Naoko Ohno v. Yuko Yasuma , 723 F.3d 984 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAOKO OHNO , an individual, No. 11-55081
Plaintiff-Appellee,
D.C. No.
v. 2:10-cv-06400-
ODW-PJW
YUKO YASUMA , an individual;
SAINTS OF GLORY CHURCH , a
California corporation, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
May 9, 2012—Pasadena, California
Filed July 2, 2013
Before: Harry Pregerson, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
2 OHNO V . YASUMA
SUMMARY*
Diversity/California’s Uniform Foreign-Country Money
Judgments Recognition Act
The panel affirmed the district court’s judgment in favor
of plaintiff awarding her, pursuant to California’s Uniform
Foreign-Country Money Judgments Recognition Act, Cal.
Civ. Proc. Code §§ 1713–1724, monetary relief ordered by
the courts of Japan.
Plaintiff sued Yuko Yasuma and the Saints of Glory
Church (collectively, “the Church”) in Japan, alleging that
they had tortiously induced her to transfer nearly all of her
assets to the Church. The Japanese courts awarded plaintiff
a $1.2 million tort judgment. Plaintiff sought enforcement of
the judgment in the United States District Court for the
Central District of California. The Church asserted that the
district court was both constitutionally and statutorily
required to refuse recognition of the Japanese judgment
because (1) the judgment burdened free exercise of religion
in violation of the Religion Clauses; and (2) the judgment was
not entitled to recognition or enforcement under the Uniform
Act, because it was “repugnant to the public policy”
embodied in the Religion Clauses.
The panel held: first, the district court’s enforcement of
this foreign-country money judgment did not constitute
domestic state action triggering constitutional scrutiny; and,
second, neither the judgment at issue in this particular case
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OHNO V . YASUMA 3
nor the cause of action on which it was based was so
repugnant to public policy as to qualify for non-enforcement
under the Uniform Act.
COUNSEL
Steven J. Renick (argued), Eugene J. Egan, Paul Hanna, and
Ladell Hulet Muhlestein, Manning & Kass Ellrod, Ramirez,
Trester, Los Angeles, California, for Defendants-Appellants.
Robert W. Cohen (argued) and Mariko Taenaka, Law Offices
of Robert W. Cohen, Los Angeles, California, for Plaintiff-
Appellee.
OPINION
BERZON, Circuit Judge:
Our case involves novel issues concerning the
enforcement of foreign-country money judgments that
assertedly implicate the defendant’s freedom of religion.
Naoko Ohno sued Yuko Yasuma and the Saints of Glory
Church (collectively, “the Church”) in Japan, alleging that
they had tortiously induced her to transfer nearly all of her
assets to the Church. The Japanese courts awarded Ohno a
$1.2 million tort judgment.
The Church contends that the judgment imposes liability
for its religious teachings, in violation of its constitutional
4 OHNO V . YASUMA
right to free exercise of religion.1 The Church makes two
principal arguments on appeal: (1) that the district court’s
recognition and enforcement2 of the Japanese judgment is
unconstitutional as a direct violation, by the court, of the Free
Exercise Clause in the U.S. Constitution and the parallel
provisions of the California Constitution, U.S. Const. amend.
I; Cal. Const. art. I, § 4;3 and (2) that the Japanese judgment
1
Although the Church raises both free speech and free exercise claims,
the speech at issue was either religious in content or, allegedly, motivated
by religious beliefs. W hile “private religious speech . . . is as fully
protected under the Free Speech Clause as secular private expression . . .
[it] receives preferential treatment under the Free Exercise Clause.”
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760, 767
(1995). Because the right to religious freedom affords a higher degree of
protection than would the Free Speech Clause in this case, we analyze the
Church’s claims under the Free Exercise Clause of the U.S. Constitution
and corresponding provisions of the California Constitution, Article I,
Section 4, not separately under the free speech provisions.
2
The terms “recognition” and “enforcement” are distinct. See
Restatement (Third) of Foreign Relations Law § 481 cmt. b (1987).
Recognition of a judgment is a prerequisite to its enforcement. In
recognizing a judgment, a court acknowledges that a matter has been
conclusively adjudicated and that the judgment may have preclusive
effect. In enforcing a judgment, a court “uses its coercive powers to order
the relief granted by the foreign court.” Office of the Chief Counsel for
International Commerce, U.S. Dep’t of Commerce, Recognition and
Enforcement of Foreign Money Judgments http://www.osec.doc.gov/ogc/
occic/refmj.htm (last visited May 29, 2013). As the distinction between
the two concepts is not pertinent for the purposes of this opinion, we use
the terms recognition and enforcement interchangeably to denote the
district court’s decision to enter judgment in favor of Ohno, awarding her
the monetary relief ordered by the courts of Japan.
3
T hroughout this opinion, we refer to the Free Exercise Clause of the
U.S. Constitution and the corresponding protections of religious freedom
in the California Constitution as “the Religion Clauses.”
OHNO V . YASUMA 5
is not entitled to recognition or enforcement under
California’s Uniform Foreign-Country Money Judgments
Recognition Act, Cal. Civ. Proc. Code §§ 1713–1724
(“Uniform Act”), because it is “repugnant to the public
policy” embodied in the Religion Clauses.
We hold, first, that the district court’s recognition and
enforcement of the Japanese money judgment does not
constitute “state action” triggering direct constitutional
scrutiny and, second, that neither the Japanese judgment nor
the cause of action on which it was based rises to the level of
repugnance to the public policy of California or of the United
States that would justify a refusal to enforce the judgment
under the Uniform Act. Accordingly, we affirm the district
court’s judgment in Ohno’s favor.
I. BACKGROUND
A. Facts and Procedural History
Ohno, a citizen of Japan, sued the Church in Tokyo
District Court. She received a favorable judgment, upheld on
appeal to Tokyo’s High Court. Ohno then initiated an action
for recognition and enforcement of the judgment in the
United States District Court for the Central District of
California, as Yasuma is a resident of Los Angeles and the
Saints of Glory Church (“Saints of Glory”) is a registered
California religious corporation.
i. The Japanese Litigation
The following facts are summarized from the findings of
the Tokyo trial court, as set forth in its judgment of August
28, 2009:
6 OHNO V . YASUMA
Ohno joined Saints of Glory in 1994 while working in
London. Three years later, Ohno began regularly
participating in prayer meetings, bible study, and worship at
a branch of Saints of Glory in Tokyo. Part of the Church’s
program in Tokyo was playing for worshipers there tape
recordings of sermons given every Sunday in California by
Saints of Glory’s principal pastor, Yasuma. Ohno listened to
the tapes while attending church in Tokyo. Saints of Glory
preached obedience to Jesus Christ and to Yasuma. Members
were required to tithe one-tenth of their incomes, which Ohno
did.4
Ohno was obedient to Yasuma’s advice and teachings in
various areas of her life. For example, when Ohno learned
that her father was terminally ill, Yasuma “stated something
negative about [Ohno] going to see her father,” so Ohno did
not return home to see him before he died and did not attend
his funeral. Later, after Ohno informed Yasuma that she had
lost her job, the Church convinced Ohno to live with another
“church member in the same situation,” in what we infer from
the record was a Church-owned or Church-affiliated
residence in Tokyo. Also, after Yasuma repeatedly made
negative statements about medications, Ohno ceased taking
the anti-depressants and tranquilizers she had been prescribed
when she was diagnosed with depression years earlier. At
Yasuma’s instruction, Ohno purchased Saints of Glory videos
and books, which she began watching and reading repeatedly.
Finally, the Church told Ohno not to purchase her own
4
In the Japanese lawsuit, Ohno did not contest the voluntariness or seek
restitution of these routine tithes. She challenged only the substantial
transfers of money that she made to the Church between January and
March 2002, referred to in this opinion as “the Transfers.”
OHNO V . YASUMA 7
apartment when she tried to do so, and admonished her for
negotiating a reduction in her rent.
Following all these events, and while suffering from both
depression and general ataxia (a lack of muscle coordination
due to damage to the nervous system), Ohno “became
obsessed with a sense of guilt that she had not obeyed Jesus
Christ.” After Yasuma encouraged Ohno to make “givings”
in late 2001, Ohno gave Yasuma and another church minister
each 800,000 Yen.5 Then, on January 2, 2002, Yasuma “took
several hours to talk to [Ohno], in a talk referred to as
‘“Warnings” [or “Reprimands”], pressuring her to tithe’”
(alteration in original). After the talk, Ohno felt “overcome
with terror and compelled to tithe.” Over the span of two
months, Ohno closed her savings account and transferred
68,678,424 Yen to Saints of Glory, virtually all of Ohno’s
assets at that time.
A year after these transfers (“the Transfers”), Ohno was
told she would be “driven out” of Saints of Glory because she
“had not been obedient to Jesus Christ.” The following May,
the Church ordered her to leave the apartment where she was
living. On the advice of her psychiatrist, Ohno then resumed
taking medications for her depression. She also began
participating in religious services at a different church.
Ohno eventually came to believe that she had been
defrauded by the Church. She filed a complaint in 2007 in
Tokyo District Court, asserting tort and unjust enrichment
claims against Yasuma, Saints of Glory, and two other
individual defendants not parties to the present enforcement
action. The dispute centered on the circumstances in which
5
Ohno did not contest or seek restitution of these donations.
8 OHNO V . YASUMA
Ohno had transferred the approximately $500,000 to Saints
of Glory between January and March 2002, leaving her
essentially destitute. Ohno contended that the Transfers took
place as a result of the Church’s “fraudulent and threatening
statements” to her while she was in a vulnerable mental and
physical state. The Church argued that the contested
Transfers were faith-based donations, and that Ohno sought
return of the money because she no longer believed in the
Church’s teachings.
The litigation in Japan lasted over two years and involved
several hearings, various filings, and a full merits trial, in
which Yasuma and Saints of Glory appeared through counsel.
The Tokyo District Court’s judgment held Yasuma and Saints
of Glory liable under Japanese Civil Code articles 709, 719,
and 715, for illegally inducing Ohno to tithe “in such a way
as to incite anxiety and cause terror to the Plaintiff who was
already in [a] state of depression and was suffering from
general ataxia.” The Tokyo trial court concluded that Ohno’s
decision to give the Transfers “under such psychological
condition” could not be said to have been made of her own
free will, and awarded damages, including restitution of the
68,678,424 Yen Ohno had given to Saints of Glory in the
disputed Transfers; 3,000,000 Yen for pain and suffering; and
7,200,000 Yen for attorney’s fees. The total award was
78,878,424 Yen ($843,235.66).
As to the grounds for the judgment, article 709 of the
Japanese Civil Code, entitled “Damages in Torts,” provides:
“A person who has intentionally or negligently infringe[d]
any right of others, or legally protected interest of others,
shall be liable to compensate any damages resulting in
consequence.” Minpô [Civ. C.] art. 709. Article 719
provides for joint and several liability of joint tortfeasors,
OHNO V . YASUMA 9
Minpô [Civ. C.] art. 719, and article 715 provides for an
employer’s liability for the tortious actions of its employees,
Minpô [Civ. C.] art. 715. The Japanese trial court did not
specify precisely which right or legally protected interest the
Church infringed; it stated only that the solicitation of
donations from Ohno was illegal because it exceeded “the
scope of what is socially appropriate.”
