Agrobiosol de Mexico etc. v. Agricola EPSA etc. CA4/1 ( 2021 )

Filed 3/25/21 Agrobiosol de Mexico etc. v. Agricola EPSA etc. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AGROBIOSOL DE MEXICO, S.A. DE D076551
C.V.,
Plaintiff and Respondent, (Super. Ct. No. 37-2017-
00026745-CU-MC-CTL)
v.
AGRICOLA EPSA, S.A. DE C.V.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed.
Scudi & Ayers, Morgan J.C. Scudi, and J. Ray Ayers for Defendant and
Appellant Agricola EPSA, S.A. de C.V.
Higgs Fletcher & Mack, John Morris, and Rachel Moffitt Garrard for
Plaintiff and Respondent Agrobiosol de Mexico, S.A. de C.V.
Agrobiosol de Mexico, S.A. de C.V. (Agrobiosol), a Mexican corporation,
initiated this action pursuant to California’s Uniform Foreign-Country Money
Judgments Recognition Act (Recognition Act), Code of Civil Procedure
sections 1713 to 1725,1 to recognize a judgment issued by a court of Mexico
against Agricola EPSA, S.A. de C.V. (EPSA), a Mexican corporation, that
included an award of interest at the rate of 5 percent per month. After the
parties stipulated to recognition of the Mexican judgment, Agrobiosol filed a
motion seeking a determination of the applicable interest rate under which
interest would be deemed to have accrued on the judgment under Mexican
law. The trial court ruled in favor of Agrobiosol and concluded the relevant
foreign interest rate was the 5 percent per month rate set forth in the
Mexican judgment. EPSA then moved to set aside the stipulation on the
ground it had initiated a collateral attack on the judgment in a court of
Mexico that had resulted in issuance of an order temporarily suspending
enforcement of the judgment in Mexico. EPSA argued this development
undermined the Mexican judgment’s eligibility for recognition under the
Recognition Act and supported setting aside the stipulation. The trial court
denied EPSA’s motion, finding EPSA had failed to offer a sufficient
justification for waiting to pursue the collateral attack until after entering
into the stipulation and receiving an adverse ruling on the relevant foreign
interest rate, and entered judgment in the amounts sought by Agrobiosol. On
appeal, EPSA challenges the court’s rulings on the foreign interest rate
motion and motion to withdraw from the stipulation. We affirm.
BACKGROUND
In July of 2013, Agrobiosol sold agricultural goods to EPSA, a grower of
produce in Mexico.2 The resulting debt was evidenced by a promissory note
signed by Jose Gonzalo Espinoza Pablos (Espinoza), EPSA’s sole officer and
1 Undesignated statutory references are to the Code of Civil Procedure.
2 EPSA contends this transaction was entered into fraudulently and
disputes whether the goods were actually delivered.
2
director, indebting EPSA in the principal amount of $7,406,619 Mexican
pesos3 and calling for interest to accrue at the rate of 5 percent per month
(i.e., 60 percent per year) in the event of default.
In August of 2013, Espinoza was terminated by EPSA’s majority
shareholder, Andrew and Williamson Sales Co. (A&W), a California
corporation with offices in San Diego, after A&W determined Espinoza had
mismanaged EPSA’s finances and purportedly had embezzled funds from
EPSA. EPSA was placed into administrative liquidation proceedings in
Mexico in late 2013.
A. The Mexican Judgment
In October of 2013, Agrobiosol sued EPSA in the First District Court of
Culiacan, Sinaloa, Mexico for nonpayment of the promissory note. On June
27, 2014, the district court entered judgment in favor of Agrobiosol in the
principal amount of $7,406,619 Mexican pesos (the Mexican judgment). The
Mexican judgment included an award of pre- and post-judgment interest at
the promissory note default rate of 5 percent per month, with interest to
accrue from the default date of September 18, 2013, “until the date when
payment is carried out for such amount.” EPSA appealed the judgment to an
intermediate court of appeal; the appeal was denied on August 29, 2014.
EPSA then sought review from Mexico’s high court, which denied review on
March 31, 2016.
B. Agrobiosol’s Recognition Action
On July 21, 2017, Agrobiosol filed this action against EPSA in San
Diego Superior Court seeking recognition of the Mexican judgment under the
Recognition Act, alleging the judgment had become final, conclusive, and
3 EPSA indicates that as of June 16, 2020, when it filed its opening brief
on appeal, this sum was the equivalent of approximately $308,000 U.S.
dollars.
3
enforceable following denial of review by the Mexican high court.4 Agrobiosol
alleged EPSA’s finances had been managed from A&W’s San Diego offices
and indicated it sought to domesticate the Mexican judgment in California so
it could later pursue enforcement of the judgment against A&W.5 Agrobiosol
attached a copy of the Mexican judgment, together with a certified English
translation, to the complaint. The Mexican judgment is itself a 21-page
document that includes the district court’s legal analysis as well as its award
of relief.
EPSA responded to Agrobiosol’s complaint with a motion asserting a
variety of legal challenges that are not relevant to this appeal. This motion
was denied on May 18, 2018.
C. The Stipulation
In December of 2018, counsel for Agrobiosol and EPSA entered into a
written stipulation titled “Stipulation for Entry of Foreign Judgment and to
Reserve Issue of Attorney’s Fee, Costs, and Foreign Interest Rate by Noticed
Motion.” Because the stipulation is significant to this appeal, we set it forth
in its entirety. It stated as follows:
“1. WHEREAS, Plaintiff, judgment creditor, [Agrobiosol], filed its
complaint in this matter on July 21, 2017, seeking recognition of its foreign
judgment pursuant to California Code of Civil Procedure § 1713, et seq.
4 Section 1715, subdivision (a) states, in relevant part, “this chapter
applies to a foreign-country judgment to the extent that the judgment both:
[¶] (1) Grants or denies recovery of a sum of money. [¶] (2) Under the law of
the foreign country where rendered, is final, conclusive, and enforceable.”
5 California courts are authorized to amend judgments to add additional
judgment debtors on the theory that the additional party is the alter ego of
the original judgment debtor, provided certain requirements are met. (NEC
Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778.)
4
“2. WHEREAS, Defendant, judgment debtor, [EPSA], in response to
the complaint, filed a Demurrer, Motion to Strike and Forum Non
Conveniens Motion (‘Motions’), which were heard and decided on May 18,
2018.
“3. WHEREAS, following oral argument and submission of all
moving and opposition papers, and evidence submitted by the parties, the
court denied all relief sought by Defendant in its motions.
“4. WHEREAS, the parties agree that the foreign (Mexican)
judgment may be recognized and that a California judgment may be entered
at this time as to the principal amount of the Mexican judgment, the parties
disagree as to the applicable interest rate on the foreign judgment prior to
recognition and entry of a California judgment; and whether attorney’s
fees/costs incurred in connection with the Mexican action may be added to the
California judgment.
“5. In an effort to proceed as efficiently as possible for the benefit of
the parties and the court, the parties enter into this stipulation.
“WHEREFORE, THE PARTIES STIPULATE AS FOLLOWS:
“A. The parties agree and stipulate that Plaintiff’s foreign judgment
filed and served as Exhibit A to Plaintiff’s complaint in this matter, may be,
and is to be recognized by the Court, as follows.
