letter rogatory was appropriate because the trial court had entered a judgment against
Robinson, and Landstar was "seeking to collect on that judgment." Specifically, Landstar
sought to have judgment liens registered in Mexico in order to perfect security interests in
Robinson's right to receive the proceeds of the sale of real property located in Mexico and
held in trust for Robinson.
Landstar sought the assignment and restraining orders pursuant to provisions of
California's statutory scheme for enforcing judgments. (See §§ 708.510, 708.520.)
Landstar claimed it was entitled to these orders because Robinson had the right to receive
proceeds from the sale of certain real property located in Mexico, that right should be
assigned to Landstar up to the amount of the judgment, and Robinson should be
prohibited from disposing of that right.
Wells Fargo and Stapleton intervened in Landstar's action against Robinson to
oppose the motion. They argued: (1) the Convention does not authorize issuance of a
letter rogatory to enforce a domestic judgment in a foreign country; (2) Landstar had no
right to the requested assignment and restraining orders; and (3) Landstar's motion
2 Because the Convention is printed in full in federal statutory compilations, we deny as unnecessary the request of Wells Fargo and Stapleton that we take judicial notice of the Convention. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45, fn. 9 ["A request for judicial notice of published materials is unnecessary. Citation to the materials is sufficient."].)
4
impermissibly interfered with the receivership, Wells Fargo's Mexican lawsuit, and its
first-priority security interests.
In its reply papers, Landstar argued the request for a letter rogatory was a
procedurally proper attempt to provide notice that it claimed a right to property that may
be owned by Robinson. It withdrew its request for an assignment order. Nevertheless,
Landstar contended its "ancillary" request for a restraining order was proper because it
simply sought "to maintain the status quo" by ensuring that whatever property rights
Robinson possessed were not transferred to avoid Landstar's judgment.
The trial court granted Landstar's motion insofar as it requested issuance of a letter
rogatory and a restraining order. The letter rogatory requested that the appropriate
judicial authority in Mexico order the registration of judgment liens on real and personal
property owned by Robinson, including Robinson's rights as the beneficiary of a trust
holding title to real property located in Mexico. The court also issued an order
restraining Robinson from assigning or otherwise disposing of its rights concerning the
Mexican property held in trust for its benefit. At the request of Wells Fargo and
Stapleton, the court stayed issuance of the letter rogatory pending this appeal, but refused
to stay the restraining order.
II.
DISCUSSION
Wells Fargo and Stapleton argue the trial court erroneously issued the letter
rogatory and the restraining order. Specifically, they contend the Convention does not
authorize issuance of a letter rogatory designed to enforce a judgment, and
5
section 708.520 does not authorize issuance of a restraining order in the absence of a
corresponding assignment order issued under section 708.510. We agree with both
contentions for the reasons set forth below.
A. The Trial Court Erred by Issuing the Letter Rogatory
We first consider whether the trial court erroneously issued the letter rogatory that
Landstar requested. A letter rogatory is a document from one court to a foreign court
requesting the foreign court's assistance in performing a judicial act. (22 C.F.R. § 92.54
(2013); Lantheus Medical Imaging, Inc. v. Zurich American Ins. Co. (S.D.N.Y. 2012)
841 F.Supp.2d 769, 775.) Here, Landstar moved for an order issuing a letter rogatory
pursuant to the Convention on the ground that the registration of the judgment liens it
was requesting was a procedural act of a merely formal nature expressly authorized by
article 2(a) of the Convention. For reasons we shall explain, we disagree.
Our determination whether the letter rogatory requested by Landstar and issued by
the trial court was authorized by the Convention "begins with its text" (Medellín v. Texas
(2008) 552 U.S. 491, 506), which is "the ultimately dispositive source of judicial
decisionmaking" (Mitsubishi Materials Corp. v. Superior Court (2003) 113 Cal.App.4th
55, 69). Section II of the Convention defines its scope and consists of two articles.
Article 2 states in pertinent part:
"This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:
6
"a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad . . . ." (Convention, 28 U.S.C.A., supra, foll. § 1781, p. 595.)