Defendants appealed the judgment to the Tokyo High
Court, which affirmed the lower court decision on all counts
and dismissed the appeal.
ii. The Enforcement Action in Federal Court
Ohno next brought an international diversity action in the
United States District Court for the Central District of
California, seeking enforcement of the Japanese judgment
against Yasuma and Saints of Glory under California’s
Uniform Act, Cal. Civ. Proc. Code §§ 1713–1724. In
opposition to Ohno’s motion for summary judgment, the
Church argued that the Religion Clauses bar recovery in tort
for the consequences of protected religious speech, including
threats of divine retribution, and prohibit a court from judging
the validity of the Church’s religious teachings. The Japanese
judgment, the Church argued, was inconsistent with these
principles. The Church further asserted that the Japanese
judgment is not entitled to recognition, both because it is
“repugnant” to public policy embodied in the Religion
Clauses and because it “was obtained through procedures not
compatible with the requirements of due process of law.” In
the alternative, the Church requested that the motion for
summary judgment be continued to permit additional
discovery relating to the Japanese proceedings.
10 OHNO V . YASUMA
The district court granted summary judgment in favor of
Ohno and entered judgment jointly and severally against
Yasuma and Saints of Glory, holding the Japanese judgment
not repugnant to the Religion Clauses.6 It also denied the
Church’s request for a continuance under Federal Rule of
Civil Procedure 56(f),7 citing the failure to identify with any
specificity the facts sought through additional discovery and
why the evidence to be obtained would preclude summary
judgment. This timely appeal followed.
On appeal, the Church contends that the district court was
both constitutionally and statutorily required to refuse
recognition of the Japanese judgment because the judgment
burdens free exercise of religion in violation of the Religion
Clauses. As to the constitutional issue, the Church maintains
that enforcement in the United States of a foreign-country
judgment that would be violative of the Religion Clauses if
issued by a domestic court is itself an exercise of state power,
directly subject to constitutional constraints. Statutorily, the
Church argues that a foreign-country judgment that impinges
on American constitutional rights is necessarily repugnant to
public policy, making its recognition under California’s
Uniform Act an abuse of discretion.
6
The district court also held that the Japanese judgment was not
incompatible with due process of law, but the Church has abandoned its
due process arguments on appeal.
7
Former Rule 56(f) of the Federal Rules of Civil Procedure became
Rule 56(d) under the 2010 Amendments to the Federal Rules. Because the
district court decision, the Church’s briefs to this court, and the relevant
case law in this circuit all refer to the former Rule 56(f), this opinion as
well so refers to the rule currently codified as Rule 56(d).
OHNO V . YASUMA 11
B. The Uniform Foreign-Country Money Judgments
Recognition Act
In international diversity cases such as this one,
“enforceability of judgments of courts of other countries is
generally governed by the law of the state in which
enforcement is sought.” Yahoo! Inc. v. La Ligue Contre le
Racisme et L’Antisemitisme, 433 F.3d 1199, 1212 (9th Cir.
2006) (en banc) (per curiam) (“Yahoo! II”) (plurality opinion)
(citing Bank of Montreal v. Kough, 612 F.2d 467, 469–70
(9th Cir. 1980)); see also id. at 1239–41 (Fisher, J.,
concurring in part and dissenting in part). In California, the
Uniform Act regulates enforcement of the Japanese damages
award at issue here. See Cal. Civ. Proc. Code §§ 1713–1724.
The present California foreign judgment enforcement
statute was enacted in 2007 to replace the Uniform Foreign
Money Judgments Recognition Act, formerly codified at
California Civil Procedure Code sections 1713–1713.8, and
applies to all recognition and enforcement actions
commenced on or after January 1, 2008. See § 1724(a); see
also Manco Contracting Co. (W.W.L.) v. Bezdikian, 45
Cal. 4th 192, 204 (2008). California’s Act was modeled on
the 2005 Uniform Foreign-Country Money Judgments
Recognition Act, 13 U.L.A. pt. II, at 18–38 (Supp. 2011),
drafted by the National Conference of Commissioners on
Uniform State Laws.8 See Manco Contracting Co., 45 Cal.
8As of June 2013, nineteen states have enacted the 2005 version of the
Uniform Act, or some version thereof, and an additional three states
have introduced bills proposing its enactment. See Foreign-Country
Money Judgments Recognition Act, Uniform Law Commission, The
National Conference of Commissioners on Uniform State Laws,
http://uniformlaws.org/Act.aspx?title=Foreign-Country Money Judgments
Recognition Act (last visited May 25, 2013). T he earlier version of the
12 OHNO V . YASUMA
4th at 198 (describing the background and purpose of the
Uniform Act); Lyustiger v. Lysustiger (In re Marriage of
Lyustiger), 177 Cal. App. 4th 1367, 1369–70 (2009)
(recounting the history of the Act in California).
California’s Uniform Act provides that the courts of
California “shall recognize a foreign-country judgment” for
money damages that is final, conclusive, and enforceable
where rendered, except if one or more of the mandatory
grounds for non-recognition enumerated in § 1716(b), or
discretionary grounds for non-recognition enumerated in
§ 1716(c), applies.9 § 1716(a). The only exception at issue
Uniform Act, approved in 1962, was adopted by twenty-nine states plus
the District of Columbia and the Virgin Islands. See Cedric C. Chao &
Christine S. Neuhoff, Enforcement and Recognition of Foreign Judgments
in United States Courts: A Practical Perspective, 29 Pepp. L. Rev. 147,
150 (2001). The state law versions of the Uniform Act do not vary
substantially from state to state. The more significant distinction lies
between those states that have adopted some version of the Uniform Act
and those that follow a common law standard stemming from the Supreme
Court’s decision in Hilton v. Guyot, 159 U.S. 113 (1895). See Chao &
Neuhoff, 29 Pepp. L. Rev. at 148.
9
Section 1716(b) provides in full:
A court of this state shall not recognize a
foreign-country judgment if any of the following apply:
(1) The judgment was rendered under a judicial system
that does not provide impartial tribunals or procedures
compatible with the requirements of due process of law.
(2) The foreign court did not have personal jurisdiction
over the defendant. (3) The foreign court did not have
jurisdiction over the subject matter.
Cal. Civ. Proc. Code § 1716(b).
OHNO V . YASUMA 13
in this appeal is § 1716(c)(3), which provides that a court 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 [California] or of the United States.” § 1716(c)(3).
Under the Uniform Act, the party seeking enforcement of
a foreign judgment bears the initial burden of establishing
that the judgment falls within the scope of the Act. § 1715(c).
The parties here do not dispute that the Japanese judgment
conforms to the threshold requirements for recognition: it
grants recovery of a sum of money, as required by
§ 1715(a)(1); it is final, conclusive and enforceable in Japan,
under § 1715(a)(2); and it is not a judgment for taxes, a fine
or other penalty, or a judgment in connection with domestic
relations, barred from recognition under § 1715(b).
Once coverage under the Uniform Act is established, the
presumption in favor of enforcement applies, and the party
resisting recognition of a foreign-country judgment “has the
burden of establishing that a ground for nonrecognition stated
in subdivision [§ 1716](b) or (c) exists.” § 1716(d); see also
Section 1716(c) provides that a court is “not required to recognize a
foreign-country [money] judgment if” any of the following nine
discretionary grounds for non-recognition exists: (1) lack of notice to the
defendant; (2) fraud; (3) repugnancy of the foreign judgment or cause of
action to public policy; (4) conflict with another final and conclusive
judgment; (5) contrariness to an agreement between the parties regarding
the resolution of disputes; (6) inconvenience of the foreign forum; (7)
doubts about the integrity of the rendering court; (8) incompatibility of the
judgment with the requirements of due process of law; and (9) a recovery
under defamation law that provides less protection for freedom of speech
and the press than is provided under the U.S. and California Constitutions.
Id.
14 OHNO V . YASUMA
Uniform Foreign-Country Money Judgments Recognition
Act, 13 U.L.A. pt. II, at 19 (Supp. 2011) (Prefatory Note).
The repugnancy ground for non-recognition of foreign
judgments is therefore an affirmative defense. See § 1716(d).
This statutorily specified burden applies equally where, as
here, the ground of repugnancy is an asserted violation of
federal constitutional norms. See, e.g., Sarl Louis Feraud
Int’l v. Viewfinder, Inc., 489 F.3d 474, 477–78 (2d Cir. 2007).
Thus, the Church has the burden of establishing the grounds
it has raised for non-recognition of the judgment.
II. DISCUSSION
This case presents questions of first impression in this
circuit, relating to the enforcement of a foreign-country
money judgment challenged on constitutional grounds.10
Specifically, we must consider the constitutional implications
of enforcing such a judgment if the Religion Clauses would
bar a court in the United States from rendering the same
judgment in the first instance. Also at issue is whether a
foreign-country money judgment that might be inconsistent
10
The only Ninth Circuit case that involved somewhat similar issues
concerned a declaratory judgment action seeking to bar enforcement of a
French injunction— not a money judgment— requiring an American
company, Yahoo!, to restrict French users’ access to certain online
material on the basis of its content. Yahoo! II, 433 F.3d 1199. The district
court had held that enforcement of the order would violate the First
Amendment. Yahoo!, Inc. v. La Ligue Contre Le Racisme et
L’Antisemitisme, 169 F. Supp. 2d 1181, 1192–93 (N.D. Cal. 2001)
(“Yahoo! I”), rev’d en banc on other grounds, 433 F.3d 1199 (9th Cir.
2006) (per curiam). Unlike here, however, no attempt had been made to
enforce the French judgment in the United States. On appeal, a majority
of the en banc panel agreed that the case should be dismissed, for lack of
ripeness or lack of personal jurisdiction, and so did not reach the merits of
any constitutional or repugnancy questions. Yahoo! II, 433 F.3d at 1224.
OHNO V . YASUMA 15
with the Federal Constitution or a state constitution if issued
by a domestic court is repugnant to public policy and
therefore can be denied enforcement under the Uniform Act.11
As we explain below, we do not reach the question of
whether a domestic tort judgment parallel to the Japanese
judgment would have been unconstitutional under the
Religion Clauses had Ohno’s suit been brought here. Instead,
we conclude: first, that enforcement of this foreign-country
money judgment by a domestic court does not constitute
domestic state action triggering constitutional scrutiny; and,
second, that neither the judgment at issue in this particular
case nor the cause of action on which it is based is so
repugnant to public policy as to qualify for non-enforcement
under the Uniform Act.
A. Constitutional Challenge
The Church’s direct constitutional challenge turns on
whether the district court’s enforcement of the damages
award issued by a foreign sovereign amounted to domestic
governmental action subject to the constraints of the Religion
Clauses.12
11
Under the Uniform Act, § 1716(c), a court that determines a foreign-
country money judgment or the cause of action on which the judgment is
based to be repugnant to public policy is “not required” to recognize the
judgment, but—impliedly— may do so at its discretion. Conversely, if the
Japanese judgment is not repugnant to public policy, then, barring any
other ground for non-recognition, the district court was required to
enforce it.
12
The free speech provisions in Article I of the California Constitution
do not always turn on state action. See Ralphs Grocery Co. v. United Food
& Commercial Workers U nion Local 8, 55 Cal. 4th 1083, 1093–94
16 OHNO V . YASUMA
Recognizing and enforcing a foreign-country money
judgment is distinct from rendering that judgment in the first
instance. The district court, in giving effect to the judgment
issued in Japan, has not participated in the action the Church
claims is unconstitutional—namely, judging the truth or
falsity of the Church’s religious teachings or imposing
liability for the consequences of religious expression. In the
absence of such participation, we conclude the district court’s
recognition and enforcement of the Japanese damages award
in this case does not transform the underlying foreign court’s
ruling into domestic “state action” subject to constitutional
scrutiny.
i. State Action
“[M]ost rights secured by the Constitution are protected
only against infringement by governments,” so that “the
conduct allegedly causing the deprivation of a federal right
[must] be fairly attributable to the State.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936–37 (1982) (internal
quotation marks omitted). If the action challenged here is not
(2012); Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850, 858, 870
(2007); Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910 (1979),
aff’d, 447 U.S. 74 (1980). Like the First Amendment Free Exercise
Clause, however, the free exercise clause in Article I, section 4 of the
California Constitution protects against only governmental action that
burdens religious freedom. See Catholic Charities of Sacramento, Inc. v.