“B. A California judgment recognizing said foreign judgment is to be
entered in favor of Plaintiff and against Defendant, in the principal amount
of $7,406,619.00 Pesos, currency of Mexico (‘Judgment Amount’); plus
attorney’s fees/costs, if any, in the amount determined by the court at [a]
January 25, 2019 hearing.
“C. The post judgment interest rate on the ensuing California
judgment is to be entered at the legal California rate of 10 percent per annum
5
from the date of entry of the California judgment until satisfaction of
judgment.
“D. The interest rate on the foreign judgment to apply prior to
recognition and entry of the California judgment is to be determined by
noticed motion, which motion date has been reserved by Plaintiff for January
25, 2019, at 10:30 a.m.
“E. The foreign judgment interest and attorney’s fees/costs, if any, as
decided by the Court on, or as soon as the matter may be heard, [sic] January
25, 2019, is to be added to the California judgment, nunc pro tunc, as of
August 1, 2018, pursuant to this stipulation.
“F. The proposed California judgment is attached and submitted
herewith by the parties, as Exhibit 1.”6
D. Agrobiosol’s Foreign Interest Motion
On December 28, 2018, pursuant to the stipulation, Agrobiosol filed a
motion seeking a determination of the relevant rate at which interest should
be deemed to have accumulated on the Mexican judgment (the foreign
interest motion). Agrobiosol asserted that the parties had stipulated the
Mexican judgment could be recognized, but had disagreed over the relevant
foreign interest rate. It argued the governing legal interest rate under
Mexican law was the 5 percent monthly rate awarded in the Mexican
judgment itself, which, when applied to the principal debt of $7,406,619
Mexican pesos from the default date of September 17, 2013 through the
6 A partially-executed version of the stipulation signed by counsel for
Agrobiosol was filed as part of Agrobiosol’s ensuing foreign interest motion.
Agrobiosol filed the fully-executed stipulation with its reply brief in support
of the foreign interest motion on January 17, 2019.
6
stipulated end date of August 1, 2018, amounted to a total interest award of
$21,659,794.85 Mexican pesos.7
EPSA opposed Agrobiosol’s foreign interest motion on a number of
grounds. EPSA disputed Agrobiosol’s characterization of the stipulation and
maintained the parties had only agreed to recognition of the judgment
principal, not the award of interest. EPSA claimed Agrobiosol had thus failed
to meet its burden to prove the interest award met the requirements for
recognition. EPSA also argued that the interest award was not expressed as
a sum certain as required by section 1715, subdivision (a)(1), and that it was
subject to a further “ancillary proceeding” such that it was not final or
enforceable as required by section 1715, subdivision (a)(2). EPSA
additionally maintained that Agrobiosol was not entitled to prejudgment
interest on the Mexican judgment, and it asked the court to refuse to
recognize or to reduce the interest award on public policy grounds.
The trial court held a hearing on Agrobiosol’s foreign interest motion on
January 25, 2019. On January 29, 2019, the trial court issued a minute order
granting Agrobiosol’s motion. Noting the parties had stipulated it could
independently rule on the relevant foreign interest rate, the court granted
Agrobiosol’s motion insofar as it sought a determination that the relevant
foreign interest rate was 5 percent per month, and rejected EPSA’s claim that
the interest award failed to meet the requirements for recognition.
On February 14, 2019, EPSA filed a motion for reconsideration and
clarification of the court’s interest rate ruling, which it then replaced with an
amended motion for reconsideration and clarification on May 15, 2019.
7 Agrobiosol also sought to recover its attorney’s fees and costs from the
underlying litigation. As these requests are not at issue in this appeal, we do
not discuss them further.
7
E. EPSA’s Motion to Withdraw from the Stipulation
Also on May 15, 2019, EPSA filed a motion for leave to withdraw from
the stipulation. EPSA maintained that after entering into the stipulation, it
had consulted with new Mexican counsel who had filed an amparo
proceeding, a form of collateral attack on the Mexican judgment, in a district
court of Mexico (the amparo court). It argued this amparo proceeding, and a
resulting amparo court order temporarily suspending enforcement of the
Mexican judgment, served as a change in circumstances that justified setting
aside the stipulation. EPSA further asserted that it should be granted relief
because its California counsel had entered into the stipulation as a matter of
his own excusable neglect, based on his failure to realize EPSA had a
remaining basis for challenging the Mexican judgment.
Agrobiosol argued in opposition to EPSA’s motion that EPSA’s
initiation of the amparo proceeding was not truly a new fact or circumstance
justifying withdrawal, but instead represented a change in legal strategy
designed to avoid the trial court’s adverse ruling on the foreign interest
motion. Agrobiosol also disputed EPSA’s claim that EPSA could not have
discovered the potential basis for a collateral attack on the Mexican judgment
before entering into the stipulation.
On June 7, 2019, the trial court issued a minute order denying EPSA’s
motion for withdrawal from the stipulation, finding EPSA failed to
adequately justify its delay in pursuing the amparo proceeding. In the same
order, the court also denied EPSA’s motions for reconsideration and
clarification.
On June 24, 2019, pursuant to the parties’ stipulation, the court
entered judgment in favor of Agrobiosol and against EPSA in the total
8
amount of $29,066,413.85 Mexican pesos,8 plus postjudgment interest at
California’s legal interest rate.
DISCUSSION
EPSA challenges the trial court’s rulings granting Agrobiosol’s foreign
interest motion and denying EPSA’s motion to withdraw from the
stipulation.9
A. Recognition Act
Domestic recognition of the judgments of foreign tribunals was
historically granted under common law as a matter of comity. (AO Alfa-Bank
v. Yakovlev (2018) 21 Cal.App.5th 189, 197 (AO Alfa-Bank), discussing Hilton
v. Guyot (1895) 159 U.S. 113.) In 1962, the first uniform code (the 1962
Uniform Act) was promulgated to create clear rules for recognizing foreign-
8 Although “a California court, when enforcing a foreign judgment
rendered in foreign currency, must ordinarily convert the foreign currency to
American dollars using the exchange rate that was in effect at the time of the
foreign judgment” (Pecaflor Constr., Inc. v. Landes (1988) 198 Cal.App.3d
342, 350), no dispute has been raised on appeal as to the California judgment
being denominated in Mexican pesos.
9 In its opening brief, EPSA listed the trial court’s denial of its motion for
reconsideration as one of its issues on appeal, but then it failed to offer any
argument on this issue. Agrobiosol asserts that EPSA has thereby forfeited
this challenge. In its reply brief, EPSA appears to dispute Agrobiosol’s
assertion of forfeiture and seems to attempt an argument about the court’s
denial of its reconsideration motion. However, EPSA’s reply brief argument
is deficient, and EPSA furthermore offers no explanation for its failure to
present argument on the merits of the court’s denial of its reconsideration
motion in its opening brief. We conclude that this challenge has been
forfeited. (Stevenson v. City of Sacramento (2020) 55 Cal.App.5th 545, 555,
fn. 6 (Stevenson) [failure to raise argument in opening brief, without good
cause for doing so, forfeits the argument]; see also Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785 [“When an appellant . . . asserts [a point]
but fails to support it with reasoned argument and citations to authority, we
treat the point as waived.”].)
