Naoko Ohno v. Yuko Yasuma

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAOKO OHNO , an individual, No. 11-55081

Plaintiff-Appellee,

D.C. No.

v. 2:10-cv-06400-

ODW-PJW

YUKO YASUMA , an individual;

SAINTS OF GLORY CHURCH , a

California corporation, OPINION

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, District Judge, Presiding

Argued and Submitted

May 9, 2012—Pasadena, California

Filed July 2, 2013

Before: Harry Pregerson, Susan P. Graber,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

2 OHNO V . YASUMA

SUMMARY*

Diversity/California’s Uniform Foreign-Country Money

Judgments Recognition Act

The panel affirmed the district court’s judgment in favor

of plaintiff awarding her, pursuant to California’s Uniform

Foreign-Country Money Judgments Recognition Act, Cal.

Civ. Proc. Code §§ 1713–1724, monetary relief ordered by

the courts of Japan.

Plaintiff sued Yuko Yasuma and the Saints of Glory

Church (collectively, “the Church”) in Japan, alleging that

they had tortiously induced her to transfer nearly all of her

assets to the Church. The Japanese courts awarded plaintiff

a $1.2 million tort judgment. Plaintiff sought enforcement of

the judgment in the United States District Court for the

Central District of California. The Church asserted that the

district court was both constitutionally and statutorily

required to refuse recognition of the Japanese judgment

because (1) the judgment burdened free exercise of religion

in violation of the Religion Clauses; and (2) the judgment was

not entitled to recognition or enforcement under the Uniform

Act, because it was “repugnant to the public policy”

embodied in the Religion Clauses.

The panel held: first, the district court’s enforcement of

this foreign-country money judgment did not constitute

domestic state action triggering constitutional scrutiny; and,

second, neither the judgment at issue in this particular case

*

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

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

OHNO V . YASUMA 3

nor the cause of action on which it was based was so

repugnant to public policy as to qualify for non-enforcement

under the Uniform Act.

COUNSEL

Steven J. Renick (argued), Eugene J. Egan, Paul Hanna, and

Ladell Hulet Muhlestein, Manning & Kass Ellrod, Ramirez,

Trester, Los Angeles, California, for Defendants-Appellants.

Robert W. Cohen (argued) and Mariko Taenaka, Law Offices

of Robert W. Cohen, Los Angeles, California, for Plaintiff-

Appellee.

OPINION

BERZON, Circuit Judge:

Our case involves novel issues concerning the

enforcement of foreign-country money judgments that

assertedly implicate the defendant’s freedom of religion.

Naoko Ohno sued Yuko Yasuma and the Saints of Glory

Church (collectively, “the Church”) in Japan, alleging that

they had tortiously induced her to transfer nearly all of her

assets to the Church. The Japanese courts awarded Ohno a

$1.2 million tort judgment.

The Church contends that the judgment imposes liability

for its religious teachings, in violation of its constitutional

4 OHNO V . YASUMA

right to free exercise of religion.1 The Church makes two

principal arguments on appeal: (1) that the district court’s

recognition and enforcement2 of the Japanese judgment is

unconstitutional as a direct violation, by the court, of the Free

Exercise Clause in the U.S. Constitution and the parallel

provisions of the California Constitution, U.S. Const. amend.

I; Cal. Const. art. I, § 4;3 and (2) that the Japanese judgment

1

Although the Church raises both free speech and free exercise claims,

the speech at issue was either religious in content or, allegedly, motivated

by religious beliefs. W hile “private religious speech . . . is as fully

protected under the Free Speech Clause as secular private expression . . .

[it] receives preferential treatment under the Free Exercise Clause.”

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760, 767

(1995). Because the right to religious freedom affords a higher degree of

protection than would the Free Speech Clause in this case, we analyze the

Church’s claims under the Free Exercise Clause of the U.S. Constitution

and corresponding provisions of the California Constitution, Article I,

Section 4, not separately under the free speech provisions.

2

The terms “recognition” and “enforcement” are distinct. See

Restatement (Third) of Foreign Relations Law § 481 cmt. b (1987).

Recognition of a judgment is a prerequisite to its enforcement. In

recognizing a judgment, a court acknowledges that a matter has been

conclusively adjudicated and that the judgment may have preclusive

effect. In enforcing a judgment, a court “uses its coercive powers to order

the relief granted by the foreign court.” Office of the Chief Counsel for

International Commerce, U.S. Dep’t of Commerce, Recognition and

Enforcement of Foreign Money Judgments http://www.osec.doc.gov/ogc/

occic/refmj.htm (last visited May 29, 2013). As the distinction between

the two concepts is not pertinent for the purposes of this opinion, we use

the terms recognition and enforcement interchangeably to denote the

district court’s decision to enter judgment in favor of Ohno, awarding her

the monetary relief ordered by the courts of Japan.

3

T hroughout this opinion, we refer to the Free Exercise Clause of the

U.S. Constitution and the corresponding protections of religious freedom

in the California Constitution as “the Religion Clauses.”

OHNO V . YASUMA 5

is not entitled to recognition or enforcement under

California’s Uniform Foreign-Country Money Judgments

Recognition Act, Cal. Civ. Proc. Code §§ 1713–1724

(“Uniform Act”), because it is “repugnant to the public

policy” embodied in the Religion Clauses.

We hold, first, that the district court’s recognition and

enforcement of the Japanese money judgment does not

constitute “state action” triggering direct constitutional

scrutiny and, second, that neither the Japanese judgment nor

the cause of action on which it was based rises to the level of

repugnance to the public policy of California or of the United

States that would justify a refusal to enforce the judgment

under the Uniform Act. Accordingly, we affirm the district

court’s judgment in Ohno’s favor.

I. BACKGROUND

A. Facts and Procedural History

Ohno, a citizen of Japan, sued the Church in Tokyo

District Court. She received a favorable judgment, upheld on

appeal to Tokyo’s High Court. Ohno then initiated an action

for recognition and enforcement of the judgment in the

United States District Court for the Central District of

California, as Yasuma is a resident of Los Angeles and the

Saints of Glory Church (“Saints of Glory”) is a registered

California religious corporation.

i. The Japanese Litigation

The following facts are summarized from the findings of

the Tokyo trial court, as set forth in its judgment of August

28, 2009:

6 OHNO V . YASUMA

Ohno joined Saints of Glory in 1994 while working in

London. Three years later, Ohno began regularly

participating in prayer meetings, bible study, and worship at

a branch of Saints of Glory in Tokyo. Part of the Church’s

program in Tokyo was playing for worshipers there tape

recordings of sermons given every Sunday in California by

Saints of Glory’s principal pastor, Yasuma. Ohno listened to

the tapes while attending church in Tokyo. Saints of Glory

preached obedience to Jesus Christ and to Yasuma. Members

were required to tithe one-tenth of their incomes, which Ohno

did.4

Ohno was obedient to Yasuma’s advice and teachings in

various areas of her life. For example, when Ohno learned

that her father was terminally ill, Yasuma “stated something

negative about [Ohno] going to see her father,” so Ohno did

not return home to see him before he died and did not attend

his funeral. Later, after Ohno informed Yasuma that she had

lost her job, the Church convinced Ohno to live with another

“church member in the same situation,” in what we infer from

the record was a Church-owned or Church-affiliated

residence in Tokyo. Also, after Yasuma repeatedly made

negative statements about medications, Ohno ceased taking

the anti-depressants and tranquilizers she had been prescribed

when she was diagnosed with depression years earlier. At

Yasuma’s instruction, Ohno purchased Saints of Glory videos

and books, which she began watching and reading repeatedly.

Finally, the Church told Ohno not to purchase her own

4

In the Japanese lawsuit, Ohno did not contest the voluntariness or seek

restitution of these routine tithes. She challenged only the substantial

transfers of money that she made to the Church between January and

March 2002, referred to in this opinion as “the Transfers.”

OHNO V . YASUMA 7

apartment when she tried to do so, and admonished her for

negotiating a reduction in her rent.

Following all these events, and while suffering from both

depression and general ataxia (a lack of muscle coordination

due to damage to the nervous system), Ohno “became

obsessed with a sense of guilt that she had not obeyed Jesus

Christ.” After Yasuma encouraged Ohno to make “givings”

in late 2001, Ohno gave Yasuma and another church minister

each 800,000 Yen.5 Then, on January 2, 2002, Yasuma “took

several hours to talk to [Ohno], in a talk referred to as

‘“Warnings” [or “Reprimands”], pressuring her to tithe’”

(alteration in original). After the talk, Ohno felt “overcome

with terror and compelled to tithe.” Over the span of two

months, Ohno closed her savings account and transferred

68,678,424 Yen to Saints of Glory, virtually all of Ohno’s

assets at that time.

A year after these transfers (“the Transfers”), Ohno was

told she would be “driven out” of Saints of Glory because she

“had not been obedient to Jesus Christ.” The following May,

the Church ordered her to leave the apartment where she was

living. On the advice of her psychiatrist, Ohno then resumed

taking medications for her depression. She also began

participating in religious services at a different church.

Ohno eventually came to believe that she had been

defrauded by the Church. She filed a complaint in 2007 in

Tokyo District Court, asserting tort and unjust enrichment

claims against Yasuma, Saints of Glory, and two other

individual defendants not parties to the present enforcement

action. The dispute centered on the circumstances in which

5

Ohno did not contest or seek restitution of these donations.

8 OHNO V . YASUMA

Ohno had transferred the approximately $500,000 to Saints

of Glory between January and March 2002, leaving her

essentially destitute. Ohno contended that the Transfers took

place as a result of the Church’s “fraudulent and threatening

statements” to her while she was in a vulnerable mental and

physical state. The Church argued that the contested

Transfers were faith-based donations, and that Ohno sought

return of the money because she no longer believed in the

Church’s teachings.

The litigation in Japan lasted over two years and involved

several hearings, various filings, and a full merits trial, in

which Yasuma and Saints of Glory appeared through counsel.

The Tokyo District Court’s judgment held Yasuma and Saints

of Glory liable under Japanese Civil Code articles 709, 719,

and 715, for illegally inducing Ohno to tithe “in such a way

as to incite anxiety and cause terror to the Plaintiff who was

already in [a] state of depression and was suffering from

general ataxia.” The Tokyo trial court concluded that Ohno’s

decision to give the Transfers “under such psychological

condition” could not be said to have been made of her own

free will, and awarded damages, including restitution of the

68,678,424 Yen Ohno had given to Saints of Glory in the

disputed Transfers; 3,000,000 Yen for pain and suffering; and

7,200,000 Yen for attorney’s fees. The total award was

78,878,424 Yen ($843,235.66).

As to the grounds for the judgment, article 709 of the

Japanese Civil Code, entitled “Damages in Torts,” provides:

“A person who has intentionally or negligently infringe[d]

any right of others, or legally protected interest of others,

shall be liable to compensate any damages resulting in

consequence.” Minpô [Civ. C.] art. 709. Article 719

provides for joint and several liability of joint tortfeasors,

OHNO V . YASUMA 9

Minpô [Civ. C.] art. 719, and article 715 provides for an

employer’s liability for the tortious actions of its employees,

Minpô [Civ. C.] art. 715. The Japanese trial court did not

specify precisely which right or legally protected interest the

Church infringed; it stated only that the solicitation of

donations from Ohno was illegal because it exceeded “the

scope of what is socially appropriate.”