Superior Court, 32 Cal. 4th 527, 561 (2004); Vernon v. City of Los
Angeles, 27 F.3d 1385, 1392–93 (9th Cir. 1994). Our discussion therefore
applies to both the Federal and State Constitutions. W e concentrate on
federal state action precedents but do so with the understanding that the
same state action principles apply under the California Constitution as
well. As we conclude that there was no state action subject to
constitutional scrutiny, we need not decide whether the California and
federal free exercise clauses are otherwise coterminous.
OHNO V . YASUMA 17
so attributable, then there is no “state action” and no violation
of the Religion Clauses.
Foreign governments, like the government of Japan, are
not bound by the U.S. or California Constitutions. “[O]ur
notions of due process,” for example, do not apply “to foreign
court proceedings against American citizens who have
committed foreign crimes outside the United States.” United
States v. Gecas, 120 F.3d 1419, 1430 (11th Cir. 1997) (en
banc) (citing Neely v. Henkel, 180 U.S. 109, 123 (1901)); see
also United States v. Ant, 882 F.2d 1389, 1395 n.8 (9th Cir.
1989) (“‘Neither the Fourth nor the Fourteenth Amendments
are directed at Mexican officials . . . .’”) (quoting Brulay v.
United States, 383 F.2d 345, 348 (9th Cir. 1967)); United
States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987); United
States v. Rose, 570 F.2d 1358, 1361–62 (9th Cir. 1978); Flynn
v. Shultz, 748 F.2d 1186, 1197 (7th Cir. 1984) (“Obviously,
the Mexican government is not bound by the requirements of
our Constitution even when prosecuting a United States
citizen . . . .”). In particular, “[i]t is, of course, a
commonplace that the [First Amendment] is a guarantee only
against abridgment by government, federal or state.”
Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (emphasis
added).
As foreign-country court orders, like domestic contracts
between private parties, are not, without more, subject to the
constraints of our constitutional law, neither the laws of Japan
nor the decisions of its courts constitute domestic “state
action” for the purposes of a constitutional claim in this
country. The success of the Church’s direct constitutional
arguments therefore depends upon showing that, through its
enforcement by a domestic court, the judgment issued in
18 OHNO V . YASUMA
Japan becomes action of the government, and so subject to
constitutional scrutiny.
Decisions of a domestic court in the United States do
constitute governmental action. State action “refers to
exertions of state power in all forms,” Shelley v. Kraemer,
334 U.S. 1, 20 (1948) (emphasis added), so that “[s]tate
action, for purposes of the [Constitution], may emanate from
rulings of administrative and regulatory agencies as well as
from legislative or judicial action,” Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 179 (1972) (emphasis added). Thus, “the
action of state courts and of judicial officers in their official
capacities [has long been] regarded as action of the State
within the meaning of the Fourteenth Amendment,” Shelley,
334 U.S. at 14, and so, too, has the action of federal courts,
see Gathright v. City of Portland, 439 F.3d 573, 576 n.2 (9th
Cir. 2006); cf. Hurd v. Hodge, 334 U.S. 24, 31–36 (1948).
So there is no doubt that the district court’s decision in
this case applying California’s Uniform Act—legislation that
is itself the result of governmental action—constitutes state
action for purposes of constitutional scrutiny. But that truism
does not resolve our question, which is: Should the substance
of the underlying Japanese monetary damages judgment,
resulting from a lawsuit in Japan between two private parties,
be ascribed to the district court’s enforcement of the
judgment under the Uniform Act and so subjected to
constitutional scrutiny? “Precisely when . . . judicial
involvement in private litigation assumes constitutional
dimensions is a problem that has perplexed courts and
scholars for decades.” Dahl v. Akin, 630 F.2d 277, 280 (5th
Cir. 1980). Given the parallelism, for constitutional state
action purposes, between private domestic action and the
actions of foreign governments, essentially the same
OHNO V . YASUMA 19
perplexities arise with regard to the enforcement of foreign
judgments resulting from litigation abroad. We therefore rely
on both contexts in our analysis.
a.
We begin our analysis with general state action precepts:
At bottom, the state action requirement serves to “avoid[]
imposing on the State, its agencies or officials, responsibility
for conduct for which they cannot fairly be blamed.” Lugar,
457 U.S. at 936. Consistent with this approach,
“constitutional standards are invoked only when it can be said
that the State is responsible for the specific conduct of which
the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991,
1004 (1982).
Lugar, a case concerning a private creditor’s use of state
courts to effectuate a prejudgment attachment, set forth a
broadly applicable two-prong framework for analyzing when
governmental involvement in private action is itself sufficient
in character and impact that the government fairly can be
viewed as responsible for the harm of which the plaintiff
complains. 457 U.S. at 937–42. The first prong asks whether
the claimed constitutional deprivation resulted from “the
exercise of some right or privilege created by the State or by
a rule of conduct imposed by the state or by a person for
whom the State is responsible.” Id. at 937. The second prong
determines whether the party charged with the deprivation
could be described in all fairness as a state actor. Id.
Domestic judicial enforcement of the Japanese judgment in
this case satisfies neither prong of the Lugar framework.
As to the first prong, the Church does not challenge the
constitutionality of the Uniform Act, facially or as applied.
20 OHNO V . YASUMA
Instead, it challenges the constitutionality of the Japanese tort
judgment Ohno seeks to enforce under the Uniform Act. As
the source of the alleged constitutional harm is thus Japanese
tort law, created by and enforced through Japanese
governmental entities, the claimed constitutional deprivation
cannot be traced to a right, privilege, or rule of conduct
imposed by a domestic governmental entity or individual.
See id.
The Church disagrees, relying on Paul v. Watchtower
Bible & Tract Society of New York, Inc., 819 F.2d 875 (9th
Cir. 1987). Paul held that the application of Washington tort
law to establish damages liability for actions taken in
furtherance of religious beliefs constitutes an exercise of state
power, subject to constitutional scrutiny. Id. at 880–81. The
Church’s reliance on Paul is misplaced.
First, the district court here did not apply tort law; it
applied California’s Uniform Act, and did not re-try the facts
of the case or re-assess the Church’s liability for any injury
alleged. Second, even if it could be said that the district
court’s recognition of the Japanese damages award is
tantamount to directly imposing liability in the first
instance—a proposition that we do not endorse—the tort law
applied in this case is the law of Japan, not of California. As
such, the content of the law is not attributable to a domestic
state actor, and so its application to the Church’s challenged
conduct (all of which was conduct that took place in Japan or
was specifically directed at Ohno in Japan) is not an exercise
of domestic state power. The same logic applies to private
tort suits initiated in the United States: A tort action between
private parties does not involve state action simply because
the court in which the case is pursued is an organ of the state
or federal government. Rather, a private tort action initiated
OHNO V . YASUMA 21
in the United States may involve governmental action subject
to constitutional constraints where it is domestic substantive
law that allows recovery. See New York Times Co. v.
Sullivan, 376 U.S. 254, 277–78 (1964).
Paul applied an analysis similar to that in New York
Times, explaining that it was because tort liability stemmed
from state substantive law that its imposition constituted state
action triggering constitutional scrutiny. Paul, 819 F.2d at
880. Expounding in Paul, we clarified that regardless of the
form an American state’s tort law takes—“whether statutory
or common law”—it relies on the power of state government
to regulate conduct. Id. (citing New York Times, 376 U.S. at
265). It is for that reason—and not simply because of judicial
involvement—that “the application of [domestic] tort law to
activities of a church or its adherents in their furtherance of
their religious belief is an exercise of state power.” Id.
Similarly, Cohen v. Cowles Media Co. held that a state
court’s application of the common law doctrine of promissory
estoppel to enforce a newspaper’s confidentiality agreement
was subject to constitutional scrutiny, as an “application of
state rules of law.” 501 U.S. 663, 668 (1991).
In short, only the tort law of Japan, and not the law of any
state or the federal government, underlay the Japanese
judgment. The first Lugar prong therefore does not apply.
Even if enforcement of the Japanese judgment satisfied
the first prong of the Lugar framework, it would fail the
second. Here, “the party charged with the deprivation” is not
“a person who may fairly be said to be a state actor,” where
“state actor” means an actor for whom a domestic
governmental entity is in some sense responsible. Lugar, 457
U.S. at 937. Although the Japanese courts are organs of the
22 OHNO V . YASUMA
State of Japan, they are not organs of the federal or California
government. And while the Japanese courts surely perform
a public function in Japan, they were not compelled to
conclude as they did by American law, or aided in their
decision by the participation of an American governmental
actor or entity.
Nor can Ohno, in bringing an enforcement suit under
California’s Uniform Act, be likened to a state actor. “‘The
Supreme Court has articulated four tests for determining
whether a [non-governmental person’s] actions amount to
state action: (1) the public function test; (2) the joint action
test; (3) the state compulsion test; and (4) the governmental
nexus test.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1140 (9th Cir. 2012) (quoting Franklin v. Fox, 312 F.3d 423,
444–45 (9th Cir. 2002)). Most relevant here are the “public
function” and “joint action” tests13: The former treats private
13
These two tests largely subsume the state compulsion and
governmental nexus tests, because they address the degree to which the
state is intertwined with the private actor or action. The state compulsion
test requires a showing that “the state has ‘exercised coercive power or has
provided such significant encouragement, either overt or covert, that the
[private actor’s] choice must in law be deemed to be that of the State.’”
Johnson v. Knowles, 113 F.3d 1114, 1119 (9th Cir. 1997) (alteration in
original) (quoting Yaretsky, 457 U.S. at 1004). “Under the governmental
nexus test, a private party acts under color of state law if ‘there is a
sufficiently close nexus between the State and the challenged action of the
regulated entity so that the action of the latter may be fairly treated as that
of the State itself.’” Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883
(9th Cir. 1991) (per curiam) (quoting Jackson v. Metro. Edison Co., 419
U.S. 345, 351 (1974)). For simplicity, we refer only to the “public
function” and “joint action” tests, but intend thereby to incorporate all four
tests. Accordingly, our conclusion that Ohno is not a state actor for
constitutional purposes encompasses all four state action tests articulated
by the Supreme Court.
OHNO V . YASUMA 23
actors as state actors when they perform a task or exercise
powers traditionally reserved to the government. See, e.g.,
Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974);
Terry v. Adams, 345 U.S. 461, 469–70 (1953); Marsh v.
Alabama, 326 U.S. 501, 507–08 (1946). The latter focuses on
“‘whether state officials and private parties have acted in
concert in effecting a particular deprivation of constitutional
rights.’” Tsao, 698 F.3d at 1140 (quoting Franklin, 312 F.3d
at 445). “Joint action” exists where the government affirms,
authorizes, encourages, or facilitates unconstitutional conduct
through its involvement with a private party, see, e.g., Lugar,
457 U.S. at 941; Flagg Bros. v. Brooks, 436 U.S. 149, 157,
164–65 (1978); Sniadach v. Family Fin. Corp. of Bay View,
395 U.S. 337 (1969); Shelley, 334 U.S. 1, or otherwise has
“so far insinuated itself into a position of interdependence
with [the non-governmental party] that it must be recognized
as a joint participant in the challenged activity,” Tsao, 698
F.3d at 1140 (internal quotation marks omitted).
Ohno’s use of California’s Uniform Act as a litigant does
not make her a state actor through the public function test.
