Senate Bill No. 406

Introduced by Senator Evans

February 20, 2013

An act to amend Section 1714 of, and to add Title 11.5 (commencing with Section 1730) to Part 3 of, the Code of Civil Procedure, relating to tribal court civil judgments.

LEGISLATIVE COUNSEL’S DIGEST

SB 406, as introduced, Evans. Tribal Court Civil Judgment Act.

The Uniform Foreign-Country Money Judgments Recognition Act provides that foreign judgments that grant or deny recovery of a sum of money and that are final and conclusive are enforceable in California, with specified exceptions. The act includes within the definition of “foreign-country judgment” a judgment by any Indian tribe recognized by the government of the United States.

This bill would exempt Indian tribal judgments from the Uniform Foreign-Country Money Judgments Recognition Act, and would instead enact the Tribal Court Civil Judgment Act. The new act would likewise provide for the enforceability of tribal court judgments in California, but it would expand the range of judgments that may be enforced to include all civil tribal judgments, except as specified. The act would prescribe the procedure for applying for recognition and entry of a judgment based on a tribal court judgment, the procedure and grounds for objecting to the entry of judgment, and the bases upon which the court may refuse to enter the judgment or grant a stay of enforcement. The bill would require the Judicial Council to prescribe a form for the notice of filing the application for recognition of the tribal court judgment, as specified. The bill would require that this application be executed under penalty of perjury, which would expand the scope of the crime of perjury and thus impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1714 of the Code of Civil Procedure is
amended to read:

1714.  

As used in this chapter:

(a) “Foreign country” means a government other than any of
the following:

(1) The United States.

(2) A state, district, commonwealth, territory, or insular
possession of the United States.

(3) Any other government with regard to which the decision in
this state as to whether to recognize a judgment of that
government’s courts is initially subject to determination under the
Full Faith and Credit Clause of the United States Constitution.

(b) “Foreign-country judgment” means a judgment of a court
of a foreign country. begin delete “Foreign-country judgment” includes a
judgment by any Indian tribe recognized by the government of the
United States. end delete

SEC. 2.  

Title 11.5 (commencing with Section 1730) is added
to Part 3 of the Code of Civil Procedure, to read:

 

Title 11.5.  Tribal Court Civil Judgment Act

 

1730.  

This title shall be known and may be cited as the Tribal
Court Civil Judgment Act.

1731.  

(a) This title governs the procedures by which the
superior courts of the State of California recognize and enter tribal
court judgments of any federally recognized Indian tribe.
Determinations regarding recognition and entry of a tribal court
judgment pursuant to state law shall have no effect upon the
independent authority of that judgment. To the extent not
inconsistent with this title, the Code of Civil Procedure shall apply.

(b) This title does not apply to any of the following tribal court
judgments:

(1) For taxes, fines, or other penalties.

(2) For which federal law requires that states grant full faith and
credit recognition, including custody orders concerning Indian
children under the Indian Child Welfare Act (25 U.S.C. Sec. 1911),
protection orders under the Violence Against Women Act (18
U.S.C. Sec. 2265), or child support orders under the Child Support
Enforcement Act (28 U.S.C. Sec. 1738B).

(3) For which state law provides for recognition, including child
support orders recognized under the Uniform Child Custody
Jurisdiction and Enforcement Act (Part 3 (commencing with
Section 3400) of Division 8 of the Family Code), other forms of
family support orders under the Uniform Interstate Family Support
Act (Chapter 6 (commencing with Section 4900) of Part 5 of
Division 9 of the Family Code), or domestic violence protective
orders under the Uniform Interstate Enforcement of Domestic
Violence Protection Orders Act (Part 5 (commencing with Section
6400) of Division 10 of the Family Code).

(4) For decedent’s estates, guardianships, conservatorships,
internal affairs of trusts, powers of attorney, or other tribal court
judgments that arise in proceedings that are or would be governed
by the Probate Code.

(c) Nothing in this title shall be deemed or construed to expand
or limit the jurisdiction of either the state or any Indian tribe.

1732.  

For purposes of this title:

(a) “Applicant” means the person or persons who can bring an
action to enforce a tribal court judgment.

(b) “Civil action or proceeding” means any action or proceeding
that is not criminal, except for those actions or proceedings
expressly excluded by subdivision (b) of Section 1731.

(c) “Due process” includes, but is not limited to, the right to be
represented by legal counsel, to receive reasonable notice and an
opportunity for a hearing, to call and cross-examine witnesses,
and to present evidence and argument to an impartial
decisionmaker.

(d) “Good cause” means a substantial reason, taking into account
the prejudice or irreparable harm a party will suffer if a hearing is
not held on an objection or not held within the time periods
established by this title.

(e) “Respondent” means the person or persons against whom
an action to enforce a tribal court judgment can be brought.