Defendants appealed the judgment to the Tokyo High

Court, which affirmed the lower court decision on all counts

and dismissed the appeal.

ii. The Enforcement Action in Federal Court

Ohno next brought an international diversity action in the

United States District Court for the Central District of

California, seeking enforcement of the Japanese judgment

against Yasuma and Saints of Glory under California’s

Uniform Act, Cal. Civ. Proc. Code §§ 1713–1724. In

opposition to Ohno’s motion for summary judgment, the

Church argued that the Religion Clauses bar recovery in tort

for the consequences of protected religious speech, including

threats of divine retribution, and prohibit a court from judging

the validity of the Church’s religious teachings. The Japanese

judgment, the Church argued, was inconsistent with these

principles. The Church further asserted that the Japanese

judgment is not entitled to recognition, both because it is

“repugnant” to public policy embodied in the Religion

Clauses and because it “was obtained through procedures not

compatible with the requirements of due process of law.” In

the alternative, the Church requested that the motion for

summary judgment be continued to permit additional

discovery relating to the Japanese proceedings.

10 OHNO V . YASUMA

The district court granted summary judgment in favor of

Ohno and entered judgment jointly and severally against

Yasuma and Saints of Glory, holding the Japanese judgment

not repugnant to the Religion Clauses.6 It also denied the

Church’s request for a continuance under Federal Rule of

Civil Procedure 56(f),7 citing the failure to identify with any

specificity the facts sought through additional discovery and

why the evidence to be obtained would preclude summary

judgment. This timely appeal followed.

On appeal, the Church contends that the district court was

both constitutionally and statutorily required to refuse

recognition of the Japanese judgment because the judgment

burdens free exercise of religion in violation of the Religion

Clauses. As to the constitutional issue, the Church maintains

that enforcement in the United States of a foreign-country

judgment that would be violative of the Religion Clauses if

issued by a domestic court is itself an exercise of state power,

directly subject to constitutional constraints. Statutorily, the

Church argues that a foreign-country judgment that impinges

on American constitutional rights is necessarily repugnant to

public policy, making its recognition under California’s

Uniform Act an abuse of discretion.

6

The district court also held that the Japanese judgment was not

incompatible with due process of law, but the Church has abandoned its

due process arguments on appeal.

7

Former Rule 56(f) of the Federal Rules of Civil Procedure became

Rule 56(d) under the 2010 Amendments to the Federal Rules. Because the

district court decision, the Church’s briefs to this court, and the relevant

case law in this circuit all refer to the former Rule 56(f), this opinion as

well so refers to the rule currently codified as Rule 56(d).

OHNO V . YASUMA 11

B. The Uniform Foreign-Country Money Judgments

Recognition Act

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.” Yahoo! Inc. v. La Ligue Contre le

Racisme et L’Antisemitisme, 433 F.3d 1199, 1212 (9th Cir.

2006) (en banc) (per curiam) (“Yahoo! II”) (plurality opinion)

(citing Bank of Montreal v. Kough, 612 F.2d 467, 469–70

(9th Cir. 1980)); see also id. at 1239–41 (Fisher, J.,

concurring in part and dissenting in part). In California, the

Uniform Act regulates enforcement of the Japanese damages

award at issue here. See Cal. Civ. Proc. Code §§ 1713–1724.

The present California foreign judgment enforcement

statute was enacted in 2007 to replace the Uniform Foreign

Money Judgments Recognition Act, formerly codified at

California Civil Procedure Code sections 1713–1713.8, and

applies to all recognition and enforcement actions

commenced on or after January 1, 2008. See § 1724(a); see

also Manco Contracting Co. (W.W.L.) v. Bezdikian, 45

Cal.4th 192, 204 (2008). California’s Act was modeled on

the 2005 Uniform Foreign-Country Money Judgments

Recognition Act, 13 U.L.A. pt. II, at 18–38 (Supp. 2011),

drafted by the National Conference of Commissioners on

Uniform State Laws.8 See Manco Contracting Co., 45 Cal.

8

As of June 2013, nineteen states have enacted the 2005 version of the

Uniform Act, or some version thereof, and an additional three states

have introduced bills proposing its enactment. See Foreign-Country

Money Judgments Recognition Act, Uniform Law Commission, The

National Conference of Commissioners on Uniform State Laws,

http://uniformlaws.org/Act.aspx?title=Foreign-Country Money Judgments

Recognition Act (last visited May 25, 2013). T he earlier version of the

12 OHNO V . YASUMA

4th at 198 (describing the background and purpose of the

Uniform Act); Lyustiger v. Lysustiger (In re Marriage of

Lyustiger), 177 Cal. App. 4th 1367, 1369–70 (2009)

(recounting the history of the Act in California).

California’s Uniform Act provides that the courts of

California “shall recognize a foreign-country judgment” for

money damages that is final, conclusive, and enforceable

where rendered, except if one or more of the mandatory

grounds for non-recognition enumerated in § 1716(b), or

discretionary grounds for non-recognition enumerated in

§ 1716(c), applies.9 § 1716(a). The only exception at issue

Uniform Act, approved in 1962, was adopted by twenty-nine states plus

the District of Columbia and the Virgin Islands. See Cedric C. Chao &

Christine S. Neuhoff, Enforcement and Recognition of Foreign Judgments

in United States Courts: A Practical Perspective, 29 Pepp. L. Rev. 147,

150 (2001). The state law versions of the Uniform Act do not vary

substantially from state to state. The more significant distinction lies

between those states that have adopted some version of the Uniform Act

and those that follow a common law standard stemming from the Supreme

Court’s decision in Hilton v. Guyot, 159 U.S. 113 (1895). See Chao &

Neuhoff, 29 Pepp. L. Rev. at 148.

9

Section 1716(b) provides in full:

A court of this state shall not recognize a

foreign-country judgment if any of the following apply:

(1) 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.

(2) The foreign court did not have personal jurisdiction

over the defendant. (3) The foreign court did not have

jurisdiction over the subject matter.

Cal. Civ. Proc. Code § 1716(b).

OHNO V . YASUMA 13

in this appeal is § 1716(c)(3), which provides that a court is

“not required to recognize a foreign-country judgment if . . .

[t]he 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.” § 1716(c)(3).

Under the Uniform Act, the party seeking enforcement of

a foreign judgment bears the initial burden of establishing

that the judgment falls within the scope of the Act. § 1715(c).

The parties here do not dispute that the Japanese judgment

conforms to the threshold requirements for recognition: it

grants recovery of a sum of money, as required by

§ 1715(a)(1); it is final, conclusive and enforceable in Japan,

under § 1715(a)(2); and it is not a judgment for taxes, a fine

or other penalty, or a judgment in connection with domestic

relations, barred from recognition under § 1715(b).

Once coverage under the Uniform Act is established, the

presumption in favor of enforcement applies, and the party

resisting recognition of a foreign-country judgment “has the

burden of establishing that a ground for nonrecognition stated

in subdivision [§ 1716](b) or (c) exists.” § 1716(d); see also

Section 1716(c) provides that a court is “not required to recognize a

foreign-country [money] judgment if” any of the following nine

discretionary grounds for non-recognition exists: (1) lack of notice to the

defendant; (2) fraud; (3) repugnancy of the foreign judgment or cause of

action to public policy; (4) conflict with another final and conclusive

judgment; (5) contrariness to an agreement between the parties regarding

the resolution of disputes; (6) inconvenience of the foreign forum; (7)

doubts about the integrity of the rendering court; (8) incompatibility of the

judgment with the requirements of due process of law; and (9) a recovery

under defamation law that provides less protection for freedom of speech

and the press than is provided under the U.S. and California Constitutions.

Id.

14 OHNO V . YASUMA

Uniform Foreign-Country Money Judgments Recognition

Act, 13 U.L.A. pt. II, at 19 (Supp. 2011) (Prefatory Note).

The repugnancy ground for non-recognition of foreign

judgments is therefore an affirmative defense. See § 1716(d).

This statutorily specified burden applies equally where, as

here, the ground of repugnancy is an asserted violation of

federal constitutional norms. See, e.g., Sarl Louis Feraud

Int’l v. Viewfinder, Inc., 489 F.3d 474, 477–78 (2d Cir. 2007).

Thus, the Church has the burden of establishing the grounds

it has raised for non-recognition of the judgment.

II. DISCUSSION

This case presents questions of first impression in this

circuit, relating to the enforcement of a foreign-country

money judgment challenged on constitutional grounds.10

Specifically, we must consider the constitutional implications

of enforcing such a judgment if the Religion Clauses would

bar a court in the United States from rendering the same

judgment in the first instance. Also at issue is whether a

foreign-country money judgment that might be inconsistent

10

The only Ninth Circuit case that involved somewhat similar issues

concerned a declaratory judgment action seeking to bar enforcement of a

French injunction— not a money judgment— requiring an American

company, Yahoo!, to restrict French users’ access to certain online

material on the basis of its content. Yahoo! II, 433 F.3d 1199. The district

court had held that enforcement of the order would violate the First

Amendment. Yahoo!, Inc. v. La Ligue Contre Le Racisme et

L’Antisemitisme, 169 F. Supp. 2d 1181, 1192–93 (N.D. Cal. 2001)

(“Yahoo! I”), rev’d en banc on other grounds, 433 F.3d 1199 (9th Cir.

2006) (per curiam). Unlike here, however, no attempt had been made to

enforce the French judgment in the United States. On appeal, a majority

of the en banc panel agreed that the case should be dismissed, for lack of

ripeness or lack of personal jurisdiction, and so did not reach the merits of

any constitutional or repugnancy questions. Yahoo! II, 433 F.3d at 1224.

OHNO V . YASUMA 15

with the Federal Constitution or a state constitution if issued

by a domestic court is repugnant to public policy and

therefore can be denied enforcement under the Uniform Act.11

As we explain below, we do not reach the question of

whether a domestic tort judgment parallel to the Japanese

judgment would have been unconstitutional under the

Religion Clauses had Ohno’s suit been brought here. Instead,

we conclude: first, that enforcement of this foreign-country

money judgment by a domestic court does not constitute

domestic state action triggering constitutional scrutiny; and,

second, that neither the judgment at issue in this particular

case nor the cause of action on which it is based is so

repugnant to public policy as to qualify for non-enforcement

under the Uniform Act.

A. Constitutional Challenge

The Church’s direct constitutional challenge turns on

whether the district court’s enforcement of the damages

award issued by a foreign sovereign amounted to domestic

governmental action subject to the constraints of the Religion

Clauses.12

11

Under the Uniform Act, § 1716(c), a court that determines a foreign-

country money judgment or the cause of action on which the judgment is

based to be repugnant to public policy is “not required” to recognize the

judgment, but—impliedly— may do so at its discretion. Conversely, if the

Japanese judgment is not repugnant to public policy, then, barring any

other ground for non-recognition, the district court was required to

enforce it.

12

The free speech provisions in Article I of the California Constitution

do not always turn on state action. See Ralphs Grocery Co. v. United Food

& Commercial Workers U nion Local 8, 55 Cal. 4th 1083, 1093–94

16 OHNO V . YASUMA

Recognizing and enforcing a foreign-country money

judgment is distinct from rendering that judgment in the first

instance. The district court, in giving effect to the judgment

issued in Japan, has not participated in the action the Church

claims is unconstitutional—namely, judging the truth or

falsity of the Church’s religious teachings or imposing

liability for the consequences of religious expression. In the

absence of such participation, we conclude the district court’s

recognition and enforcement of the Japanese damages award

in this case does not transform the underlying foreign court’s

ruling into domestic “state action” subject to constitutional

scrutiny.

i. State Action

“[M]ost rights secured by the Constitution are protected

only against infringement by governments,” so that “the

conduct allegedly causing the deprivation of a federal right

[must] be fairly attributable to the State.” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 936–37 (1982) (internal

quotation marks omitted). If the action challenged here is not

(2012); Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850, 858, 870

(2007); Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910 (1979),

aff’d, 447 U.S. 74 (1980). Like the First Amendment Free Exercise

Clause, however, the free exercise clause in Article I, section 4 of the

California Constitution protects against only governmental action that

burdens religious freedom. See Catholic Charities of Sacramento, Inc. v.