Although the court assuredly performs a public purpose, a
private individual seeking a remedy from a court is seeking
gain for him or herself, a purely private act. “[M]erely
resorting to the courts and being on the winning side of a
lawsuit does not make a party a co-conspirator . . . with the
judge.” Dennis v. Sparks, 449 U.S. 24, 28 (1980).
Nor does Ohno’s invocation of the Uniform Act convert
the underlying Japanese judgment into the joint action of
Ohno and the State of California or the district court. Again,
although California’s Uniform Act creates the legal
framework that may entitle the holder of a qualifying foreign-
country money judgment to recognition and enforcement of
24 OHNO V . YASUMA
that judgment in the courts, the Uniform Act is not the source
of the substantive legal rights underlying the judgment
enforced.
To be sure, the district court’s enforcement order
facilitates Ohno’s efforts to recover in the United States the
sum of money awarded by the Japanese court. But the district
court, through its implementation of the procedures
established by the Uniform Act, cannot be said to provide
“significant assistance” to the underlying acts that the Church
contends constituted the core violation of its First
Amendment rights—namely, judicial scrutiny of the content
of its religious beliefs and imposition of liability for the
consequences of its religious expression. California law
requires a court to recognize a final, conclusive foreign
monetary award that is enforceable where rendered, Cal. Civ.
Proc. Code § 1716(a), without inquiry into the merits of the
underlying judgment, once the court determines that there is
no ground for nonrecognition under § 1716(b) or (c) of the
Uniform Act. The court’s mandatory indifference to the
underlying merits of the judgment Ohno is seeking to enforce
refutes any characterization by the Church of Ohno’s
enforcement effort as a joint action with California or the
federal judiciary as to the aspects of the Japanese judgment
alleged to compromise the Church’s religious freedom.
Notably, the cases in which the Supreme Court has held
that private use of state-created procedures amounts to state
action have, by and large, concerned due process challenges
to the state procedures themselves or their application. Those
cases have not addressed constitutional challenges to the
underlying causes of action that prompted the non-
governmental party’s recourse to the state enforcement
procedures. See, e.g., Tulsa Prof’l Collection Servs., Inc. v.
OHNO V . YASUMA 25
Pope, 485 U.S. 478 (1988); Lugar, 457 U.S. 922; Sniadach,
395 U.S. 337.14 For example, in Sniadach, the petitioner
challenged the proceedings by which her wages were
garnished, arguing that they violated due process. 395 U.S.
at 339–40. She did not contend that the underlying
contractual debt could not ultimately be judicially enforced
because there was some aspect of the contract that, if
mandated by the government, would constitute
unconstitutional state action. Id. Here, in contrast, the
Church’s challenge is not to the procedures used to enforce
the underlying Japanese judgment in federal court but to the
substantive rights and defenses that gave rise to that
judgment—which, for present purposes, is analogous to a
private contract or debt, because not attributable to any
domestic state action or state actors.
As to a final joint action consideration, it cannot be said
that the federal or California government in any meaningful
way accepts benefits derived from the allegedly
unconstitutional actions. See Florer v. Congregation Pidyon
Shevuyim, N.A., 639 F.3d 916, 926 (9th Cir. 2011). At most,
the United States may gain some diplomatic benefit when it
recognizes foreign-country judgments, manifested through
increased reciprocity in the treatment of U.S. judgments
14
In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the
Court came closer than in the run of cases to imputing the substance
behind a private party’s use of a state procedure—that of peremptory
challenges to strike prospective jurors from a venire— to the state itself.
But unlike statutory schemes such as the Uniform Act, which exist to
serve private purposes, the entire endeavor at issue in Edmonson serves
governmental purposes— namely, conducting a civil trial. Through
peremptory challenges, the state essentially delegates to private parties in
a civil trial part of the public function of selecting a jury. See id. at
621–24.
26 OHNO V . YASUMA
abroad. But this benefit is, once again, independent of the
content of the judgments recognized and so cannot be said to
incorporate the allegedly unconstitutional acts underlying
them.
In sum, neither the Uniform Act nor the district court’s
challenged enforcement at Ohno’s behest of the Japanese
money judgment meets the standards for state action, under
the controlling Lugar framework, with regard to the
substance of the Japanese judicial decision. Both the Act and
the court’s involvement in implementing it are assuredly
governmental actions. But the purposely limited nature of
that involvement undermines the attribution to domestic
governmental actors of responsibility for the Japanese court’s
determination that the Church committed a tort by unfairly
inducing Ohno to transfer all of her money to Saints of Glory,
and so is liable to her for damages.
b.
Consideration of the seminal civil rights case, Shelley v.
Kraemer, 334 U.S. 1, does not alter our mode of analysis
under the generally applicable Lugar framework or lead us to
conclude otherwise. Shelley established that judicial
enforcement of a legal right or obligation whose source is not
domestic governmental action can constitute state action
triggering constitutional scrutiny. See id. at 20. Specifically,
Shelley held that a state court’s enforcement of racially
restrictive housing covenants entered into between private
land owners amounts to state action in violation of the Equal
Protection Clause. Id. The Court viewed the interposition of
judicial coercive power to enforce racially discriminatory
private agreements as governmental discrimination on the
basis of race. Id. at 20–21; see also Barrows v. Jackson, 346
OHNO V . YASUMA 27
U.S. 249, 254, 258 (1953) (applying the same state action
principle to a court’s award of damages for violation of a
discriminatory private contract).
But Shelley has not been interpreted as meaning that
domestic judicial enforcement of any monetary obligation
necessarily transforms the circumstances that gave rise to that
obligation into state action for constitutional purposes.15
15
Looking for precedents applying Shelley in the context of domestic
enforcement of foreign judgments yields few helpful authorities. The
Yahoo! district court, relying on Shelley’s reasoning, refused to enforce a
foreign judgment on First Amendment grounds, holding that domestic
judicial enforcement of a foreign judgment constitutes state action with
regard to the underlying foreign order, for constitutional purposes. Yahoo!
I, 169 F. Supp. 2d at 1189, rev’d on other grounds, Yahoo! II, 433 F.3d
1199. Yahoo! I concerned a French injunction that imposed viewpoint-
based restrictions on speech. As we discuss later, see Parts II.A.i.c, II.B.ii,
the state action considerations with respect to enforcement of a foreign
injunction differ from those that arise with respect to enforcement of an
order to pay a sum of money.
On appeal, we dismissed the Yahoo! I case for lack of personal
jurisdiction and ripeness, without mentioning Shelley or its reasoning.
Yahoo! II, 433 F.3d at 1201. To the extent that the opinions discussed the
merits of the First Amendment question, a majority of the judges on the
en banc panel assumed that the constitutionality of enforcing the
challenged foreign judgment would depend on whether compliance with
the French court’s order would restrict Yahoo!’s dissemination of, and
users’ access to, speech in the United States. See id. at 1220–22 (plurality
opinion); id. at 1234–35, 1244–45 (Fisher, J., concurring in part and
dissenting in part).
Other courts addressing similar issues have held, without discussing
state action directly or otherwise explaining their conclusion, that where
a foreign judgment fails to comport with domestic constitutional
requirements, “the refusal to recognize the judgment should be, and it is
deemed to be, ‘constitutionally mandatory.’” Bachchan v. India Abroad
28 OHNO V . YASUMA
Instead, Shelley’s attribution of state action to judicial
enforcement has generally been confined to the context of
discrimination claims under the Equal Protection Clause. In
the context of First Amendment challenges to speech-
restrictive provisions in private agreements or contracts,
domestic judicial enforcement of terms that could not be
enacted by the government has not ordinarily been considered
state action. See, e.g., Democratic Nat’l Comm. v.
Republican Nat’l Comm., 673 F.3d 192, 204–05 (3d Cir.
2012) (“The Supreme Court has declined to find state action
where the court action in question is a far cry from the court
enforcement in Shelley. . . . Court enforcement of a private
agreement to limit a party’s ability to speak or associate does
not necessarily violate the First Amendment.”), cert. denied,
133 S. Ct. 931 ( 2013). Various state court decisions “enforce
restrictions on speech arising from domestic contracts that
could not have been enacted into law due to the First
Amendment.” Mark D. Rosen, Exporting the Constitution,
53 Emory L.J. 171, 174, 192–94 & nn.98–111 (2004)
(compiling cases).16
Publ’ns Inc., 585 N.Y.S.2d 661, 662 (N.Y. Sup. Ct. 1992); see also
Viewfinder, 489 F.3d at 480 (holding “unenforceable” judgments that
“impinge on First Amendment rights”) (quoting Bachchan, 585 N.Y.S.2d
at 662, and Yahoo! I, 169 F. Supp. 2d at 1189–90). Although those rulings
may assume that judicial enforcement transforms the underlying foreign
judgment into one adopted by and attributable to the domestic court, the
opinions do not identify the basis for any such unarticulated assumption.
16
See, e.g., Golden Gateway Ctr. v. Golden Gateway Tenants Ass’n, 26
Cal. 4th 1013, 1033–35 (2001) (upholding an injunction enforcing a lease
provision prohibiting tenants from distributing unsolicited newspapers on
the ground that “judicial enforcement of injunctive relief does not, by
itself, constitute state action for purposes of California’s free speech
clause”); State v. Noah, 103 W ash. App. 29, 48–50 (2000) (judicial
enforcement of a voluntary settlement agreement prohibiting public
OHNO V . YASUMA 29
Similarly, in the context of judicial confirmation of
arbitral awards, loosely analogous to recognition of foreign-
country money judgments, the Eleventh Circuit has held that
“mere confirmation of a private arbitration award by a district
court is insufficient state action to trigger the application of
the Due Process Clause.” Davis v. Prudential Secs., Inc., 59
F.3d 1186, 1192 (11th Cir. 1995). Other courts agree. United
States v. American Society of Composers, Authors &
Publishers, 708 F. Supp. 95 (S.D.N.Y. 1989), for example,
held that a court’s “mere approval . . . of the use of arbitration
did not create any state action” lest “all arbitrations . . . be
subject to due process limitations through the simple act of
appealing the arbitrators’ decisions to the court system.” Id.
at 97. And the California Court of Appeal has made clear
that “the limited state involvement of converting the
[arbitration] award into a judgment . . . [does] not engender
the same due process incidents required with respect to an
award originally assessed and imposed by a court.” Rifkind
criticism of certain type of psychological therapy was not state action);
Linn Valley Lakes Prop. Owners Ass’n v. Brockway, 250 Kan. 169,
172–73 (1992) (judicial enforcement of a restrictive covenant barring the
posting of signs was not state action); cf. CompuServe Inc. v. Cyber
Promotions, Inc., 962 F. Supp. 1015, 1026 (S.D. Ohio 1997) (“[T]he mere
judicial enforcement of . . . trespass laws [of general application] by the
private owner of property does not alone render [the owner] a state
actor.”); Commonwealth v. Hood, 389 Mass. 581, 587–89 (1983) (holding
that judicial enforcement of trespass statute of general application is not
state action); but see W. Hill Baptist Church v. Abbate, 261 N.E.2d 196,
200–01 (Ohio 1969) (judicial enforcement of restrictive covenant
excluding houses of worship constitutes state action).
30 OHNO V . YASUMA
& Sterling, Inc. v. Rifkind, 28 Cal. App. 4th 1282, 1292
(1994).17
Courts’ reluctance, since Shelley, to expand that case’s
holding too far beyond its original context stems from a
concern for preserving a sphere for private action and private
actors, not subject to the constitutional constraints designed
to protect our populace from governmental control and
overreaching. “[I]f, for constitutional purposes, every private
right were transformed into governmental action by the mere
fact of court enforcement of it, the distinction between private
and governmental action would be obliterated.” Edwards v.
