De Fontbrune v. Wofsy et al

Filing 25

Order by Hon. Samuel Conti granting in part and denying in part 9 Motion to Dismiss.(sclc1, COURT STAFF) (Filed on 3/12/2014)

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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YVES SICRE DE FONTBRUNE,
Plaintiff,

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Northern District of California

United States District Court

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v.

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ALAN WOFSY, ALAN WOFSY &
ASSOCIATES, and DOES 1 through
100, inclusive,

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Defendants.
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Case No. 13-cv-05957-SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

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I.

INTRODUCTION

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Plaintiff Yves Sicre De Fotbrune ("Plaintiff") brings this

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action under the California Uniform Foreign-Country Money Judgments

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Recognition Act (the "Act"), Cal. Civ. Proc. Code 1713 et seq., to

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enforce judgments issued by French courts.

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("Compl.").

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(collectively, "Defendants") now move to dismiss.

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("Mot.").

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("Reply"), and suitable for determination without oral argument per

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Civil Local Rule 7-1(b).

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Motion is GRANTED in part and DENIED in part.

ECF No. 1 Ex. A

Defendants Alan Wofsy and Alan Wofsy & Associates
ECF No. 9

The Motion is fully briefed, ECF Nos. 18 ("Opp'n"), 19

For the reasons set forth below, the

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II.

BACKGROUND
The following facts are taken from Plaintiff's Complaint along

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with the exhibits attached thereto.

The instant action arises out

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of a copyright suit Plaintiff filed against Defendants in the

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French courts in 1996.

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(translation)) at 1.

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have artistic and literary property rights to a catalog of the

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works of Pablo Picasso created by Christian Zervos.

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asserted claims for copyright infringement and unfair competition

Compl. Ex. 2 ("Sep. 2001 Judgment"
In the French action, Plaintiff claimed to

Plaintiff

United States District Court

For the Northern District of California

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against Defendants based on their alleged reproduction of Zervos's

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photographs in two catalogs of Picasso artwork.

Id.

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The trial court held Mr. Wofsy harmless in the action and

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declared Plaintiff's claims "inadmissible[] due to his lack of

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proof of his locus standi."

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Paris Court of Appeals reversed.

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Defendants liable for copyright infringement, prohibited Defendants

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from using Zervos's photographs under penalty of "astreinte" 1 of

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10,000 Francs per discovered breach, ordered the destruction of the

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infringing materials, and awarded Plaintiff 800,000 Francs in

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pecuniary damages and 50,000 Francs in costs.

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Defendants appealed this judgment, but their appeal was dismissed.

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Compl. ¶ 9.

On September 26, 2001, the

Id. at 12.

The court held

Id. at 12-13.

In or around 2011, Plaintiff brought a case against Defendants

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Id. at 2.

before a French enforcement judge concerning the September 2001

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As discussed below, the parties disagree on the precise
translation of astreinte in this context. Plaintiff claims it
means damages, while Defendants claim it means penalty.

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judgment of the Paris Court of Appeals. 2

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Judgment" (translation)) at 3.

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rendered a judgment in the action.

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underlying facts and claims is vague, at least in the translation

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provided by Plaintiff, and Plaintiff's pleading does nothing to

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clarify the matter.

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Defendants had violated the terms of the September 2001 Judgment.

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The court awarded Plaintiff 2,000,000 Euros in "liquide

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l'astreinte" and 1,000 Euros for costs.

Compl. Ex. 6 ("Jan. 2012

On January 10, 2012, the court
The court's description of the

However, it appears that the court found that

Compl. Exs. 5, 6 at 3-4.

United States District Court

For the Northern District of California

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In September 2011, Plaintiff and Éditions Cahiers D'art filed

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another suit against Defendants concerning "works dedicated to the

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works of Picasso" before the Tribunal de Grande Instance de Paris.

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Compl. Ex. 16 ("Jan. 2013 Judgment" (translation)) at 2.

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Defendants did not engage an attorney for the proceeding.

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3.

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locus standi to bring his claims for copyright infringement

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because, on December 20, 2001, he transferred his intellection

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property rights in the works to Cahier D'art Holding.

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The tribunal concluded that Plaintiff's claims against Defendant

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were "inadmissible" and ordered Plaintiff to pay the costs of the

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proceedings.

Id. at

On January 13, 2013, the tribunal found that Plaintiff lacked

Id. at 4.

Id.

Plaintiff filed the instant action in California state court

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on November 14, 2013.

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grounds.

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of the Paris Court of Appeals be recognized as [a] valid judgment

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for Plaintiff and be entered as a California judgment."

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Defendant subsequently removed on diversity

Pursuant to the Act, Plaintiff demands that "the judgment

Id. pg. 6.

There appears to be a typo in the French Judgment, which is
repeated in the translation, setting the date of the underlying
judgment at September 26, 2011, rather than September 26, 2001.

