Judge: Curtis A. Kin, Case: 24STCP01594, Date: 2025-02-13 Tentative Ruling

Case Number: 24STCP01594    Hearing Date: February 13, 2025    Dept: 86

APPLICATION FOR RIGHT TO ATTACH ORDER

Date:               2/13/25 (1:30 PM)

Case:                           Expand Trading Co. v. See Global Events, Inc. (24STCP01594)

TENTATIVE RULING:

Plaintiff Expand Trading Co.’s Application for Right to Attach Order is DENIED.

Defendant See Global Events, Inc.’s objections to the declaration of Khalid Muhammad Abdulrahman Bawarith are OVERRULED.

Defendant See Global Events, Inc.’s objections to the declaration of Onur Sahin are SUSTAINED as to Objection Nos. 3-6 and 12 and otherwise OVERRULED.

In the instant action, plaintiff Expand Trading Co. seeks recognition of a $1,215,943.77 foreign judgment that it obtained against defendant See Global Events, Inc. in the Commercial Court of the Canton of Zurich, Switzerland (“Zurich Judgment”).

The Uniform Foreign-Country Money Judgments Recognition Act provides: “If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action seeking recognition of the foreign-country judgment.” (CCP § 1718(a).) The requirements for recognition of a foreign country judgment are that it “grants recovery of a sum of money; is final, conclusive, and enforceable in [the foreign country]; and is not a judgment for taxes, a fine, or other penalty, or a domestic relations judgment.” (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 199, citing CCP § 1715(a), (b); see also CCP § 1714(a) [definition of “foreign country”].) However, “[a] court of this state shall not recognize a foreign-country judgment if…[t]he defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend.” (CCP § 1716(c)(1)(A).)

For a court to issue a right to attach order, it must find that the “plaintiff has established the probable validity of the claim upon which the attachment is based.” (CCP § 484.090(a)(2).) “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (CCP § 481.190.) “If the defendant opposes the application, ‘the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’ [Citations.]” (Pech v. Morgan (2021) 61 Cal.App.5th 841, 855.)

Defendant opposes the instant application on the ground that plaintiff has not established that “the judgment is valid, that service was made or that notice was given in time for Defendant to defend the suit, in violation of CCP § 1716(c)(1).” (Opp. at 7:13-19; see also Answer, Thirteenth Affirmative Defense [alleging that “Plaintiff’s efforts to serve were unreasonable and not calculated to effect proper service on Defendant”].)  The Court agrees.

To demonstrate the probable validity of its claim for recognition of a foreign judgment, plaintiff relies on a declaration from Onur Sahin, an attorney who provided plaintiff legal support in its foreign lawsuit against defendant. (Sahin Decl. ¶ 1.) Sahin declares that defendant “was duly served with process in the Swiss Action in accordance with the laws of the Commercial Court of the Canton of Zurich. The service included both the original German-language documents and a certified English translation of the proof of service, which was generated by the office of the Consulate General for the Swiss Consulate in San Francisco, International Legal Assistance, pursuant to the Hague Convention. Additionally, the service was accompanied by proof of FedEx delivery to Defendant. The service was carried out by [Swiss lawyer Veysel] Oruclar in compliance with Swiss law, which follows the Hague Convention.” (Sahin Decl. ¶ 3; see also Sahin Decl. ¶ 5.) Attorney Oruclar also sent defendant’s counsel and principal an email indicating that the “Commercial Court of the Canton of Zurich is in the process of serving you with the claim.” (Sahin Decl. ¶ 4 & Ex. 4.)

As noted by defendant, however, Sahin is an attorney licensed in Turkey, not in Switzerland. (Sahin Decl. ¶ 1.) Moreover, Sahin merely facilitated communication between plaintiff and the office of Swiss lawyer Veysel Oruclar. (Sahin Decl. ¶ 1.) As a result, Sahin appears to not have personal knowledge as to whether service on defendant was proper under the Hague Convention, as is required under the California Evidence Code. (Evid. Code § 702(a) [“[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”]; see also Balcom v. Hiller (1996) 46 Cal.App.4th 1758, 1763 [“Failure to comply with the [Hague] Convention renders the service void, even if the defendant has actual notice of the lawsuit”].) The Court does not credit Sahin’s averments regarding compliance with the Hague Convention.

Plaintiff argues that the “Swiss court itself determined that service was proper when it proceeded to issue a final judgment.” (Reply at 4:11-13.) “While the rule of conflict of laws has been that in a suit on a foreign judgment the court of the forum could always inquire into the jurisdiction of the original court [citations], the increasing tendency is to treat a finding by the original court of jurisdictional facts…binding upon the court in which suit on the judgment is brought, when the question was originally duly litigated with proper notice and participation of all the parties affected by it.” (In re Estrem's Estate (1940) 16 Cal.2d 563, 570.) Plaintiff, however, does not explain where the Swiss court made any finding regarding whether service on defendant was effectuated in accordance with the Hague Convention. Indeed, the Swiss judgment and accompanying decision appears not to reference the Hague Convention at all. (Sahin Decl. ¶ 6 & Ex. 5.)

Plaintiff references a FedEx delivery that was sent by the Swiss Consulate General in San Francisco to defendant in Los Angeles. (Sahin Decl. ¶ 3 & Ex. 3.) It is unclear from Exhibit 3 what was included in the FedEx delivery. More importantly, plaintiff provides no explanation as to how this delivery complies with the requirements of the Hague Convention. To the extent that attorney Oruclar informed defendant about the action in Switzerland, Oruclar only stated that the Swiss court was “in the process of serving” defendant with the claim, not that the Swiss court actually served defendant. (Sahin Decl. ¶ 4 & Ex. 4.) In addition, while the FedEx delivery confirmation receipt states that the delivery was made to “Receptionist/Front Desk,” defendant’s principal maintains that he never received the delivery, and the office does not have a receptionist. (Biallas Decl. ¶ 15.) According to the principal, there is a receptionist on the first floor of the building, but the receptionist is not responsible for receiving defendant’s mail. (Biallas Decl. ¶ 15.)

Based on the foregoing, the Court cannot find on this record that plaintiff has established a probable validity of its claim for recognition of the Zurich Judgment, as there is insufficient evidence that defendant “receive[d] notice of the proceeding in sufficient time to enable the defendant to defend” in the Swiss court. (CCP § 1716(c)(1)(A).) The application is DENIED.