Superior Court, 32 Cal. 4th 527, 561 (2004); Vernon v. City of Los

Angeles, 27 F.3d 1385, 1392–93 (9th Cir. 1994). Our discussion therefore

applies to both the Federal and State Constitutions. W e concentrate on

federal state action precedents but do so with the understanding that the

same state action principles apply under the California Constitution as

well. As we conclude that there was no state action subject to

constitutional scrutiny, we need not decide whether the California and

federal free exercise clauses are otherwise coterminous.

OHNO V . YASUMA 17

so attributable, then there is no “state action” and no violation

of the Religion Clauses.

Foreign governments, like the government of Japan, are

not bound by the U.S. or California Constitutions. “[O]ur

notions of due process,” for example, do not apply “to foreign

court proceedings against American citizens who have

committed foreign crimes outside the United States.” United

States v. Gecas, 120 F.3d 1419, 1430 (11th Cir. 1997) (en

banc) (citing Neely v. Henkel, 180 U.S. 109, 123 (1901)); see

also United States v. Ant, 882 F.2d 1389, 1395 n.8 (9th Cir.

1989) (“‘Neither the Fourth nor the Fourteenth Amendments

are directed at Mexican officials . . . .’”) (quoting Brulay v.

United States, 383 F.2d 345, 348 (9th Cir. 1967)); United

States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987); United

States v. Rose, 570 F.2d 1358, 1361–62 (9th Cir. 1978); Flynn

v. Shultz, 748 F.2d 1186, 1197 (7th Cir. 1984) (“Obviously,

the Mexican government is not bound by the requirements of

our Constitution even when prosecuting a United States

citizen . . . .”). In particular, “[i]t is, of course, a

commonplace that the [First Amendment] is a guarantee only

against abridgment by government, federal or state.”

Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (emphasis

added).

As foreign-country court orders, like domestic contracts

between private parties, are not, without more, subject to the

constraints of our constitutional law, neither the laws of Japan

nor the decisions of its courts constitute domestic “state

action” for the purposes of a constitutional claim in this

country. The success of the Church’s direct constitutional

arguments therefore depends upon showing that, through its

enforcement by a domestic court, the judgment issued in

18 OHNO V . YASUMA

Japan becomes action of the government, and so subject to

constitutional scrutiny.

Decisions of a domestic court in the United States do

constitute governmental action. State action “refers to

exertions of state power in all forms,” Shelley v. Kraemer,

334 U.S. 1, 20 (1948) (emphasis added), so that “[s]tate

action, for purposes of the [Constitution], may emanate from

rulings of administrative and regulatory agencies as well as

from legislative or judicial action,” Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 179 (1972) (emphasis added). Thus, “the

action of state courts and of judicial officers in their official

capacities [has long been] regarded as action of the State

within the meaning of the Fourteenth Amendment,” Shelley,

334 U.S. at 14, and so, too, has the action of federal courts,

see Gathright v. City of Portland, 439 F.3d 573, 576 n.2 (9th

Cir. 2006); cf. Hurd v. Hodge, 334 U.S. 24, 31–36 (1948).

So there is no doubt that the district court’s decision in

this case applying California’s Uniform Act—legislation that

is itself the result of governmental action—constitutes state

action for purposes of constitutional scrutiny. But that truism

does not resolve our question, which is: Should the substance

of the underlying Japanese monetary damages judgment,

resulting from a lawsuit in Japan between two private parties,

be ascribed to the district court’s enforcement of the

judgment under the Uniform Act and so subjected to

constitutional scrutiny? “Precisely when . . . judicial

involvement in private litigation assumes constitutional

dimensions is a problem that has perplexed courts and

scholars for decades.” Dahl v. Akin, 630 F.2d 277, 280 (5th

Cir. 1980). Given the parallelism, for constitutional state

action purposes, between private domestic action and the

actions of foreign governments, essentially the same

OHNO V . YASUMA 19

perplexities arise with regard to the enforcement of foreign

judgments resulting from litigation abroad. We therefore rely

on both contexts in our analysis.

a.

We begin our analysis with general state action precepts:

At bottom, the state action requirement serves to “avoid[]

imposing on the State, its agencies or officials, responsibility

for conduct for which they cannot fairly be blamed.” Lugar,

457 U.S. at 936. Consistent with this approach,

“constitutional standards are invoked only when it can be said

that the State is responsible for the specific conduct of which

the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991,

1004 (1982).

Lugar, a case concerning a private creditor’s use of state

courts to effectuate a prejudgment attachment, set forth a

broadly applicable two-prong framework for analyzing when

governmental involvement in private action is itself sufficient

in character and impact that the government fairly can be

viewed as responsible for the harm of which the plaintiff

complains. 457 U.S. at 937–42. The first prong asks whether

the claimed constitutional deprivation resulted from “the

exercise of some right or privilege created by the State or by

a rule of conduct imposed by the state or by a person for

whom the State is responsible.” Id. at 937. The second prong

determines whether the party charged with the deprivation

could be described in all fairness as a state actor. Id.

Domestic judicial enforcement of the Japanese judgment in

this case satisfies neither prong of the Lugar framework.

As to the first prong, the Church does not challenge the

constitutionality of the Uniform Act, facially or as applied.

20 OHNO V . YASUMA

Instead, it challenges the constitutionality of the Japanese tort

judgment Ohno seeks to enforce under the Uniform Act. As

the source of the alleged constitutional harm is thus Japanese

tort law, created by and enforced through Japanese

governmental entities, the claimed constitutional deprivation

cannot be traced to a right, privilege, or rule of conduct

imposed by a domestic governmental entity or individual.

See id.

The Church disagrees, relying on Paul v. Watchtower

Bible & Tract Society of New York, Inc., 819 F.2d 875 (9th

Cir. 1987). Paul held that the application of Washington tort

law to establish damages liability for actions taken in

furtherance of religious beliefs constitutes an exercise of state

power, subject to constitutional scrutiny. Id. at 880–81. The

Church’s reliance on Paul is misplaced.

First, the district court here did not apply tort law; it

applied California’s Uniform Act, and did not re-try the facts

of the case or re-assess the Church’s liability for any injury

alleged. Second, even if it could be said that the district

court’s recognition of the Japanese damages award is

tantamount to directly imposing liability in the first

instance—a proposition that we do not endorse—the tort law

applied in this case is the law of Japan, not of California. As

such, the content of the law is not attributable to a domestic

state actor, and so its application to the Church’s challenged

conduct (all of which was conduct that took place in Japan or

was specifically directed at Ohno in Japan) is not an exercise

of domestic state power. The same logic applies to private

tort suits initiated in the United States: A tort action between

private parties does not involve state action simply because

the court in which the case is pursued is an organ of the state

or federal government. Rather, a private tort action initiated

OHNO V . YASUMA 21

in the United States may involve governmental action subject

to constitutional constraints where it is domestic substantive

law that allows recovery. See New York Times Co. v.

Sullivan, 376 U.S. 254, 277–78 (1964).

Paul applied an analysis similar to that in New York

Times, explaining that it was because tort liability stemmed

from state substantive law that its imposition constituted state

action triggering constitutional scrutiny. Paul, 819 F.2d at

880. Expounding in Paul, we clarified that regardless of the

form an American state’s tort law takes—“whether statutory

or common law”—it relies on the power of state government

to regulate conduct. Id. (citing New York Times, 376 U.S. at

265). It is for that reason—and not simply because of judicial

involvement—that “the application of [domestic] tort law to

activities of a church or its adherents in their furtherance of

their religious belief is an exercise of state power.” Id.

Similarly, Cohen v. Cowles Media Co. held that a state

court’s application of the common law doctrine of promissory

estoppel to enforce a newspaper’s confidentiality agreement

was subject to constitutional scrutiny, as an “application of

state rules of law.” 501 U.S. 663, 668 (1991).

In short, only the tort law of Japan, and not the law of any

state or the federal government, underlay the Japanese

judgment. The first Lugar prong therefore does not apply.

Even if enforcement of the Japanese judgment satisfied

the first prong of the Lugar framework, it would fail the

second. Here, “the party charged with the deprivation” is not

“a person who may fairly be said to be a state actor,” where

“state actor” means an actor for whom a domestic

governmental entity is in some sense responsible. Lugar, 457

U.S. at 937. Although the Japanese courts are organs of the

22 OHNO V . YASUMA

State of Japan, they are not organs of the federal or California

government. And while the Japanese courts surely perform

a public function in Japan, they were not compelled to

conclude as they did by American law, or aided in their

decision by the participation of an American governmental

actor or entity.

Nor can Ohno, in bringing an enforcement suit under

California’s Uniform Act, be likened to a state actor. “‘The

Supreme Court has articulated four tests for determining

whether a [non-governmental person’s] actions amount to

state action: (1) the public function test; (2) the joint action

test; (3) the state compulsion test; and (4) the governmental

nexus test.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128,

1140 (9th Cir. 2012) (quoting Franklin v. Fox, 312 F.3d 423,

444–45 (9th Cir. 2002)). Most relevant here are the “public

function” and “joint action” tests13: The former treats private

13

These two tests largely subsume the state compulsion and

governmental nexus tests, because they address the degree to which the

state is intertwined with the private actor or action. The state compulsion

test requires a showing that “the state has ‘exercised coercive power or has

provided such significant encouragement, either overt or covert, that the

[private actor’s] choice must in law be deemed to be that of the State.’”

Johnson v. Knowles, 113 F.3d 1114, 1119 (9th Cir. 1997) (alteration in

original) (quoting Yaretsky, 457 U.S. at 1004). “Under the governmental

nexus test, a private party acts under color of state law if ‘there is a

sufficiently close nexus between the State and the challenged action of the

regulated entity so that the action of the latter may be fairly treated as that

of the State itself.’” Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883

(9th Cir. 1991) (per curiam) (quoting Jackson v. Metro. Edison Co., 419

U.S. 345, 351 (1974)). For simplicity, we refer only to the “public

function” and “joint action” tests, but intend thereby to incorporate all four

tests. Accordingly, our conclusion that Ohno is not a state actor for

constitutional purposes encompasses all four state action tests articulated

by the Supreme Court.

OHNO V . YASUMA 23

actors as state actors when they perform a task or exercise

powers traditionally reserved to the government. See, e.g.,

Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974);

Terry v. Adams, 345 U.S. 461, 469–70 (1953); Marsh v.

Alabama, 326 U.S. 501, 507–08 (1946). The latter focuses on

“‘whether state officials and private parties have acted in

concert in effecting a particular deprivation of constitutional

rights.’” Tsao, 698 F.3d at 1140 (quoting Franklin, 312 F.3d

at 445). “Joint action” exists where the government affirms,

authorizes, encourages, or facilitates unconstitutional conduct

through its involvement with a private party, see, e.g., Lugar,

457 U.S. at 941; Flagg Bros. v. Brooks, 436 U.S. 149, 157,

164–65 (1978); Sniadach v. Family Fin. Corp. of Bay View,

395 U.S. 337 (1969); Shelley, 334 U.S. 1, or otherwise has

“so far insinuated itself into a position of interdependence

with [the non-governmental party] that it must be recognized

as a joint participant in the challenged activity,” Tsao, 698

F.3d at 1140 (internal quotation marks omitted).

Ohno’s use of California’s Uniform Act as a litigant does

not make her a state actor through the public function test.