9
country money judgments. (AO Alfa-Bank, at p. 198.) The 1962 Uniform Act
was updated in 2005 (the 2005 Uniform Act) to clarify the procedure for
seeking recognition of a foreign judgment and to set forth applicable burdens
of proof, among other changes. (AO Alfa-Bank, at p. 198.) California adopted
the 1962 Uniform Act in 1967 and the 2005 Uniform Act in 2007. (AO Alfa-
Bank, at p. 199, citing Manco Contracting Co. (W.L.L.) v. Bezdikian (2008) 45
Cal.4th 192, 195, fn.1 & 198.) The Recognition Act, in its current form, is
codified at sections 1713 to 1725. (AO Alfa-Bank, at p. 199.) “Although not
binding, non-California authorities interpreting the 1962 or 2005 uniform
acts [on recognition of foreign money judgments] or applying comity
principles have persuasive value.” (Ibid., citing § 1722.)
In 2017, the Legislature amended sections 1714, 1716, and 1717. (AO
Alfa-Bank, supra, 21 Cal.App.5th at p. 199, citing Stats. 2017, ch. 168, § 3.)
Of these provisions, only section 1716, which sets forth defenses to
recognition, is at issue in this appeal. The effective date of the 2017
amendments is January 1, 2018. (See Stats. 2017, ch. 168, § 5.) This court
has determined the 2017 amendments apply only prospectively. (AO Alfa-
Bank, at p. 199.) Accordingly, the former version of section 1716 applies to
this case. (See 7 Witkin, Summary of Cal. Law (11th ed. 2017) Constitutional
Law § 700, p. 1073 [stating that a statutory amendment that deprives a
defendant of an existing defense cannot be applied to a pending action].)
A foreign-country judgment is subject to recognition under the
Recognition Act if it both “[g]rants or denies recovery of a sum of money”
(§ 1715, subd. (a)(1)), and, “[u]nder the law of the foreign country where
rendered, is final, conclusive, and enforceable” (§ 1715, subd. (a)(2)). The
party seeking recognition of a foreign judgment has the burden of proving the
judgment satisfies these requirements for recognition. (§ 1715, subd. (c).) If
10
the party seeking recognition meets its burden, the burden then shifts to the
party resisting recognition to establish the existence of one of the mandatory
or discretionary statutory grounds for nonrecognition in section 1716, former
subdivisions (b) and (c). (§ 1716, former subd. (d), now § 1716, subd. (e).) The
discretionary grounds for nonrecognition under former subdivision (c) of
section 1716 include that “[t]he judgment or the cause of action or claim for
relief on which the judgment is based is repugnant to the public policy of this
state or of the United States.” (§ 1716, former subd. (c)(3), now § 1716, subd.
(c)(1)(C).)
“If the court finds that the foreign country money judgment is entitled
to recognition in California, it is ‘[c]onclusive between the parties to the same
extent as the judgment of a sister state entitled to full faith and credit in this
state would be conclusive,’ and ‘[e]nforceable in the same manner and to the
same extent as a judgment rendered in this state.’ ” (AO Alfa-Bank, supra,
21 Cal.App.5th at p. 200, quoting § 1719, subds. (a)-(b).) In Hyundai
Securities Co., Ltd. v. Lee (2015) 232 Cal.App.4th 1379 (Hyundai), Division
Five of the Second District Court of Appeal interpreted section 1719 to mean
that the foreign-country judgment, upon entry as a California judgment, will
include interest accrued on the foreign judgment according to the law of the
foreign country where rendered. (Id. at p. 1390 & fn. 6.)
B. Foreign Interest Motion
1. Additional Background
Agrobiosol’s foreign interest motion began with the assertion that the
parties had stipulated the Mexican judgment could be recognized but had
been unable to agree on the applicable foreign interest rate. Citing Hyundai,
supra, 232 Cal.App.4th at page 1390, Agrobiosol maintained that the
relevant interest rate was to be determined under the law of Mexico, and that
11
the 5 percent monthly rate expressly awarded in the Mexican judgment itself
was necessarily the interest rate that applied under Mexican law. In support
of its motion, Agrobiosol submitted the declaration of its counsel, Mary
Robberson, together with a copy of the stipulation,10 as well as the
declaration of a Mexican attorney who calculated the interest accrued on the
Mexican judgment at the 5 percent monthly rate.
EPSA, in opposition, disputed Agrobiosol’s interpretation of the
stipulation. EPSA claimed the parties had only agreed to recognition of the
Mexican judgment principal, not the award of interest. EPSA argued
Agrobiosol had thus failed to meet its burden to prove that the interest award
met the statutory requirements for recognition. EPSA also argued that the
interest component of the Mexican judgment was not final or enforceable
because it was subject to a further “ancillary proceeding.” It based this
position on the declaration of a Mexican attorney, Cesar Humbert Hach
Delgado (Hach). Hach averred that the interest award was not final,
conclusive, or enforceable, and would not become so until Agrobiosol sought a
further court order through an “ancillary procedure.”11 Hach indicated this
assertion was based on a part of the Mexican judgment that stated (according
to its English translation) that the award of interest of 5 percent per month
“shall be quantified for its liquidation during the enforcement of the
judgment, by way of ancillary procedure because the amount is not claimed
as a liquidated amount.”
In addition to challenging the finality and enforceability of the interest
award, EPSA also argued the interest award was not expressed as a sum
10 See footnote 6, ante.
11 Hach did not explain the nature of this ancillary proceeding, what it
would entail, or how it stood to alter the resulting interest award, if at all.
12
certain and thus could not be recognized under section 1715, subdivision
(a)(1), which permits recognition only of foreign judgments that grant or deny
“recovery of a sum of money.” EPSA additionally disputed whether the trial
court had authority to include pre-judgment interest in the domesticated
judgment, and argued that the court should exercise its discretion to reduce
the interest rate on public policy grounds, both because the rate was
excessive and because, according to EPSA, the underlying promissory note
was tainted by fraud.
In its reply brief, Agrobiosol maintained that the parties had, in fact,
stipulated that the Mexican judgment could be recognized, and had agreed
the domesticated judgment would include interest in some amount.
Agrobiosol further maintained the parties’ only dispute was over the relevant
foreign interest rate, not whether interest would be included in the
domesticated judgment at all. Agrobiosol argued that EPSA was estopped
from taking, or had waived the right to take, a position that contradicted the
parties’ stipulation. Agrobiosol also asserted that the Mexican judgment’s
reference to liquidating interest in an ancillary proceeding should be taken to
mean that the amount of interest would need to be calculated, not that the
interest rate was subject to further alteration.
13
During the hearing on the foreign interest motion, the attorneys
continued to take opposing views of the stipulation.12 EPSA’s counsel
claimed “[t]he stipulation was only as to the principal with the other issues
left for the court’s determination,” and Agrobiosol’s counsel asserted “[w]e
stipulated that the judgment is final. [. . .] [A]t no time has there been any
question that the judgment is final.”
