have lost $25 million because of the questionable business dealings of their government under former President Marcos. It is understandable that the present government of the Philippines is seeking to recover what it can of that loss.
However, for the reasons set forth in the lead opinion, appellant’s motion to set aside the stipulated judgment cannot be the vehicle for accomplishing that result. The Philippine government, under orders from Marcos, entered into a contract to resolve a dispute. That contract was merged into a judgment, raising the standard required to set it aside. (See In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071 [202 Cal Rptr. 116].) A conscientious and experienced trial judge heard numerous witnesses and reviewed voluminous documentary evidence as to the circumstances under which that contract and judgment were obtained and determined that appellant had not met its burden of proof for setting the judgment aside. We are bound by the trial court’s factual determinations because they are supported by substantial evidence.
Changes in government occur almost daily in these turbulent and historic times. Some states and nations have been blessed with a succession of *1101 leaders who are basically honest and ethical; most have not been so fortunate. In the Philippines, Eastern Europe and elsewhere, people have demanded democratic and accountable leadership. One can only applaud a new government for attempting to undo the wrongs of the corrupt one it has replaced.
But a change of government, even a salutary one, in and of itself cannot be the basis for abrogating contracts and judgments, however unwise or unfortunate, to which a state or nation has become a party, any more than a corporation can abrogate agreements made by a deposed board of directors acting within its actual or apparent authority. (Alfred Dunhill of London, Inc. v. Cuba (1976) 425 U.S. 682, 695 [ 48 L.Ed.2d 301, 311-312 , 96 S.Ct. 1854 ]; Corp. Code, § 208, subds. (b) and (c).) If there is to be a remedy for the injustice this case reveals, it must be through whatever actions remain available against Marcos’s estate here and in the Philippines, not in discarding established principles of contract law, the law of judgments and appellate review.
A petition for a rehearing was denied April 13, 1990, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied June 7, 1990.