FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINCENT SICRE DE FONTBRUNE;

LOAN SICRE DE FONTBRUNE; ADEL 

SICRE DE FONTBRUNE; ANAIS SICRE 

DE FONTBRUNE, in their capacity as 

personal representatives of the Estate 

of YVES SICRE DE FONTBRUNE,

Plaintiffs-Appellants/

Cross-Appellees,

v.

ALAN WOFSY; ALAN WOFSY &

ASSOCIATES,

Defendants-Appellees/

Cross-Appellants.

Nos. 19-16913

19-17024

D.C. No.

5:13-cv-05957-

EJD

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted February 8, 2022

San Francisco, California

Filed July 13, 2022
2 SICRE DE FONTBRUNE V. WOFSY

Before: Andrew D. Hurwitz and Lawrence VanDyke, 

Circuit Judges, and Joan N. Ericksen,* District Judge.

Opinion by Judge Ericksen

SUMMARY**

Foreign Judgments

The panel reversed the district court’s summary 

judgment entered for defendants Alan Wofsy and Alan 

Wofsy & Associates (collectively “Wofsy”) in an action 

brought by Yves Sicre de Fontbrune in California state court 

seeking recognition of a French money judgment.

The photographer Christian Zervos created the Zervos 

Catalogue of the works of Pablo Picasso, which was 

originally published under the label of Cahiers d’Art. In 

1979, Sicre de Fontbrune acquired the rights for the business 

capital of Cahiers d’Art. Wofsy produced a series of books, 

titled “The Picasso Project,” that contained reproductions of 

photographs from the Zervos Catalogue.

The French judgment found that Wofsy had violated an 

astreinte – a French legal device that imposed money 

damages for the continued use of copyrighted photographs 

of Pablo Picasso’s works. Sicre de Fontbrune had obtained 

* The Honorable Joan N. Ericksen, United States District Judge for 

the District of Minnesota, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SICRE DE FONTBRUNE V. WOFSY 3

that astreintre as a form of relief in a 2001 French judgment 

finding that the photographs’ copyrights were infringed. 

The district court granted summary judgment for Wofsy 

based on a defense to recognition under California’s 

Uniform Foreign-Country Money Judgment Recognition 

Act, Cal. Civ. Proc. Code §§ 1713-1725, namely, the defense 

that the French judgment was repugnant to United States 

public policy protecting free expression.

The panel held that in international diversity cases, such 

as this one, the enforceability of foreign judgments is 

generally governed by the law of the state in which 

enforcement is sought; and the California Recognition Act 

governed. The Recognition Act lists several grounds for 

nonrecognition. Five statutory grounds for nonrecognition 

of the French judgment are at issue in this appeal.

First, Sicre de Fontbrune challenged the district court’s 

conclusion that the French judgment was repugnant to 

United States public policy favoring free expression. The 

fair use defense to copyright infringement is one of the builtin First Amendment accommodations that ease the tension 

between free expression and U.S. copyright law. As part of 

its public policy defense, Wofsy asserted that the fair use 

doctrine of U.S. copyright law – a feature that France’s 

copyright scheme lacked – would have protected the copying 

of the photographs at issue. The panel rejected this 

contention. The fair use defense requires the analysis of four 

statutory factors, and the panel examined the factors with 

respect to the individual photographs in the catalogue at 

issue. Concerning the first factor - the “purpose and 

character” of the use, the panel held that the undisputed 

evidence showed that the use of the copyrighted photographs 

was commercial and non-transformative. This factor 

weighed against a finding of fair use. For the second fair use 
4 SICRE DE FONTBRUNE V. WOFSY

factor – the nature of the copyrighted work, the panel held 

that the photographs’ creative qualities prevented this factor 

from weighing heavily, if at all, in favor of fair use. With the 

third factor – the amount and substantiality of the portion 

used, the panel held this factor weighed against fair use 

where the copying included the entirety of the copyrighted 

photographs at issue and Wofsy did not transform the 

photographs. With the fourth fair use factor – the effect on 

potential market or value of the copyrighted work, the panel 

held that this factor weighed against fair use where there was 

no evidence countering the presumption of market harm, 

which arose where the allegedly infringing use was both 

commercial and non-transformative. After weighing the 

four factors, the panel had serious doubts that a fair use 

defense would protect the copying of the photographs at 

issue, even if the nature of the copyrighted works were to 

favor fair use. Wofsy’s inability to urge a fair use defense in 

France did not place the French judgment in conflict with 

fundamental American constitutional principles, and Sicre 

de Fontbrune was therefore entitled to partial summary 

judgment on this defense.

Second, both parties appealed the district court’s denial 

of summary judgment concerning the assertion that the 

French court lacked subject matter jurisdiction. The French 

appellate courts did not evaluate whether the French trial 

court, the Tribunal de Grande Instance de Paris (“TGI”), 

had subject matter jurisdiction over the astreinte proceeding. 

The panel held that the TGI’s subject matter jurisdiction did 

not depend on Sicre de Fontbrune’s standing, and therefore 

the district court erred in holding otherwise. There is no 

indication that a plaintiff’s lack of standing circumscribes 

the judicial power – the subject matter jurisdiction – of 

French courts. The panel concluded that Sicre de Fontbrune 

is entitled to partial summary judgment on this defense.
SICRE DE FONTBRUNE V. WOFSY 5

Third, Wofsy challenged the district court’s grant of 

summary judgment to Sicre de Fontbrune regarding the 

assertion that the French court lacked personal jurisdiction 

over Wofsy. A court applying California’s Recognition Act 

shall not refuse recognition of a foreign-country judgment 

for lack of personal jurisdiction if the defendant “voluntarily 

appeared in the proceeding.” Cal Civ. Proc. Code 

§ 1717(a)(2). The panel agreed with the district court that 

Wofsy waived this defense through a voluntary appearance 

when he petitioned the TGI to set aside a 2012 judgment. 

The panel concluded that the district court properly granted 

partial summary judgment to Sicre de Fontbrune regarding 

the defense of lack of personal jurisdiction.

Fourth, Wofsy asserted that he was entitled to summary 

judgment on the defense that he received inadequate notice 

of the proceedings that resulted in the French judgment. The 

California Supreme Court has not clarified the showing that 

a defendant must make to prove the insufficient notice 

defense. A California Court of Appeal has held that a mere 

failure of actual notice does not prove the inadequate notice 

defense. The panel accepted the Court of Appeal’s holding 

that the insufficient notice defense requires the proponent to 

prove the absence of a constitutionally adequate attempt at 

actual notice. The panel considered whether the attempts to 

serve Wofsy before the October 2011 hearing constituted 

sufficient efforts at notice, despite their failure. The panel 

held that the failed attempts to service process did not, by 

themselves, disprove the notice defense. There was, 

however, a factual dispute as to whether Wofsy received 

actual notice of the pendency of the action and an 

opportunity to present objections. The panel held that the 

district court appropriately left to the finder of fact to 

determine whether Wofsy “receive[d] notice of the 
6 SICRE DE FONTBRUNE V. WOFSY

proceeding in sufficient time to enable [him] to defend.” 

Cal. Civ. Proc. Code § 1716(c)(1).

Fifth, Wofsy argued that Sicre de Fontbrune obtained the 

French judgment by fraud that deprived Wofsy of an 

adequate opportunity to present his case. The panel held that 

even assuming that Sicre de Fontbrune deceived the TGI as 

to his legal interest in the astreinte, Wofsy was not entitled 

to summary judgment on the claim that the 

misrepresentation “deprived [him] of an adequate 

opportunity to present [his] case.” See Cal. Civ. Code 

§ 1716(c)(2). A question remains as to whether Wofsy

reasonably should have detected the alleged fraud during the 

French proceedings, and therefore as to whether such fraud 

deprived him of an adequate opportunity to present his case. 

The panel concluded that the district court did not err by 

denying Wofsy summary judgment on the fraud defense.

The panel held that Wofsy was not entitled to summary 

judgment based on the public policy defense. No other 

ground for nonrecognition at issue in this appeal supplied an 

alternative basis for affirming the judgment below. The 

panel reversed and remanded for further proceedings.

COUNSEL

Richard J. Mooney (argued), RJM Litigation Group, San 

Francisco, California, for Plaintiffs-Appellants.