Habib, 397 F.2d 687, 691 (D.C. Cir. 1968). Similarly,
extending Shelley’s holding to judicial enforcement of
foreign-country money judgments would effectively require
foreign governments desiring American recognition of their
judicial rulings to apply the substantive provisions of the U.S.
Constitution in their courts whenever there is a defendant
who could be sued for enforcement in the United States,
regardless of where the conduct subject to adjudication
occurred or who the litigants are. Such wholesale imposition
of all aspects of our Constitution abroad is inconsistent with
the principles of comity and respect for sovereignty
underlying the recognition of foreign judgments.
For all these reasons, the district court’s enforcement of
the Japanese judgment does not render the substantive law
applied by the Japanese court, or the judgment it reached in
applying that law, domestic state action directly constrained
17
In citing these cases, we do not mean to adopt or sanction any of their
specific holdings. Instead, they are illustrative of the principle that Shelley
has not been understood as applying generally to judicial enforcement of
non-governmental agreements or decisions.
OHNO V . YASUMA 31
by the California or U.S. Constitutions. Consequently,
contrary to the Church’s contention, non-recognition of the
judgment cannot be constitutionally mandatory.
c.
In so holding, we do not suggest that “all that matters” in
the state action inquiry is whether an American entity “is the
origin of the legal right” enforced in a domestic court. Rosen,
53 Emory L.J. at 207. For example, there may be
circumstances in which the nature of the enforcement action
requires the court to take such an active role in, or to exercise
sustained supervision of, the underlying legal decision or the
resulting allocation of rights that it becomes appropriate to
view the court’s activities as governmental actions with
regard to the substance of the underlying decision or of the
resulting order.
Such may well be the case, for example, with regard to
the enforcement in a domestic court of some (or all)
injunctions issued by foreign countries. Injunctions directly
compel or forbid a party’s actions, and thus may be seen as
placing the domestic court’s imprimatur behind the substance
of the foreign court’s order to that extent. Also, enforcement
of injunctions implies the authority to exercise contempt and
modification powers after the injunction issues; the exercise
of such authority may entangle the enforcing court in the
merits of the underlying dispute. Whether or not these
aspects of injunctive relief could result in a determination that
enforcement by a domestic court of a particular foreign
injunction constitutes state action for constitutional purposes,
those same considerations are not present where, as here, the
enforcement is of an order to pay over a pre-determined
amount of money. In the latter instance, the connection
32 OHNO V . YASUMA
between the narrow domestic court order and the asserted
violation by the foreign court of substantive rights protected
by our Constitution is simply too attenuated, without more, to
attribute responsibility for the merits of the underlying
judgment to a domestic state actor. And, standing alone, the
order—to pay money to someone—does not mandate a
constitutionally protected act.
ii. Application of the First Amendment to the
Church’s Conduct
Because the Church’s constitutional claim fails at the
state action stage, we need not decide directly whether the
First Amendment’s protections actually do reach the
assertedly religious expression at issue in the Japanese suit.
As three judges noted in Yahoo! II, “[t]he extent of First
Amendment protection of speech accessible solely by those
outside the United States is a difficult and, to some degree,
unresolved issue” and “the extent—indeed the very
existence—of such an extraterritorial right under the First
Amendment [to publish speech in violation of foreign law] is
uncertain.” 433 F.3d at 1217, 1221 (plurality opinion). Nor
has any court yet decided whether the First Amendment’s
Free Exercise Clause applies to religious expression initiated
domestically but directed to a foreign audience.
Ohno was in Japan at all relevant times, and the Church
communicated with her there.18 Absent demonstrated impact
18
The Japanese court’s findings indicate that the Church intentionally
directed its allegedly religious speech to Ohno in Japan. The court found,
for example, that “[o]n January 2, 2002, . . . Yasuma took several hours
to talk to Ohno [on January 2, 2002], . . . pressuring her to tithe,”
(emphasis added) and that this talk ultimately led Ohno to make the
OHNO V . YASUMA 33
of the Japanese judgment on conduct in the United States, the
only constitutional question we face would “involve a
determination whether the First Amendment has
extraterritorial application”—a determination this Court
declined to make in Yahoo! II, 433 F.3d at 1217–18, 1222
(plurality opinion); see also id. at 1234–35, 1244–45 (Fisher,
J., concurring in part and dissenting in part), and which we
likewise decline to make here.19 Having concluded that the
enforcement of the judgment does not amount to state action,
we reserve for another day the task of tracing the First
Amendment’s reach beyond our borders.
Our analysis does not, however, foreclose other, non-
constitutional bars to enforcement of a foreign-country
money judgment, such as repugnancy to public policy. As we
discuss next, there can be sound policy justifications for
refusing to recognize foreign-country money judgments that
the Constitution would forbid a domestic court from
rendering in the first instance.
contested transfers to Saints of Glory. The findings also show that as a
general matter, the Church sent recordings of each of Yasuma’s sermons
to Japan, to be played to its members there. The Church does not dispute
that the events at issue “occurred chiefly in Japan.” Although it is not clear
whether Yasuma came to Japan or whether, instead, the Church sent a
copy of her speech to Japan, we do not see why it matters which is the
case.
19
That the judgment at issue here is an award of monetary damages
rather than an injunction, as in Yahoo!, could bear on our analysis of the
substantive constitutional issue as well as on the state action inquiry.
W hile the imposition of liability in the form of damages can have the
effect of chilling protected conduct, that effect is much less direct than is
the effect of using the coercive power of a domestic court to ensure that
a defendant complies with the terms of an injunction, compelling or
forbidding particular conduct.
34 OHNO V . YASUMA
B. Statutory Challenge: Repugnancy to Public Policy
In addition to its constitutional argument, the Church
contends that the Japanese judgment is not entitled to
recognition and enforcement under California’s Uniform Act
because it is “repugnant to the public policy” embodied in the
Religion Clauses of the Federal and State Constitutions. A
foreign judgment that would be unconstitutional if rendered
in this country necessarily qualifies as repugnant, the Church
maintains, making its recognition an abuse of discretion
under California’s Uniform Act.
The Act permits—but does not require—courts to deny
recognition to foreign monetary awards if either “[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
California or of the United States.” § 1716(c)(3) (emphases
added). Accordingly, we examine whether either the
Japanese law on which the judgment rests or the judgment
issued meets the stringent standard for repugnancy under
California law.
i. The Standard of Review
We first address the proper standard for reviewing a
district court’s decision whether to refuse recognition of a
foreign-country money judgment under California’s Uniform
Act or similar state statutes on grounds of repugnancy to
public policy. The only case of this court addressing a
somewhat similar issue is Arab Monetary Fund v. Hashim (In
re Hashim), 213 F.3d 1169 (9th Cir. 2000). Hashim treated
a bankruptcy court’s determination that an English award of
costs and fees was “repugnant to American jurisprudence”
and thus unenforceable under Arizona common law
OHNO V . YASUMA 35
principles of comity, as a legal conclusion, subject to de novo
review. Id. at 1172.20
Absent a demonstrated ground for non-recognition,
enforcement of a qualifying foreign-country money judgment
is mandatory under California’s Uniform Act. § 1716(a).
Here, the district court’s decision to recognize and enforce the
Japanese court’s judgment, over the Church’s objections,
hinged on a preliminary determination that neither the
judgment nor the underlying cause of action was
fundamentally incompatible with, and therefore repugnant to,
the Religion Clauses. Because that determination was a
conclusion of law, we, as in Hashim, examine de novo the
district court’s legal evaluation. Given that the Church has
asserted no other ground for non-recognition on appeal, if the
district court correctly determined that neither the Japanese
judgment nor the underlying cause of action is repugnant to
20
Other circuits reviewing recognition of foreign judgments under state
statutes similar to California’s have applied an abuse of discretion
standard. See, e.g., Banque Libanaise Pour Le Commerce v. Khreich, 915
F.2d 1000, 1004–06 (5th Cir. 1990) (reviewing for abuse of discretion a
district court decision whether to apply a non-mandatory ground of non-
recognition under Texas’s Uniform Act); Ingersoll Milling Mach. Co. v.
Granger, 833 F.2d 680, 688 (7th Cir. 1987) (reviewing for abuse of
discretion the district court’s refusal to deny recognition on public policy
grounds under Illinois’s Uniform Act, but evaluating the defendant’s
principal legal arguments de novo “for the sake of completeness”); cf.
Remington Rand Corp.-Del. v. Bus. Sys. Inc., 830 F.2d 1260, 1266 (3d
Cir. 1987) (citing IIT Corp. v. Lam (In re Colo. Corp.), 531 F.2d 463, 469
(10th Cir. 1976) (reviewing for abuse of discretion the extension or denial
of comity)). Even if we were to apply a deferential standard of review, a
district court “abuses its discretion when it commits an error of law.” AE
ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).
So the analysis would be the same as the one we conduct.
36 OHNO V . YASUMA
public policy, then recognition of the damages award was
statutorily required.
ii. The Standard for Repugnance
California courts have set a high bar for repugnancy under
the Uniform Act. The standard, rooted in the public policy
exception to the comity doctrine at common law, see Hilton
v. Guyot, 159 U.S. 113, 205–06, 227–28 (1895), measures not
simply whether the foreign judgment or cause of action is
contrary to our public policy, but whether either is “so
offensive to our public policy as to be ‘prejudicial to
recognized standards of morality and to the general interests
of the citizens.’” Java Oil Ltd. v. Sullivan, 168 Cal. App. 4th
1178, 1189–92 (2008) (emphasis added) (quoting Wong v.
Tenneco, Inc., 39 Cal. 3d 126, 135–36 (1985)). Thus, “even
where it is agreed that a foreign law offends public policy, it
may still be applied in a limited context where the potential
harm is minimal.” Wong, 39 Cal. 3d at 136. Put another
way, the public policy exception codified at § 1716(c)(3) does
not apply unless a foreign-country judgment or the law on
which it is based is “so antagonistic to California [or federal]
public policy interests as to preclude the extension of
comity.” Crockford’s Club Ltd. v. Si–Ahmed, 203 Cal. App.
3d 1402, 1406 (1988) (internal quotation marks omitted).21
21
The revised Uniform Foreign-Country M oney Judgment Act of 2005,
on which the California statute is based, retained “the stringent test for
finding a public policy violation applied by courts interpreting the
[previous version of the] Act.” Uniform Foreign-Country Money
Judgments Recognition Act, 13 U.L.A. pt. II, § 4, cmt. 8, at 28 (Supp.
2011). According to that test, the commentary to the model Uniform Act
explains, “[p]ublic policy is violated only if recognition or enforcement of
the foreign country judgment would tend clearly to injure public health,
the public morals, or the public confidence in the administration of law,
OHNO V . YASUMA 37
In the context of an Arizona enforcement action,
construing common law principles of international comity
similar to those on which California’s Uniform Act is based,
see Manco Contracting Co., 45 Cal. 4th at 198, we observed
that “few judgments fall in the category of judgments that
need not be recognized because they violate the public policy
of the forum,” In re Hashim, 213 F.3d at 1172 (internal
quotation marks omitted). “It has long been the law that
unless a foreign country’s judgments are the result of
outrageous departures from our own motions of ‘civilized
jurisprudence,’ comity should not be refused.” British
or would undermine that sense of security for individual rights, whether
of personal liberty or of private property, which any citizen ought to feel.”
Id. (internal quotation marks omitted); see also Restatement (Third) of
Foreign Relations Law of the United States § 482 cmt. f (1987);
Restatement (Second) of Conflict of Laws § 117 (1971).