Although the court assuredly performs a public purpose, a

private individual seeking a remedy from a court is seeking

gain for him or herself, a purely private act. “[M]erely

resorting to the courts and being on the winning side of a

lawsuit does not make a party a co-conspirator . . . with the

judge.” Dennis v. Sparks, 449 U.S. 24, 28 (1980).

Nor does Ohno’s invocation of the Uniform Act convert

the underlying Japanese judgment into the joint action of

Ohno and the State of California or the district court. Again,

although California’s Uniform Act creates the legal

framework that may entitle the holder of a qualifying foreign-

country money judgment to recognition and enforcement of

24 OHNO V . YASUMA

that judgment in the courts, the Uniform Act is not the source

of the substantive legal rights underlying the judgment

enforced.

To be sure, the district court’s enforcement order

facilitates Ohno’s efforts to recover in the United States the

sum of money awarded by the Japanese court. But the district

court, through its implementation of the procedures

established by the Uniform Act, cannot be said to provide

“significant assistance” to the underlying acts that the Church

contends constituted the core violation of its First

Amendment rights—namely, judicial scrutiny of the content

of its religious beliefs and imposition of liability for the

consequences of its religious expression. California law

requires a court to recognize a final, conclusive foreign

monetary award that is enforceable where rendered, Cal. Civ.

Proc. Code § 1716(a), without inquiry into the merits of the

underlying judgment, once the court determines that there is

no ground for nonrecognition under § 1716(b) or (c) of the

Uniform Act. The court’s mandatory indifference to the

underlying merits of the judgment Ohno is seeking to enforce

refutes any characterization by the Church of Ohno’s

enforcement effort as a joint action with California or the

federal judiciary as to the aspects of the Japanese judgment

alleged to compromise the Church’s religious freedom.

Notably, the cases in which the Supreme Court has held

that private use of state-created procedures amounts to state

action have, by and large, concerned due process challenges

to the state procedures themselves or their application. Those

cases have not addressed constitutional challenges to the

underlying causes of action that prompted the non-

governmental party’s recourse to the state enforcement

procedures. See, e.g., Tulsa Prof’l Collection Servs., Inc. v.

OHNO V . YASUMA 25

Pope, 485 U.S. 478 (1988); Lugar, 457 U.S. 922; Sniadach,

395 U.S. 337.14 For example, in Sniadach, the petitioner

challenged the proceedings by which her wages were

garnished, arguing that they violated due process. 395 U.S.

at 339–40. She did not contend that the underlying

contractual debt could not ultimately be judicially enforced

because there was some aspect of the contract that, if

mandated by the government, would constitute

unconstitutional state action. Id. Here, in contrast, the

Church’s challenge is not to the procedures used to enforce

the underlying Japanese judgment in federal court but to the

substantive rights and defenses that gave rise to that

judgment—which, for present purposes, is analogous to a

private contract or debt, because not attributable to any

domestic state action or state actors.

As to a final joint action consideration, it cannot be said

that the federal or California government in any meaningful

way accepts benefits derived from the allegedly

unconstitutional actions. See Florer v. Congregation Pidyon

Shevuyim, N.A., 639 F.3d 916, 926 (9th Cir. 2011). At most,

the United States may gain some diplomatic benefit when it

recognizes foreign-country judgments, manifested through

increased reciprocity in the treatment of U.S. judgments

14

In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the

Court came closer than in the run of cases to imputing the substance

behind a private party’s use of a state procedure—that of peremptory

challenges to strike prospective jurors from a venire— to the state itself.

But unlike statutory schemes such as the Uniform Act, which exist to

serve private purposes, the entire endeavor at issue in Edmonson serves

governmental purposes— namely, conducting a civil trial. Through

peremptory challenges, the state essentially delegates to private parties in

a civil trial part of the public function of selecting a jury. See id. at

621–24.

26 OHNO V . YASUMA

abroad. But this benefit is, once again, independent of the

content of the judgments recognized and so cannot be said to

incorporate the allegedly unconstitutional acts underlying

them.

In sum, neither the Uniform Act nor the district court’s

challenged enforcement at Ohno’s behest of the Japanese

money judgment meets the standards for state action, under

the controlling Lugar framework, with regard to the

substance of the Japanese judicial decision. Both the Act and

the court’s involvement in implementing it are assuredly

governmental actions. But the purposely limited nature of

that involvement undermines the attribution to domestic

governmental actors of responsibility for the Japanese court’s

determination that the Church committed a tort by unfairly

inducing Ohno to transfer all of her money to Saints of Glory,

and so is liable to her for damages.

b.

Consideration of the seminal civil rights case, Shelley v.

Kraemer, 334 U.S. 1, does not alter our mode of analysis

under the generally applicable Lugar framework or lead us to

conclude otherwise. Shelley established that judicial

enforcement of a legal right or obligation whose source is not

domestic governmental action can constitute state action

triggering constitutional scrutiny. See id. at 20. Specifically,

Shelley held that a state court’s enforcement of racially

restrictive housing covenants entered into between private

land owners amounts to state action in violation of the Equal

Protection Clause. Id. The Court viewed the interposition of

judicial coercive power to enforce racially discriminatory

private agreements as governmental discrimination on the

basis of race. Id. at 20–21; see also Barrows v. Jackson, 346

OHNO V . YASUMA 27

U.S. 249, 254, 258 (1953) (applying the same state action

principle to a court’s award of damages for violation of a

discriminatory private contract).

But Shelley has not been interpreted as meaning that

domestic judicial enforcement of any monetary obligation

necessarily transforms the circumstances that gave rise to that

obligation into state action for constitutional purposes.15

15

Looking for precedents applying Shelley in the context of domestic

enforcement of foreign judgments yields few helpful authorities. The

Yahoo! district court, relying on Shelley’s reasoning, refused to enforce a

foreign judgment on First Amendment grounds, holding that domestic

judicial enforcement of a foreign judgment constitutes state action with

regard to the underlying foreign order, for constitutional purposes. Yahoo!

I, 169 F. Supp. 2d at 1189, rev’d on other grounds, Yahoo! II, 433 F.3d

1199. Yahoo! I concerned a French injunction that imposed viewpoint-

based restrictions on speech. As we discuss later, see Parts II.A.i.c, II.B.ii,

the state action considerations with respect to enforcement of a foreign

injunction differ from those that arise with respect to enforcement of an

order to pay a sum of money.

On appeal, we dismissed the Yahoo! I case for lack of personal

jurisdiction and ripeness, without mentioning Shelley or its reasoning.

Yahoo! II, 433 F.3d at 1201. To the extent that the opinions discussed the

merits of the First Amendment question, a majority of the judges on the

en banc panel assumed that the constitutionality of enforcing the

challenged foreign judgment would depend on whether compliance with

the French court’s order would restrict Yahoo!’s dissemination of, and

users’ access to, speech in the United States. See id. at 1220–22 (plurality

opinion); id. at 1234–35, 1244–45 (Fisher, J., concurring in part and

dissenting in part).

Other courts addressing similar issues have held, without discussing

state action directly or otherwise explaining their conclusion, that where

a foreign judgment fails to comport with domestic constitutional

requirements, “the refusal to recognize the judgment should be, and it is

deemed to be, ‘constitutionally mandatory.’” Bachchan v. India Abroad

28 OHNO V . YASUMA

Instead, Shelley’s attribution of state action to judicial

enforcement has generally been confined to the context of

discrimination claims under the Equal Protection Clause. In

the context of First Amendment challenges to speech-

restrictive provisions in private agreements or contracts,

domestic judicial enforcement of terms that could not be

enacted by the government has not ordinarily been considered

state action. See, e.g., Democratic Nat’l Comm. v.

Republican Nat’l Comm., 673 F.3d 192, 204–05 (3d Cir.

2012) (“The Supreme Court has declined to find state action

where the court action in question is a far cry from the court

enforcement in Shelley. . . . Court enforcement of a private

agreement to limit a party’s ability to speak or associate does

not necessarily violate the First Amendment.”), cert. denied,

133 S. Ct. 931 ( 2013). Various state court decisions “enforce

restrictions on speech arising from domestic contracts that

could not have been enacted into law due to the First

Amendment.” Mark D. Rosen, Exporting the Constitution,

53 Emory L.J. 171, 174, 192–94 & nn.98–111 (2004)

(compiling cases).16

Publ’ns Inc., 585 N.Y.S.2d 661, 662 (N.Y. Sup. Ct. 1992); see also

Viewfinder, 489 F.3d at 480 (holding “unenforceable” judgments that

“impinge on First Amendment rights”) (quoting Bachchan, 585 N.Y.S.2d

at 662, and Yahoo! I, 169 F. Supp. 2d at 1189–90). Although those rulings

may assume that judicial enforcement transforms the underlying foreign

judgment into one adopted by and attributable to the domestic court, the

opinions do not identify the basis for any such unarticulated assumption.

16

See, e.g., Golden Gateway Ctr. v. Golden Gateway Tenants Ass’n, 26

Cal. 4th 1013, 1033–35 (2001) (upholding an injunction enforcing a lease

provision prohibiting tenants from distributing unsolicited newspapers on

the ground that “judicial enforcement of injunctive relief does not, by

itself, constitute state action for purposes of California’s free speech

clause”); State v. Noah, 103 W ash. App. 29, 48–50 (2000) (judicial

enforcement of a voluntary settlement agreement prohibiting public

OHNO V . YASUMA 29

Similarly, in the context of judicial confirmation of

arbitral awards, loosely analogous to recognition of foreign-

country money judgments, the Eleventh Circuit has held that

“mere confirmation of a private arbitration award by a district

court is insufficient state action to trigger the application of

the Due Process Clause.” Davis v. Prudential Secs., Inc., 59

F.3d 1186, 1192 (11th Cir. 1995). Other courts agree. United

States v. American Society of Composers, Authors &

Publishers, 708 F. Supp. 95 (S.D.N.Y. 1989), for example,

held that a court’s “mere approval . . . of the use of arbitration

did not create any state action” lest “all arbitrations . . . be

subject to due process limitations through the simple act of

appealing the arbitrators’ decisions to the court system.” Id.

at 97. And the California Court of Appeal has made clear

that “the limited state involvement of converting the

[arbitration] award into a judgment . . . [does] not engender

the same due process incidents required with respect to an

award originally assessed and imposed by a court.” Rifkind

criticism of certain type of psychological therapy was not state action);

Linn Valley Lakes Prop. Owners Ass’n v. Brockway, 250 Kan. 169,

172–73 (1992) (judicial enforcement of a restrictive covenant barring the

posting of signs was not state action); cf. CompuServe Inc. v. Cyber

Promotions, Inc., 962 F. Supp. 1015, 1026 (S.D. Ohio 1997) (“[T]he mere

judicial enforcement of . . . trespass laws [of general application] by the

private owner of property does not alone render [the owner] a state

actor.”); Commonwealth v. Hood, 389 Mass. 581, 587–89 (1983) (holding

that judicial enforcement of trespass statute of general application is not

state action); but see W. Hill Baptist Church v. Abbate, 261 N.E.2d 196,

200–01 (Ohio 1969) (judicial enforcement of restrictive covenant

excluding houses of worship constitutes state action).

30 OHNO V . YASUMA

& Sterling, Inc. v. Rifkind, 28 Cal. App. 4th 1282, 1292

(1994).17

Courts’ reluctance, since Shelley, to expand that case’s

holding too far beyond its original context stems from a

concern for preserving a sphere for private action and private

actors, not subject to the constitutional constraints designed

to protect our populace from governmental control and

overreaching. “[I]f, for constitutional purposes, every private

right were transformed into governmental action by the mere

fact of court enforcement of it, the distinction between private

and governmental action would be obliterated.” Edwards v.