Neil A.F. Popović (argued), Jonathan G. Borle, and Matthew 

G. Halgren, Sheppard Mullin Richter & Hampton LLP, San 

Francisco, California, for Defendants-Appellees.
SICRE DE FONTBRUNE V. WOFSY 7

Kathryn C. Thornton (argued), Ropes & Gray LLP, 

Washington, D.C.; Marta F. Belcher, James R. Batchelder, 

and Monica A. Ortel, Ropes & Gray LLP, East Palo Alto, 

California; Corynne McSherry, Mitchell Stoltz, and 

Alexandra Moss, Electronic Frontier Foundation, San 

Francisco, California; Robert S. Adams IV and Avery 

Gardiner, Center for Democracy & Technology, 

Washington, D.C.; John Bergmayer, Public Knowledge, 

Washington, D.C.; for Amici Curiae Project Gutenberg 

Literary Archive Foundation, Electronic Frontier 

Foundation, Center for Democracy and Technology, and 

Public Knowledge.

OPINION

ERICKSEN, District Judge:

INTRODUCTION

Yves Sicre de Fontbrune brought this action in California 

state court seeking recognition of a French money judgment. 

The French judgment found that Defendants, Alan Wofsy 

and Alan Wofsy & Associates (collectively, “Wofsy”), had 

violated an astreinte—a French legal device that imposed 

money damages for the continued use of copyrighted 

photographs of Pablo Picasso’s works. Sicre de Fontbrune 

had obtained that astreinte as a form of relief in a 2001 

French judgment finding that the photographs’ copyrights 

were infringed.

After removal, the district court considered motions for 

summary judgment on eight defenses to recognition under 

the California version of the Uniform Foreign-Country 

Money Judgment Recognition Act, Cal. Civ. Proc. Code 

§§ 1713–1725. The district court granted summary 
8 SICRE DE FONTBRUNE V. WOFSY

judgment for Wofsy based on one of those defenses: that the 

French judgment was repugnant to United States public 

policy protecting free expression. Sicre de Fontbrune 

appeals,1 and Wofsy cross-appeals the denial of summary 

judgment on other defenses. We conclude that summary 

judgment was not proper, and we reverse and remand for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Starting in 1932, the photographer Christian Zervos 

created a catalogue raisonné2 (the “Zervos Catalogue”) of 

the works of the Spanish artist Pablo Picasso. Sicre de 

Fontbrune, 838 F.3d at 995. The catalogue ultimately 

featured nearly 16,000 photographs of Picasso’s works. Id. 

Zervos originally published this catalogue under the label of 

Cahiers d’Art. Id. In 1979, Sicre de Fontbrune acquired the 

rights to the business capital of Cahiers d’Art, including its 

intellectual property. Id.

In 1991, Alan Wofsy Fine Arts LLC acquired permission 

from the Estate of Pablo Picasso to publish a work 

illustrating and describing works by Picasso. Wofsy then 

produced a series of books on Picasso, titled “The Picasso 

Project”—a chronological illustrated catalogue of Picasso’s 

1 Sicre de Fontbrune died in 2015. His wife and children were later 

substituted as successors in interest. Sicre de Fontbrune v. Wofsy, 838 

F.3d 992, 996 n.3 (9th Cir. 2016), as amended on denial of reh’g and 

reh’g en banc (Nov. 14, 2016). For convenience, we refer to them 

collectively as “Sicre de Fontbrune.”

2 A catalogue raisonné is the “‘complete published catalogue of an 

artist’s work.’” Sicre de Fontbrune, 838 F.3d at 995 n.1 (quoting The 

Concise Oxford Dictionary of Art Terms Online (Michael Clarke & 

Deborah Clarke eds., 2d ed. 2010)).
SICRE DE FONTBRUNE V. WOFSY 9

works. The Picasso Project contained reproductions of 

photographs from the Zervos Catalogue.

In 1996, at Sicre de Fontbrune’s request, French police 

seized two volumes of The Picasso Project that were offered 

for sale at a book fair in Paris. Sicre de Fontbrune then sued 

Alan Wofsy in France for copyright infringement. Alan 

Wofsy appeared, and Alan Wofsy & Associates intervened. 

In 1998, a trial court, the Tribunal de Grande Instance de 

Paris (“TGI”), determined that the photographs in the Zervos 

Catalogue were documentary in nature and therefore 

ineligible for copyright protection.

On September 26, 2001, the French Cour d’Appel (Court 

of Appeal) reversed and entered judgment in favor of Sicre 

de Fontbrune, determining that the photographs at issue did 

not merely copy Picasso’s works, but rather added creative 

features through “deliberate choice[s] of lighting, the lens, 

filters, [and] framing or angle of view.”3

 The court also 

confirmed that Sicre de Fontbrune had obtained “the 

intellectual property rights on the intangible items attached 

to the stock, to the [Zervos] catalogue and the photographs 

that it contains” when he acquired the Cahiers d’Art business 

in 1979. The Cour d’Appel found Wofsy “guilty of 

infringement of copyright,” and awarded various relief to 

Sicre de Fontbrune, including a legal device known as an 

astreinte, under which Wofsy would be liable for damages 

of 10,000 francs for each proven infraction of the prohibition 

on using the photographs at issue. Wofsy appealed to the 

Cour de Cassation (the French Civil Supreme Court), but 

that court removed the appeal from its docket after Wofsy 

did not pay the other damages and costs the Cour d’Appel

3 The original judgments appear in French. We refer to the certified 

translations provided by the parties.
10 SICRE DE FONTBRUNE V. WOFSY

awarded to Sicre de Fontbrune. On December 20, 2001, 

Sicre de Fontbrune sold his business capital in Cahiers d’Art, 

including all its tangible and intangible components, to a 

third party.

Sicre de Fontbrune initiated a new lawsuit (the “Astreinte

Proceeding”) in the TGI against Wofsy on July 22, 2011, 

seeking to “liquidate” the astreinte awarded by the Cour 

d’Appel in 2001. Sicre de Fontbrune claimed that copies of 

The Picasso Project were offered for sale in a French 

bookstore in 2011, and that 1,492 photographs from the 

Zervos Catalogue were reproduced in these works in 

violation of the astreinte.

Wofsy maintains that he was never served with process 

in the Astreinte Proceeding. Sicre de Fontbrune asserts that 

a huissier—a bailiff-like officer of the French court—sent 

the complaint and French equivalent of a summons to Wofsy 

through procedures consistent with the Convention on the 

Service Abroad of Judicial and Extrajudicial Documents in 

Civil or Commercial Matters, Nov. 15, 1965 (“Hague

Service Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638. 

The French court official requested service at addresses that

the French courts already had on file: 401 China Basin Street 

in San Francisco, and P.O. Box 2210 in San Francisco. The 

U.S. process server, however, failed to effect service.

The TGI held a hearing in the Astreinte Proceeding on 

October 25, 2011. Wofsy did not appear. On November 15, 

2011, the TGI ordered another hearing. The order contained 

a brief description of the claim and proceedings to date and 

the decision to reopen the proceedings for a hearing on 

December 13, 2011, “for the production by [Sicre de 

Fontbrune] of the certificate from the foreign authority 

responsible for notification of the document instituting the 

proceedings,” as requested in accordance with Article 6 of 
SICRE DE FONTBRUNE V. WOFSY 11

the Hague Service Convention. Wofsy received a copy of 

that order in late November 2011. A letter accompanying 

the order explained the time limits for appealing the order.

At the December 2011 hearing, the TGI accepted the 

requested service certificates, and concluded that Wofsy had 

been “duly summoned” in accordance with the French Civil 

Procedure Code. But Wofsy again failed to appear. The TGI

entered a default judgment against Wofsy on January 10, 

2012, ordering Wofsy to pay 2,000,000 Euros to Sicre de 

Fontbrune in liquidation of the astreinte.

While the Astreinte Proceeding was pending, Sicre de 

Fontbrune commenced another lawsuit in the TGI on 

September 20, 2011. The suit alleged copyright 

infringement by Wofsy and two defendants not party to the 

instant lawsuit: Alan Wofsy Fine Arts LLC, and the French 

bookstore where copies of The Picasso Project had been 

discovered for sale in 2011. In January 2013, the TGI found 

that on December 20, 2001, Sicre de Fontbrune had sold the 

“commercial rights which [he] had acquired on May 31, 

1979,” and that he no longer had standing to sue for 

copyright infringement.