On January 29, 2019, the trial court issued a minute order ruling that
the relevant interest rate applicable to the Mexican judgment was 5 percent
per month. The court indicated the parties had agreed it could independently
rule on the relevant foreign interest rate and that it was issuing its opinion
“based on the parties[’] stipulation.” Noting that under Hyundai, supra, 232
Cal.App.4th at page 1390, the interest rate to be applied in determining
accrued interest on the Mexican judgment was the rate that “would apply in
Mexico,” the court found that “[c]ontrary to [EPSA’s] argument, the Court
does not find that the judgment at issue requires further proceedings in
Mexico to determine the rate or the amount of the interest. There is no
mention of a hearing on the merits as to whether or not the 5 percent
monthly interest rate should be awarded, since it is expressly awarded on the
face of the Mexican judgment.”
12 At the hearing on the foreign interest motion, EPSA’s counsel stated he
intended to submit a supplemental declaration from a Mexican attorney that
he claimed would provide further support for EPSA’s position that the
interest award was not final. Agrobiosol’s counsel objected that she had not
had the opportunity to review or respond to the declaration and asked that it
not be included in the record, to which the court responded, “[o]kay.” The
declaration does not appear in the relevant part of the record. Although the
trial court did not clearly state it was sustaining the objection of Agrobiosol’s
counsel, the presumption of regularity applies to lower court proceedings (In
re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556), and we infer from the
absence of the declaration in the appropriate part of the record that counsel’s
objection was sustained.
14
2. Standard of Review
Questions of law regarding the application and requirements of the
Recognition Act are reviewed de novo. (Hyundai Securities Co., Ltd. v. Lee
(2013) 215 Cal.App.4th 682, 688.) A determination whether to recognize an
element of a foreign-country judgment under the public policy provision of
former section 1716, subdivision (c)(3), is reviewed for an abuse of discretion.
(Hyundai, supra, 232 Cal.App.4th at p. 1385.)
3. Analysis
a. The Interest Award Was Sufficiently Certain
EPSA claims the interest award in the Mexican judgment did not
qualify as a “sum of money” as required by subdivision (a)(1) of section 1715,
because it was expressed as a percentage of the judgment principal rather
than as an amount of currency. (See § 1715, subd. (a)(1) [providing that the
Recognition Act applies to a foreign-country judgment that “[g]rants or denies
recovery of a sum of money”].) EPSA’s contention is substantially
undermined, however, by the Restatement Second of Conflict of Laws, section
108, subdivision (b), which states: “Interest. A judgment for a specified sum
together with interest from a given date is sufficiently certain if the rate of
interest is fixed either by the judgment or by some local law rule of the state
of rendition.” (See also North Carolina Nat’l Bank v. Marden (W.D.N.C.
1983) 561 F.Supp. 698, 699 [relying on section 108, subdivision (b) of the
Restatement Second of Conflict of Laws to hold that an award of interest at
2.5 percent above the plaintiff bank’s prime interest rate was not uncertain
so as to be unenforceable].)
EPSA relies on three decisions for the proposition that the interest
award was not expressed in sufficiently certain terms: Farrow Mortgage
Services Pty. v. Singh (Mass. Super. Ct., Mar. 30, 1995, No. CA 937171.) 1995
15
WL 809561, 1995 Mass. Super. LEXIS 495 (Farrow), Bianchi v. Savino Del
Bene International Freight Forwarders (App. Ct. Ill. 2002) 770 N.E.2d 684(Bianchi), and Nicor International Corporation v. El Paso Corporation (S.D.
Fla. 2003) 292 F.Supp.2d 1357 (Nicor). However, while each of these out-of-
state cases was decided under its respective state’s enactment of the 1962
Uniform Act, none of them involved an award of interest expressed as a
percentage of the principal debt. Rather, each dealt with an award that was
not reduced to numerical terms of any sort. (See Farrow, 1995 WL 809561 at
p. *4, 1995 Mass. Super. LEXIS at p. *11 [declining to recognize cost award in
judgment that awarded principal “plus costs” in an unstated amount];
Bianchi, at p. 697 [judgment awarding “back wages” without specifying a
wage or salary figure did not grant recovery of a sum of money]; Nicor, at
p. 1365 [holding a foreign judgment that found a debtor liable for damages in
an unstated amount failed to award a sum of money].) Thus, none of EPSA’s
cited authorities offer persuasive support for the conclusion that the interest
component of the Mexican judgment was expressed with insufficient
certainty. Accordingly, we reject EPSA’s first claim of error.
b. The Court Did Not Contravene Section 1715,
Subdivision (a)(2)
Next, EPSA argues the trial court erred in granting Agrobiosol’s foreign
interest motion. EPSA contends a judgment may be final as to some matters,
but not others. It further maintains that Agrobiosol failed to present
evidence that the interest component of the Mexican judgment was final,
conclusive, or enforceable, whereas EPSA did present evidence the interest
award would not become final or enforceable until after a further ancillary
16
proceeding.13 Thus, EPSA contends, the court’s ruling on the foreign
interest motion was unsupported by evidence that the interest award met the
requirements for recognition under section 1715, subdivision (a)(2).
Agrobiosol responds that the stipulation, by its express terms,
amounted to an agreement that the Mexican judgment in its entirety was
final and enforceable and met the requirements for recognition. In its reply
brief, EPSA disputes Agrobiosol’s contention. EPSA notes that the
stipulation did not expressly state that the interest component of the
Mexican judgment could be recognized. It further maintains that the
language of the stipulation should be interpreted to mean the parties agreed
to recognition only of the judgment principal, not the award of interest.
We conclude the court did not err. The parties stipulated that the
Mexican judgment was to be recognized by the court, and the court was
entitled to rely on the stipulation in ruling on the motion.
Whether the interest component of the Mexican judgment was final,
conclusive, and enforceable under the law of Mexico presented a question of
foreign law. Issues of foreign law are established by request for judicial
notice. (Evid. Code, §§ 310, 452, subd. (f).) A court may rely on the written
opinion of an expert to determine a question of foreign law. (Evid. Code,
§ 454, subd. (b).) Here, in disputing whether the interest component of the
13 In an effort to demonstrate error, EPSA cites evidence and provisions of
Mexican law that it submitted in support of its reconsideration motion, after
the trial court had already ruled on the foreign interest motion. One of the
general principles of appellate law is that we review “only those matters
which were before the court when it made its decision.” (Ramis v. Superior
Court (1977) 74 Cal.App.3d 325, 332 (Ramis).) Because the trial court did not
have the benefit of these materials when it ruled on the foreign interest
motion, we do not consider them in determining whether the court’s decision
was erroneous. As discussed in footnote 14, post, EPSA filed a belated
request for judicial notice of these and other materials, which we deny.
