Moersch v. Zahedi

228 F.Supp.3d 1079

Carlo MOERSCH, Plaintiff,

v.Charles S. ZAHEDI, Defendant.

Case No.: SACV 16–00151–CJC(KESx)

United States District Court, C.D. California, Southern Division.

Signed January 13, 2017

Jonathan Charles Capp, Jonathan Capp Law Offices, San Diego, CA, for Plaintiff.

H. Michael Soroy, Kristin A. Ingulsrud, Law Offices of H. Michael Soroy, Los Angeles, CA, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Carlo Moersch, a citizen of Luxembourg, brings this action against Defendant Charles S. Zahedi, a citizen of California, under the Uniform Foreign Country Money Judgments Recognition Act ("the Uniform Act"), California Civil Procedure Code §§ 1713 et seq. (See generally Dkt. 1.) Plaintiff seeks recognition of a foreign judgment he obtained in Luxembourg against Defendant due to Defendant's apparent breach of a partnership agreement. (Id. ¶¶ 7–9, 16–17.) Before the Court is Plaintiff's motion for summary judgment. (Dkt. 19 [Notice of Motion]; Dkt. 22 [Memorandum of Points and Authorities].) For the following reasons, the motion is GRANTED.¹

II. BACKGROUND

In or about 2003, Plaintiff and Defendant were working as dentists in private practice in Luxembourg. (Dkt. 27–2 ¶¶ 1, 2.) Plaintiff and Defendant had entered into a partnership agreement in or about December 2002, which, among other things, required the parties to disclose to one another all patients they treated. (Id. ¶ 3.) Plaintiff brought a civil action against Defendant in La Cour Superieure de Justice in Luxembourg seeking to terminate the partnership and obtain damages due to Defendant's alleged breach of the agreement. (Id. ¶ 4; Dkt. 20 [Declaration of Jonathan Capp, hereinafter "Capp Decl."] ¶ 2; id. Ex. A at 2.) La Cour Superieure de Justice found in favor of Defendant on June 17, 2009. (Dkt. 27–2 ¶ 6; see id. Ex. A at 2.)

On March 21, 2012, the Luxembourg Court of Appeal reversed the lower court ruling and entered a judgment in Plaintiff's favor, which was formally entered on April 2, 2012 (the "2012 Judgment"). (Capp Decl. ¶ 2; see generally id. Ex. A.) The Luxembourg Court of Appeal determined that Defendant had been treating patients without Plaintiff's knowledge and "poaching" other patients. (Id. ) It therefore terminated the partnership and ordered Defendant to pay Plaintiff 300,000 euros under Article 15 of the partnership agreement, which it noted the parties agreed was "to be interpreted as a penalty clause." (Id. Ex. A at 3.) The Court of Appeal explained that:

Under Article 15 of the partnership agreement in case of non-disclosure and/or late disclosure (more than 31 days) of a payment made (by any means whatsoever) by a patient to one of the [sic] a partners under this agreement for their dental practice without the other partner being notified, the wronged partner is legally entitled to demand forfeitary compensation of 300,000 euros within 3 months since this failure maybe extrapolated to other undeclared earnings received but not yet discovered by the wronged partner.

(Id. ) The Court of Appeal found that Article 15 was "clearly not excessive" and declined to reduce the award. (Id. Ex. A at 4.) It also awarded Plaintiff an additional 10,000 euros for damages due to Defendant's "poaching of patients." (Id. Ex. A at 5.) Plaintiff now brings the present motion for summary judgment to enforce this judgment against Defendant, seeking a total of $413,075 (the equivalent of 310,000 euros) plus accrued interest. (Dkt. 22.)

III. LEGAL STANDARD

The Court may grant summary judgment on "each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). Summary judgment is proper where the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548. A factual issue is "genuine" when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the nonmovant's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" when its resolution might affect the outcome of the suit under the governing law, and is determined by looking to the substantive law. Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 249, 106 S.Ct. 2505.