On February 25, 2014, Wofsy initiated a proceeding in 

the TGI seeking to vacate the 2012 astreinte judgment, 

arguing that Sicre de Fontbrune’s transfer of copyrights in 

December 2001 deprived him of standing to bring the 

Astreinte Proceeding. The TGI dismissed this “Review 

Proceeding” in August 2014. Wofsy appealed, and the Cour 

d’Appel affirmed the dismissal in April 2018, finding the 

filing of the Review Proceeding untimely. The Cour de 
12 SICRE DE FONTBRUNE V. WOFSY

Cassation affirmed that decision on October 17, 2019. ECF 

Nos. 24 (Case No. 19-16913), 22 (Case No. 19-17024).4

Before Wofsy filed the Review Proceeding, though, 

Sicre de Fontbrune brought the instant action in the Superior 

Court of California in Alameda County in November of 

2013, seeking recognition of the astreinte judgment. After 

Wofsy removed the action to federal court, the district court 

dismissed the case with prejudice pursuant to Federal Rule 

of Civil Procedure 12(b)(6). We reversed, holding that the 

astreinte was not a penalty but rather a judgment for “a sum 

of money” cognizable under the Recognition Act. Sicre de 

Fontbrune, 838 F.3d at 1007.

On remand, the district court heard cross-motions for 

summary judgment on eight defenses under the Recognition 

Act. See Cal. Civ. Proc. Code § 1716. The district court 

granted summary judgment for Wofsy on only one of those 

defenses, determining that the astreinte judgment was 

repugnant to public policy, and exercising its discretion to 

decline recognition. Sicre de Fontbrune appeals the grant of 

summary judgment to Wofsy on that issue, and appeals the 

district court’s denial of partial summary judgment to Sicre 

de Fontbrune on the defense of lack of subject matter 

jurisdiction. Wofsy cross-appeals the grant of partial 

summary judgment to Sicre de Fontbrune on the defense of 

lack of personal jurisdiction, and appeals the denial of 

summary judgment to Wofsy on the defenses based on lack 

of subject matter jurisdiction, insufficient notice, and fraud.

4 We take judicial notice of the 2019 Cour de Cassation opinion and 

its certified English translation.
SICRE DE FONTBRUNE V. WOFSY 13

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court’s final 

judgment under 28 U.S.C. § 1291. Our review extends to an 

order denying partial summary judgment that has become 

part of a final judgment. Scribner v. WorldCom, Inc., 

249 F.3d 902, 907 (9th Cir. 2001).

We review a summary judgment de novo. Id. We “view 

the evidence in the light most favorable to the nonmoving 

party, determine whether there are any genuine issues of 

material fact, and decide whether the district court correctly 

applied the relevant substantive law.” Animal Legal Def. 

Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th 

Cir. 2016) (en banc) (per curiam).

DISCUSSION

“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.’” Naoko Ohno v. Yuko Yasuma, 

723 F.3d 984, 990 (9th Cir. 2013) (quoting Yahoo! Inc. v. La 

Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 

1212 (9th Cir. 2006)). In this removed action, California 

law—the Recognition Act—governs.5

5 Although there is no contest about diversity of citizenship, the 

district court determined that the defendants in this case are citizens and 

residents of California—a finding not disputed on appeal. Although a 

defendant’s citizenship in the state where an action is brought ordinarily 

prevents removal, 28 U.S.C. § 1441(b)(2), that rule is “procedural, or 

non-jurisdictional,” Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939 

(9th Cir. 2006). Removal is unchallenged here.
14 SICRE DE FONTBRUNE V. WOFSY

California’s Recognition Act is modeled on the 2005 

version of the Uniform Foreign-Country Money Judgments 

Recognition Act. AO Alfa-Bank v. Yakovlev, 230 Cal. Rptr. 

3d 214, 221 (Ct. App. 2018), as modified on denial of reh’g

(Apr. 3, 2018); see Unif. Foreign-Country Money 

Judgments Recognition Act (Nat’l Conf. of Comm’rs on 

Unif. State L. 2005). Amendments to California’s 

Recognition Act became effective in 2018. See Alfa-Bank, 

230 Cal. Rptr. 3d at 221. But those amendments apply only 

to claims commenced after their effective date. Id. at 222. 

The district court was thus correct to apply the version of the 

state Recognition Act effective at the time Sicre de 

Fontbrune filed this action in 2013.6

A majority of states have adopted either the 1962 version 

of the Uniform Foreign-Country Money Judgments 

Recognition Act, or its 2005 update. Ohno, 723 F.3d at 990 

n.8. Non-California authorities that interpret the 1962 or the 

2005 uniform acts, or that apply principles of comity-based 

recognition to foreign judgments, carry persuasive value in 

the application of California’s Recognition Act. Alfa-Bank,

230 Cal. Rptr. 3d at 222–23 (citing Cal. Civ. Proc. Code 

§ 1722).

“Once coverage under the Uniform Act is established,” 

as it has been here,7 “the presumption in favor of 

enforcement applies,” and the party resisting recognition 

6 As in the district court’s order, all citations to the Recognition Act 

in this opinion refer to the version of the Recognition Act in effect at the 

time this suit began in 2013, unless otherwise noted. See Cal. Civ. Proc. 

Code §§ 1713 et seq. (West 2013).

7 Given our previous opinion, the parties no longer dispute that the 

2012 Astreinte Judgment falls within the coverage of the Recognition 

Act. See Sicre de Fontbrune, 838 F.3d at 1007.
SICRE DE FONTBRUNE V. WOFSY 15

must establish a ground for nonrecognition. Ohno, 723 F.3d 

at 991 (quoting Cal. Civ. Proc. Code § 1716(d)). The 

Recognition Act lists several grounds for nonrecognition. 

Some grounds, if established, preclude recognition, Cal. Civ. 

Proc. Code § 1716(b), but others only confer discretion on 

courts to deny recognition, Cal. Civ. Proc. Code § 1716(c).

Five statutory grounds for nonrecognition are at issue in 

this appeal. First, Sicre de Fontbrune challenges the district 

court’s conclusion that the French judgment was repugnant 

to U.S. public policy favoring free expression, and argues 

that he was entitled to partial summary judgment on this 

issue. Second, both parties appeal the district court’s denial 

of summary judgment concerning the assertion that the 

French court lacked subject matter jurisdiction. Third, 

Wofsy challenges the district court’s grant of partial 

summary judgment to Sicre de Fontbrune regarding the 

assertion that the French court lacked personal jurisdiction 

over Wofsy. Fourth, Wofsy asserts that he was entitled to 

summary judgment on the defense that he received 

inadequate notice of the proceedings that resulted in the 

French judgment. And fifth, Wofsy argues that Sicre de 

Fontbrune obtained the French judgment by fraud that 

deprived Wofsy of an adequate opportunity to present his 

case.

We conclude that Sicre de Fontbrune—not Wofsy—was 

entitled to summary judgment on the defense of repugnancy 

to public policy. We also conclude that no other defenses 

raised on appeal provide an alternate basis to affirm the grant 

of summary judgment. See Spencer v. Peters, 857 F.3d 789, 

797 n.3 (9th Cir. 2017). Accordingly, we reverse the district 

court’s judgment and remand for further proceedings.
16 SICRE DE FONTBRUNE V. WOFSY

I. Public Policy

The California Recognition Act allows a court to decline 

to recognize a foreign-country money judgment if the 

“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.” Cal. Civ. Proc. Code 

§ 1716(c)(3). The United States undoubtedly has robust 

public policy favoring free expression. See Cohen v. 

California, 403 U.S. 15, 24 (1971) (“The constitutional right 

of free expression is powerful medicine[.]”). But “some 

restriction on expression is the inherent and intended effect 

of every grant of copyright.” Golan v. Holder, 565 U.S. 302, 

327–28 (2012). The fair use defense to copyright 

infringement is one of the “built-in First Amendment 

accommodations” that ease the apparent tension between 

free expression and U.S. copyright law. See Eldred v. 

Ashcroft, 537 U.S. 186, 219 (2003).

The district court determined that Wofsy would have 

prevailed on a fair use defense to the copyright infringement 

claim on which the astreinte judgment was based. The court 

also concluded that French law’s failure to allow for 

Wofsy’s fair use defense made the judgment repugnant to 

U.S. public policy protecting expression.

“California courts have set a high bar for repugnancy 

under the Uniform Act.” Ohno, 723 F.3d at 1002. The issue 

is not simply whether the “foreign judgment or cause of 

action is contrary to our public policy.” Id. Rather, the 

question is 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.” 

Hyundai Sec. Co. v. Lee, 182 Cal. Rptr. 3d 264, 272 (Ct. 