17
Mexican judgment met the requirements for recognition, EPSA relied on the
declaration of Hach,14 and Agrobiosol relied on the stipulation. “ ‘A
stipulation, although it is not itself evidence, is the equivalent of, and may be
relied on as, proof.’ ” (Harris v. Spinali Auto Sales, Inc. (1966) 240
Cal.App.2d 447, 452-453 (Harris).) “A stipulated judgment is as conclusive as
14 On February 16, 2021, almost six months after appellate briefs were
filed and less than three weeks before the date set for oral argument, EPSA
filed a motion requesting judicial notice of numerous materials: a declaration
and attached exhibits filed in support of EPSA’s motion challenging the
complaint, which is not at issue on appeal; the Hach declaration and attached
exhibits (an application filed in a court of Mexico and provisions of Mexican
law relating to attorney’s fees and costs), two copies of which were filed in
opposition to Agrobiosol’s foreign interest motion; two declarations and
attached exhibits (an application filed in a court of Mexico, a decision of an
appellate court of Mexico, and attached provisions of Mexican law) that were
filed after the trial court ruled on the foreign interest motion (see footnote 13,
ante); the declaration of a Mexican attorney, Javier Fernando Tarin Robles
(Tarin), and attached exhibit (an order of a court of Mexico), that EPSA filed
in support of its motion to withdraw from the stipulation; and a judgment
entered on July 23, 2019, in favor of A&W and against Espinoza and others
in a related and coordinated matter pending in San Diego Superior Court,
case No. 37-2013-00077045-CU-OR-CTL, as well as a minute order entered in
the same action on May 3, 2019. “An appellate court may properly decline to
take judicial notice under Evidence Code sections 452 and 459 of a matter
which should have been presented to the trial court for its consideration in
the first instance.” (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326;
see also People v. Preslie (1977) 70 Cal.App.3d 486, 494 [it is “desirable in the
interest of orderly judicial procedure that [a request for judicial notice] be
made well before” the briefing stage]; accord, City of Oakland v. Hassey
(2008) 163 Cal.App.4th 1477, 1488, fn. 5.) We deny the motion. It is unduly
belated, is unsupported by any indication judicial notice was first sought in
the trial court, and with the exception of the Hach and Tarin declarations, it
seeks judicial notice of matters that are irrelevant or that were not before the
trial court when it issued the decisions challenged on appeal. Although we
deny EPSA’s request for judicial notice, we have considered the Hach and
Tarin declarations and their respective exhibits as materials included in the
appellate record that were before the trial court when it decided the motions
at issue on appeal.
18
to the matters in issue it determines as a judgment after trial.” (Sargon
Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th
1495, 1507.) “Ordinarily, a party will not be permitted to contradict a
stipulation, even though it may be opposed to otherwise provable fact, and
even though the stipulation affects the statutory and constitutional rights of
the parties.” (Harris, at p. 453.) Although the court did not expressly state it
was relying on the stipulation to support its conclusion that the interest
component of the Mexican judgment met the requirements for recognition
under section 1715, subdivision (a)(2), we presume that it did. (Jameson v.
Desta (2018) 5 Cal.5th 594, 609 (Jameson) [“ ‘In the absence of a contrary
showing in the record, all presumptions in favor of the trial court’s action will
be made by the appellate court. “[I]f any matters could have been presented
to the court below which would have authorized the order complained of, it
will be presumed that such matters were presented.” ’ ”].)
There is no dispute that the stipulation amounted to a mutual
agreement that the requirements for recognition were met as to at least some
part of the Mexican judgment. While EPSA urges its concession only applied
to the judgment principal, not the award of interest, the trial court impliedly
rejected EPSA’s position and interpreted the stipulation in Agrobiosol’s favor.
This interpretation of the stipulation was not erroneous. “ ‘A
stipulation is a contract . . ., and is sometimes said to be governed by the
usual rules of construction of other contracts.’ ” (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 (Winograd)].) A contract
must be interpreted as a whole (Civ. Code, § 1641), so as to give effect to the
mutual intent of the parties (Civ. Code, § 1636). The terms of a stipulation,
like any agreement, “are determined by objective rather than by subjective
criteria. The question is what the parties’ objective manifestations of
19
agreement or objective expressions of intent would lead a reasonable person
to believe.” (Winograd, at p. 632.) “ ‘The parties’ undisclosed intent or
understanding is irrelevant to contract interpretation.’ [Citation.]” (Cedars-
Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 980 (Cedars-
Sinai).)
The language of the stipulation supports the view that the parties had
agreed the Mexican judgment in its entirety was eligible for recognition. The
stipulation referred to recognition of the Mexican judgment as a whole
instrument, not as to any particular part (“the foreign (Mexican) judgment
may be recognized . . .”; the parties “agree and stipulate that Plaintiff’s
foreign judgment filed and served as Exhibit A to Plaintiff’s complaint in this
matter, may be, and is to be recognized by the Court . . . .”). Had the parties
meant to agree that only certain components of the Mexican judgment could
be recognized, they could have done so using clear and express language to
that effect; they did not. And while the stipulation recited that the parties
disagreed over “the applicable interest rate,” a disagreement over the correct
interest rate is distinct from a dispute over whether interest was available at
all. The latter provision did not clearly and expressly carve out the interest
award from recognition. The parties’ stated agreement that a judgment could
be entered “at this time” as to the principal amount of the Mexican judgment
was consistent with the absence of a present dispute as to this sum, and did
not expressly limit the scope of recognition. Moreover, the parties’ agreement
to a summary proceeding followed by immediate entry of judgment tended to
indicate the scope of their remaining disputes was narrow and capable of
prompt resolution, which is inconsistent with the view that the ensuing
litigation over the interest component of the judgment would remain
effectively unlimited by the stipulation.
20
In its reply brief, EPSA points to the fact that after the parties entered
into the stipulation, it filed an opposition brief in which it denied having
agreed to recognition of the interest award. Indeed, both parties took
opposing views of their agreement as evidenced by their respective briefs and
their counsels’ arguments during the hearing.15 This conflict in the parties’
conduct and representations to the court amounted to a conflict in the
extrinsic evidence of the parties’ understanding of the stipulation. “Whether
the contract is reasonably susceptible to a party’s interpretation can be
determined from the language of the contract itself or from extrinsic evidence
of the parties’ intent. [Citation.] Extrinsic evidence can include the
surrounding circumstances under which the parties negotiated or entered
into the contract; the object, nature and subject matter of the contract; and
the subsequent conduct of the parties.” (Cedars-Sinai, supra, 137
Cal.App.4th at p. 980.) “When the competent extrinsic evidence is in conflict,
and thus requires resolution of credibility issues, any reasonable construction
will be upheld if it is supported by substantial evidence.” (Founding
Members of the Newport Beach Country Club v. Newport Beach Country Club,
Inc. (2003) 109 Cal.App.4th 944, 955-956.) The trial court impliedly resolved
this conflict in favor of Agrobiosol. Because the court’s resolution of this issue
was supported by substantial evidence and resulted in a reasonable
construction of the stipulation, we will not disturb it.
Accordingly, we reject EPSA’s claim that the trial court’s resolution of
the foreign interest motion was unsupported by evidence that the interest
15 In its response brief, Agrobiosol quotes extensively from statements
made by EPSA’s counsel during the hearing on EPSA’s motion to withdraw
from the stipulation. Because the quoted statements were not before the trial
court when it ruled on Agrobiosol’s foreign interest motion, we disregard
them. (Ramis, supra, 74 Cal.App.3d at p. 332.)