Habib, 397 F.2d 687, 691 (D.C. Cir. 1968). Similarly,

extending Shelley’s holding to judicial enforcement of

foreign-country money judgments would effectively require

foreign governments desiring American recognition of their

judicial rulings to apply the substantive provisions of the U.S.

Constitution in their courts whenever there is a defendant

who could be sued for enforcement in the United States,

regardless of where the conduct subject to adjudication

occurred or who the litigants are. Such wholesale imposition

of all aspects of our Constitution abroad is inconsistent with

the principles of comity and respect for sovereignty

underlying the recognition of foreign judgments.

For all these reasons, the district court’s enforcement of

the Japanese judgment does not render the substantive law

applied by the Japanese court, or the judgment it reached in

applying that law, domestic state action directly constrained

17

In citing these cases, we do not mean to adopt or sanction any of their

specific holdings. Instead, they are illustrative of the principle that Shelley

has not been understood as applying generally to judicial enforcement of

non-governmental agreements or decisions.

OHNO V . YASUMA 31

by the California or U.S. Constitutions. Consequently,

contrary to the Church’s contention, non-recognition of the

judgment cannot be constitutionally mandatory.

c.

In so holding, we do not suggest that “all that matters” in

the state action inquiry is whether an American entity “is the

origin of the legal right” enforced in a domestic court. Rosen,

53 Emory L.J. at 207. For example, there may be

circumstances in which the nature of the enforcement action

requires the court to take such an active role in, or to exercise

sustained supervision of, the underlying legal decision or the

resulting allocation of rights that it becomes appropriate to

view the court’s activities as governmental actions with

regard to the substance of the underlying decision or of the

resulting order.

Such may well be the case, for example, with regard to

the enforcement in a domestic court of some (or all)

injunctions issued by foreign countries. Injunctions directly

compel or forbid a party’s actions, and thus may be seen as

placing the domestic court’s imprimatur behind the substance

of the foreign court’s order to that extent. Also, enforcement

of injunctions implies the authority to exercise contempt and

modification powers after the injunction issues; the exercise

of such authority may entangle the enforcing court in the

merits of the underlying dispute. Whether or not these

aspects of injunctive relief could result in a determination that

enforcement by a domestic court of a particular foreign

injunction constitutes state action for constitutional purposes,

those same considerations are not present where, as here, the

enforcement is of an order to pay over a pre-determined

amount of money. In the latter instance, the connection

32 OHNO V . YASUMA

between the narrow domestic court order and the asserted

violation by the foreign court of substantive rights protected

by our Constitution is simply too attenuated, without more, to

attribute responsibility for the merits of the underlying

judgment to a domestic state actor. And, standing alone, the

order—to pay money to someone—does not mandate a

constitutionally protected act.

ii. Application of the First Amendment to the

Church’s Conduct

Because the Church’s constitutional claim fails at the

state action stage, we need not decide directly whether the

First Amendment’s protections actually do reach the

assertedly religious expression at issue in the Japanese suit.

As three judges noted in Yahoo! II, “[t]he extent of First

Amendment protection of speech accessible solely by those

outside the United States is a difficult and, to some degree,

unresolved issue” and “the extent—indeed the very

existence—of such an extraterritorial right under the First

Amendment [to publish speech in violation of foreign law] is

uncertain.” 433 F.3d at 1217, 1221 (plurality opinion). Nor

has any court yet decided whether the First Amendment’s

Free Exercise Clause applies to religious expression initiated

domestically but directed to a foreign audience.

Ohno was in Japan at all relevant times, and the Church

communicated with her there.18 Absent demonstrated impact

18

The Japanese court’s findings indicate that the Church intentionally

directed its allegedly religious speech to Ohno in Japan. The court found,

for example, that “[o]n January 2, 2002, . . . Yasuma took several hours

to talk to Ohno [on January 2, 2002], . . . pressuring her to tithe,”

(emphasis added) and that this talk ultimately led Ohno to make the

OHNO V . YASUMA 33

of the Japanese judgment on conduct in the United States, the

only constitutional question we face would “involve a

determination whether the First Amendment has

extraterritorial application”—a determination this Court

declined to make in Yahoo! II, 433 F.3d at 1217–18, 1222

(plurality opinion); see also id. at 1234–35, 1244–45 (Fisher,

J., concurring in part and dissenting in part), and which we

likewise decline to make here.19 Having concluded that the

enforcement of the judgment does not amount to state action,

we reserve for another day the task of tracing the First

Amendment’s reach beyond our borders.

Our analysis does not, however, foreclose other, non-

constitutional bars to enforcement of a foreign-country

money judgment, such as repugnancy to public policy. As we

discuss next, there can be sound policy justifications for

refusing to recognize foreign-country money judgments that

the Constitution would forbid a domestic court from

rendering in the first instance.

contested transfers to Saints of Glory. The findings also show that as a

general matter, the Church sent recordings of each of Yasuma’s sermons

to Japan, to be played to its members there. The Church does not dispute

that the events at issue “occurred chiefly in Japan.” Although it is not clear

whether Yasuma came to Japan or whether, instead, the Church sent a

copy of her speech to Japan, we do not see why it matters which is the

case.

19

That the judgment at issue here is an award of monetary damages

rather than an injunction, as in Yahoo!, could bear on our analysis of the

substantive constitutional issue as well as on the state action inquiry.

W hile the imposition of liability in the form of damages can have the

effect of chilling protected conduct, that effect is much less direct than is

the effect of using the coercive power of a domestic court to ensure that

a defendant complies with the terms of an injunction, compelling or

forbidding particular conduct.

34 OHNO V . YASUMA

B. Statutory Challenge: Repugnancy to Public Policy

In addition to its constitutional argument, the Church

contends that the Japanese judgment is not entitled to

recognition and enforcement under California’s Uniform Act

because it is “repugnant to the public policy” embodied in the

Religion Clauses of the Federal and State Constitutions. A

foreign judgment that would be unconstitutional if rendered

in this country necessarily qualifies as repugnant, the Church

maintains, making its recognition an abuse of discretion

under California’s Uniform Act.

The Act permits—but does not require—courts to deny

recognition to foreign monetary awards if either “[t]he

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.” § 1716(c)(3) (emphases

added). Accordingly, we examine whether either the

Japanese law on which the judgment rests or the judgment

issued meets the stringent standard for repugnancy under

California law.

i. The Standard of Review

We first address the proper standard for reviewing a

district court’s decision whether to refuse recognition of a

foreign-country money judgment under California’s Uniform

Act or similar state statutes on grounds of repugnancy to

public policy. The only case of this court addressing a

somewhat similar issue is Arab Monetary Fund v. Hashim (In

re Hashim), 213 F.3d 1169 (9th Cir. 2000). Hashim treated

a bankruptcy court’s determination that an English award of

costs and fees was “repugnant to American jurisprudence”

and thus unenforceable under Arizona common law

OHNO V . YASUMA 35

principles of comity, as a legal conclusion, subject to de novo

review. Id. at 1172.20

Absent a demonstrated ground for non-recognition,

enforcement of a qualifying foreign-country money judgment

is mandatory under California’s Uniform Act. § 1716(a).

Here, the district court’s decision to recognize and enforce the

Japanese court’s judgment, over the Church’s objections,

hinged on a preliminary determination that neither the

judgment nor the underlying cause of action was

fundamentally incompatible with, and therefore repugnant to,

the Religion Clauses. Because that determination was a

conclusion of law, we, as in Hashim, examine de novo the

district court’s legal evaluation. Given that the Church has

asserted no other ground for non-recognition on appeal, if the

district court correctly determined that neither the Japanese

judgment nor the underlying cause of action is repugnant to

20

Other circuits reviewing recognition of foreign judgments under state

statutes similar to California’s have applied an abuse of discretion

standard. See, e.g., Banque Libanaise Pour Le Commerce v. Khreich, 915

F.2d 1000, 1004–06 (5th Cir. 1990) (reviewing for abuse of discretion a

district court decision whether to apply a non-mandatory ground of non-

recognition under Texas’s Uniform Act); Ingersoll Milling Mach. Co. v.

Granger, 833 F.2d 680, 688 (7th Cir. 1987) (reviewing for abuse of

discretion the district court’s refusal to deny recognition on public policy

grounds under Illinois’s Uniform Act, but evaluating the defendant’s

principal legal arguments de novo “for the sake of completeness”); cf.

Remington Rand Corp.-Del. v. Bus. Sys. Inc., 830 F.2d 1260, 1266 (3d

Cir. 1987) (citing IIT Corp. v. Lam (In re Colo. Corp.), 531 F.2d 463, 469

(10th Cir. 1976) (reviewing for abuse of discretion the extension or denial

of comity)). Even if we were to apply a deferential standard of review, a

district court “abuses its discretion when it commits an error of law.” AE

ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).

So the analysis would be the same as the one we conduct.

36 OHNO V . YASUMA

public policy, then recognition of the damages award was

statutorily required.

ii. The Standard for Repugnance

California courts have set a high bar for repugnancy under

the Uniform Act. The standard, rooted in the public policy

exception to the comity doctrine at common law, see Hilton

v. Guyot, 159 U.S. 113, 205–06, 227–28 (1895), measures not

simply whether the foreign judgment or cause of action is

contrary to our public policy, but whether either is “so

offensive to our public policy as to be ‘prejudicial to

recognized standards of morality and to the general interests

of the citizens.’” Java Oil Ltd. v. Sullivan, 168 Cal. App. 4th

1178, 1189–92 (2008) (emphasis added) (quoting Wong v.

Tenneco, Inc., 39 Cal. 3d 126, 135–36 (1985)). Thus, “even

where it is agreed that a foreign law offends public policy, it

may still be applied in a limited context where the potential

harm is minimal.” Wong, 39 Cal. 3d at 136. Put another

way, the public policy exception codified at § 1716(c)(3) does

not apply unless a foreign-country judgment or the law on

which it is based is “so antagonistic to California [or federal]

public policy interests as to preclude the extension of

comity.” Crockford’s Club Ltd. v. Si–Ahmed, 203 Cal. App.

3d 1402, 1406 (1988) (internal quotation marks omitted).21

21

The revised Uniform Foreign-Country M oney Judgment Act of 2005,

on which the California statute is based, retained “the stringent test for

finding a public policy violation applied by courts interpreting the

[previous version of the] Act.” Uniform Foreign-Country Money

Judgments Recognition Act, 13 U.L.A. pt. II, § 4, cmt. 8, at 28 (Supp.

2011). According to that test, the commentary to the model Uniform Act

explains, “[p]ublic 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,

OHNO V . YASUMA 37

In the context of an Arizona enforcement action,

construing common law principles of international comity

similar to those on which California’s Uniform Act is based,

see Manco Contracting Co., 45 Cal. 4th at 198, we observed

that “few judgments fall in the category of judgments that

need not be recognized because they violate the public policy

of the forum,” In re Hashim, 213 F.3d at 1172 (internal

quotation marks omitted). “It has long been the law that

unless a foreign country’s judgments are the result of

outrageous departures from our own motions of ‘civilized

jurisprudence,’ comity should not be refused.” British

or would undermine that sense of security for individual rights, whether

of personal liberty or of private property, which any citizen ought to feel.”

Id. (internal quotation marks omitted); see also Restatement (Third) of

Foreign Relations Law of the United States § 482 cmt. f (1987);

Restatement (Second) of Conflict of Laws § 117 (1971).

Our sister circuits have applied a similarly strict standard to the

repugnancy exception of other states’ foreign judgment enforcement

statutes. See Viewfinder, 489 F.3d at 479–80 (“The public policy inquiry

rarely results in refusal to enforce a judgment unless it is inherently

vicious, wicked or immoral, and shocking to the prevailing moral sense.”