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Plaintiff seeks a total sum of $2,688,101.03, which is allegedly

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the United States dollar equivalent of the 2,001,000 Euros awarded

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in the January 2012 Judgment.

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Plaintiff is seeking a California judgment in connection with the

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September 2001 Judgment.

Id.

There is no indication that

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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

United States District Court

For the Northern District of California

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

"Dismissal can be based

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.

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IV.

DISCUSSION
Defendants argue that the enforcement of the September 2001

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Judgment is barred by the statute limitations.

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argue that the Court cannot enforce the January 2012 Judgment

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because: (1) Plaintiff cannot use the Act to enforce a fine or a

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Defendants also

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penalty, and (2) the January 2013 Judgment shows that Plaintiff

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lacks standing to enforce the January 2012 Judgment.

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addresses each of these arguments, but first reviews the

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evidentiary and procedural issues raised by the parties.

The Court

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A.

Procedural Matters

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Plaintiff attached the September 2001, January 2012, and

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January 2013 judgments to his Complaint, along with English

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translations of those judgments.

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translations as inaccurate, and have offered purportedly accurate

Defendants object to the

United States District Court

For the Northern District of California

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translations of their own. 3

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Specifically, Defendants contend that the correct translation of

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the French word astreinte is "penalty," and that Plaintiff

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incorrectly translated the word as "damages."

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that the translation has legal significance because Plaintiff

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cannot recover penalties under the Act.

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motion to dismiss, Defendants have also submitted the declaration

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of Vonnick le Guillou, an attorney licensed to practice in France,

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who explains the legal effect of the French judgments cited in

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Plaintiff's pleading.

ECF No. 12 ("Obj.") at 3.

Id.

Defendants contend

In support of their

ECF No. 9-2 ("Guillou Decl.").

Plaintiff argues that the Court should strike these materials

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because Defendants may not submit evidence outside of the pleadings

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in support of a motion to dismiss.

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argues that the Court should not convert Defendants' motion to

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dismiss to a motion for summary judgment because Plaintiff has not

Opp'n at 5.

Plaintiff further

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The documents were translated by Jessica Crockett. Defendants
initially neglected to file a declaration by Ms. Crockett
explaining her qualifications as a translator, and instead
submitted a declaration by her supervisor. Defendants later
corrected their mistake by filing a supplemental declaration from
Crockett. ECF No. 20.

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had a sufficient opportunity to prepare for such a motion.

Id. at

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motion to a motion for summary judgment to consider its evidence.

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Reply at 1-2.

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court may properly consider documents referred to in the pleadings,

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and that their translations of the French judgments are just that.

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Id. at 3.

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consider the Guillou Declaration under Federal Rule of Civil

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Procedure 44.1.

Defendants respond that the Court need not convert the instant

Defendants argue that, on a Rule 12(b)(6) motion, a

Defendants also argue that the Court may properly

United States District Court

For the Northern District of California

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Even if the Court could consider Defendants' competing

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translation of the French Judgments on a Rule 12(b)(6) motion to

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dismiss, it is unclear how it could resolve factual disputes about

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the accuracy of that translation at this stage of the litigation.

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In any event, it appears that the only reason that Defendants have

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offered a competing translation is that they disagree with

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Plaintiff's translation of the French word astreinte.

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contend that the French court used the term to mean "penalty,"

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while Plaintiff claims that, in this context, it means "damages."

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This is primarily a legal issue, not an issue of translation.

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Java Oil Ltd. v. Sullivan, 168 Cal. App. 4th 1178, 1187 (Cal. Ct.

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App. 2008) ("The test is not by what name the statute is called by

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the legislature or the courts of the State in which it was passed,

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but whether it appears to the tribunal . . . a punishment of an

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offence against the public, or a grant of a civil right to a

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private person.").

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value.

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Defendants

See

Thus, the translators' opinions are of limited

As to the Guillou Declaration, Rule 44.1 does not support
Defendants' position.

The rule provides that the Court may

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consider "any relevant material or source" in determining foreign

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law, and that such a determination must be treated as a ruling on a

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question of law.

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not expressly allow the Court to consider evidence outside the

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pleadings on a Rule 12(b)(6) motion to dismiss.

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law holds that consideration of such evidence is inappropriate at

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the pleadings stage.

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of pleading the law and proving it as a fact.

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Crosby, 222 U.S. 473, 479 (1912).

Fed. R. Civ. P. 44.1.

However, Rule 44.1 does

Moreover, the case

A party relying on foreign law has the burden
See Cuba R. Co. v.

Thus, it is well settled that

United States District Court

For the Northern District of California

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federal courts do not take judicial notice of foreign laws.

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v. Macri, 261 F.2d 945, 947 (9th Cir. 1958) (citing Dainese v.