21
component of the Mexican judgment satisfied the requirements for
recognition under section 1715, subdivision (a)(2).
c. The Trial Court Did Not Err By Failing to Exclude
Pre-Judgment Interest on the Mexican Judgment
Next, EPSA argues the trial court erred by awarding Agrobiosol the
entirety of the interest award in the Mexican judgment, including
prejudgment interest, which EPSA claims was not legally authorized. EPSA
quotes a passage from Hyundai, supra, 232 Cal.App.4th 1379, in which the
court reasoned that “[s]ection 1719, subdivision (a) provides that recognition
of a foreign-country money judgment has the same conclusive effect as does
entry of a sister state judgment” and that “[u]pon entry of a sister state
money judgment, that judgment includes the amount of interest accrued on
the judgment ‘computed at the rate of interest applicable to the judgment
under the law of the sister state.’ ” (Hyundai, at p. 1390, quoting § 1710.25,
subd. (a)(2).) EPSA contends that notwithstanding this broad language,
because the Hyundai court was only confronted with a foreign award of
postjudgment interest, the quoted passage is dicta when applied to an award
of foreign prejudgment interest. EPSA argues the trial court in this case
therefore had no authority to recognize the prejudgment component of the
interest award.
We reject EPSA’s argument. First, while the factual scenario presented
in Hyundai was limited to a foreign judgment award of postjudgment
interest, the statutory authorities the court relied on nevertheless apply
equally to a foreign judgment award of prejudgment interest. In Hyundai,
the appellate court reasoned that under section 1719, subdivision (a),
recognition of a foreign country judgment will have the same conclusive effect
as entry of a sister state judgment. (Hyundai, supra, 232 Cal.App.4th at
p. 1390.) The court further reasoned that entry of a sister state judgment is
22
governed by section 1710.25, which states, at subdivision (a)(2), that a
California judgment based on a sister state judgment will include “the
amount of interest accrued on the sister state judgment ‘computed at the rate
of interest applicable to the judgment under the law of the sister state.’ ”
(Hyundai, at p. 1390.) Section 1710.25, subdivision (a)(2), does not impose
limits on the period of accrual of interest, nor does it prohibit inclusion of a
sister-state’s prejudgment interest award upon entry as a California
judgment, provided prejudgment interest is available under the law of the
sister state and awarded in the sister-state judgment. Moreover, full
recognition under section 1719, subdivision (a), of a foreign judgment that
awards prejudgment interest requires recognition of the prejudgment
component of the interest award. (See Ingersoll Milling Machine Co. v.
Granger (7th Cir. 1987) 833 F.2d 680, 691 [holding Illinois would recognize a
Belgian judgment award of prejudgment interest under its version of the
1962 Uniform Act, and specifically under the statutory provision that “ ‘[t]he
foreign judgment is enforceable in the same manner as the judgment of a
sister state which is entitled to full faith and credit,’ ” because “[t]he Belgian
judgment includes prejudgment interest. Full recognition and enforcement of
that judgment includes an award of prejudgment interest.”].)
Accordingly, we reject EPSA’s claim that the trial court erred by
awarding Agrobiosol prejudgment interest on the Mexican judgment.
d. EPSA Fails to Establish the Trial Court Abused Its
Discretion in Considering EPSA’s Public Policy
Defense
EPSA’s final challenge to the trial court’s interest rate ruling relates to
the public policy defense to recognition of a foreign judgment. EPSA cites
Hyundai, supra, 232 Cal.App.4th at pages 1385 and 1390 to 1392, in which
the court held that a foreign postjudgment interest rate of 20 percent per
23
year did not meet the high bar for repugnancy to California public policy
under former section 1716, subdivision (c)(3).16 (Hyundai, at p. 1391.) In
reaching this conclusion, the court emphasized that the debtor “ha[d] not
argued that the trial court failed to exercise its discretion or abused its
discretion. Instead, he argued that the trial court was legally compelled to
reduce the postjudgment interest rate to [the California legal rate of] 10
percent. We reject this contention.” (Id. at pp. 1391-1392.)
EPSA claims the quoted passage of the Hyundai decision demonstrates
that the trial court in this case possessed discretion to reduce or decline to
enforce the interest award in the Mexican judgment on public policy grounds.
EPSA maintains that the trial court failed to discuss EPSA’s public policy
defense during the motion hearing or in its minute order. EPSA claims the
court’s failure to explicitly address its request to reduce or refuse to enforce
the interest award on public policy grounds indicates the court was unaware
it had such discretion, and that it therefore failed to exercise its discretion.
EPSA asserts that it “does not contend that the Trial Court was compelled to
reduce the interest rate” but “[r]ather, [its] position is that the Trial Court
erred in failing to even consider whether it had discretion to reduce the
interest rate based on public policy.”
EPSA fails to demonstrate reversible error. As the appealing party, it
is EPSA’s burden to establish that the trial court abused its discretion.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) EPSA presumes from the
court’s silence that there was such an abuse. We, however, presume the
16 Section 1716, former subdivision (c)(3), provided that “[a] court of this
state is not required to recognize a foreign-country judgment if . . . [¶] [t]he
judgment or the cause of action or claim for relief on which the judgment is
based is repugnant to the public policy of this state or of the United States.”
(Stats. 2007, ch. 212, § 2.)
24
opposite. “ ‘A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. This is not
only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ ” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564 (Denham); Jameson, supra, 5 Cal.5th at pp. 608-
609.) In its reply brief, apparently seeking to dispel this presumption, EPSA
claims it sought a statement of decision on this issue and suggests the court
erred in not providing one. However, statements of decision are not required
on the grant or denial of a motion. (§ 632 [statements of decision may be
requested following a court trial]; Lavine v. Hospital of the Good Samaritan
(1985) 169 Cal.App.3d 1019, 1026 [statement of decision “neither required
nor available upon decision of a motion”].) Moreover, a review of the record
reveals EPSA’s request for a statement of decision was made within a brief
EPSA filed in support of its amended motion for reconsideration some three
and a half months after the trial court issued its interest rate ruling. This
request did not comply with section 632. (§ 632 [statement must be
requested within 10 days after the court announces a tentative decision].)
Accordingly, we reject EPSA’s assertion of error.
C. EPSA’s Motion to Withdraw from the Stipulation
1. Additional Background
EPSA moved to withdraw from the stipulation under section 473,
subdivision (b), on the basis that it had filed a collateral attack on the
constitutionality of the Mexican judgment in Mexico. In support of this
motion, EPSA presented the declaration of its Mexican counsel, Javier
Fernando Tarin Robles (Tarin). Tarin indicated that on March 5, 2019, EPSA
had initiated an amparo proceeding in a district court of Mexico challenging
25
the constitutionality of the Mexican judgment. He explained that an amparo
proceeding is a form of collateral attack available to redress a violation of
rights under the Mexican Federal Constitution. According to Tarin, EPSA
alleged in its amparo proceeding that its due process rights had been violated
during the litigation that resulted in the Mexican judgment. The asserted
due process violation was that Espinoza, EPSA’s former director, had
appeared at an evidentiary hearing and had ratified the promissory note on
EPSA’s behalf at a time when he had already been dismissed by EPSA and
lacked authority to act for EPSA. If successful, Tarin indicated, the amparo
proceeding would have the effect of vacating the Mexican judgment and
reinstating the underlying litigation at the point preceding the alleged due
process violation. Tarin further averred that at EPSA’s request, on March
13, 2019, the amparo court had issued an order suspending enforcement of
the Mexican judgment pending resolution of the amparo proceeding on the
merits.
EPSA argued its initiation of the amparo proceeding, and the amparo
court’s issuance of the stay order, rendered the Mexican judgment at least
temporarily nonfinal and unenforceable, which it claimed was a new fact or
circumstance that warranted setting aside the stipulation.