(internal quotation marks omitted)); Ackermann v. Levine, 788 F.2d 830,

841 (2d Cir. 1986) (describing the repugnancy standard as “high, and

infrequently met,” applying only in “clear-cut” cases where the judgment

or cause of action on which it is based is contrary to “‘fundamental

notions of what is decent and just’” (quoting Tahan v. Hodgson, 662 F.2d

862, 864 (D.C. Cir. 1981))); Sw. Livestock & Trucking Co. v. Ramon, 169

F.3d 317, 321 (5th Cir. 1999) (noting that the “level of contravention of

Texas law” has to be “high” for the court to deny recognition on public

policy grounds); cf. Andes v. Versant Corp., 878 F.2d 147, 150 (4th Cir.

1989) (holding, without expressly discussing repugnancy to public policy,

that a court applying Maryland’s Uniform Foreign-Money Judgments Act

would not give effect to an English rule of preclusion that is “so much at

odds with normal American notions of litigation that no American

jurisdiction would readily embrace it”).

38 OHNO V . YASUMA

Midland Airways Ltd. v. Int’l Travel, Inc., 497 F.2d 869, 871

(9th Cir. 1974) (quoting Hilton, 159 U.S. at 205).

Simple inconsistency between American state or federal

law and foreign law, then, does not render a foreign judgment

unenforceable by reason of repugnancy. See Yahoo! II, 433

F.3d at 1215 (plurality opinion). Foreign judgments are not

to be “tried afresh” in U.S. courts, applying domestic

concepts. See Hilton, 159 U.S. at 202–03. “We are not so

provincial as to say that every solution of a problem is wrong

because we deal with it otherwise at home.” Loucks ex rel.

Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111 (1918)

(Cardozo, J.).

Applying these principles, courts in other jurisdictions

have declined to enforce foreign-country money judgments

on grounds of repugnance to the public policy embodied in

the First Amendment, but only where there were stark

differences between foreign and domestic law. In Telnikoff

v. Matusevitch, 347 Md. 561 (1997), for example, Maryland’s

high court declined to enforce an English libel judgment

under principles of comity because English defamation law

“is totally different” from Maryland defamation law “in

virtually every significant respect” and “so contrary . . . to the

policy of freedom of the press underlying Maryland law.” Id.

at 598–99. A New York trial court similarly refused

recognition of an English libel judgment on the ground that

English libel standards are “antithetical to the protections

afforded the press by the U.S. Constitution,” explaining that

the presumptions and burdens of proof under English libel

law are the reverse of those under American law, requiring

media defendants to prove the truth of speech of public

concern, rather obliging plaintiffs to demonstrate falsity.

OHNO V . YASUMA 39

Bachchan v. India Abroad Publ’ns Inc., 585 N.Y.S.2d 661,

665 (1992) (emphasis added).22

In Yahoo! I, the Northern District of California, in an

opinion reversed on jurisdictional grounds, see Yahoo! II, 433

F.3d 1199, applied similar logic to that in Telnikoff and

Bachchan and barred enforcement of a French injunction

requiring the Internet company Yahoo! to block French users’

access to Nazi-related website content. See Yahoo! I, 169

F. Supp. 2d at 1184–85. The “content and viewpoint-based

regulation” of Internet speech, the district court held, “clearly

would be inconsistent with the First Amendment if mandated

by a court in the United States.” Id. at 1192–93.

22

Federal law now controls domestic actions seeking recognition of

foreign defamation judgments. In August 2010, Congress adopted the

SPEECH Act (“Securing the Protection of our Enduring and Established

Constitutional Heritage Act.”), Pub. L. No. 111-223, 124 Stat. 2380

(2010), 28 U.S.C. §§ 4101–4105, effectively codifying the approach

adopted in Telnikoff. The Act was prompted by a perceived increase in

the frequency of foreign libel judgments inconsistent with the First

Amendment, Pub. L. No. 111-223, § 2(5), and concern that these suits

were “significantly chilling American free speech and restricting both

domestic and worldwide access to important information.” S. Rep. No.

111-224, at 2 (2010); see also Pub. L. No. 111-223, § 2(3). The new law

makes foreign defamation judgments unenforceable in the United States

unless it can be shown that such judgments satisfy the protections of

freedom of speech and press guaranteed by both the First Amendment to

the United States Constitution and the constitution of the state in which

the domestic court is located. See 28 U.S.C. § 4102(a)(1). Notably, the

SPEECH Act does not pertain to all foreign judgments allegedly

inconsistent with any part of the First Amendment but focuses uniquely

on defamation actions and the “First Amendment rights of American

authors and publishers.” H.R. Rep. No. 111-154, at 5 (2009), reprinted in

2010 U.S.C.C.A.N. 812, 816. California’s Uniform Act contains a similar

special exception for foreign judgments rendered in defamation actions.

See Cal. Civ. Proc. Code § 1717(c).

40 OHNO V . YASUMA

These cases do not suggest that a looser standard applies

when the asserted repugnancy arises from an inconsistency

with U.S. constitutional as opposed to statutory or common

law principles. There is no California case so holding and no

basis in the statutory language for such a conclusion. Rather,

the cases underscore that only judgments presenting a direct

and definite conflict with fundamental American

constitutional principles will be denied recognition because

repugnant.

Such direct conflict is more apt to arise where the foreign-

country judgment—or the law underlying it—does not

incidentally or indirectly affect conduct that may be protected

in the United States, but expressly targets such conduct.

Telnikoff, Bachchan, and Yahoo! (I & II), all concerned

challenges to enforcement of foreign-country judgments

issued on the basis of foreign laws specific to speech or

expression—such as libel, defamation and hate speech

laws—not laws of general application, such as the Japanese

tort laws underlying the judgment at issue here.23 The state

courts in Telnikoff and Bachchan, and the district court in

Yahoo! I, found repugnancy not based on the way that a

particular foreign law was applied to the specific facts of the

23

The same distinction may be drawn between the present case and

another circuit court opinion, involving enforcement of a French

intellectual property and copyright judgment, targeting the publication of

photographs. See Viewfinder, 489 F.3d 474. The district court had held

the French judgment repugnant to public policy on the grounds that it was

fundamentally at odds with principles of free expression protected by the

U.S. and New York Constitutions. Sarl Louis Feraud Int’l v. Viewfinder

Inc., 406 F. Supp. 2d 274, 285 (S.D.N.Y. 2005). The Second Circuit

vacated and remanded for a more thorough comparison of French and U.S.

copyright law and the “fair use” exception for First Amendment-protected

activity. 489 F.3d at 484.

OHNO V . YASUMA 41

case, but because of fundamental differences in the guiding

legal doctrine applied or the procedures used in the foreign-

country court as compared to domestic legal principles. The

courts concluded that the foreign judgments in question were

repugnant to public policy because they would

unquestionably violate the Constitution were they issued here

with respect to domestic activity; those conclusions were not

fact-dependent. In other words, it was not debatable whether

the orders, if domestically issued and applied, could have

survived constitutional scrutiny.

The situation with which we are faced here is quite

otherwise. As will appear, it is highly debatable, at least,

whether tort liability could be imposed on the Church for

inducing Ohno’s Transfers, and the ultimate determination of

that question would be highly fact-dependent. As the

Japanese cause of action and judgment in this case are not

antithetical to the Religion Clauses, they are not repugnant to

California or U.S. public policy in the sense required by the

exception in California’s Uniform Act.

iii. Repugnancy of the Japanese Cause of Action and

Claims

In evaluating the repugnancy of a foreign cause of action,

we compare the legal basis for liability and the plaintiff’s

claims for relief in the foreign court with comparable grounds

for suit in the United States. If American law recognizes

generally parallel causes of action, the foreign cause of action

cannot be said to be repugnant to American public policy.24

24

T his condition is sufficient but not necessary for non-repugnancy.

There could be foreign causes of action that have no parallel in domestic

law but are not repugnant to any aspect of domestic law either.

42 OHNO V . YASUMA

This assessment does not depend on whether the

standards for evaluating a cause of action or the elements

required to state a claim are identical under domestic and

foreign law. Instead, we necessarily focus on the

fundamentals of the cause of action underlying the foreign

judgment and defenses thereto, “not the differences in the

bodies of law” or in the way in which remedies are afforded.

Soc’y of Lloyd’s v. Reinhart, 402 F.3d 982, 995 (10th Cir.

2005); see also Soc’y of Lloyd’s v. Turner, 303 F.3d 325, 332

(5th Cir. 2002). That a particular cause of action does not

exist, or that a particular claim would not be cognizable, in

California does not obligate us to refuse enforcement of a

judgment, as long as the existence of the cause of action is

not itself repugnant to California public policy. See

Restatement (Third) of Foreign Relations Law of the United

States § 482 cmt. f (1987); Restatement (Second) of Conflict

of Laws § 117 (1971).

Here, the Church was held liable under article 709 of the

Japanese Civil Code, which provides that “[a] person who has

intentionally or negligently infringe[d] any right of others, or

legally protected interest of others, shall be liable to

compensate any damages resulting in consequence.” Minpô

[Civ. C.] art. 709 (Japan). There is nothing repugnant to

California public policy about providing a damages remedy

for intentional or negligent injury to others’ rights or

protected interests. California tort law—and American tort

law generally—does exactly that. See, e.g., Cal. Civ. Code

§ 1714. And, while a party’s status as a religious entity or

believer may bear on certain relevant inquiries, such as

whether the party may assert a Religion Clause defense, that

does not render the party immune from liability under tort

law. Cf. Viewfinder, 489 F.3d at 480–81 (explaining that an

entity’s status as a news publication may bear on its assertion

OHNO V . YASUMA 43

of a “fair use” defense but does not entitle it to immunity

from liability under intellectual property laws). Accordingly,

the general availability of a tort remedy in Japan for a suit

against a church is not, on its face, repugnant to California

public policy.

We look next at the particular claims on which the tort

cause of action was based. Ohno’s claims are analogous to

actions for undue influence, fraud, negligent or intentional

infliction of emotional distress, and unjust enrichment under

California law. See Cal. Civ. Code §§ 1572 (fraud), 1575

(undue influence); 1714 (liability for willful or negligent

injury to others).25 The Church maintains that claims of

undue influence, fraud, negligent or intentional infliction of

emotion distress, or unjust enrichment are not cognizable in

California if the defendants’ actions giving rise to liability

were facially religiously motivated. At the level of generality

at which this assertion is made, it is false.

American courts can recognize tort liability for acts

assertedly motivated by religion. The Religion Clauses do

not bar tort claims against a religious entity or its members,

so long as adjudicating the cause of action does not require a

25

The Supreme Court of California and California Courts of Appeal

have recognized actions for relief under the equitable doctrine of unjust

enrichment. See Ghirardo v. Antonioli, 14 Cal. 4th 39 (1996) (recognizing

a cause of action for unjust enrichment upon a showing that the defendant

received benefit through another’s known mistake, fraud, coercion or

other tortious conduct); see also Hernandez v. Lopez, 180 Cal. App. 4th

932, 938 (2009) (“The doctrine applies where plaintiffs, while having no

enforceable contract, nonetheless have conferred a benefit on defendant

which defendant has knowingly accepted under circumstances that make

it inequitable for the defendant to retain the benefit without paying for its

value.”).

44 OHNO V . YASUMA

court to judge the validity of religious beliefs or interfere with

ecclesiastical decisionmaking regarding self-governance or

employment. See, e.g., United States v. Ballard, 322 U.S. 78,

86 (1944); Molko v. Holy Spirit Ass’n for Unification of

World Christianity, 46 Cal. 3d 1092, 1115–16 (1988); Elvig

v. Calvin Presbyterian Church, 375 F.3d 951, 956, 959–62

(9th Cir. 2004) (citing Bollard v. Cal. Province of Soc’y of

Jesus, 196 F.3d 940, 945–47 (9th Cir. 1999)).

