Thursday, January 4, 2018
Canada’s Attorney General Loses Her Case in C.A.
Acting Justice Bensinger Says A.G. Blew 10-Year Statute of Limitation on Registering Foreign Judgment
By a MetNews Staff Writer
Canada Attorney General
The attorney general of Canada, suing as the representative of Queen Elizabeth II, botched California’s statute of limitation in seeking enforcement of a foreign judgment here, the Court of Appeal for this district has ruled, effectively relieving a Los Angeles attorney of a $55,000 debt.
Although Canada’s status as a colony of the British Empire ended in 1931, the judgment creditor in the case, the United Kingdom’s Queen Elizabeth, remains the monarch of Canada (as well as Australia and New Zealand).
Representing Canadian Attorney General Jody Wilson-Raybould—who was plaintiff in an Los Angeles Superior Court action to gain California’s recognition of a June 25, 2003 judgment rendered by a court in Edmonton—was Los Angeles attorney H. Michael Soroy, who functions as Norway’s consul general here.
Despite the loftiness of the judgment creditor, her representative in the action, and the attorney for the representative, Div. Seven of the appeals court reversed a summary judgment granted on Jan. 27, 2016, by Los Angeles Superior Court Judge Frederick C. Shaller in favor of “domesticating” the foreign judgment.
In contrast to the prestigious stations of those seeking affirmance, the defendant, John Anthony Malone, who was sued in Canada for failing to repay his student loans, is an attorney who uses as his address a rented mailbox in Toluca Lake, and he was represented by Richard J. Sullivan who, as of last Saturday, has been on involuntary inactive bar status, with disciplinary charges pending against him.
Statutory Time Bar
Reversal was pegged to the language of Code of Civil Procedure §1721 which declares:
“An action to recognize a foreign-country judgment shall be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or 10 years from the date that the foreign-country judgment became effective in the foreign country.”
The judgment became effective in Canada in 2003 but, Wilson-Raybould argued, it was renewed in 2013, thus enlarging the time for seeking recognition of it in California. The action here was filed on Oct. 31, 2014, under the Uniform Foreign-Country Money Judgments Recognition Act.
Div. Seven rejected the Canadian attorney general’s view, in an unpublished opinion by Acting Justice Kerry R. Bensinger, a Los Angeles Superior Court judge sitting by assignment.
If the 2013 judgment-renewal had created a new judgment, Bensinger said, the 10-year period for registering a foreign judgment would have commenced anew then. But, she declared, that was not what Wilson-Raybould claimed to have occurred.
“The plain and dispositive fact is that the Attorney General sought to domesticate the 2003 judgment, not the 2013 renewal order as a new judgment. By failing to allege in her complaint or establish, based upon Canadian law, that the renewal constituted a new judgment, the Attorney General’s cause of action to domesticate the 2003 judgment is barred by the 10-year statute of limitations. When Malone asserted the statute of limitations in opposition to the summary judgment motion, the Attorney General did not argue the renewal was a new judgment, nor did she present Canadian law in support of such a position. Instead, the Attorney General relied on the erroneous argument that under California law the renewal of a foreign judgment extends the time to file an action in California to recognize the foreign judgment.”
On Aug. 25, Div. Seven requested supplemental briefing by the parties.
It queried whether it needed to apply “Canadian law to determine whether the Order Renewing Judgment was a new judgment or only extended the time to enforce the original judgment.” If it did need to apply Canadian law, and that law showed that a new judgment was created in 2013, the court asked, was it bound to “affirm the judgment because appellant’s opposition to the summary judgment motion did not present any argument under Canadian law and thus did not adequately support his statute of limitations defense?”
Wilson-Raybould’s response was:
“The weight of the authority provides Canadian law shall apply, which supports the renewal is not a new order, but rather an extension of the time to enforce the original judgment.”
“This concession highlights the operative point that the 2013 renewal order was an extension, not a new judgment.
Although the opinion reflected that the judgment creditor was “Her Majesty the Queen In Right of Canada,” it did not explain the basis under which Wilson-Raybould was allowed to sue in California in a representative capacity nor did it set forth the rationale for her suing not by name and capacity but simply as “Attorney General of Canada.”
Public records show that the attorney general of Canada filed an action against Malone on Sept. 9, 1997. There was no discussion of that earlier action in Bensinger’s opinion.
The case is Attorney General of Canada v. Malone, B276129.
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