EPSA also sought to withdraw from the stipulation on the ground that
its California counsel had entered into the stipulation as the result of
excusable mistake or neglect. On the latter point, EPSA submitted the
declaration of its California counsel, J. Ray Ayers, who stated that he had
entered into the stipulation in the interest of stopping the accrual of interest
on the Mexican judgment at 60 percent per year. He further indicated that
before signing the stipulation, he had consulted with EPSA’s Mexican
litigation counsel and had understood the Mexican judgment had become
26
final after appeal, which at the time was, in fact, true. Ayers claimed that at
the time he signed the stipulation, he had no knowledge there was any basis
for asserting a collateral attack on the Mexican judgment, and “[e]ven if [he]
did have access to the file, it is in Spanish, and [he] is not a Mexican law
specialist.” It was not until the Mexican litigation file was reviewed by “new
counsel in Mexico” that it was determined EPSA had a basis for filing an
amparo proceeding. Ayers stated he reasonably could not have anticipated
this development.
In opposition, Agrobiosol argued EPSA failed to offer a sufficient
justification for setting aside the stipulation. It maintained EPSA’s
explanation for its delay in pursuing the amparo proceeding was deficient,
given that the Mexican judgment had reached finality in 2016 following a full
exercise of EPSA’s appellate rights, and that Agrobiosol’s recognition action
had been pending since 2017. Agrobiosol argued the timing of EPSA’s
decision to pursue the amparo suggested EPSA was employing the amparo
proceeding as a strategic move to avoid the trial court’s ruling on the foreign
interest rate motion, and that EPSA’s change in legal strategy did not justify
releasing it from the stipulation.
Agrobiosol also disputed EPSA’s claim that Ayers could not have
known sooner that there might be a basis for asserting a collateral attack on
the Mexican judgment. Agrobiosol identified several Mexican lawyers for
EPSA with whom it claimed Ayers could have consulted before signing the
stipulation. Two of these attorneys had represented EPSA in legal matters in
Mexico, and one was a licensed Mexican attorney associated with Ayers’ own
law firm. Agrobiosol argued EPSA had thus failed to identify a legitimate
reason it could not have consulted with appropriate Mexican counsel, or filed
the amparo proceeding, before entering into the stipulation.
27
During the hearing on EPSA’s motion, the trial court expressed its
disinclination to accept EPSA’s characterization of the amparo proceeding
and resulting stay order as matters outside EPSA’s control. The court stated
it viewed EPSA’s initiation of the amparo proceeding as “volitional behavior
on [EPSA’s] part,” and that the proceeding and resulting order “were a direct
consequence of . . . a volitional choice [EPSA] made to pursue a different legal
strategy after the fact.”
In its subsequent minute order denying EPSA’s motion, the trial court
acknowledged that EPSA was seeking relief from the stipulation based on the
amparo proceeding and amparo court order, by virtue of which the Mexican
judgment had become at least temporarily nonfinal and unenforceable. The
court found, however, that this development was not sufficient to justify
releasing EPSA from the stipulation. The court reasoned that under Harris,
supra, 240 Cal.App.2d at page 454, a stipulation can be set aside based on a
party’s mistake, but “in order to warrant relief . . . the mistake must be one
which could not have been avoided by the exercise of ordinary care[,]” and
“[w]hen there is no mistake but merely a lack of full knowledge of the facts,
which . . . is due to the failure of a party to exercise due diligence to ascertain
them, there is no proper ground for relief.” The court found that while EPSA
“argues that the Stipulation should now be set aside based on changed facts
and circumstance[s], i.e., the filing of the Amparo,” “it is EPSA’s argument
and strategy that has changed - not the facts or circumstances. There has
been no showing of mistake to support overruling the clear agreement . . . of
the parties.” The court thus denied the motion.
2. Standard of Review
“[A] motion to be relieved from a stipulation is addressed to the sound
discretion of the trial court, and the trial court’s ruling will not be interfered
28
with unless it is apparent that the court has abused its discretion.” (Baker v.
Ramirez (1987) 190 Cal.App.3d 1123, 1135.) “ ‘Discretion is abused
whenever, in its exercise, the court exceeds the bounds of reason, all of the
circumstances before it being considered. The burden is on the party
complaining to establish an abuse of discretion, and unless a clear case of
abuse is shown and unless there has been a miscarriage of justice a reviewing
court will not substitute its opinion and thereby divest the trial court of its
discretionary power.’ ” (Denham, supra, 2 Cal.3d at p. 566, quoting Loomis v.
Loomis (1960) 181 Cal.App.2d 345, 348-349.) Stated differently, an action
that “ ‘transgresses the confines of the applicable principles of law’ ” is an
abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 773.)
Appellate review of a motion to set aside an agreement that results in a
stipulated judgment is additionally governed by policies “favoring
enforcement of a private bargain, [and] dispute resolution by agreement of
the parties . . . .” (Philippine Exp. & Foreign Loan Guar. Corp. v. Chuidian
(1990) 218 Cal.App.3d 1058, 1076 (Philippine Export).) A party seeking to
overturn a trial court order denying relief from such an agreement bears a
“heavy burden” because the “relevant legal policies favor enforcing the
parties’ bargain, settling the lawsuit, and affirming the judgment of the trial
court.” (Ibid.)
3. Analysis
EPSA argues the trial court erred in refusing to allow it to withdraw
from the stipulation. It contends the court wrongfully construed its motion as
based only on the filing of the amparo proceeding, which did not affect the
Mexican judgment’s eligibility for recognition, when the more salient new
circumstance was the amparo order itself, which did. Because the issuance of
29
the amparo order materially altered the status of the Mexican judgment,
EPSA argues, the court abused its discretion in refusing to grant relief.
Agrobiosol responds that to justify setting aside the stipulation, it was
not sufficient for EPSA to identify a change in circumstances. Rather, under
the relevant authorities, EPSA was required to establish its absence of fault
in failing to pursue the amparo proceeding before it entered into the
stipulation. Agrobiosol contends that EPSA’s failure to make a sufficient
showing of diligence or excusable neglect justified the court’s denial of relief.
We conclude that EPSA fails to demonstrate that the trial court strayed
from the relevant legal principles that govern a motion to set aside a
stipulation. “A stipulation is conclusive with respect to the matters covered
by it, unless the court, for good cause shown, later permits its abandonment
or withdrawal.” (Harris, supra, 240 Cal.App.2d at p. 452.) A court may, in
its discretion, “set aside a stipulation entered into through inadvertence,
excusable neglect, fraud, misrepresentation, mistake of fact, or law, when the
facts stipulated have changed, [or there has] been a change in the underlying
conditions that could not have been anticipated, or where special
circumstances exist rendering it unjust to enforce the stipulation.”