(f) “Tribal court” means any court or other tribunal of any
federally recognized Indian nation, tribe, pueblo, band, or Alaska
Native village, duly established under tribal or federal law,
including Courts of Indian Offenses organized pursuant to Part 11
of Title 25 of the Code of Federal Regulations.

(g) “Tribal court judgment” means any written judgment, decree,
or order of a tribal court that was issued in a civil action or
proceeding that is final, conclusive, and enforceable by the tribal
court in which it was issued and is duly authenticated in accordance
with the laws and procedures of the tribe or tribal court. A tribal
court judgment shall be one of the following:

(1) A money judgment, including judgment in a civil action or
proceeding, to enforce civil regulatory laws of the tribe.

(2) A judgment for possession of personal property.

(3) A judgment for possession of real property.

(4) A judgment for the sale of real or personal property.

(5) A judgment that requires the performance of an act not
described in paragraphs (1) to (4), inclusive, or that requires
forbearance from the performance of an act.

1733.  

(a) An application for entry of a judgment under this
title shall be filed in a superior court.

(b) Subject to the power of the court to transfer proceedings
under this title pursuant to Title 4 (commencing with Section 392)
of Part 2, the proper county for the filing of an application is either
of the following:

(1) The county in which any respondent resides or owns
property.

(2) If no respondent is a resident, any county in this state.

(c) A case in which the tribal court judgment amounts to
twenty-five thousand dollars ($25,000) or less is a limited civil
case.

1734.  

(a) An applicant may apply for recognition and entry
of a judgment based on a tribal court judgment by filing an
application in superior court pursuant to Section 1733.

(b) The application shall be executed under penalty of perjury
and include all of the following information:

(1) The name and address of the tribal court that issued the
judgment to be enforced and the date of the tribal court judgment
or any renewal thereof.

(2) The name and address of the party seeking recognition.

(3) (A) Any of the following statements, as applicable:

(i) If the respondent is an individual, the name and last known
residence address of the respondent.

(ii) If the respondent is a corporation, the corporation’s name,
place of incorporation, and whether the corporation, if foreign, has
qualified to do business in this state under the provisions of Chapter
21 (commencing with Section 2100) of Division 1 of Title 1 of
the Corporations Code.

(iii) If the respondent is a partnership, the name of the
partnership, whether it is a foreign partnership, and if it is a foreign
partnership, whether it has filed a statement pursuant to Section
15800 of the Corporations Code designating an agent for service
of process.

(iv) If the respondent is a limited liability company, the
company’s name, whether it is a foreign company, and if so,
whether it has filed a statement pursuant to Section 17060 of the
Corporations Code.

(B) Except for facts that are matters of public record in this
state, the statements required by this paragraph may be made on
the basis of the applicant’s information and belief.

(4) A statement that an action in this state to enforce the tribal
court judgment is not barred by the applicable statute of limitations.

(5) A statement, based on the applicant’s information and belief,
that the tribal court judgment is final and that no stay of
enforcement of the tribal court judgment is currently in effect.

(6) If seeking recognition and entry of a money judgment, the
applicant shall include all of the following:

(A) The amount of the award granted in the tribal court judgment
that remains unpaid.

(B) If accrued interest on the tribal court judgment is to be
included in the California judgment, the amount of interest accrued
on the tribal court judgment, computed at the rate of interest
applicable to the judgment under the law of the tribal jurisdiction
in which the tribal court judgment was issued.

(C) The rate of interest applicable to the money judgment under
the law of the jurisdiction in which the tribal judgment was issued.

(D) A citation to the supporting authority.

(7) If seeking entry of a judgment, order, or decree providing
for relief other than monetary relief, the applicant shall include all
of the following:

(A) The terms and provisions of the relief provided in the tribal
court judgment, order, or decree and the extent to which the
responding party has complied with those terms and provisions.

(B) A statement that the tribal court judgment is not barred by
state law.

(8) A statement that no action based on the tribal court judgment
is currently pending in any state court and that no judgment based
on the tribal court judgment has previously been entered in any
proceeding in this state.

(c) All of the following items shall be attached to the application:

(1) An authenticated copy of the tribal court judgment, certified
by the judge or clerk of the tribal court.

(2) A copy of the tribal court rules of procedure pursuant to
which the judgment was entered.

(3) A declaration under penalty of perjury by the tribal court
clerk, applicant, or applicant’s attorney stating, based on personal
knowledge, that the case that resulted in the entry of the judgment
was conducted in compliance with the tribal court’s rules of
procedure.

1735.  