Article 3 states: "This Convention shall not apply to letters rogatory relating to
procedural acts other than those specified in the preceding article; and in particular it
shall not apply to acts involving measures of compulsion." (Ibid.) Thus, we must
determine whether the letter rogatory that Landstar sought was, as it convinced the trial
court, an authorized request for performance of "procedural acts of a merely formal
nature" (ibid.); or whether the letter was, as Wells Fargo and Stapleton argued in the trial
court and argue again on appeal, an unauthorized request for performance of "acts
involving measures of compulsion" (ibid.).
The Convention does not define the phrase "procedural acts of a merely formal
nature" or the phrase "acts involving measures of compulsion." (Convention, 28
U.S.C.A., supra, foll. § 1781, p. 595.) We therefore apply general rules of construction
applicable to treaties to determine their meaning. The terms of a treaty "must be fairly
construed." (Valentine v. United States ex rel. Neidecker (1936) 299 U.S. 5, 11.) "The
clear import of treaty language controls unless 'application of the words of the treaty
according to their obvious meaning effects a result inconsistent with the intent or
expectations of its signatories.' " (Sumitomo Shoji America, Inc. v. Avagliano (1982) 457
U.S. 176, 180; accord, Air China Limited v. County of San Mateo (2009) 174 Cal.App.4th
14, 20.) In particular, where, as here, the terms of a treaty are not defined, the ordinary or
most natural meaning of the terms controls unless a restricted sense was clearly intended
or an absurdity would result. (Chan v. Korean Air Lines, Ltd. (1989) 490 U.S. 122, 134
7
& fn. 5; In re B. del C.S.B. (9th Cir. 2009) 559 F.3d 999, 1010; Kreimerman v. Casa
Veerkamp, S.A. de C.V. (5th Cir. 1994) 22 F.3d 634, 638 (Kreimerman); Tashiro v.
Jordan (1927) 201 Cal. 236, 246.) Also, "[o]ther general rules of construction may be
brought to bear on difficult or ambiguous passages." (Volkswagenwerk
Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 700; see also Estate of Ghio (1910)
157 Cal. 552, 561 ["treaties are subject to the same rules of interpretation as other
documents"].)
With these interpretive rules in mind, we first consider the phrase "procedural acts
of a merely formal nature" contained in article 2(a) of the Convention. In this context,
the most natural meaning of "procedural acts" is steps taken according to rules that
prescribe the manner of conducting litigation or other judicial business, as opposed to
rules that define parties' substantive rights and obligations. (See Webster's 3d New
Internat. Dict. (2002) p. 1807, col. 3 [defining "procedure"]; Black's Law Dict. (9th ed.
2009) p. 1323, col. 2 [defining "procedural law"].) In this context, the most natural
meaning of "formal" is "adhering to accepted forms, conventions, or regulations"
(American Heritage Dict. (2d coll. ed. 1985) p. 526, col. 1), such as the "special or
stipulated solemnities or formalities" required for an act "to become effective"
(Webster's, p. 893, col. 2). Thus, the plain meaning of the phrase "procedural acts of a
merely formal nature," as used in article 2(a) of the Convention, is customary or
conventional steps that are taken to provide a person with legally sufficient notice of a
proceeding or of a document filed or issued in a proceeding, but that do not alter the
person's substantive rights or obligations.