Our sister circuits have applied a similarly strict standard to the
repugnancy exception of other states’ foreign judgment enforcement
statutes. See Viewfinder, 489 F.3d at 479–80 (“The public policy inquiry
rarely results in refusal to enforce a judgment unless it is inherently
vicious, wicked or immoral, and shocking to the prevailing moral sense.”
(internal quotation marks omitted)); Ackermann v. Levine, 788 F.2d 830,
841 (2d Cir. 1986) (describing the repugnancy standard as “high, and
infrequently met,” applying only in “clear-cut” cases where the judgment
or cause of action on which it is based is contrary to “‘fundamental
notions of what is decent and just’” (quoting Tahan v. Hodgson, 662 F.2d
862, 864 (D.C. Cir. 1981))); Sw. Livestock & Trucking Co. v. Ramon, 169
F.3d 317, 321 (5th Cir. 1999) (noting that the “level of contravention of
Texas law” has to be “high” for the court to deny recognition on public
policy grounds); cf. Andes v. Versant Corp., 878 F.2d 147, 150 (4th Cir.
1989) (holding, without expressly discussing repugnancy to public policy,
that a court applying Maryland’s Uniform Foreign-Money Judgments Act
would not give effect to an English rule of preclusion that is “so much at
odds with normal American notions of litigation that no American
jurisdiction would readily embrace it”).
38 OHNO V . YASUMA
Midland Airways Ltd. v. Int’l Travel, Inc., 497 F.2d 869, 871
(9th Cir. 1974) (quoting Hilton, 159 U.S. at 205).
Simple inconsistency between American state or federal
law and foreign law, then, does not render a foreign judgment
unenforceable by reason of repugnancy. See Yahoo! II, 433
F.3d at 1215 (plurality opinion). Foreign judgments are not
to be “tried afresh” in U.S. courts, applying domestic
concepts. See Hilton, 159 U.S. at 202–03. “We are not so
provincial as to say that every solution of a problem is wrong
because we deal with it otherwise at home.” Loucks ex rel.
Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111 (1918)
(Cardozo, J.).
Applying these principles, courts in other jurisdictions
have declined to enforce foreign-country money judgments
on grounds of repugnance to the public policy embodied in
the First Amendment, but only where there were stark
differences between foreign and domestic law. In Telnikoff
v. Matusevitch, 347 Md. 561 (1997), for example, Maryland’s
high court declined to enforce an English libel judgment
under principles of comity because English defamation law
“is totally different” from Maryland defamation law “in
virtually every significant respect” and “so contrary . . . to the
policy of freedom of the press underlying Maryland law.” Id.
at 598–99. A New York trial court similarly refused
recognition of an English libel judgment on the ground that
English libel standards are “antithetical to the protections
afforded the press by the U.S. Constitution,” explaining that
the presumptions and burdens of proof under English libel
law are the reverse of those under American law, requiring
media defendants to prove the truth of speech of public
concern, rather obliging plaintiffs to demonstrate falsity.
OHNO V . YASUMA 39
Bachchan v. India Abroad Publ’ns Inc., 585 N.Y.S.2d 661,
665 (1992) (emphasis added).22
In Yahoo! I, the Northern District of California, in an
opinion reversed on jurisdictional grounds, see Yahoo! II, 433
F.3d 1199, applied similar logic to that in Telnikoff and
Bachchan and barred enforcement of a French injunction
requiring the Internet company Yahoo! to block French users’
access to Nazi-related website content. See Yahoo! I, 169
F. Supp. 2d at 1184–85. The “content and viewpoint-based
regulation” of Internet speech, the district court held, “clearly
would be inconsistent with the First Amendment if mandated
by a court in the United States.” Id. at 1192–93.
22
Federal law now controls domestic actions seeking recognition of
foreign defamation judgments. In August 2010, Congress adopted the
SPEECH Act (“Securing the Protection of our Enduring and Established
Constitutional Heritage Act.”), Pub. L. No. 111-223, 124 Stat. 2380
(2010), 28 U.S.C. §§ 4101–4105, effectively codifying the approach
adopted in Telnikoff. The Act was prompted by a perceived increase in
the frequency of foreign libel judgments inconsistent with the First
Amendment, Pub. L. No. 111-223, § 2(5), and concern that these suits
were “significantly chilling American free speech and restricting both
domestic and worldwide access to important information.” S. Rep. No.
111-224, at 2 (2010); see also Pub. L. No. 111-223, § 2(3). The new law
makes foreign defamation judgments unenforceable in the United States
unless it can be shown that such judgments satisfy the protections of
freedom of speech and press guaranteed by both the First Amendment to
the United States Constitution and the constitution of the state in which
the domestic court is located. See 28 U.S.C. § 4102(a)(1). Notably, the
SPEECH Act does not pertain to all foreign judgments allegedly
inconsistent with any part of the First Amendment but focuses uniquely
on defamation actions and the “First Amendment rights of American
authors and publishers.” H.R. Rep. No. 111-154, at 5 (2009), reprinted in
2010 U.S.C.C.A.N. 812, 816. California’s Uniform Act contains a similar
special exception for foreign judgments rendered in defamation actions.
See Cal. Civ. Proc. Code § 1717(c).
40 OHNO V . YASUMA
These cases do not suggest that a looser standard applies
when the asserted repugnancy arises from an inconsistency
with U.S. constitutional as opposed to statutory or common
law principles. There is no California case so holding and no
basis in the statutory language for such a conclusion. Rather,
the cases underscore that only judgments presenting a direct
and definite conflict with fundamental American
constitutional principles will be denied recognition because
repugnant.
Such direct conflict is more apt to arise where the foreign-
country judgment—or the law underlying it—does not
incidentally or indirectly affect conduct that may be protected
in the United States, but expressly targets such conduct.
Telnikoff, Bachchan, and Yahoo! (I & II), all concerned
challenges to enforcement of foreign-country judgments
issued on the basis of foreign laws specific to speech or
expression—such as libel, defamation and hate speech
laws—not laws of general application, such as the Japanese
tort laws underlying the judgment at issue here.23 The state
courts in Telnikoff and Bachchan, and the district court in
Yahoo! I, found repugnancy not based on the way that a
particular foreign law was applied to the specific facts of the
23
The same distinction may be drawn between the present case and
another circuit court opinion, involving enforcement of a French
intellectual property and copyright judgment, targeting the publication of
photographs. See Viewfinder, 489 F.3d 474. The district court had held
the French judgment repugnant to public policy on the grounds that it was
fundamentally at odds with principles of free expression protected by the
U.S. and New York Constitutions. Sarl Louis Feraud Int’l v. Viewfinder
Inc., 406 F. Supp. 2d 274, 285 (S.D.N.Y. 2005). The Second Circuit
vacated and remanded for a more thorough comparison of French and U.S.
copyright law and the “fair use” exception for First Amendment-protected
activity. 489 F.3d at 484.
OHNO V . YASUMA 41
case, but because of fundamental differences in the guiding
legal doctrine applied or the procedures used in the foreign-
country court as compared to domestic legal principles. The
courts concluded that the foreign judgments in question were
repugnant to public policy because they would
unquestionably violate the Constitution were they issued here
with respect to domestic activity; those conclusions were not
fact-dependent. In other words, it was not debatable whether
the orders, if domestically issued and applied, could have
survived constitutional scrutiny.
The situation with which we are faced here is quite
otherwise. As will appear, it is highly debatable, at least,
whether tort liability could be imposed on the Church for
inducing Ohno’s Transfers, and the ultimate determination of
that question would be highly fact-dependent. As the
Japanese cause of action and judgment in this case are not
antithetical to the Religion Clauses, they are not repugnant to
California or U.S. public policy in the sense required by the
exception in California’s Uniform Act.
iii. Repugnancy of the Japanese Cause of Action and
Claims
In evaluating the repugnancy of a foreign cause of action,
we compare the legal basis for liability and the plaintiff’s
claims for relief in the foreign court with comparable grounds
for suit in the United States. If American law recognizes
generally parallel causes of action, the foreign cause of action
cannot be said to be repugnant to American public policy.24
24
T his condition is sufficient but not necessary for non-repugnancy.
There could be foreign causes of action that have no parallel in domestic
law but are not repugnant to any aspect of domestic law either.
42 OHNO V . YASUMA
This assessment does not depend on whether the
standards for evaluating a cause of action or the elements
required to state a claim are identical under domestic and
foreign law. Instead, we necessarily focus on the
fundamentals of the cause of action underlying the foreign
judgment and defenses thereto, “not the differences in the
bodies of law” or in the way in which remedies are afforded.
Soc’y of Lloyd’s v. Reinhart, 402 F.3d 982, 995 (10th Cir.
2005); see also Soc’y of Lloyd’s v. Turner, 303 F.3d 325, 332
(5th Cir. 2002). That a particular cause of action does not
exist, or that a particular claim would not be cognizable, in
California does not obligate us to refuse enforcement of a
judgment, as long as the existence of the cause of action is
not itself repugnant to California public policy. See
Restatement (Third) of Foreign Relations Law of the United
States § 482 cmt. f (1987); Restatement (Second) of Conflict
of Laws § 117 (1971).
Here, the Church was held liable under article 709 of the
Japanese Civil Code, which provides that “[a] person who has
intentionally or negligently infringe[d] any right of others, or
legally protected interest of others, shall be liable to
compensate any damages resulting in consequence.” Minpô
[Civ. C.] art. 709 (Japan). There is nothing repugnant to
California public policy about providing a damages remedy
for intentional or negligent injury to others’ rights or
protected interests. California tort law—and American tort
law generally—does exactly that. See, e.g., Cal. Civ. Code
§ 1714. And, while a party’s status as a religious entity or
believer may bear on certain relevant inquiries, such as
whether the party may assert a Religion Clause defense, that
does not render the party immune from liability under tort
law. Cf. Viewfinder, 489 F.3d at 480–81 (explaining that an
entity’s status as a news publication may bear on its assertion
OHNO V . YASUMA 43
of a “fair use” defense but does not entitle it to immunity
from liability under intellectual property laws). Accordingly,
the general availability of a tort remedy in Japan for a suit
against a church is not, on its face, repugnant to California
public policy.
We look next at the particular claims on which the tort
cause of action was based. Ohno’s claims are analogous to
actions for undue influence, fraud, negligent or intentional
infliction of emotional distress, and unjust enrichment under
California law. See Cal. Civ. Code §§ 1572 (fraud), 1575
(undue influence); 1714 (liability for willful or negligent
injury to others).25 The Church maintains that claims of
undue influence, fraud, negligent or intentional infliction of
emotion distress, or unjust enrichment are not cognizable in
California if the defendants’ actions giving rise to liability
were facially religiously motivated. At the level of generality
at which this assertion is made, it is false.
American courts can recognize tort liability for acts
assertedly motivated by religion. The Religion Clauses do
not bar tort claims against a religious entity or its members,
so long as adjudicating the cause of action does not require a
25
The Supreme Court of California and California Courts of Appeal
have recognized actions for relief under the equitable doctrine of unjust
enrichment. See Ghirardo v. Antonioli, 14 Cal. 4th 39 (1996) (recognizing
a cause of action for unjust enrichment upon a showing that the defendant
received benefit through another’s known mistake, fraud, coercion or
other tortious conduct); see also Hernandez v. Lopez, 180 Cal. App. 4th
932, 938 (2009) (“The doctrine applies where plaintiffs, while having no
enforceable contract, nonetheless have conferred a benefit on defendant
which defendant has knowingly accepted under circumstances that make
it inequitable for the defendant to retain the benefit without paying for its
value.”).