App. 2015) (cleaned up), as modified (Jan. 14, 2015). Under 

this standard, a “difference in law, even a marked one, is not 
SICRE DE FONTBRUNE V. WOFSY 17

sufficient to raise a public policy issue. Nor is it relevant 

that the foreign law allows a recovery that the forum state 

would not allow.” Id. (cleaned up). Instead, public policy is 

violated “only if recognition or enforcement of the foreigncountry judgment would tend clearly to injure public health, 

the public morals, or the public confidence in the 

administration of law, 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. 

(cleaned up).

The standard is not lower where the asserted repugnancy 

arises from inconsistency with constitutional principles 

rather than with statutes or common law. Ohno, 723 F.3d 

at 1004. In such cases, “only judgments presenting a direct 

and definite conflict with fundamental American 

constitutional principles will be denied recognition because 

repugnant.” Id. at 1004–05 (emphasis added) (noting cases 

finding repugnancy to the First Amendment where the 

foreign judgments “would unquestionably violate the 

Constitution were they issued here with respect to domestic 

activity”). Thus, in Ohno, this Court determined that a 

judgment was not repugnant to public policy in part because 

the defendant’s position—that imposing tort liability on a 

church’s religious practice was incompatible with the 

religion clauses of the California and United States 

constitutions—was debatable. Id. at 1009.

Wofsy’s public policy defense rests on two assertions: 

first, that the fair use doctrine of U.S. copyright law—a 

feature that France’s copyright scheme lacks—would have 

protected the copying of the photographs at issue; and 

second, that a judgment imposing copyright liability based 

on copying that would qualify as fair use is repugnant to our 

public policy. For the reasons below, we reject the first of 
18 SICRE DE FONTBRUNE V. WOFSY

these contentions, and therefore need not reach the second. 

See S.A.R.L. Louis Feraud Int’l v. Viewfinder, Inc., 489 F.3d 

474, 483 (2d Cir. 2007) (“If the publication of photographs 

of copyrighted material in the same manner as [the 

defendant] has done in this case would not be fair use under 

United States law, then the French intellectual property 

regime sanctioning the same conduct certainly would not be 

repugnant to public policy.”).

The fair use defense under U.S. copyright law requires 

the analysis of four statutory factors. Campbell v. AcuffRose Music, Inc., 510 U.S. 569, 578 (1994). They are 

“(1) the purpose and character of the use, . . . (2) the nature 

of the copyrighted work; (3) the amount and substantiality 

of the portion used in relation to the copyrighted work as a 

whole; and (4) the effect of the use upon the potential market 

for or value of the copyrighted work.” 17 U.S.C. § 107.

While Wofsy claims fair use of the Zervos Catalogue as 

a whole, the individual photographs within the Zervos 

Catalogue are at issue in this case. The 2001 Cour d’Appel 

decision held that these photographs were eligible for 

copyright protection in France and that that the copyright 

had been infringed. And the astreinte provided for damages 

of 10,000 francs for each violation of the prohibition on 

further use of the photographs. The 2012 astreinte judgment 

recognized damages of 14,920,000 francs,8 based on the 

1,492 photographs copied from the Zervos Catalogue. We 

accordingly examine the fair use factors with respect to the 

photographs, and need not analyze fair use with respect to 

the Zervos Catalogue as a whole.

8 The court limited the actual astreinte award to the amount that 

Sicre de Fontbrune had sought—2,000,000 Euros.
SICRE DE FONTBRUNE V. WOFSY 19

A. Purpose and character of use

The “purpose and character” of an allegedly infringing 

use may indicate fair use, depending in part on “whether 

such use is of a commercial nature or is for nonprofit 

educational purposes.” 17 U.S.C. § 107. Commercial use 

“‘tends to weigh against a finding of fair use.’” Campbell, 

510 U.S. at 585 (quoting Harper & Row Publ’ers, Inc. v. 

Nation Enters., 471 U.S. 539, 562 (1985)). It is “not 

conclusive . . . but rather a fact to be weighed along with 

others in fair use decisions.” Id. (citing Sony Corp. of Am. 

v. Universal City Studios, Inc., 464 U.S. 417, 448–49 (1984)) 

(cleaned up). The “central purpose” of considering the 

“purpose and character” of the work is to determine whether 

the new work is “transformative”—that is, whether it “adds 

something new, with a further purpose or different character, 

altering the first with new expression, meaning, or message.” 

Id. at 579.

Wofsy concedes that The Picasso Project is a 

commercial venture. But the district court observed that The 

Picasso Project was “intended for libraries, academic 

institutions, art collectors, and auction houses,” and 

concluded that The Picasso Project’s purpose aligned with 

the “criticism, comment, news reporting, teaching . . . , 

scholarship, or research” purposes that Section 107 

characterizes as non-infringing. See 17 U.S.C. § 107. The 

district court relied on that conclusion to find that the first 

fair use factor weighed “strongly” in favor of fair use.

We disagree. The “use” at issue is the allegedly 

infringing one—the reproduction of copyrighted 

photographs in a book offered for sale. The “end-user’s 

utilization of the product is largely irrelevant.” Zomba 

Enters., Inc. v. Panorama Recs., Inc., 491 F.3d 574, 582 (6th 

Cir. 2007); see also Princeton Univ. Press v. Michigan 
20 SICRE DE FONTBRUNE V. WOFSY

Document Servs., Inc., 99 F.3d 1381, 1386 (6th Cir. 1996) 

(rejecting a fair use defense where a college-town copy shop 

copied portions of books and sold them to students in 

“coursepacks” intended for educational use).

Nor does the evidence support a finding of 

transformative use that could rebalance this factor in 

Wofsy’s favor.9

 It is true that even exact copies can be 

transformative. For example, this Court has recognized 

transformative use in the replication of copyrighted 

photographs as low-resolution thumbnails for an internet 

search engine, because the thumbnails “served an entirely 

different function,” i.e., improving access to information. 

Kelly v. Arriba Soft Corp., 336 F.3d 811, 818–19 (9th Cir. 

2003). The reduction in resolution made it “unlikely that 

anyone would use [the] thumbnails for [the] illustrative or 

aesthetic purposes” of the protected works. Id. at 819.

Wofsy argues that he used the photographs only as 

documentation of Picasso’s works, without regard to the 

photographs’ creative qualities. But a mere “‘difference in 

purpose is not quite the same thing as transformation.’” 

Monge v. Maya Mags., Inc., 688 F.3d 1164, 1176 (9th Cir. 

2012) (quoting Infinity Broad. Corp. v. Kirkwood, 150 F.3d 

104, 108 (2d Cir. 1998)). Moreover, the purposes of the 

works overlap. The Picasso Project and the photographs 

both present the works of Picasso. This much is evident 

from the fact that the photographs—though deemed by the 

French Cour d’Appel to include creative or artistic qualities 

9 Wofsy argues that Sicre de Fontbrune waived any argument about 

transformative use by failing to address it in the district court. But as the 

party resisting recognition of the French judgment, Wofsy bore the 

burden to establish a ground for nonrecognition. Ohno, 723 F.3d at 991; 

Cal. Civ. Proc. Code § 1716(d).
SICRE DE FONTBRUNE V. WOFSY 21

of their own—originally were published as part of a 

catalogue raisonné documenting Picasso’s works. The 

exact copies in this case therefore did not serve an “entirely 

different function” than the originals. Cf. Kelly, 336 F.3d 

at 818–19.

The fact that The Picasso Project included informative 

captions and organized the photographs so as to facilitate 

research does not change our conclusion. Adding 

informative captions does not necessarily transform 

copyrighted works. See Monge, 688 F.3d at 1174 (finding 

that “neither minor cropping nor the inclusion of headlines 

or captions transformed” copyrighted photographs).

In sum, the undisputed evidence shows that the use of the 

copyrighted photographs was commercial and nontransformative. This factor therefore weighs against a 

finding of fair use.

B. Nature of the copyrighted work

The second fair use factor considers “two aspects of the 

work: the extent to which it is creative and whether it is 

unpublished.” Id. at 1177. The “scope of fair use is narrower 

with respect to unpublished works” than with respect to 

published ones. Harper & Row, 471 U.S. at 564. The parties 

agree that the photographs were published in the Zervos 

Catalogue. Accordingly, the district court properly focused 

its inquiry on creativity.