8
Moreover, in construing the general phrase "procedural acts of a merely formal
nature," we must also consider the specific terms "service of process, summonses or
subpoenas" to which the general phrase is joined by "such as." (Convention, 28
U.S.C.A., supra, foll. § 1781, p. 595.) The words of a treaty must be read in context (Air
France v. Saks (1985) 470 U.S. 392, 397; Kreimerman, supra, 22 F.3d at p. 638); and " 'a
word is given more precise content by the neighboring words with which it is
associated' " (Freeman v. Quicken Loans, Inc. (2012) ___ U.S. ___, ___ [182 L.Ed.2d
955, 958; 132 S.Ct. 2034, 2042]; see also Rossa v. D.L. Falk Construction, Inc. (2012) 53
Cal.4th 387, 397 [item in list should be interpreted with reference to other items in list so
as to make all items similar in nature and scope]; Coors Brewing Co. v. Stroh (2001) 86
Cal.App.4th 768, 778 [meaning of listed statutory term may be determined by reference
to characteristics it shares with other terms in list]). The specific items listed in
article 2(a) of the Convention — service of process, summonses, and subpoenas — are
examples of legal processes or documents designed to provide notice of a legal
proceeding or of a document involved therein. Additional examples of items considered
to be procedural acts within the meaning of article 2(a) of the Convention are listed in its
associated protocol, which prescribes rules for the preparation, transmission, and
processing of letters rogatory. (Additional Protocol to the Inter-American Convention on
p. 595.) In its motion, Landstar stated it was "seeking to collect on [the] judgment"
against Robinson, and registration of judgment liens against Robinson's property in
Mexico would "preserve Landstar's rights in that property." In a supporting declaration,
10
Landstar's counsel asserted that Landstar had retained a Mexican law firm "in order to
assist in attempts to enforce its judgment," and that he was "working with Landstar's
Mexico counsel in taking appropriate action to collect on Landstar's judgment." An
attorney with the retained firm stated in a declaration that as "part of the collection
efforts," he intended to register judgment liens in Mexico. At the hearing on the motion,
Landstar's counsel said: "Is that notice in furtherance of our trying to collect on
judgment? You bet. Obviously. Absolutely. Right. . . . We're trying to collect a
judgment." Finally, in the letter rogatory, the trial court requested the appropriate judicial
authority in Mexico to order registration of judgment liens against Robinson's property.
On this record, it is clear that Landstar requested and the trial court issued the letter
rogatory as part of Landstar's efforts to enforce its judgment against Robinson.3
3 Recording a judgment lien against a judgment debtor's property is a well- established method of enforcing a money judgment in California and other states. (See, e.g., §§ 697.310, 697.510 [enforcement of judgments law authorizes recordation of judgment liens on real and personal property]; Wells Fargo Financial Leasing, Inc. v. D & M Cabinets (2009) 177 Cal.App.4th 59, 69 [recording judgment lien is one step in process of sale of property to enforce judgment]; Mark Briggs & Associates, Inc. v. Kinestar, Inc. (1983) 143 Cal.App.3d 483, 486 [purpose of judgment lien is to give judgment creditor immediate security for subsequent enforcement of judgment]; Struzinski v. Struzinsky (1947) 133 Conn. 424, 429 [52 A.2d 2, 5] [purpose of judgment lien statute "was 'to provide an additional method of appropriating in satisfaction of [the] judgment real estate which could by law be taken on . . . execution' "]; Maniez v. Citibank, F.S.B. (2008) 383 Ill.App.3d 38, 41 [890 N.E.2d 662, 665] [judgment lien " 'affords a means of collecting a judgment by forcing the sale of the judgment debtor's property . . . to the extent necessary to satisfy the debt and costs' "]; Chambers v. Cardinal (2007) 177 Md.App. 418, 436 [935 A.2d 502, 513] [" 'a judgment lien is a general lien on real property of the debtor and signifies only the right of the judgment creditor to order the sale of the debtor's property to satisfy his judgment' "].) According to the Mexican lawyer retained by Landstar, recording a judgment lien in Mexico would have "the same and/or similar legal effects." 11
Use of a letter rogatory for enforcement purposes is not authorized by the
Convention, however. Efforts to enforce a judgment do not require performance of
"procedural acts of a merely formal nature" — the only type of acts authorized by the
Convention (28 U.S.C.A., supra, foll. § 1781, p. 595) — because such efforts do not seek
simply to provide the judgment debtor with legally sufficient notice of the judgment.
Rather, efforts to enforce a judgment seek to alter the judgment debtor's substantive
rights by depriving it of money or other property sufficient to satisfy the judgment.