44 OHNO V . YASUMA
court to judge the validity of religious beliefs or interfere with
ecclesiastical decisionmaking regarding self-governance or
employment. See, e.g., United States v. Ballard, 322 U.S. 78,
86 (1944); Molko v. Holy Spirit Ass’n for Unification of
World Christianity, 46 Cal. 3d 1092, 1115–16 (1988); Elvig
v. Calvin Presbyterian Church, 375 F.3d 951, 956, 959–62
(9th Cir. 2004) (citing Bollard v. Cal. Province of Soc’y of
Jesus, 196 F.3d 940, 945–47 (9th Cir. 1999)).
The Religion Clause protections “embrace[] two
concepts—freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the second cannot be.”
Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); see
also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir.
2009); Molko, 46 Cal. 3d at 1112. Conduct, including
speech-based conduct such as solicitation, “remains subject
to regulation for the protection of society.” Cantwell, 310
U.S. at 304. So recognizing, California courts have
entertained claims of fraud, undue influence, and intentional
infliction of emotional distress brought against religious
entities by former members seeking recovery of donations
and damages for harm. See, e.g., Molko, 46 Cal. 3d 1092;
Wollersheim v. Church of Scientology of Cal., 212 Cal. App.
3d 872 (1989) (“Wollersheim I”), vacated and remanded on
other grounds, 499 U.S. 914 (1991), amended by 6 Cal. Rptr.
2d 532 (Ct. App. 1992) (“Wollersheim II”).26 Religiously
26
The Supreme Court vacated and remanded Wollersheim I for
reconsideration of the punitive damages award in light of Pacific Mutual
Life Insurance Company v. Haslip, 499 U.S. 1 (1991). See Wollersheim,
499 U.S. 914 (1991). On remand, Wollersheim II “incorporated intact and
unaltered” the portion of Wollersheim I that “dealt exhaustively with the
tort [and] freedom of religion” issues. Wollersheim II, 6 Cal. Rptr. 2d at
534 n.1. The California Supreme Court subsequently granted review of
Wollersheim II, see 10 Cal. Rptr. 2d 182 (1992), but, “following the
OHNO V . YASUMA 45
motivated gifts have been set aside on a strong showing of
undue influence by religious advisors over the testamentary
act. See Sunland Home Found., Inc. v. Bourquin (In re Estate
of Bourquin), 161 Cal. App. 2d 289, 299–300 (1958).
With respect to speech related to solicitation for a
religious cause, there is no categorical bar under domestic
law to a claim in tort. The state is “free to regulate the time
and manner of solicitation generally, in the interest of public
safety, peace, comfort or convenience.” Cantwell, 310 U.S.
at 306–07. The preservation of this state regulatory authority
is important, given that speech may be the vehicle through
which undue influence is exerted, depending on the context
and manner in which it is conveyed. See, e.g., Dovydenas v.
The Bible Speaks (In re The Bible Speaks), 869 F.2d 628,
645–46 (1st Cir. 1989) (rejecting a church’s First Amendment
defense against claims that it exerted undue influence to
obtain gifts because the court’s findings rested on the
church’s secular statements and actions).
There are, to be sure, definite limitations on what
constitutes under California law a cognizable tort claim
arising from facially religious conduct: No cause of action
will be recognized where a plaintiff challenges the verity of
religious statements or beliefs. “It is settled that inquiry into
the truth or falsity of religious beliefs is foreclosed by
constitutional guarantees of religious freedom and that the
United States Supreme Court’s decision in TXO Production Corp. v.
Alliance Resource Corp., 509 U.S. 443 (1993), the California Supreme
Court dismissed its prior grant of review.” Church of Scientology v.
Wollersheim, 42 Cal. App. 4th 628, 637 (1996). Accordingly,
Wollersheim II and Wollersheim I— to the extent the earlier opinion was
incorporated into the later one—remain good law.
46 OHNO V . YASUMA
courts may ask only whether the proponent of a particular
religion holds his beliefs honestly and in good faith.”
Hallinan v. Roman Catholic Archbishop of S.F. (In re Estate
of Supple), 247 Cal. App. 2d 410, 414 (1966) (refusing to
pass on the truth of religious statements alleged to have
unduly influenced a testator’s actions). And the California
Court of Appeal has refused to entertain actions that require
the court to determine whether the actions of an individual
not party to the lawsuit were induced by faith or coercive
persuasion. Katz v. Superior Court, 73 Cal. App. 3d 952(1977) (overturning conservatorship orders granted to parents
of members of the Unification Church who claimed their
children were brainwashed).
Similarly, under the Religion Clauses, claims of
intentional infliction of emotional distress against churches or
other religious entities “based merely on threats of divine
retribution” will not be allowed to proceed, Molko, 46 Cal. 3d
at 1120, because such threats, like “‘hell fire and damnation’”
preaching, are protected religious speech and cannot form the
basis of a claim for emotional distress, Wollersheim I, 212
Cal. App. 3d at 892–93. Under California law, suits alleging
purely emotional injury due to such religious expression are
not permitted, given that “[i]t is one of the functions of many
religions to ‘afflict the comfortable.’” Id. at 892. And
California courts have declined to recognize a cause of action
for negligent infliction of emotional distress as a result of
religiously motivated conduct because “religious
organizations owe no duty to members or former members
with respect to these forms of [emotional] injury.” Id. at 901.
As noted above, the Japanese law under which the Church
was sued permits liability for the infringement of another’s
rights based either on an intentional or negligent state of
OHNO V . YASUMA 47
mind. See Minpô [Civ. C.] art. 709 (Japan). To the extent
that Ohno’s claim amounted to one for merely negligent
infliction of emotional distress as a result of facially religious
conduct, it may not have been cognizable under California
law. But California courts have pronounced no bar to claims
for negligent infliction of economic injury, and Ohno clearly
asserted pecuniary losses as well as pain and suffering.
Moreover, the reason the California Court of Appeal has
given for barring recovery from religious entities for the
negligent infliction of emotional distress is not that such
liability necessarily offends the Religion Clauses, but rather
that religious organizations have no duty of care to avoid
causing their members emotional injury. See Wollersheim I,
212 Cal. App. 3d at 900–01. If such a duty of care exists
under Japanese law, this difference from California law does
not denote repugnance to a public policy embodied in the
Religion Clauses.
Ohno’s claims, which relate to economic as well as
emotional injury, do not directly impugn the Church’s
religious beliefs or teachings. The Japanese trial court
rejected the Church’s argument that the lawsuit was a purely
religious dispute and explicitly disavowed the notion that it
was scrutinizing the Church’s beliefs, stating that there was
no “need to make a judgment about the religious teaching
itself, in order to make a determination about the validity of
[Ohno’s] claim.” The court further recognized that
solicitation of donations by religious entities is legal and
protected from liability in Japan, so long as the methods used
are within the scope of what is “socially appropriate.” Where
inducement of donations incite anxiety, confusion, or terror,
however, such that the donation cannot be considered to be
based on the individual’s free will, then a tort can be
established. It was within these parameters that the Japanese
48 OHNO V . YASUMA
court adjudicated Ohno’s claims. Far from being so divergent
from domestic legal principles as to be repugnant to public
policy, the causes of action underlying the Japanese judgment
were generally similar to, although possibly broader than,
those that would be cognizable under California law.
In other words, had Ohno alleged that she had been
tortiously induced to donate hundreds of thousands of dollars
to a church in California, she could have sued the religious
entity or its officers here, too. Whether she would prevail on
the particular facts of her case or whether the defendants
could successfully raise constitutional defenses to any of her
claims is a separate question, which we address next. We are
not persuaded that the cause of action underlying the
Japanese judgment is antithetical to California public policy
regarding religious freedom.
iv. Repugnancy of the Japanese Judgment
We turn next to the repugnancy of the judgment itself.
The Church contends that the judgment is repugnant to public
policy because it is incompatible with the Religion Clauses of
the California and Federal Constitutions in two respects:
First, the judgment necessarily involved an assessment by the
court of the validity of the Church’s religious teachings; and,
second, the imposition of tort liability placed a burden on the
Church’s exercise of its religion without a compelling state
interest in doing so. As will appear, the first contention is
unsupported in the record. And the second cannot be grounds
for declaring the judgment repugnant to public policy
precisely because it presents a close question under California
and federal law. In this context, where a repugnancy
determination hinges on a definitive finding of conflict
OHNO V . YASUMA 49
between foreign and domestic law, the debatability of the
validity of the Church’s legal position is its downfall.
a.
Ohno’s tort suit rests largely on fact-bound
determinations regarding the nature of the actions that gave
rise to her asserted injuries. Ohno contends that “the actual
[Japanese] judgment was manifestly and explicitly concerned
with conduct—the coercion, the overpowering of [her] own
will, the deprivation of medications, the destruction of family
relations, and the targeted fleecing of [her] assets.” The
Church, however, characterizes the Japanese judgment as
imposing liability for Ohno’s reactions to its “protected
religious speech about the consequences of disobedience to
God’s commandments.”
By its plain language, the Japanese judgment does appear
to attach liability to the speech of a religious entity: The
illegal act is described as “inducement” or “solicitation,”
based on “fraudulent and intimidating statements.” But the
Japanese trial court neither limited its focus to speech that
was religious in nature nor rested its ruling on findings
regarding the content of any religious speech at issue. The
court made findings related to the Church’s communications
with Ohno regarding her living situation, contact with her
family, and medical care, as well as pressure exerted on her
to transfer funds to the Church, any or all of which may have
been secular in nature. And while the judgment recounts the
substance of some of the Church’s teachings, the court’s
language suggests that it attributed the harms Ohno suffered
not to the content of the Church’s threats, but to the context
in which they were made—that Ohno was isolated from her
family, not taking medication for her depression, and
50 OHNO V . YASUMA
suffering from general ataxia. The judgment states that the
Church’s conduct in soliciting money from Ohno, who was
“under such a psychological condition,” “incite[d] anxiety”
and “cause[d] terror,” such that the Transfers cannot be said
to have been made of Ohno’s free will. The record does not
support an inference that the Japanese court imposed liability
because of the “specific motivating ideology,” opinion, or
perspective behind the Church’s communication with Ohno,
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 829 (1995), or a finding regarding the truth or falsity of
the Church’s religious beliefs, see Ballard, 322 U.S. at 87–88.
While the facts of Ohno’s case may not be as egregious
as those in Wollersheim and Molko, where the plaintiffs
alleged they were physically coerced and deceived as to the
identity of the church they were joining, the difference is a
matter of degree, not kind. To be sure, California tort law
would require proof of elements not found in the Japanese
judgment. The tort of fraud under California law, for
example, requires intent to defraud. See Molko, 46 Cal. 3d at
1108; Collins v. eMachines, Inc., 202 Cal. App. 4th 249, 259
(2011). Similarly, to sustain a claim of intentional infliction
of emotional distress in California, a plaintiff must show
intent to cause, or reckless disregard for, emotional injury.
Wollersheim I, 212 Cal. App. 3d at 881. And under
California law, “undue influence” consists in “the use, by one
in whom a confidence is reposed by another, or who holds a
real or apparent authority over him, of such confidence or
authority for the purpose of obtaining an unfair advantage
over him” or “taking an unfair advantage of another’s
weakness of mind.” Cal. Civ. Code § 1575(1), (2) (emphasis
added).
OHNO V . YASUMA 51
The Japanese trial court’s judgment does not clearly
establish either knowledge or intent on the part of Yasuma or
Saints of Glory to “incite anxiety” or “cause terror.” Facts in
the record such as Yasuma’s discouragement of the use of
medication, Ohno’s regular attendance at Church services,
and the Church’s oversight of her living situation permit an
inference that Defendants were aware of Ohno’s vulnerable
mental and physical condition, and knew or should have
known of the likelihood of causing her emotional harm or
exerting undue influence. But the record reflects no discrete
findings regarding the Church’s knowledge of Ohno’s
depression and ataxia, whether Yasuma held a position of
confidence and authority over Ohno, and whether the Church
intended to take advantage of her.