“Photos are generally viewed as creative, aesthetic 

expressions of a scene or image and have long been the 

subject of copyright.” Monge, 688 F.3d at 1177. This is so 

“especially when they are created for public viewing.” VHT, 

Inc. v. Zillow Grp., Inc., 918 F.3d 723, 743 (9th Cir. 2019). 

Even “point-and-shoot” photographs that are “not highly 
22 SICRE DE FONTBRUNE V. WOFSY

artistic” can merit copyright protection. Monge, 688 F.3d 

at 1177.

Wofsy emphasizes the documentary purpose of the 

Zervos Catalogue. But that purpose does not negate any 

creative character displayed by the photographs themselves. 

Wofsy points to the expert declaration of a prominent art 

historian opining that photographs in catalogues raisonnes, 

in general, lack an artistic purpose, and that the photographs 

in the Zervos Catalogue are “not themselves works of art.” 

Yet, the French Cour d’Appel recognized that the 

photographs have creative elements reflecting deliberate 

choices of lighting, filters, framing, and angle of view. The 

fact that gallery owners and readers of Cahiers d’Art (rather 

than Zervos himself) may have created some of the disputed 

photographs does not contradict the French court’s finding 

that the photographs exhibit creativity.

The photographs’ creative qualities prevent this factor 

from weighing heavily, if at all, in favor of fair use.10

C. Amount and substantiality of the portion used

The third fair use factor is “the amount and substantiality 

of the portion used in relation to the copyrighted work as a 

whole.” 17 U.S.C. § 107. “[C]opying an entire work 

militates against a finding of fair use.” VHT, 918 F.3d at 744 

(quoting Worldwide Church of God v. Phila. Church of God, 

Inc., 227 F.3d 1110, 1118 (9th Cir. 2000)) (cleaned up). But, 

10 The Second Circuit has concluded, albeit in dicta, that copied 

works’ ineligibility for copyright in the United States does not, by itself, 

suffice to establish repugnancy of a judgment based on that copying. 

Louis Feraud, 489 F.3d at 483. Wofsy does not argue on this appeal that 

the photographs would be uncopyrightable under U.S. law, and we 

therefore do not address the issue.
SICRE DE FONTBRUNE V. WOFSY 23

because the purpose of the copying informs the analysis, 

copying entire works can qualify as fair use in some 

circumstances, as where the copying is transformative. See 

Kelly, 336 F.3d at 821.

The district court focused on the fact that The Picasso 

Project reproduced only 1,492 photographs out of the 

roughly 16,000 photographs in the Zervos Catalogue. But 

the copying included the entirety of the copyrighted 

photographs at issue. And especially in view of our 

conclusion that Wofsy did not transform the photographs, 

we are unpersuaded that this is a case like Kelly in which 

copying the entirety of each photograph was necessary. See 

id. This factor weighs against fair use.

D. Effect on potential market or value

The fourth fair use factor is “the effect of the use upon 

the potential market for or value of the copyrighted work.” 

17 U.S.C. § 107. “This last factor is undoubtedly the single 

most important element of fair use.” Harper & Row, 

471 U.S. at 566. We consider not only the effect of the 

allegedly infringing work itself, but also “whether 

unrestricted and widespread conduct of the sort engaged in 

by the defendant would result in a substantially adverse 

impact on the potential market for the original.” Campbell, 

510 U.S. at 590 (cleaned up).

Wofsy offered evidence that auction prices for the 

Zervos Catalogue have increased during the time that The 

Picasso Project has been on the market. While this is 

circumstantial evidence that The Picasso Project has not 

depressed the market for the Zervos Catalogue, it proves 

nothing about the effect on the market for licensing the 

disputed photographs. The record supplies no evidence that 

widespread appropriation of those photographs in published 
24 SICRE DE FONTBRUNE V. WOFSY

books would only negligibly affect the market for the 

photographs.

Furthermore, where the allegedly infringing use is both 

commercial and non-transformative, a presumption of 

market harm arises. Disney Enters., Inc. v. VidAngel, Inc., 

869 F.3d 848, 861 (9th Cir. 2017) (citing Leadsinger, Inc. v. 

BMG Music Pub., 512 F.3d 522, 531 (9th Cir. 2008)). We 

have concluded that The Picasso Project’s use of the 

photographs was commercial and non-transformative. With 

no evidence countering the resulting presumption of market 

harm, this factor weighs against fair use.

E. Conclusion on fair use and public policy

Fair use may depend on factual findings, but the ultimate 

question of whether facts indicate fair use is legal in nature. 

Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199 

(2021). After weighing the four factors above, we have 

serious doubts that a fair use defense would protect the 

copying of the photographs at issue, even if the nature of the 

copyrighted works were to favor fair use. Because it is at 

least highly debatable—if not absolutely clear—that a fair 

use defense would not protect the conduct underlying the 

judgment of which Sicre de Fontbrune seeks recognition, 

Wofsy’s inability to urge a fair use defense in France does 

not place the French judgment in “direct and definite conflict 

with fundamental American constitutional principles.” 

Ohno, 723 F.3d at 1004. Sicre de Fontbrune is therefore 

entitled to partial summary judgment on this defense.11

11 We leave for another day the question of whether a defendant’s 

lack of opportunity to assert a clearly meritorious fair use defense would 

render a foreign judgment repugnant to the public policy of the United 

States or of California.
SICRE DE FONTBRUNE V. WOFSY 25

II. Lack of Subject Matter Jurisdiction

The applicable version of the California Recognition Act 

provides that a court “shall not” recognize a foreign-country 

judgment if the “foreign court did not have jurisdiction over 

the subject matter.” Cal. Civ. Proc. Code § 1716(b)(3). 

“Courts and commentators agree that subject matter 

jurisdiction must be assessed with reference to foreign law.” 

Tanya J. Monestier, Whose Law of Personal Jurisdiction? 

The Choice of Law Problem in the Recognition of Foreign 

Judgments, 96 B.U. L. Rev. 1729, 1747 (2016). “In 

determining foreign law, the court may consider any relevant 

material or source, including testimony, whether or not 

submitted by a party or admissible under the Federal Rules 

of Evidence.” Fed. R. Civ. P. 44.1; Sicre de Fontbrune, 

838 F.3d at 997.

The district court determined that the French court’s 

jurisdiction over the subject matter of the 2012 Astreinte 

Proceeding depended on Sicre de Fontbrune’s standing; that 

his standing depended on whether he retained rights in the 

astreinte; and that whether he retained rights in the astreinte 

turned on the disputed question of whether Sicre de 

Fontbrune had transferred those rights. Our conclusion 

regarding the first of those assertions diverges from the 

district court’s view and disposes of the subject matter 

jurisdiction defense.

The French appellate courts did not evaluate whether the 

TGI had subject matter jurisdiction over the Astreinte 

Proceeding. Instead, they concluded that Wofsy’s effort to 

set aside the Astreinte Judgment was untimely. We therefore 

lack an authoritative statement from the French courts as to 

whether the TGI possessed subject matter jurisdiction over 

the Astreinte Proceeding.
26 SICRE DE FONTBRUNE V. WOFSY

The parties’ submissions and our own research, 

however, assure us that the TGI’s subject matter jurisdiction 

did not depend on Sicre de Fontbrune’s standing. Wofsy’s 

own expert explained that French courts assess standing in 

terms of “admissibility,” rather than jurisdiction. The 

French Code of Civil Procedure provides, as translated, that 

no claim is “admissible” unless brought by a person who has 

the right to act; and that the right to act is “available to all 

those who have a legitimate interest in the success or 

dismissal of a claim.” Code de Procédure Civile arts. 31, 32 

(Fr.).

We acknowledge, as the district court emphasized, that 

the “practical result” of a lack of standing in French courts 

resembles that of a failure of subject matter jurisdiction in 

the federal courts of the United States: dismissal without a 

decision on the merits. See Brownback v. King, 141 S. Ct. 

740, 749 (2021) (quoting Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 101–02 (1998)) (“Ordinarily, a court 

cannot issue a ruling on the merits ‘when it has no 

jurisdiction’ because ‘to do so is, by very definition, for a 

court to act ultra vires.’”). But the plain language of 

California’s Recognition Act requires a proponent of the 

subject matter jurisdiction defense to establish that the 

foreign court “did not have jurisdiction over the subject 

matter.” Cal. Civ. Proc. Code § 1716(b)(3). We are aware 

of no authority holding that a procedural defect that produces 

a similar practical result can suffice.

Our own research similarly yields no indication that a 

plaintiff’s lack of standing circumscribes the judicial 

power—the subject matter jurisdiction—of French courts. 

