Judge: Layne H. Melzer, Case: 2022-01256827, Date: 2022-11-03 Tentative Ruling

Petitioner Bradd S Fisher

Motion - Other (Petition for Declaratory Relief)

After having considered the petition and supplemental briefing, the Court is not inclined to grant the petition for the reasons set forth, below.

First, the Court is not convinced that the relief requested is the appropriate subject of a declaratory relief action. Generally, “[t]he purpose of section 1060 of the Code of Civil Procedure is to provide a ready and speedy remedy ‘in cases of actual controversy relating to the legal rights and duties of the respective parties.’” (Leahey v. Department of Water and Power of City of Los Angeles (1946) 76 Cal.App.2d 281, 285, citation omitted.) The statute specifically refers to a person who is [1] “interested under a written instrument” or “under a contract”  [2]“who desires a declaration of his or her rights or duties,” [3] “with respect to another,” or in respect to “property” or the “location of the natural channel of a watercourse.” If the declaratory relief is granted, it “shall have the force of a final judgment.” (Code Civ. Proc. § 1060.)

Here, there is no “other party” joined in the case. While the petitioner states in effect that “the Republic of Italy” requires that certain ancestral records be clarified to permit a successful dual citizenship application, this Court has no ostensible authority to mandate a “final judgment” that would compel another country to honor an uncontested order affirming ancestral lineage. Petitioner has not pointed to any specific statute or authority that provides for non-contested declarations of ancestry. The Court is particularly concerned about entering such an order where, presumably, “someone” has found that petitioner’s initial offer of proof of lineage was not sufficient, yet that person has not been given notice of this petition, or an opportunity to submit a response.

Second, Petitioner states that more is needed by citing vague and general communications with Italy, but none of these communications have been submitted with the petition, (e.g., a formal written letter denying petitioner’s application).  Thus, the Court cannot confirm whether an “actual controversy” even exists. (Leonard Carder, LLP v. Patten, Faith & Sandford (2010) 189 Cal.App.4th 92, 96–97, citations omitted [“The ‘actual controversy’ language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. [Citation.] For a probable future controversy to constitute an ‘actual controversy,’ however, the probable future controversy must be ripe. [Citations.] A ‘controversy is “ ‘ripe’ ” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.'”].)

Indeed, our Supreme Court in construing an earlier, but virtually identical, version of Code of Civil Procedure section 1060 explained: “The ‘actual controversy’ referred to in this statute is one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. The judgment must decree, not suggest, what the parties may or may not do.” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117, citing Silva v. City & County of San Francisco (1948) 87 Cal.App.2d 784, 789.  No such mandatory decree is actually sought in this case—rather petitioner seeks an affirmation of its asserted ancestry so that petitioner can provide this “clarification” to the Republic of Italy.

Third, even assuming that an “actual controversy” exists, it nevertheless remains “within the trial court's discretion to grant or deny declaratory relief[.]” (Leonard Carder, LLP, 189 Cal.App.4th at 97; Code Civ. Proc. § 1061 [“The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances”].) Petitioner has proffered orders from two other trial courts, wherein these courts appear to have entered orders confirming ancestral lineage for the purpose of applying for dual citizenship. This court, however, is not bound by these trial court rulings, because they have “no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)  The Court does not find it prudent or appropriate to exercise that discretion under the circumstances.

In analogous circumstances, Courts have declined to exercise their ostensible discretion finding the dispute non-justiciable:

Certain controversies may be beyond the purview of the courts and thus, for example, courts will refuse to hear cases that present wholly political issues, … In addition, under the Act of State Doctrine, which is a judicially created doctrine treating as nonjusticiable claims that challenge certain acts of foreign sovereigns…courts of one country will not sit in judgment on the acts of the government of another done within its own territory.

1A Cal. Jur. 3d Actions § 43 [footnotes omitted]

Lastly, Petitioner alleges that the Italian Republic “will not recognize Petitioner’s Italian citizenship through descent (i.e., jure sanguinis) unless the Petitioner’s relationship to [his or her] immediate family and ancestors is clearly established.” (Petition at ¶ 8, emphasis added.) The records proffered as evidence may raise a rebuttable presumption that the information contained in the public record is correct, but they do not “clearly establish” the chain of lineage that Petitioner seeks to have the court declare as a “final judgment.” (Health & Saf. Code, § 103550; see Estate of Lensch (2009) 177 Cal.App.4th 667, 681.)

Petitioner may present further argument at the hearing.