The Religion Clause protections “embrace[] two

concepts—freedom to believe and freedom to act. The first is

absolute but, in the nature of things, the second cannot be.”

Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); see

also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir.

2009); Molko, 46 Cal. 3d at 1112. Conduct, including

speech-based conduct such as solicitation, “remains subject

to regulation for the protection of society.” Cantwell, 310

U.S. at 304. So recognizing, California courts have

entertained claims of fraud, undue influence, and intentional

infliction of emotional distress brought against religious

entities by former members seeking recovery of donations

and damages for harm. See, e.g., Molko, 46 Cal. 3d 1092;

Wollersheim v. Church of Scientology of Cal., 212 Cal. App.

3d 872 (1989) (“Wollersheim I”), vacated and remanded on

other grounds, 499 U.S. 914 (1991), amended by 6 Cal. Rptr.

2d 532 (Ct. App. 1992) (“Wollersheim II”).26 Religiously

26

The Supreme Court vacated and remanded Wollersheim I for

reconsideration of the punitive damages award in light of Pacific Mutual

Life Insurance Company v. Haslip, 499 U.S. 1 (1991). See Wollersheim,

499 U.S. 914 (1991). On remand, Wollersheim II “incorporated intact and

unaltered” the portion of Wollersheim I that “dealt exhaustively with the

tort [and] freedom of religion” issues. Wollersheim II, 6 Cal. Rptr. 2d at

534 n.1. The California Supreme Court subsequently granted review of

Wollersheim II, see 10 Cal. Rptr. 2d 182 (1992), but, “following the

OHNO V . YASUMA 45

motivated gifts have been set aside on a strong showing of

undue influence by religious advisors over the testamentary

act. See Sunland Home Found., Inc. v. Bourquin (In re Estate

of Bourquin), 161 Cal. App. 2d 289, 299–300 (1958).

With respect to speech related to solicitation for a

religious cause, there is no categorical bar under domestic

law to a claim in tort. The state is “free to regulate the time

and manner of solicitation generally, in the interest of public

safety, peace, comfort or convenience.” Cantwell, 310 U.S.

at 306–07. The preservation of this state regulatory authority

is important, given that speech may be the vehicle through

which undue influence is exerted, depending on the context

and manner in which it is conveyed. See, e.g., Dovydenas v.

The Bible Speaks (In re The Bible Speaks), 869 F.2d 628,

645–46 (1st Cir. 1989) (rejecting a church’s First Amendment

defense against claims that it exerted undue influence to

obtain gifts because the court’s findings rested on the

church’s secular statements and actions).

There are, to be sure, definite limitations on what

constitutes under California law a cognizable tort claim

arising from facially religious conduct: No cause of action

will be recognized where a plaintiff challenges the verity of

religious statements or beliefs. “It is settled that inquiry into

the truth or falsity of religious beliefs is foreclosed by

constitutional guarantees of religious freedom and that the

United States Supreme Court’s decision in TXO Production Corp. v.

Alliance Resource Corp., 509 U.S. 443 (1993), the California Supreme

Court dismissed its prior grant of review.” Church of Scientology v.

Wollersheim, 42 Cal. App. 4th 628, 637 (1996). Accordingly,

Wollersheim II and Wollersheim I— to the extent the earlier opinion was

incorporated into the later one—remain good law.

46 OHNO V . YASUMA

courts may ask only whether the proponent of a particular

religion holds his beliefs honestly and in good faith.”

Hallinan v. Roman Catholic Archbishop of S.F. (In re Estate

of Supple), 247 Cal. App. 2d 410, 414 (1966) (refusing to

pass on the truth of religious statements alleged to have

unduly influenced a testator’s actions). And the California

Court of Appeal has refused to entertain actions that require

the court to determine whether the actions of an individual

not party to the lawsuit were induced by faith or coercive

persuasion. Katz v. Superior Court, 73 Cal. App. 3d 952

(1977) (overturning conservatorship orders granted to parents

of members of the Unification Church who claimed their

children were brainwashed).

Similarly, under the Religion Clauses, claims of

intentional infliction of emotional distress against churches or

other religious entities “based merely on threats of divine

retribution” will not be allowed to proceed, Molko, 46 Cal. 3d

at 1120, because such threats, like “‘hell fire and damnation’”

preaching, are protected religious speech and cannot form the

basis of a claim for emotional distress, Wollersheim I, 212

Cal. App. 3d at 892–93. Under California law, suits alleging

purely emotional injury due to such religious expression are

not permitted, given that “[i]t is one of the functions of many

religions to ‘afflict the comfortable.’” Id. at 892. And

California courts have declined to recognize a cause of action

for negligent infliction of emotional distress as a result of

religiously motivated conduct because “religious

organizations owe no duty to members or former members

with respect to these forms of [emotional] injury.” Id. at 901.

As noted above, the Japanese law under which the Church

was sued permits liability for the infringement of another’s

rights based either on an intentional or negligent state of

OHNO V . YASUMA 47

mind. See Minpô [Civ. C.] art. 709 (Japan). To the extent

that Ohno’s claim amounted to one for merely negligent

infliction of emotional distress as a result of facially religious

conduct, it may not have been cognizable under California

law. But California courts have pronounced no bar to claims

for negligent infliction of economic injury, and Ohno clearly

asserted pecuniary losses as well as pain and suffering.

Moreover, the reason the California Court of Appeal has

given for barring recovery from religious entities for the

negligent infliction of emotional distress is not that such

liability necessarily offends the Religion Clauses, but rather

that religious organizations have no duty of care to avoid

causing their members emotional injury. See Wollersheim I,

212 Cal. App. 3d at 900–01. If such a duty of care exists

under Japanese law, this difference from California law does

not denote repugnance to a public policy embodied in the

Religion Clauses.

Ohno’s claims, which relate to economic as well as

emotional injury, do not directly impugn the Church’s

religious beliefs or teachings. The Japanese trial court

rejected the Church’s argument that the lawsuit was a purely

religious dispute and explicitly disavowed the notion that it

was scrutinizing the Church’s beliefs, stating that there was

no “need to make a judgment about the religious teaching

itself, in order to make a determination about the validity of

[Ohno’s] claim.” The court further recognized that

solicitation of donations by religious entities is legal and

protected from liability in Japan, so long as the methods used

are within the scope of what is “socially appropriate.” Where

inducement of donations incite anxiety, confusion, or terror,

however, such that the donation cannot be considered to be

based on the individual’s free will, then a tort can be

established. It was within these parameters that the Japanese

48 OHNO V . YASUMA

court adjudicated Ohno’s claims. Far from being so divergent

from domestic legal principles as to be repugnant to public

policy, the causes of action underlying the Japanese judgment

were generally similar to, although possibly broader than,

those that would be cognizable under California law.

In other words, had Ohno alleged that she had been

tortiously induced to donate hundreds of thousands of dollars

to a church in California, she could have sued the religious

entity or its officers here, too. Whether she would prevail on

the particular facts of her case or whether the defendants

could successfully raise constitutional defenses to any of her

claims is a separate question, which we address next. We are

not persuaded that the cause of action underlying the

Japanese judgment is antithetical to California public policy

regarding religious freedom.

iv. Repugnancy of the Japanese Judgment

We turn next to the repugnancy of the judgment itself.

The Church contends that the judgment is repugnant to public

policy because it is incompatible with the Religion Clauses of

the California and Federal Constitutions in two respects:

First, the judgment necessarily involved an assessment by the

court of the validity of the Church’s religious teachings; and,

second, the imposition of tort liability placed a burden on the

Church’s exercise of its religion without a compelling state

interest in doing so. As will appear, the first contention is

unsupported in the record. And the second cannot be grounds

for declaring the judgment repugnant to public policy

precisely because it presents a close question under California

and federal law. In this context, where a repugnancy

determination hinges on a definitive finding of conflict

OHNO V . YASUMA 49

between foreign and domestic law, the debatability of the

validity of the Church’s legal position is its downfall.

a.

Ohno’s tort suit rests largely on fact-bound

determinations regarding the nature of the actions that gave

rise to her asserted injuries. Ohno contends that “the actual

[Japanese] judgment was manifestly and explicitly concerned

with conduct—the coercion, the overpowering of [her] own

will, the deprivation of medications, the destruction of family

relations, and the targeted fleecing of [her] assets.” The

Church, however, characterizes the Japanese judgment as

imposing liability for Ohno’s reactions to its “protected

religious speech about the consequences of disobedience to

God’s commandments.”

By its plain language, the Japanese judgment does appear

to attach liability to the speech of a religious entity: The

illegal act is described as “inducement” or “solicitation,”

based on “fraudulent and intimidating statements.” But the

Japanese trial court neither limited its focus to speech that

was religious in nature nor rested its ruling on findings

regarding the content of any religious speech at issue. The

court made findings related to the Church’s communications

with Ohno regarding her living situation, contact with her

family, and medical care, as well as pressure exerted on her

to transfer funds to the Church, any or all of which may have

been secular in nature. And while the judgment recounts the

substance of some of the Church’s teachings, the court’s

language suggests that it attributed the harms Ohno suffered

not to the content of the Church’s threats, but to the context

in which they were made—that Ohno was isolated from her

family, not taking medication for her depression, and

50 OHNO V . YASUMA

suffering from general ataxia. The judgment states that the

Church’s conduct in soliciting money from Ohno, who was

“under such a psychological condition,” “incite[d] anxiety”

and “cause[d] terror,” such that the Transfers cannot be said

to have been made of Ohno’s free will. The record does not

support an inference that the Japanese court imposed liability

because of the “specific motivating ideology,” opinion, or

perspective behind the Church’s communication with Ohno,

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 829 (1995), or a finding regarding the truth or falsity of

the Church’s religious beliefs, see Ballard, 322 U.S. at 87–88.

While the facts of Ohno’s case may not be as egregious

as those in Wollersheim and Molko, where the plaintiffs

alleged they were physically coerced and deceived as to the

identity of the church they were joining, the difference is a

matter of degree, not kind. To be sure, California tort law

would require proof of elements not found in the Japanese

judgment. The tort of fraud under California law, for

example, requires intent to defraud. See Molko, 46 Cal. 3d at

1108; Collins v. eMachines, Inc., 202 Cal. App. 4th 249, 259

(2011). Similarly, to sustain a claim of intentional infliction

of emotional distress in California, a plaintiff must show

intent to cause, or reckless disregard for, emotional injury.

Wollersheim I, 212 Cal. App. 3d at 881. And under

California law, “undue influence” consists in “the use, by one

in whom a confidence is reposed by another, or who holds a

real or apparent authority over him, of such confidence or

authority for the purpose of obtaining an unfair advantage

over him” or “taking an unfair advantage of another’s

weakness of mind.” Cal. Civ. Code § 1575(1), (2) (emphasis

added).

OHNO V . YASUMA 51

The Japanese trial court’s judgment does not clearly

establish either knowledge or intent on the part of Yasuma or

Saints of Glory to “incite anxiety” or “cause terror.” Facts in

the record such as Yasuma’s discouragement of the use of

medication, Ohno’s regular attendance at Church services,

and the Church’s oversight of her living situation permit an

inference that Defendants were aware of Ohno’s vulnerable

mental and physical condition, and knew or should have

known of the likelihood of causing her emotional harm or

exerting undue influence. But the record reflects no discrete

findings regarding the Church’s knowledge of Ohno’s

depression and ataxia, whether Yasuma held a position of

confidence and authority over Ohno, and whether the Church

intended to take advantage of her.