Hence, efforts to enforce a judgment require performance of "acts involving measures of
compulsion," to which the Convention explicitly "shall not apply." (Ibid.)
Our conclusion that the Convention does not authorize issuance of a letter rogatory
designed to enforce a judgment is consistent with the Department of State's interpretation
of the Convention. "While courts interpret treaties for themselves, the meaning given
them by the departments of government particularly charged with their negotiation and
enforcement is given great weight." (Kolovrat v. Oregon (1961) 366 U.S. 187, 194
(Kolovrat); see also Abbott v. Abbott (2010) ___ U.S. ___, ___ [176 L.Ed.2d 789, 805,
130 S.Ct. 1983, 1993] ["It is well settled the Executive Branch's interpretation of a treaty
'is entitled to great weight.' "]; Denlinger v. Chinadotcom Corp. (2003) 110 Cal.App.4th
1396, 1403 [same].) In a letter to President Reagan recommending transmittal of the
Convention and the Additional Protocol to the Senate for ratification (which letter
President Reagan subsequently transmitted to the Senate along with the Convention and
the Additional Protocol), the Department of State advised the President that "[t]he
Convention, together with the Additional Protocol, establishes a mechanism for the
12
service of process and similar documents and for processing certain requests for
information which should . . . save American courts and litigants significant time, effort
and expense."4 More specifically, the Department of State wrote: "Article 2 limits the
scope of the Convention to the performance of procedural acts, such as service of
compulsory enforcement measures such as attachments, garnishments, restraining orders
and other enforcement-oriented measures from the purview of the Convention."5
The registration of a judgment lien does not involve either the service of
documents or the processing of a request for information, the purposes for which the
Convention was established. Further, the registration of a judgment lien is not among,
and bears little resemblance to, the specific procedural acts mentioned by the Department
of State as coming within the scope of the Convention. By contrast, the registration of a
judgment lien does resemble the specific measures the Department of State mentioned as
being expressly excluded from the scope of the Convention, in that all of those measures
are remedies available to creditors seeking to compel payment by debtors. (See
§§ 483.010, 484.010 [creditor on contract claim for money may apply for writ of
4 We grant the request of Wells Fargo and Stapleton to take judicial notice of the letter from the Department of State to President Reagan. Such official acts of the executive department of the United States are properly subject to judicial notice. (Evid. Code, § 452, subd. (c); Estate of Eng (1964) 228 Cal.App.2d 160, 164.)
5 The Department of State also noted parenthetically that the Additional Protocol "expands the list of examples of such procedural acts to include 'pleadings, motions, orders, and subpoenas'; it also provides that letters rogatory may be used to direct requests for information to a judicial or administrative authority, e.g., on the status of a ruling or case." 13
attachment against debtor's property], 697.310 [judgment creditor may record judgment
lien on judgment debtor's real property], 697.510 [judgment creditor may record
judgment lien on judgment debtor's personal property], 706.102 [judgment creditor may
apply for order garnishing judgment debtor's wages], 708.520 [judgment creditor may
apply for order restraining judgment debtor from transferring right to payment].) Thus,
under the Department of State's interpretation of the Convention, to which we give "great
weight" (Kolovrat, supra, 366 U.S. at p. 194), the letter rogatory issued by the trial court
requesting registration of judgment liens against Robinson's Mexican property involves
an enforcement-oriented measure expressly excluded from the scope of the Convention.
Finally, we note that several federal district courts have held that a letter rogatory
issued pursuant to the Convention was not a proper procedural device for enforcing a
753 ["a letter rogatory is an incorrect vehicle to enforce a foreign judgment"]; Tacul, S.A.
v. Hartford Nat. Bank & Trust Co. (D.Conn. 1988) 693 F.Supp. 1399, 1400 ["there is no
authority for the issuance of a writ of execution to enforce a foreign judgment through the
use of letters rogatory"]; In re Civil Rogatory Letters (S.D.Tex. 1986) 640 F.Supp. 243,
243 [enforcing foreign judgment "is beyond the scope of assistance which a United States
District Court may give pursuant to a request for judicial assistance by letters rogatory"].)