The provisions of the Code of Civil Procedure that set forth 

the requirements for standing appear within Title II of the 

Code, titled “L’action” (“The Action”). Code de Procédure 
SICRE DE FONTBRUNE V. WOFSY 27

Civile tit. II (Fr.). A separate title addresses the 

“compétence” (competence) of the courts, including their 

jurisdiction. Code de Procédure Civile tit. III (Fr.).

Even if we were to assess subject matter jurisdiction with 

reference to domestic law, we could not say that a lack of 

standing necessarily deprives a court of subject matter 

jurisdiction. To be sure, a party must show the “irreducible 

constitutional minimum of standing” to vest an Article III 

federal court with subject matter jurisdiction. Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 560 (1992). But California is one 

of numerous states whose judiciaries’ subject matter 

jurisdiction does not depend on standing. Jasmine Networks, 

Inc. v. Super. Ct., 103 Cal. Rptr. 3d 426, 432 (Ct. App. 

2009); Weatherford v. City of San Rafael, 395 P.3d 274, 278 

(Cal. 2017) (observing that California’s “state constitution 

has no case or controversy requirement imposing an 

independent jurisdictional limitation on our standing 

doctrine”); Tax Found. of Hawai’i v. State, 439 P.3d 127, 

143 (Haw. 2019) (collecting examples of states where 

“standing is a prudential concern and not an issue of subject 

matter jurisdiction”).

Wofsy’s arguments on the subject matter jurisdiction 

defense rest entirely on the assertion that Sicre de Fontbrune 

had transferred his rights in the astreinte at the time he 

sought to liquidate it. That assertion, even if proven, does 

not establish a defect in the French courts’ subject matter 

jurisdiction over the Astreinte Proceeding. Sicre de 

Fontbrune is entitled to partial summary judgment on this 

defense.

III. Lack of Personal Jurisdiction

A court applying California’s Recognition Act must 

refuse to recognize a foreign-country judgment if the 
28 SICRE DE FONTBRUNE V. WOFSY

“foreign court did not have personal jurisdiction over the 

defendant.” Cal. Civ. Proc. Code § 1716(b)(2). But a court 

shall not refuse recognition for lack of personal jurisdiction 

if the defendant “voluntarily appeared in the proceeding, 

other than for the purpose of protecting property seized or 

threatened with seizure in the proceeding or of contesting the 

jurisdiction of the court over the defendant.” Cal. Civ. Proc. 

Code § 1717(a)(2). We agree with the district court that 

Wofsy waived this defense through a voluntary appearance.

Courts applying other states’ analogues to Section 

1717(a)(2) have recognized that a voluntary appearance may 

occur “in the proceeding” either before or after judgment. 

See CIBC Mellon Tr. Co. v. Mora Hotel Corp. N.V., 

792 N.E.2d 155, 162 (N.Y. 2003) (quoting Restatement 

(Second) of Conflict of Laws § 33, cmt. b) (noting that a 

defendant may be deemed to have submitted to a court’s 

jurisdiction by “taking steps in the action after judgment 

either in the trial court or in an appellate court”); S.C. 

Chimexim S.A. v. Velcro Enters. Ltd., 36 F. Supp. 2d 206, 

215 (S.D.N.Y. 1999) (defense waived where one of 

defendant’s arguments in appellate proceedings in the 

foreign forum “concerned the merits of the underlying 

dispute”); In re Transamerica Airlines, Inc., No. CIV.A. 

1039-VCP, 2007 WL 1555734, at *10 (Del. Ch. May 25, 

2007) (waiver where one of defendant’s arguments on 

appeal went “to the merits” of the contested judgment). We 

have confirmed that this principle applies to California’s 

Recognition Act. See In re Rejuvi Lab’y, Inc., 26 F.4th 1129, 

1134 (9th Cir. 2022) (holding that a defendant “waived its 

personal jurisdiction challenge by voluntarily appearing in 

[the trial court that had entered a default judgment] in its 

attempt to set aside the default judgment”).
SICRE DE FONTBRUNE V. WOFSY 29

Wofsy “voluntarily appeared in the proceeding” by 

petitioning the TGI to set aside the 2012 Judgment. Wofsy 

does not specify the French procedural mechanism through 

which he brought the Review Proceeding in 2014, but 

contends that it was a “collateral attack” without a direct 

analogue in American law. The Cour d’Appel in 2018, 

however, characterized the application to set aside the 2012 

Judgment as a recours en révision pursuant to Article 593 

and subsequent provisions of the French Code of Civil 

Procedure. That chapter of the Code explains that this 

procedure is available only to one who has been a party to 

the judgment of which review is sought, and only for a 

limited set of reasons, including the discovery of false 

statements or certain documents. Code de Procédure Civile

arts. 593–95 (Fr.). In this sense, a recours en révision—

loosely translated as an “appeal for review”—resembles a 

motion to set aside a judgment under Rule 60 of the Federal 

Rules of Civil Procedure. We reject the argument that the 

Review Proceeding constituted a wholly separate action. Cf.

CIBC Mellon, 792 N.E.2d at 162 (treating an application to 

a court to set aside its judgment as a voluntary appearance 

“in the proceedings”). The mere fact that the French courts 

viewed the Review Proceeding as untimely did not convert 

it into a separate “proceeding” from the one that resulted in 

the judgment.

Wofsy’s voluntary appearance also reached beyond 

“protecting property seized or threatened with seizure in the 

proceeding or . . . contesting the jurisdiction of the court over 

the defendant[.]” See Cal. Civ. Proc. Code § 1717(a)(2). In 

the Review Proceeding, Wofsy argued that Sicre de 

Fontbrune had transferred his interest in the astreinte; that, 

therefore, the 2012 Judgment rested on a flawed assertion of 

standing; and that the judgment should be set aside. That 

effort does not fit within the safe harbor for protecting seized 
30 SICRE DE FONTBRUNE V. WOFSY

property or disputing personal jurisdiction.12 It therefore 

precludes Wofsy from asserting the personal jurisdiction 

defense to recognition. See id.

The district court properly granted partial summary 

judgment to Sicre de Fontbrune regarding the defense of lack 

of personal jurisdiction.

IV. Insufficient Notice

The Recognition Act provides that a court may refuse to 

recognize a foreign judgment if the “defendant in the 

proceeding in the foreign court did not receive notice of the 

proceeding in sufficient time to enable the defendant to 

defend.” Cal. Civ. Proc. Code § 1716(c)(1). The district 

court determined that issues of fact precluded summary 

judgment regarding this defense. Only Wofsy challenges 

that determination. The parties dispute the adequacy of two 

efforts at notice: a failed effort to serve the summons and 

complaint for the Astreinte Proceeding, and a letter that the 

French TGI mailed to Wofsy after the first hearing in the 

Astreinte Proceeding but before the TGI entered judgment. 

Although the district court reserved issues for the fact finder 

that should have been decided as a matter of law, we agree 

with the district court’s ultimate conclusion regarding this 

defense.

The California Supreme Court has not clarified the 

showing that a defendant must make to prove the insufficient 

notice defense. But we “will ordinarily accept the decision 

12 We need not conclude—as the district court did—that Wofsy 

challenged the merits of the 2012 Judgment. We simply observe that 

Wofsy argued issues other than the two that Section 1717(a)(2) exempts 

from triggering waiver of a defense based on lack of personal 

jurisdiction.
SICRE DE FONTBRUNE V. WOFSY 31

of an intermediate appellate court as the controlling 

interpretation of state law, unless we find convincing 

evidence that the state’s supreme court likely would not 

follow it.” Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 

15 F.4th 885, 889 (9th Cir. 2021) (cleaned up).

A California Court of Appeal13 has held that a mere 

failure of actual notice does not prove the inadequate notice 

defense. Rather, the proponent of this defense must show 

the absence of notice “‘reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency 

of the action and afford them an opportunity to present their 

objections.’” Alfa-Bank, 230 Cal. Rptr. 3d at 224 (quoting 

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 

314 (1950)). The applicable standard, in other words, aligns 

with the constitutional minimum for due process. See id.

at 233. Under that standard, where “notice is a person’s 

due,” the “means employed must be such as one desirous of 

actually informing the absentee might reasonably adopt to 

accomplish it.” Id. at 225 (quoting Mullane, 339 U.S. 

at 315).