For reasons we have surveyed, however, that the Japanese

court did not find all the requisite elements of the causes of

action for undue influence, fraud, or infliction of emotional

distress under California law does not make the judgment

antithetical to the basic precepts of tort law in this country, or

to constitutional principles. Enforcing a defamation or libel

judgment absent a finding of malice stands in direct tension

with constitutional principles, because it punishes speech on

the basis of content. In contrast, imposing tort liability absent

a finding of intent, for actions that may or may not constitute

protected religious conduct, does not give rise to the same

stark clash of legal principles.

b.

Even if a court in the United States could find the

requisite elements of Ohno’s tort claims, the Church

maintains, the Religion Clauses would bar recovery. But the

record does not show that the Church has so clearly made out

52 OHNO V . YASUMA

a viable Free Exercise defense as to render the Japanese

judgment antithetical to the fundamental principles

underlying American protection of freedom of religion.

To invoke the protection of the Religion Clauses against

a judgment in tort, the Church would have to demonstrate that

imposing liability in damages substantially burdened its

sincerely held religious beliefs or practices and that the

state’s justifications for that burden did not outweigh any

infringement on the Church’s religious freedom, under the

applicable standard of scrutiny.27 See Hernandez v. Comm’r,

490 U.S. 680, 699 (1989) (“The free exercise inquiry asks

whether government has placed a substantial burden on the

observation of a central religious belief or practice and, if so,

whether a compelling governmental interest justifies the

27

A “valid and neutral [state] law of general applicability,” such as a

domestic tort judgment similar to the Japanese judgment at issue here, that

has the incidental effect of burdening the free exercise of religion no

longer must withstand the “compelling interest” test articulated in

Sherbert v. Verner, 374 U.S. 398, 403 (1963), to survive constitutional

scrutiny. Emp’t Div. v. Smith, 494 U.S. 872, 879, 885 (1990); accord

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531

(1993). “[A] religious objector has no federal constitutional right to an

exemption from a neutral and valid [state] law of general applicability on

the ground that compliance with that law is contrary to the objector’s

religious beliefs.” N. Coast Women’s Care Med. Grp., Inc. v. San Diego

Cnty. Superior Court, 44 Cal. 4th 1145, 1155 (2008) (emphasis omitted).

As we explain below, however, we presume for purposes of our analysis

that the tort judgment at issue here, had it been rendered by a domestic

court, would have to survive strict scrutiny. “Under strict scrutiny, ‘a law

could not be applied in a manner that substantially burden[s] a religious

belief or practice unless the state show[s] that the law represent[s] the least

restrictive means of achieving a compelling interest.’” Id. at 1158

(alterations in original) (quoting Catholic Charities of Sacramento, Inc. v.

Superior Court, 32 Cal. 4th 527, 562 (2004)).

OHNO V . YASUMA 53

burden.”); Smith v. Fair Emp’t & Hous. Comm’n, 12 Cal. 4th

1143, 1166–67 (1996).

The threshold requirement for a defense based on the

Religion Clauses is to show that one sincerely holds beliefs

as religious views. Malik v. Brown, 16 F.3d 330, 333 (9th

Cir. 1994). Courts typically give credence to assertions of

sincerely held religious beliefs in absence of any challenge to

their sincerity or religious motives, and so long as they are

not “so bizarre, so clearly nonreligious in motivation, as not

to be entitled to protection under the Free Exercise Clause.”

Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707,

715–16 (1981); Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir.

2008) (taking the plaintiff’s assertion that his dietary needs

were religiously motivated as prima facie evidence of sincere

religious beliefs); Malik, 16 F.3d at 333 (giving credence to

the plaintiff’s testimony regarding the reasons for his

adoption of a Muslim name in absence of anything in the

record challenging the sincerity of his religious beliefs).

Construing the facts in the light most favorable to the Church,

as we must on review of summary judgment, we presume that

their actions were based on sincerely held religious beliefs.

Next, the Church would have to show that the order to

pay damages to Ohno imposed a “substantial or, in other

words, legally significant,” Smith v. Fair Emp’t & Hous.

Comm’n, 12 Cal. 4th at 1166–67, burden on its exercise of

religion. “[A] substantial burden must place more than an

inconvenience on religious exercise”; it must have a

“tendency to coerce individuals into acting contrary to their

religious beliefs” or “exert[] substantial pressure on an

adherent to modify his behavior and to violate his beliefs.”

Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456

54 OHNO V . YASUMA

F.3d 978, 988 (9th Cir. 2006) (internal quotation marks

omitted).

To be sure, “the burden of tort damages is direct.” Paul,

819 F.2d at 881. While a tort damages judgment does not

criminalize the conduct for which liability is imposed, it

effectively makes the challenged actions “unlawful.” Id.

Here, however, it is questionable whether the Church

could demonstrate that the burden imposed infringes on

protected religious beliefs, not merely on conduct

accompanied by such beliefs. Employment Division v. Smith,

494 U.S. 872 (1990), rejected the notion that “when otherwise

prohibitable conduct is accompanied by religious convictions,

not only the convictions but the conduct itself must be free

from governmental regulation.” Id. at 882. Accordingly, that

the Church’s conduct may have been motivated by religious

convictions does not shield it from tort liability for injuries

engendered by its actions.

Even if we presume that the Church could show the

imposition of tort liability to be a substantial burden on its

religious exercise, it would still have to surmount a final

hurdle: proving that its burden outweighed the governmental

interest in the regulation of tortious activity. Again,

construing the facts in favor of the Church, we presume that

strict scrutiny would apply and the judgment could be upheld

only upon demonstration that enforcement of tort law serves

a compelling state interest. Paul, 819 F.2d at 882–83 & n.6

(citing Sherbert v. Verner, 374 U.S. 398, 403 (1963)). This

presumption is appropriate, as a law of general application

that implicates “‘the Free Exercise Clause in conjunction with

other constitutional protections, such as freedom of speech

and of the press’” remains subject to strict scrutiny. San Jose

OHNO V . YASUMA 55

Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031

(9th Cir. 2004) (quoting Smith, 494 U.S. at 881). Because the

Church contends that the imposition of tort liability here

burdens its religious speech, this case might qualify as a

“‘hybrid’” one in an American court, triggering strict scrutiny

under federal constitutional law. See id. at 1031 (quoting

Miller v. Reed, 176 F.3d 1202, 1204 (9th Cir. 1999)).28

But we are not persuaded that a California court could not

conclude that “the state’s interest in allowing tort liability” as

a means of protecting vulnerable individuals against undue

influence, abuse of confidence for pecuniary gain, and fraud

is compelling enough “to outweigh any burden” imposed on

the Church’s action. See Molko, 46 Cal. 3d at 1117 (citing

Wisconsin v. Yoder, 406 U.S. 205, 221 (1972)). Nor are we

persuaded that a California court would not deem tort law the

least restrictive means of pursuing the state’s compelling

interests. This result is particularly likely given that the

religious expression at issue here was targeted at Ohno

specifically, rather than a more general audience. Holding

the Church liable in this case may discourage it from

28

The California Supreme Court has expressed skepticism about the

notion that a “hybrid claim” implicating more than one constitutional right

is entitled to heightened scrutiny under the Federal Constitution. See

N. Coast Women’s Care Med. Grp., Inc., 44 Cal. 4th at 1156–57.

Regardless, federal law does not control California’s interpretation of the

State Constitution. The California Supreme Court has not yet determined

what standard should apply under the California Constitution to a valid,

neutral state law of general applicability that burdens religious exercise.

See id. at 1158. W hatever the California standard might be, it would not

be stricter than strict scrutiny. Id. at 1159–60 (citing Catholic Charities

of Sacramento, Inc., 32 Cal. 4th at 559, 562). For our purposes, we assume

that a tort judgment imposing liability for facially religious conduct would

need to survive strict scrutiny under either the California or the Federal

Constitution, or both.

56 OHNO V . YASUMA

soliciting funds in the manner pursued here, from individuals

in a comparable psychological or medical state, or from

otherwise exerting undue influence to obtain donations in the

future. It does not, however, substantially inhibit Yasuma

and Saints of Glory from practicing their religion or

disseminating their teachings.

Construing the facts in the Church’s favor, Ohno may

well have failed to prevail in a California court on all her

claims. But it is far from “clear-cut,” Ackermann v. Levine,

788 F.2d 830, 841 (2d Cir. 1986), and so certainly debatable,

whether the Religion Clauses would bar an American court

from issuing the same judgment had the suit been brought

here. Moreover, as we cannot say, on the record before us,

that a court in this country could not have rendered the

judgment for Ohno had the events occurred entirely within

the United States, then we certainly cannot conclude that a

domestic court could not have issued the judgment where, as

here, the challenged conduct was directed at an individual in

Japan.

In sum, the Japanese award cannot be said to fall into the

narrow class of judgments that must be refused enforcement

because repugnant to public policy. Neither the law applied

nor the particular judgment issued is “so antagonistic” to the

public policy embodied in the Religion Clauses, Crockford’s

Club Ltd., 203 Cal. App. 3d at 1406, or so “inherently

vicious, wicked or immoral, and shocking to the prevailing

moral sense,” Viewfinder, 489 F.3d at 479–80, as to preclude

recognition.29

29

W e likewise reject the Church’s argument that the district court

abused its discretion in denying the Church’s motion for a continuance for

the purpose of developing evidence. The Church’s motion under former

OHNO V . YASUMA 57

Conclusion

The roots of California’s Uniform Act and its

presumption that foreign-country money judgments are

enforceable lie in principles of international comity:

When an action is brought in a court of

this country, by a citizen of a foreign country

against one of our own citizens, to recover a

sum of money adjudged by a court of that

country to be due from the defendant to the

plaintiff, and the foreign judgment appears to

have been rendered by a competent court,

having jurisdiction of the cause and of the

parties, and upon due allegations and proofs,

and opportunity to defend against them, and

its proceedings are according to the course of

a civilized jurisprudence, and are stated in a

clear and formal record, the judgment is prima

facie evidence, at least, of the truth of the

matter adjudged; and it should be held

conclusive upon the merits tried in the foreign

Federal Rule of Civil Procedure 56(f) was entirely lacking in specificity.

As the district court noted, given that “[the Church] vigorously litigated

the underlying proceedings in Japan, and even appealed the adverse

judgment,” counsel should have been able to identify with greater

particularity what type of evidence they believed existed in the Japanese

court records that could bolster their arguments. “[I]t is not enough to rely

on vague assertions that discovery will produce needed, but unspecified,

facts.” Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th

Cir. 1999) (internal quotation marks omitted). The evidence sought in a

Rule 56(f) motion must be more than the object of mere speculation.

M argolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998); see also Family

Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822,

827 (9th Cir. 2008). The Rule 56(f) motion was therefore properly denied.

58 OHNO V . YASUMA

court, unless some special ground is shown

for impeaching the judgment, as by showing

that it was affected by fraud or prejudice, or

that by the principles of international law, and

by the comity of our own country, it should

not be given full credit and effect.

Hilton, 159 U.S. at 205–06. The Church has not

demonstrated any such ground for non-recognition here.

Enforcement, by the district court, of the Japanese

damages award did not render the imposition of tort

liability domestic state action, subject to constitutional

constraints. Thus, the district court’s order did not directly

violate the Federal or California Constitution. Nor is the

Japanese judgment or the underlying cause of action so

antithetical to the protections afforded by the Religion

Clauses as to permit—let alone require—non-recognition

under California’s Uniform Act by reason of repugnancy to

public policy. For the foregoing reasons, the judgment of the

district court is

AFFIRMED.