Although the decisions of lower federal courts are not binding on us, we consider them
persuasive where, as here, they decide a question of federal law (here, the interpretation
of a treaty) in a uniform way. (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316,
14
320-321; Spellman v. Securities, Annuities & Ins. Services, Inc. (1992) 8 Cal.App.4th
452, 459; In re Hogan (1986) 187 Cal.App.3d 819, 825.)
In sum, we hold that the Convention does not authorize the issuance of a letter
rogatory that has as its purpose the enforcement of a money judgment. Accordingly, the
trial court erred by issuing the letter rogatory that Landstar requested.
B. The Trial Court Erred by Issuing the Restraining Order
We next consider whether the trial court erroneously issued the restraining order
that Landstar sought pursuant to section 708.520. As pertinent to this appeal, that statute
provides: "When an application is made pursuant to Section 708.510 or thereafter, the
judgment creditor may apply to the court for an order restraining the judgment debtor
from assigning or otherwise disposing of the right to payment that is sought to be
assigned." (§ 708.520, subd. (a), italics added.) Section 708.510 authorizes a court, upon
the motion of a judgment creditor, to order a judgment debtor to assign a right to payment
to the judgment creditor. Thus, section 708.520 requires a judgment creditor who applies
for a restraining order to do so either at the same time as it applies for an assignment
order under section 708.510 or at any time after it has done so.
Landstar did not satisfy this express statutory requirement for issuance of a
restraining order. Although in its initial moving papers Landstar requested both an
assignment order and a restraining order under sections 708.510 and 708.520, in its reply
papers it withdrew the request for an assignment order. Statutory provisions governing
these remedies are subject to strict construction, however, because the remedies are
purely legislative creations; and to obtain them, a judgment creditor must comply with all
15
applicable procedural and other statutory requirements. (Casa Eva I Homeowners Assn.
v. Ani Construction & Tile, Inc. (2005) 134 Cal.App.4th 771, 778-779; Epstein v. Abrams
(1997) 57 Cal.App.4th 1159, 1167; Viotti v. Giomi (1964) 230 Cal.App.2d 730, 737; see
also Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th
1459, 1466 [same rule as to attachment statutes].) Therefore, since Landstar did not
comply with the requirement that it apply for an assignment order either before or at the
same time as it applied for a restraining order (§ 708.520, subd. (a)), the trial court erred
by issuing the restraining order. (Cf. Casa Eva I Homeowners Assn., at pp. 779-780
[affirming denial of motion for order for satisfaction of judgment lien because lien notice
did not contain warnings mandated by statute]; Epstein, at p. 1167 [reversing order
approving settlement under judgment lien statutes when creditor had contractual lien, not
judgment lien].)
DISPOSITION
The order directing issuance of a letter rogatory and the restraining order are
reversed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
HUFFMAN, J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that the Inter-American Convention on Letters Rogatory does not authorize letters rogatory for the purpose of enforcing a money judgment, and that a restraining order under Code of Civil Procedure section 708.520 cannot be issued without a corresponding or prior application for an assignment order under section 708.510.
Issues
May a court request the registration of judgment liens in a foreign country via a letter rogatory issued pursuant to the Inter-American Convention on Letters Rogatory?
May a court issue an order restraining the disposition of a right to payment pursuant to Code of Civil Procedure section 708.520 when it has not previously or simultaneously issued an order assigning the right to payment pursuant to section 708.510?
Disposition. reversed
Quotations verified verbatim against the opinion
“We hold that the Convention does not authorize the issuance of a letter rogatory that has as its purpose the enforcement of a money judgment.”
“Article 3 expressly excludes compulsory enforcement measures such as attachments, garnishments, restraining orders and other enforcement-oriented measures from the purview of the Convention.”
“section 708.520 requires a judgment creditor who applies for a restraining order to do so either at the same time as it applies for an assignment order under section 708.510 or at any time after it has done so.”