In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ; United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630–31 (9th Cir. 1987). However, the "mere existence of a scintilla of evidence" is "insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson , 477 U.S. at 252, 106 S.Ct. 2505. Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise triable issues of fact and defeat summary judgment. Thornhill Pub. Co., Inc. v. GTE Corp. , 594 F.2d 730, 738 (9th Cir. 1979). The evidence the parties present must also be admissible. Fed. R. Civ. P. 56(c).

IV. DISCUSSION

Under the Uniform Act, California recognizes a foreign-country judgment to the extent that it both: "(1) Grants or denies recovery of a sum of money" and "(2) Under the law of the foreign country where rendered, is final, conclusive, and enforceable." Cal. Civ. Proc. Code §§ 1715(a)(1)–(2) ; 1716(a). The purpose of the Uniform Act was "to codify the most prevalent common law rules for recognizing foreign money judgments and thereby encourage the reciprocal recognition of United States judgments in other countries." Manco Contracting Co. (W.W.L.) v. Bezdikian , 45 Cal.4th 192, 198, 85 Cal.Rptr.3d 233, 195 P.3d 604 (2008).

The Uniform Act excludes the following, however: (1) "A judgment for taxes," (2) "A fine or other penalty," and (3) "A judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations." Cal. Civ. Proc. Code § 1715 (b)(1)–(3). The Act also provides that courts shall not recognize a foreign-country judgment if (1) it was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law, (2) if the foreign court did not have personal jurisdiction over the defendant, or (3) if the foreign court did not have subject-matter jurisdiction. Id. § 1716(b)(1)–(3). Furthermore, a court "is not required" to recognize a foreign-country judgment in a number of circumstances, including if the defendant did not receive notice in sufficient time to enable him to defend against the action, where the judgment was obtained by fraud, where the judgment is repugnant to the public policy of California or of the United States, where (in cases based on personal service) the foreign court was a seriously inconvenient forum for the trial, or where the judgment conflicts with another final and conclusive judgment. Id. § 1716(c)(1)–(9).

Under the Uniform Act, "[t]he party seeking recognition of a foreign-country money judgment has the burden to establish entitlement to recognition under the Act, while the party resisting recognition has the burden of establishing a specified ground for nonrecognition." Hyundai Sec. Co. v. Lee , 232 Cal.App.4th 1379, 1386, 182 Cal.Rptr.3d 264 (2015), as modified (Jan. 14, 2015), review denied (Apr. 29, 2015) (citing Cal. Civ. Proc. Code §§ 1715(c), 1716(d) ).

Here, Plaintiff has satisfied his burden of demonstrating grounds for recognition of the 2012 Judgment under the Uniform Act. Plaintiff has presented evidence that the Luxembourg Court of Appeal issued a judgment in his favor which grants recovery of a sum of money—310,000 euros, or $413,075.² (Capp Decl. ¶ 2; id. Ex. A; Dkt. 21 [Declaration of Grégori Tastet, hereinafter "Tastet Decl."] ¶¶ 2–3, 10.) The 2012 Judgment has been authenticated by an apostille certifying its authenticity pursuant to the Hague Convention of 1961, which is in force in Luxembourg and the United States. (Capp Decl. ¶ 2; id. Ex A; Tastet Decl. ¶ 3.) Plaintiff has also presented the testimony of Grégori Tastet, the attorney who represented him in Luxembourg (but not in the present action), who has been practicing civil litigation in Luxembourg since 1994, and he opined that the 2012 judgment is "final, conclusive, and fully enforceable in Luxembourg." (Tastet Decl. ¶ 16.) See Manco Contracting Co. , 45 Cal.4th at 201, 85 Cal.Rptr.3d 233, 195 P.3d 604 ("California courts must recognize a foreign judgment, regardless of whether it has been appealed or is subject to appeal, so long as the judgment is final, conclusive, and enforceable in the country where it was rendered."). Defendant provides no evidence to the contrary.³

Instead, Defendant claims that pursuant to Federal Rule of Civil Procedure 56(d), the Court should defer considering this motion, deny it, or allow additional time for discovery. (Dkt. 27 at 6.) Rule 56(d) grants district courts discretion to provide such relief where "a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R....