(3 Cal.Jur.3d (2014) Agreed Case and Stipulations, § 43, pp. 58-59; accord
Huston v. Workers’ Compensation Appeals Board (1979) 95 Cal.App.3d 856,
865-866; People v. Trujillo (1977) 67 Cal.App.3d 547, 555.) “Likewise, it is
generally recognized that relief may be had from a stipulation where there
has been a change in conditions or unforeseen developments which would
render its enforcement inequitable provided that there has been diligence in
discovering the facts relative to the disputed matter . . . .” (3 Cal.Jur.3d,
supra, § 43, at p. 59.) Thus, even where there has been a change in
circumstances, a party may properly be denied permission to withdraw from
30
a stipulation where it fails to make an adequate showing of diligence. As this
court stated in Harris, supra, 240 Cal.App.2d at page 454, courts may set
aside stipulations “where a mistake of fact is clearly shown,” provided the
mistake is “one which could not have been avoided by the exercise of ordinary
care,” but “[w]hen there is no mistake but merely a lack of full knowledge of
the facts, which, as here, is due to the failure of the party to ascertain them,
there is no proper ground for relief.”
The facts of Harris are instructive. In Harris, on the second day of
trial, all parties and attorneys entered into a settlement in open court after
protracted negotiations. (Harris, supra, 240 Cal.App.2d at p. 451.) Harris
later sought to avoid the agreement by claiming he was mistaken about the
value of assets he had agreed to accept as part of the settlement, and in
particular that he was “not aware of what the books disclosed” other than
what he had been told by others. (Id. at p. 454.) The trial court denied relief
and entered judgment based on the stipulation, and this court affirmed. We
characterized Harris as seeking “to prove . . . that he did not know exactly
what the assets of the corporation were at the time of the stipulation” (Ibid.)
and concluded this showing failed to justify relief because there had been “no
mistake but merely a lack of full knowledge of the facts” that was “due to the
failure of [Harris] to ascertain them . . . .” (Ibid.)
In its opening brief on appeal, EPSA ignores this diligence requirement
and instead maintains that the amparo order was a development of such
significance that the trial court was effectively constrained to set the
stipulation aside. A foreign country judgment must meet all three
requirements of finality, conclusiveness, and enforceability, to be eligible for
recognition under the Recognition Act. (See § 1715, subd. (a)(2) [stating a
foreign judgment is subject to recognition if it is “final, conclusive, and
31
enforceable”], italics added; Mayekawa Manufacturing Co. v. Sasaki (1995) 76
Wn.App. 791, 799-800 [holding, under Washington’s version of the 1962
Uniform Act, that a Japanese money judgment to which an objection had
been lodged could not be recognized, because although it was preliminarily
enforceable, it was not final or conclusive under Japanese law].) Because the
amparo order had the effect of rendering the Mexican judgment at least
temporarily unenforceable, EPSA maintains, the Mexican judgment no longer
qualified for recognition under subdivision (a)(2) of section 1715. There was
no dispute below, nor does there appear to be any dispute on appeal, that the
amparo order had the effect of undermining the eligibility of the Mexican
judgment for recognition. EPSA’s position is that this development
effectively required the trial court to release it from the stipulation.
However, EPSA’s appellate briefs are devoid of citations to legal
authority establishing that a trial court is constrained to exercise its
discretion to permit a party to withdraw from a stipulation based solely on
the significance of an asserted new development. To the contrary, reviewing
courts have upheld stipulations against objections that doing so creates an
anomalous or unfair result. (See, e.g., People v. Castillo (2010) 49 Cal.4th
145, 173 [holding the Attorney General was judicially estopped from
disavowing a stipulation calling for imposition of a two-year term of civil
commitment of a sexually violent predator notwithstanding a change in
intervening law (The Sexual Punishment and Control Act: Jessica’s law,
Proposition 83) that called for sexually violent predators to be committed
indefinitely, even though “a stipulation similar to the one we consider in the
present case now could not properly be negotiated, entered into, and
enforced”]; Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 475-479
[holding a criminal defendant’s stipulation that an arrest was made with
32
probable cause bound a different trial court in a subsequent tort action filed
by the defendant, notwithstanding that the second trial court determined the
officers acted without probable cause].) Indeed, some degree of disparity
between a stipulation and current circumstances undoubtedly results
whenever a party seeking to withdraw on the basis of a new development is
denied relief. Nevertheless, whether to permit withdrawal from a stipulation
remains a matter for the trial court’s discretion, and courts are authorized to
exercise their discretionary authority to deny relief to parties that fail to
make a sufficient showing of diligence.
EPSA thus fails to establish that the trial court erred in relying on
Harris and requiring EPSA to demonstrate its absence of fault in failing to
pursue the amparo proceeding sooner. In its reply brief, EPSA acknowledges
that relief from a stipulation is appropriate “where the fault does not lie with
the client. . . .” It claims, however, that it did make such a showing.
Specifically, it contends that the declaration of its California counsel
established that he could not have been expected to know the amparo
procedure was “even available” and that EPSA “proceeded promptly” with the
amparo once it became aware it had grounds for a collateral attack.
By failing to address this point in its opening brief, EPSA has arguably
forfeited it. (Stevenson, supra, 55 Cal.App.5th at p. 555, fn. 6.) And even if
not forfeited, EPSA’s argument lacks merit. “To determine whether the
mistake or neglect was excusable, ‘. . . the court inquires whether “a
reasonably prudent person under the same or similar circumstances” might
have made the same error . . . .’ ” (Garcia v. Hejmadi (1997) 58 Cal.App.4th
674, 681-682 (Garcia).) As this question is primarily factual, our review is for
substantial evidence. (SFPP v. Burlington Northern & Santa Fe Ry. Co.
(2004) 121 Cal.App.4th 452, 462.) Moreover, to the extent we discern “any
33
factual conflicts in the evidence . . . [they] must be resolved in favor of the
prevailing party below.” (Philippine Export, supra, 218 Cal.App.3d at
p. 1077.)
Having reviewed the record, we conclude substantial evidence
supported the trial court’s determination that EPSA failed to establish that
its delay was attributable to excusable mistake or neglect. While EPSA
contends neither it nor Ayers could have known of the existence of the
amparo procedure, including because the litigation file was “in Spanish” and
Ayers was “not a Mexican law specialist,” Agrobiosol presented evidence of
several Mexican attorneys already representing EPSA who were assertedly
potential sources of this information. The trial court could properly infer
from Agrobiosol’s evidence that Ayers could have, and in the exercise of
reasonable diligence should have, learned of the availability of the amparo
procedure before entering into the stipulation.
Moreover, wholly absent from Ayers’s declaration was any explanation
why, if EPSA was going to consult with new Mexican counsel about possible
legal grounds for attacking the Mexican judgment, it did not do so before
entering into the stipulation. Ayers did not indicate he lacked his client’s
authority to enter into the stipulation. EPSA’s evidence failed to address
why it waited to seek an opinion about its legal options for challenging the
Mexican judgment until after it entered into the stipulation and after the
trial court ruled on the foreign interest motion. EPSA’s evidence thus fell
short of establishing that it acted with reasonable diligence in pursuing its
legal rights in Mexico. (Garcia, supra, 58 Cal.App.4th at pp. 681-682.)
Accordingly, the trial court did not err in determining that EPSA failed to
demonstrate excusable mistake or neglect in initiating the amparo
proceeding and in seeking, and obtaining, the resulting amparo court order.
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Under Harris, this was a sufficient basis upon which to deny relief. (Harris,
supra, 240 Cal.App.2d at p. 454.)
Accordingly, the trial court did not abuse its discretion in denying
EPSA’s motion to withdraw from the stipulation.
DISPOSITION
The judgment is affirmed. Agrobiosol is entitled to its costs on appeal.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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