(a) Promptly upon the filing of the application, the
applicant shall serve upon the respondent a notice of filing of the
application to recognize and enter the tribal court judgment,
together with a copy of the application and any documents filed
with the application. The notice of filing shall be in a form that
shall be prescribed by the Judicial Council, and shall inform the
respondent that the respondent has 30 days from service of the
notice of filing to file objections to the enforcement of the
judgment. The notice shall include the name and address of the
applicant and the applicant’s attorney, if any, and the text of
Sections 1736 and 1737.

(b) Except as provided in subdivision (c), service shall be made
in the manner provided for service of summons by Article 3
(commencing with Section 415.10) of Chapter 4 of Title 5 of Part
2.

(c) If a respondent is the State of California or any of its officers,
employees, departments, agencies, boards, or commissions, service
of the notice of filing on that respondent may be by mail to the
office of the Attorney General.

(d) The fee for service of the notice of filing under this section
is an item of costs recoverable in the same manner as statutory
fees for service of a writ as provided in Chapter 5 (commencing
with Section 685.010) of Division 1 of Title 9 of Part 2, but the
recoverable amount for that fee shall not exceed the amount
allowed to a public officer or employee of this state for that service.

(e) The applicant shall file a proof of service of the notice
promptly following service.

1736.  

(a) If no objections are timely filed in accordance with
Section 1737, the clerk shall certify that no objections were timely
filed, and a judgment shall be entered.

(b) The judgment entered by the superior court shall be based
on and contain the provisions and terms of the tribal court
judgment. The judgment shall be entered in the same manner and
have the same effect and shall be enforceable in the same manner
as any civil judgment, order, or decree of a court of this state.

1737.  

(a) Any objection to the recognition and entry of the
tribal court judgment shall be served and filed within 30 days of
service of the notice of filing. If any objection is filed within this
time period, the superior court shall set a time period for replies
and set the matter for a hearing. The hearing shall be held by the
superior court within 45 days from the date the objection is filed
unless good cause exists for a later hearing. The only grounds for
objecting to the recognition or enforcement of a tribal court
judgment are the grounds set forth in subdivisions (b) and (c).

(b) A tribal court judgment shall not be recognized and entered
if the respondent demonstrates to the superior court that at least
one of the following occurred:

(1) The tribal court did not have personal jurisdiction over the
respondent.

(2) The tribal court did not have jurisdiction over the subject
matter.

(3) The tribal court judge was not impartial.

(4) The respondent was not afforded due process.

(c) The superior court may, in its discretion, decline to recognize
and enter a tribal court judgment on any one of the following
grounds:

(1) The tribal court judgment was obtained by extrinsic fraud.

(2) The tribal court judgment conflicts with another final
judgment that is entitled to recognition.

(3) The tribal court judgment is inconsistent with the parties’
contractual choice of forum.

(4) Recognition of the tribal court judgment or the cause of
action upon which it is based is against the fundamental public
policy of this state or the United States.

(d) If objections have been timely filed, the applicant has the
burden of establishing that the tribal court judgment is entitled to
recognition. If the applicant has met its burden, a party resisting
recognition of the tribal court judgment has the burden of
establishing that a ground for nonrecognition exists pursuant to
subdivision (b) or (c).

1738.  

The superior court shall grant a stay of enforcement if
the respondent establishes one of the following to the superior
court:

(a) An appeal from the tribal court judgment is pending or may
be taken in the tribal court, in which case the superior court shall
stay state execution of the tribal court judgment until the
proceeding on appeal has been concluded or the time for appeal
has expired.

(b) A stay of enforcement of the tribal court judgment has been
granted by the tribal court, in which case the superior court shall
stay enforcement of the tribal court judgment until the stay of
execution expires or is vacated.

(c) Any other circumstance exists where the interests of justice
require a stay of enforcement.

1739.  

An action to recognize a tribal court judgment or any
renewal thereof shall be commenced within the earlier of the
following periods:

(a) The time during which the tribal court judgment is effective
within the territorial jurisdiction of the tribal court.

(b) Ten years from the date that the tribal court judgment became
effective in the tribal jurisdiction.

1740.  

(a) The superior court may, after notice to all parties,
attempt to resolve any issues raised regarding a tribal court
judgment by contacting the tribal court judge who issued the
judgment.

(b) The superior court shall allow the parties to participate in,
and shall prepare a record of, any communication made with the
tribal court judge pursuant to this section.

1741.  

(a) The Uniform Foreign-Country Money Judgments
Recognition Act (Chapter 2 (commencing with Section 1713) of
Title 11 of Part 3) applies to all actions commenced in superior
court before the effective date of this title in which the issue of
recognition of a tribal judgment is raised.

(b) This title applies to all actions to enforce tribal court
judgments as defined herein commenced in superior court on or
after the effective date of this title. A judgment entered under this
title shall not limit the right of a party to seek enforcement of any
part of a judgment, order, or decree entered by a tribal court that
is not encompassed by the judgment entered under this title.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.