For reasons we have surveyed, however, that the Japanese
court did not find all the requisite elements of the causes of
action for undue influence, fraud, or infliction of emotional
distress under California law does not make the judgment
antithetical to the basic precepts of tort law in this country, or
to constitutional principles. Enforcing a defamation or libel
judgment absent a finding of malice stands in direct tension
with constitutional principles, because it punishes speech on
the basis of content. In contrast, imposing tort liability absent
a finding of intent, for actions that may or may not constitute
protected religious conduct, does not give rise to the same
stark clash of legal principles.
b.
Even if a court in the United States could find the
requisite elements of Ohno’s tort claims, the Church
maintains, the Religion Clauses would bar recovery. But the
record does not show that the Church has so clearly made out
52 OHNO V . YASUMA
a viable Free Exercise defense as to render the Japanese
judgment antithetical to the fundamental principles
underlying American protection of freedom of religion.
To invoke the protection of the Religion Clauses against
a judgment in tort, the Church would have to demonstrate that
imposing liability in damages substantially burdened its
sincerely held religious beliefs or practices and that the
state’s justifications for that burden did not outweigh any
infringement on the Church’s religious freedom, under the
applicable standard of scrutiny.27 See Hernandez v. Comm’r,
490 U.S. 680, 699 (1989) (“The free exercise inquiry asks
whether government has placed a substantial burden on the
observation of a central religious belief or practice and, if so,
whether a compelling governmental interest justifies the
27
A “valid and neutral [state] law of general applicability,” such as a
domestic tort judgment similar to the Japanese judgment at issue here, that
has the incidental effect of burdening the free exercise of religion no
longer must withstand the “compelling interest” test articulated in
Sherbert v. Verner, 374 U.S. 398, 403 (1963), to survive constitutional
scrutiny. Emp’t Div. v. Smith, 494 U.S. 872, 879, 885 (1990); accord
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993). “[A] religious objector has no federal constitutional right to an
exemption from a neutral and valid [state] law of general applicability on
the ground that compliance with that law is contrary to the objector’s
religious beliefs.” N. Coast Women’s Care Med. Grp., Inc. v. San Diego
Cnty. Superior Court, 44 Cal. 4th 1145, 1155 (2008) (emphasis omitted).
As we explain below, however, we presume for purposes of our analysis
that the tort judgment at issue here, had it been rendered by a domestic
court, would have to survive strict scrutiny. “Under strict scrutiny, ‘a law
could not be applied in a manner that substantially burden[s] a religious
belief or practice unless the state show[s] that the law represent[s] the least
restrictive means of achieving a compelling interest.’” Id. at 1158
(alterations in original) (quoting Catholic Charities of Sacramento, Inc. v.
Superior Court, 32 Cal. 4th 527, 562 (2004)).
OHNO V . YASUMA 53
burden.”); Smith v. Fair Emp’t & Hous. Comm’n, 12 Cal. 4th
1143, 1166–67 (1996).
The threshold requirement for a defense based on the
Religion Clauses is to show that one sincerely holds beliefs
as religious views. Malik v. Brown, 16 F.3d 330, 333 (9th
Cir. 1994). Courts typically give credence to assertions of
sincerely held religious beliefs in absence of any challenge to
their sincerity or religious motives, and so long as they are
not “so bizarre, so clearly nonreligious in motivation, as not
to be entitled to protection under the Free Exercise Clause.”
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707,
715–16 (1981); Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir.
2008) (taking the plaintiff’s assertion that his dietary needs
were religiously motivated as prima facie evidence of sincere
religious beliefs); Malik, 16 F.3d at 333 (giving credence to
the plaintiff’s testimony regarding the reasons for his
adoption of a Muslim name in absence of anything in the
record challenging the sincerity of his religious beliefs).
Construing the facts in the light most favorable to the Church,
as we must on review of summary judgment, we presume that
their actions were based on sincerely held religious beliefs.
Next, the Church would have to show that the order to
pay damages to Ohno imposed a “substantial or, in other
words, legally significant,” Smith v. Fair Emp’t & Hous.
Comm’n, 12 Cal. 4th at 1166–67, burden on its exercise of
religion. “[A] substantial burden must place more than an
inconvenience on religious exercise”; it must have a
“tendency to coerce individuals into acting contrary to their
religious beliefs” or “exert[] substantial pressure on an
adherent to modify his behavior and to violate his beliefs.”
Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456
54 OHNO V . YASUMA
F.3d 978, 988 (9th Cir. 2006) (internal quotation marks
omitted).
To be sure, “the burden of tort damages is direct.” Paul,
819 F.2d at 881. While a tort damages judgment does not
criminalize the conduct for which liability is imposed, it
effectively makes the challenged actions “unlawful.” Id.
Here, however, it is questionable whether the Church
could demonstrate that the burden imposed infringes on
protected religious beliefs, not merely on conduct
accompanied by such beliefs. Employment Division v. Smith,
494 U.S. 872 (1990), rejected the notion that “when otherwise
prohibitable conduct is accompanied by religious convictions,
not only the convictions but the conduct itself must be free
from governmental regulation.” Id. at 882. Accordingly, that
the Church’s conduct may have been motivated by religious
convictions does not shield it from tort liability for injuries
engendered by its actions.
Even if we presume that the Church could show the
imposition of tort liability to be a substantial burden on its
religious exercise, it would still have to surmount a final
hurdle: proving that its burden outweighed the governmental
interest in the regulation of tortious activity. Again,
construing the facts in favor of the Church, we presume that
strict scrutiny would apply and the judgment could be upheld
only upon demonstration that enforcement of tort law serves
a compelling state interest. Paul, 819 F.2d at 882–83 & n.6
(citing Sherbert v. Verner, 374 U.S. 398, 403 (1963)). This
presumption is appropriate, as a law of general application
that implicates “‘the Free Exercise Clause in conjunction with
other constitutional protections, such as freedom of speech
and of the press’” remains subject to strict scrutiny. San Jose
OHNO V . YASUMA 55
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031
(9th Cir. 2004) (quoting Smith, 494 U.S. at 881). Because the
Church contends that the imposition of tort liability here
burdens its religious speech, this case might qualify as a
“‘hybrid’” one in an American court, triggering strict scrutiny
under federal constitutional law. See id. at 1031 (quoting
Miller v. Reed, 176 F.3d 1202, 1204 (9th Cir. 1999)).28
But we are not persuaded that a California court could not
conclude that “the state’s interest in allowing tort liability” as
a means of protecting vulnerable individuals against undue
influence, abuse of confidence for pecuniary gain, and fraud
is compelling enough “to outweigh any burden” imposed on
the Church’s action. See Molko, 46 Cal. 3d at 1117 (citing
Wisconsin v. Yoder, 406 U.S. 205, 221 (1972)). Nor are we
persuaded that a California court would not deem tort law the
least restrictive means of pursuing the state’s compelling
interests. This result is particularly likely given that the
religious expression at issue here was targeted at Ohno
specifically, rather than a more general audience. Holding
the Church liable in this case may discourage it from
28
The California Supreme Court has expressed skepticism about the
notion that a “hybrid claim” implicating more than one constitutional right
is entitled to heightened scrutiny under the Federal Constitution. See
N. Coast Women’s Care Med. Grp., Inc., 44 Cal. 4th at 1156–57.
Regardless, federal law does not control California’s interpretation of the
State Constitution. The California Supreme Court has not yet determined
what standard should apply under the California Constitution to a valid,
neutral state law of general applicability that burdens religious exercise.
See id. at 1158. W hatever the California standard might be, it would not
be stricter than strict scrutiny. Id. at 1159–60 (citing Catholic Charities
of Sacramento, Inc., 32 Cal. 4th at 559, 562). For our purposes, we assume
that a tort judgment imposing liability for facially religious conduct would
need to survive strict scrutiny under either the California or the Federal
Constitution, or both.
56 OHNO V . YASUMA
soliciting funds in the manner pursued here, from individuals
in a comparable psychological or medical state, or from
otherwise exerting undue influence to obtain donations in the
future. It does not, however, substantially inhibit Yasuma
and Saints of Glory from practicing their religion or
disseminating their teachings.
Construing the facts in the Church’s favor, Ohno may
well have failed to prevail in a California court on all her
claims. But it is far from “clear-cut,” Ackermann v. Levine,
788 F.2d 830, 841 (2d Cir. 1986), and so certainly debatable,
whether the Religion Clauses would bar an American court
from issuing the same judgment had the suit been brought
here. Moreover, as we cannot say, on the record before us,
that a court in this country could not have rendered the
judgment for Ohno had the events occurred entirely within
the United States, then we certainly cannot conclude that a
domestic court could not have issued the judgment where, as
here, the challenged conduct was directed at an individual in
Japan.
In sum, the Japanese award cannot be said to fall into the
narrow class of judgments that must be refused enforcement
because repugnant to public policy. Neither the law applied
nor the particular judgment issued is “so antagonistic” to the
public policy embodied in the Religion Clauses, Crockford’s
Club Ltd., 203 Cal. App. 3d at 1406, or so “inherently
vicious, wicked or immoral, and shocking to the prevailing
moral sense,” Viewfinder, 489 F.3d at 479–80, as to preclude
recognition.29
29
W e likewise reject the Church’s argument that the district court
abused its discretion in denying the Church’s motion for a continuance for
the purpose of developing evidence. The Church’s motion under former
OHNO V . YASUMA 57
Conclusion
The roots of California’s Uniform Act and its
presumption that foreign-country money judgments are
enforceable lie in principles of international comity:
When an action is brought in a court of
this country, by a citizen of a foreign country
against one of our own citizens, to recover a
sum of money adjudged by a court of that
country to be due from the defendant to the
plaintiff, and the foreign judgment appears to
have been rendered by a competent court,
having jurisdiction of the cause and of the
parties, and upon due allegations and proofs,
and opportunity to defend against them, and
its proceedings are according to the course of
a civilized jurisprudence, and are stated in a
clear and formal record, the judgment is prima
facie evidence, at least, of the truth of the
matter adjudged; and it should be held
conclusive upon the merits tried in the foreign
Federal Rule of Civil Procedure 56(f) was entirely lacking in specificity.
As the district court noted, given that “[the Church] vigorously litigated
the underlying proceedings in Japan, and even appealed the adverse
judgment,” counsel should have been able to identify with greater
particularity what type of evidence they believed existed in the Japanese
court records that could bolster their arguments. “[I]t is not enough to rely
on vague assertions that discovery will produce needed, but unspecified,
facts.” Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th
Cir. 1999) (internal quotation marks omitted). The evidence sought in a
Rule 56(f) motion must be more than the object of mere speculation.
M argolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998); see also Family
Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822,
827 (9th Cir. 2008). The Rule 56(f) motion was therefore properly denied.
58 OHNO V . YASUMA
court, unless some special ground is shown
for impeaching the judgment, as by showing
that it was affected by fraud or prejudice, or
that by the principles of international law, and
by the comity of our own country, it should
not be given full credit and effect.
Hilton, 159 U.S. at 205–06. The Church has not
demonstrated any such ground for non-recognition here.
Enforcement, by the district court, of the Japanese
damages award did not render the imposition of tort
liability domestic state action, subject to constitutional
constraints. Thus, the district court’s order did not directly
violate the Federal or California Constitution. Nor is the
Japanese judgment or the underlying cause of action so
antithetical to the protections afforded by the Religion
Clauses as to permit—let alone require—non-recognition
under California’s Uniform Act by reason of repugnancy to
public policy. For the foregoing reasons, the judgment of the
district court is
AFFIRMED.