Wofsy urges us to depart from this rule and hold instead 

that a failure of actual notice proves this defense. He argues 

that if a failure of actual notice does not suffice, then this 

defense collapses into the “lack of personal jurisdiction” 

defense. According to Wofsy, that interpretation of the 

statute would render the insufficient notice defense mere 

13 A decision of a California Court of Appeal that is not in conflict 

with another appellate decision binds all inferior courts across the state. 

Auto Equity Sales, Inc. v. Super. Ct. of Santa Clara Cnty., 369 P.2d 937, 

940 (Cal. 1962) (en banc).
32 SICRE DE FONTBRUNE V. WOFSY

surplusage—a result that should be avoided. See Delaney v. 

Super. Ct., 50 Cal. 3d 785, 799 (1990).

But we do not see “convincing evidence,” Mudpie, 

15 F.4th at 889, that the California Supreme Court would 

reject the Court of Appeal’s interpretation of the insufficient 

notice defense. In Alfa-Bank, the Court of Appeal 

considered that the “notice ground may have broader 

application than the service of process prerequisite for 

personal jurisdiction.” Alfa-Bank, 230 Cal. Rptr. 3d at 233 

(citing Isack v. Isack, 733 N.W.2d 85 (Mich. Ct. App. 

2007)). In Isack, the Court of Appeals of Michigan—

interpreting the analogous provision of that state’s 

codification of the Uniform Act—concluded that 

“recognition of a judgment may be declined where the 

defendant was aware, or waived notice, of the litigation, but 

where the defendant was not notified of certain actions taken 

within the suit.” 733 N.W.2d at 86–87; see also Restatement 

(Fourth) of Foreign Relations Law § 484 (2018) 

(recognizing that “the notice requirement governs not just 

the initiation of a proceeding, but relevant actions taken 

within the suit”). Although the insufficient notice and 

personal jurisdiction defenses “overlap[ped]” under the 

particular facts of Alfa-Bank, the Court of Appeal recognized 

that they would not always do so. See Alfa-Bank, 230 Cal. 

Rptr. 3d at 233. We therefore accept the Court of Appeal’s 

conclusion that the insufficient notice defense requires the 

proponent to prove the absence of a constitutionally 

adequate attempt at actual notice. See id.

We begin by considering whether the attempts to serve 

Wofsy before the October 2011 hearing constituted 

sufficient efforts at notice, despite their failure. An officer 

of the French TGI attempted to serve both defendants 

through procedures established in accordance with the 
SICRE DE FONTBRUNE V. WOFSY 33

Convention on the Service Abroad of Judicial and 

Extrajudicial Documents in Civil or Commercial Matters, 

Nov. 15, 1965 (“Hague Service Convention”), 20 U.S.T. 

361, T.I.A.S. No. 6638. The Hague Service Convention was 

“intended to provide a simpler way to serve process abroad, 

to assure that defendants sued in foreign jurisdictions would 

receive actual and timely notice of suit, and to facilitate 

proof of service abroad.” Volkswagenwerk 

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). Its 

“primary innovation” is a requirement that each state party 

designate a “Central Authority” that can receive foreign 

requests for service of process and arrange for service on an 

addressee. Id. at 698–99; Hague Service Convention, 

20 U.S.T. 361, art. 2.

In accordance with that procedure, the French court’s 

officer sent the complaint and the French equivalent of a 

summons to the United States’ Central Authority, and 

requested service on the defendants at their addresses as 

listed in the summons. The summons listed the address of 

Alan Wofsy & Associates as 401 China Basin Street in San 

Francisco. For Alan Wofsy himself, the summons listed 

Post Office Box 2210 in San Francisco.

Article 6 of the Hague Convention requires the Central 

Authority (or another designee of the state where process is 

to be served) to send to the applicant for service a certificate 

stating the method, place, date, and recipient of service, or 

the reasons that have prevented service. Hague Service 

Convention, 20 U.S.T. 361, art. 6. Accordingly, the 

huissier’s requests for service also included requests for 

these certificates.

The U.S. process server’s attempt to serve Alan Wofsy 

& Associates failed. The process server—a contractor of the 

U.S. Central Authority—issued a certificate of non-service 
34 SICRE DE FONTBRUNE V. WOFSY

dated August 12, 2011, attesting that service had been 

attempted at 401 China Basin Street; that no such address 

existed; and that the process server had confirmed on the 

U.S. Postal Service website that the address was “non 

deliverable.”14

Upon learning of a failure of notice, “[d]eciding to take 

no further action is not what someone desirous of actually 

informing [the addressee] would do; such a person would 

take further reasonable steps if any were available.” Jones 

v. Flowers, 547 U.S. 220, 230 (2006) (internal quotation 

omitted). The Supreme Court accordingly held that a state 

failed to afford constitutionally adequate notice where the 

state sold a tax-delinquent property after the state’s certifiedmail notice to the property owner was returned unclaimed 

and the state failed to take further reasonable and available 

steps to accomplish notice. Id. at 239. “Although the State 

may have made a reasonable calculation” of how to reach 

the property owner, the state had “good reason to suspect 

when the notice was returned that [the addressee] was ‘no 

better off than if the notice had never been sent.’” Id. at 230 

14 The delivery trouble apparently arose from the fact that San 

Francisco renamed the old China Basin Street as “Terry Francois 

Boulevard” in the 1990s, and reassigned the name “China Basin Street” 

to a newly built road at some point after 2010. But it is undisputed that 

Wofsy continued to receive mail addressed to 401 China Basin Street for 

years after the Astreinte Proceeding. In any event, Sicre de Fontbrune 

offers no indication that Wofsy was obligated to apprise Sicre de 

Fontbrune or the French courts of any change of address at the time the 

Astreinte Proceeding commenced. Thus, there is no indication that 

Wofsy is to blame for the huissier’s use of an outdated address or for the 

process server’s failure to effect service. Cf. Alfa-Bank, 230 Cal. Rptr. 

3d at 230 (holding that a Russian court’s mail service to a defendant’s 

last known address was adequate notice, where the defendant was 

required by a surety agreement to keep his address up to date with the 

Russian government).
SICRE DE FONTBRUNE V. WOFSY 35

(quoting Malone v. Robinson, 614 A.2d 33, 37 (D.C. 1992)); 

see also United States v. Ritchie, 342 F.3d 903, 911 (9th Cir. 

2003) (“[W]hen initial personal notice letters are returned 

undelivered, the government must make reasonable 

additional efforts to provide personal notice.”).

Since the French huissier had requested a certificate of 

service in accordance with the Hague Service Convention, 

the absence of any confirmation of successful service 

signaled a problem. And the issuance of a certificate of nonservice left no doubt that service had failed. It thus triggered 

an obligation to take any available and reasonable further 

steps to give notice of the proceeding to Alan Wofsy & 

Associates. See Jones, 547 U.S. at 230.

Before considering whether such steps were available or 

pursued, we turn to the process server’s attempt to inform 

Alan Wofsy himself. It unfolded similarly. When the 

Astreinte Proceeding was filed in July 2011, the U.S. Central 

Authority received a request to serve process at “POB 2210 

San Francisco”—the address listed for Alan Wofsy on the 

French summons. The U.S. process server eventually issued 

a certificate of non-service, indicating that a server had 

attempted to contact Alan Wofsy at 401 China Basin Street 

on October 22, 2011, but had found “[n]o such address.” 

The certificate of nonservice did not issue until October 

31—six days after the October merits hearing in the TGI.

Under these circumstances, the failed service on Alan 

Wofsy was as insufficient an attempt at notice as was the 

failed service on Alan Wofsy & Associates. The request for 

a certificate of service was unfulfilled at the time of the first 

astreinte hearing. That should have alerted the huissier that 

Wofsy might have lacked notice of the proceedings, and that 

actual notice therefore might require further reasonable 

efforts if any were available. Moreover, the certificate of 
36 SICRE DE FONTBRUNE V. WOFSY

non-service issued more than two months before the TGI

entered judgment.

Wofsy suggests several “further reasonable steps” to 

accomplish notice, see id., that were available but went 

unpursued. For example, it is undisputed that both 

defendants were successfully served in the instant 

proceedings at Alan Wofsy’s residence, and that since 1998 

the website of Alan Wofsy Fine Arts LLC has listed its 

gallery address on Geary Boulevard in San Francisco, where 

staff are available to accept deliveries during workdays. The 

record does not indicate any attempt to deliver notice of the 

Astreinte Proceeding at either of those addresses.