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Hale, 91 U.S. 13, 14 (1875)).

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take judicial notice of Guillou's explanation of French law.

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Defendants may submit this declaration at summary judgment, but it

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is premature at the pleading stage.

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Philp

Accordingly, the Court declines to

In sum, the Court declines to convert Defendant's Rule

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12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment

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and limits its analysis to Plaintiff's Complaint and the exhibits

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attached thereto.

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B.

The September 2001 Judgment

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Defendants argue that recognition of the September 2001

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Judgment is barred by the Act's ten-year statute of limitations.

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Mot. at 5 (citing Cal. Code Civ. Proc. § 1721).

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respond to this argument, though it appears that he is not seeking

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to enforce the September 2001 Judgment.

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seeks only $2,688,101.03, the U.S. dollar equivalent of the January

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2012 Judgment.

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dismiss a claim that Plaintiff has not made.

Plaintiff does not

The Complaint's prayer

In sum, it appears that Defendants are moving to

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In any event, to

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avoid uncertainty, the Court DISMISSES Plaintiff's claim to the

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extent that he seeks enforcement of the September 2001 Judgment.

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C.

The January 2012 Judgment

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Defendants contend that the Court should dismiss Plaintiff's

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complaint to the extent that it is based on the January 2012

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Judgment because: (1) Plaintiff cannot enforce fines and other

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penalties through the Act; and (2) Plaintiff lacks standing to

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enforce the judgment.

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The Court finds both arguments unavailing.

As to Defendants' first argument, the Act applies to a

United States District Court

For the Northern District of California

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foreign-country judgment to the extent that the judgment: (1)

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"[g]rants or denies recovery of a sum of money" and (2) "under the

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law of the foreign country where rendered, is final, conclusive and

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enforceable."

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not apply to a foreign-country judgment, even if the judgment

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grants or denies recovery of a sum of money," to the extent that

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the judgment is "[a] fine or other penalty."

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(b)(2).

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or other penalty" because it was awarded to punish Defendants for

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failure to comply with the September 2001 Judgment.

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Defendants further argue that the French court's use of the term

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"astreinte" proves that it meant to impose a penalty.

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Cal. Code Civ. Proc. 1715(a)(1)-(2).

The Act "does

Id. § 1715(b),

Defendants argue that the January 2012 Judgment is a "fine

MTD at 8.

Id.

Whether the 2,001,000 Euros awarded by the January 2012

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Judgment is a fine, a penalty, damages, or something else

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necessarily requires an analysis of French law.

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Section IV.A supra, such an analysis is premature at pleadings

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stage.

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pleading are too vague to support Defendants' position.

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unclear exactly what issues were before the French court or why it

As discussed in

Moreover, the court documents attached to Plaintiff's

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It is

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awarded Plaintiff 2,001,000 Euros.

At this point, it is sufficient

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that Plaintiff has alleged that the January 2012 Judgment

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constitutes an award of damages.

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assertion on a motion for summary judgment. 4

Defendants may contest this

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Defendants' second argument fails for similar reasons.

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Defendants argue that Plaintiff lacks standing not in this case,

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but in the underlying French action.

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point to the January 2013 Judgment, where the Tribunal de Grande

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Instance de Paris declared that Plaintiff lacked locus standi

MTD at 10-11.

Defendants

United States District Court

For the Northern District of California

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because he had transferred his rights to the Zervos photographs to

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a third party in 2001.

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Defendants argue that the January 2012 Judgment awarding Plaintiff

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2,001,000 Euros was in error and subject to revision under French

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law.

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beyond the pleadings on a Rule 12(b)(6) motion to dismiss.

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Court declines to do so.

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is final and enforceable requires evidence of French law and, thus,

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should be addressed at summary judgment.

Id.

Id.

Based on the January 2013 Judgment,

Once again, Defendants are asking the Court to look
The

Whether or not the January 2012 Judgment

Accordingly, the Court DENIES Defendant's motion to extent

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that it seeks dismissal of Plaintiff's claim for the 2,001,000

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Euros awarded by the January 2012 Judgment.

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Defendants' arguments in favor of dismissal of this claim are

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premature.

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///

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///

The Court finds that

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Significantly, the only Ninth Circuit authority cited by
Defendants on this point, Yahoo! Inc. v. La Ligue Contre Le Racisme
Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006), involved a
motion for summary judgment.

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V.

CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants

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Alan Wofsy and Alan Wofsy & Associates' Motion to Dismiss to the

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extent that it seeks dismissal of Plaintiff's claim for the 850,000

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Francs awarded by the September 2001 judgment.

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DENIED in all other respects.

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is hereby VACATED.

The Motion is

The hearing set for March 21, 2014

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IT IS SO ORDERED.

United States District Court

For the Northern District of California

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March 12, 2014

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UNITED STATES DISTRICT JUDGE

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