Sicre de Fontbrune claims that copies of the summons 

and complaint were mailed to Wofsy at P.O. Box 2210. But 

Wofsy contends that no such documents ever arrived. The 

Supreme Court has “repeatedly recognized that mail service 

is an inexpensive and efficient mechanism that is reasonably 

calculated to provide actual notice.” Tulsa Pro. Collection 

Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988). The Hague 

Service Convention allows mail service directly to a 

defendant—circumventing the Central Authority—if the 

receiving country has not objected to mail service and if mail 

service is authorized by otherwise applicable law. Water 

Splash, Inc. v. Menon, 137 S. Ct. 1504, 1513 (2017). The 

applicable law in California permits service via mail, with 

acknowledgment of receipt, at a Post Office box. Cal. Civ. 

Proc. Code § 415.30.

But the record does not support a finding that notice was 

mailed. It contains no evidence of any attempt at mail 

service apart from the failed attempt to send process to Alan 

Wofsy through the U.S. Central Authority. Indeed, Sicre de 

Fontbrune’s brief specifies that the supposed mail service 
SICRE DE FONTBRUNE V. WOFSY 37

was performed “via the Hague Convention Central 

Authority for the United States.”15

Even if the U.S. process server had mailed notice to P.O. 

Box 2210, our conclusion as to the sufficiency of the service 

efforts would not change. The certificates requested 

pursuant to the Hague Service Convention revealed that 

neither defendant had been served. Taking no further steps 

to give notice would not have been the response of one 

“desirous of actually informing” the addressee. Jones, 

547 U.S. at 229; see also Mullane, 339 U.S. at 315. The 

failed attempts to serve process do not, by themselves, 

disprove the notice defense.

There is, however, a factual dispute as to whether Wofsy 

received actual notice of the “pendency of the action and . . . 

an opportunity to present [his] objections.” Alfa-Bank, 

230 Cal. Rptr. 3d at 224; see Cal. Civ. Proc. Code 

§ 1716(c)(1). Wofsy received mail correspondence from the 

15 Some confusion may originate from the huissier’s request to serve 

Alan Wofsy at his U.S. Post Office box. The record contains no direct 

evidence that either the U.S. Central Authority or its process service 

contractor responded to that request by attempting mail service. To the 

contrary, it contains a form indicating that the U.S. process server sent 

the San Francisco postmaster as many as three requests for “boxholder 

information needed for service of legal process.” See 39 C.F.R. 

§ 265.6(d)(5)(ii) (2011) (current version at 39 C.F.R. § 265.14(d)(5)(ii)) 

(permitting disclosure of post office boxholder name and information to 

a person authorized to serve legal process). The Postal Service, in turn, 

provided an address for Alan Wofsy at 401 China Basin Street. That is 

where the certificate of nonservice on Alan Wofsy shows that the process 

server unsuccessfully attempted service. The documentation in the 

record is thus consistent with the possibility that the U.S. process server 

simply dispatched an agent to attempt personal service at the street 

address provided by the Postal Service, without ever attempting service 

by mail at P.O. Box 2210.
38 SICRE DE FONTBRUNE V. WOFSY

TGI in November 2011. The correspondence included a 

letter, dated November 16, 2011, accompanying a brief 

written order of the TGI based on the October 2011 astreinte 

hearing. That order included a half-page description of the 

October 2011 hearing that had occurred on Sicre de 

Fontbrune’s claim for liquidation of the astreinte. It 

announced that because Wofsy had not appeared and Sicre 

de Fontbrune had failed to prove that Wofsy had been 

served, the proceedings would be reopened for another 

hearing on December 13, 2011, “for the production by [Sicre 

de Fontbrune] of the certificate from the foreign authority 

responsible for notification of the document instituting the 

proceedings,” in accordance with Article 6 of the Hague 

Service Convention. The correspondence was entirely in 

French. Wofsy testified at a deposition in the present 

litigation, however, that he could “reasonably” read 

French.16

“Notice to be effective must be informative.” Julen, 

101 Cal. Rptr. at 798. The letter and order stated that a 

proceeding was pending. But the correspondence nowhere 

mentioned any remaining opportunity to argue the merits of 

Sicre de Fontbrune’s claim for liquidation of the astreinte, 

even at the December 2011 hearing. The letter provided 

instructions only as to how to appeal the order. Because the 

letter omitted any mention of an opportunity to participate in 

the proceedings in the TGI—and, indeed, stated that the 

16 Wofsy directs us to Julen v. Larson, 101 Cal. Rptr. 796, 798 (Ct. 

App. 1972), for the proposition that notice, to be adequate, must be given 

in the “language of the jurisdiction in which [the defendant] is served,” 

among other requirements. In Julen—unlike here—the foreign legal 

documents were written in German, which no one argued the defendant 

could read. Id. And Alfa-Bank later clarified that Julen did not “defin[e] 

constitutional ‘requirements’ for adequate notice.” 230 Cal. Rptr. 3d 

at 232.
SICRE DE FONTBRUNE V. WOFSY 39

reopening of the hearing was for a specific purpose that did 

not include Wofsy appearing—we cannot say as a matter of 

law that the letter was “reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency 

of the action and afford them an opportunity to present their 

objections.” See Alfa-Bank, 230 Cal. Rptr. 3d at 224 

(citation omitted).

Whether it actually resulted in notice, however, is 

disputed. Wofsy avers that the correspondence led him to 

believe that it was already too late to raise a defense in the 

proceedings. But some evidence suggests that the letter, 

despite its deficiencies, may have accomplished actual 

notice. The declaration of Sicre de Fontbrune’s French 

counsel—cited by Sicre de Fontbrune in his response, and 

unchallenged in Wofsy’s reply—indicates that French 

procedural rules in fact would not have precluded Wofsy 

from asserting a defense on the merits even after he received 

the November 2011 mailing. And past copyright litigation 

had given Wofsy more than five years of familiarity with 

French litigation.

There accordingly remains a factual dispute about the 

effect of the November 2011 correspondence on Wofsy’s

knowledge of his options. The district court appropriately 

left to the finder of fact to determine whether Wofsy 

“receive[d] notice of the proceeding in sufficient time to 

enable [him] to defend.” Cal. Civ. Proc. Code § 1716(c)(1).

V. Fraud

A court may refuse to recognize a foreign judgment if 

the judgment “was obtained by fraud that deprived the losing 

party of an adequate opportunity to present its case.” Cal. 

Civ. Proc. Code § 1716(c)(2). Wofsy challenges the district 

court’s determination that disputes of material fact precluded 
40 SICRE DE FONTBRUNE V. WOFSY

summary judgment in Wofsy’s favor based on alleged fraud 

in the French proceeding. Wofsy asserts that Sicre de 

Fontbrune falsely represented to the TGI in the Astreinte 

Proceeding that he owned the copyrights to the photographs 

at issue, and that Sicre de Fontbrune failed to disclose that 

he no longer had an interest in liquidating the astreinte that 

would make his claim admissible. See Code de Procédure 

Civile arts. 31, 32 (Fr.).

The comments to the 2005 Uniform Act—on which 

California’s Recognition Act is based, Alfa-Bank, 230 Cal. 

Rptr. 3d at 221—explain that the language used in Section 

1716(c)(2) refers only to “extrinsic fraud.” Unif. ForeignCountry Money Judgments Recognition Act § 4 cmt. 7 

(Nat’l Conf. of Comm’rs on Unif. State L. 2005). Examples 

of extrinsic fraud include instances where “the plaintiff 

deliberately had the initiating process served on the 

defendant at the wrong address, deliberately gave the 

defendant wrong information as to the time and place of the 

hearing, or obtained a default judgment against the 

defendant based on a forged confession of judgment.” Id. 

Extrinsic fraud differs from intrinsic fraud, which includes 

“false testimony of a witness or admission of a forged 

document into evidence during the foreign proceeding.” Id. 

Those are concerns that “should be raised and dealt with in 

the rendering court.” Id.

California caselaw indicates that concealing material 

information from a court can, in some circumstances, 

constitute extrinsic fraud. For example, in Pentz v. 

Kuppinger, a plaintiff sought restitution for “assertedly 

excessive amounts collected by defendant under a Mexican 

judgment” that the defendant had obtained against the 

plaintiff. 107 Cal. Rptr. 540, 541 (Ct. App. 1973). The court 

held that the plaintiff had alleged extrinsic fraud against the 
SICRE DE FONTBRUNE V. WOFSY 41

creditor of the foreign judgment, because the judgmentcreditor had failed to disclose to the plaintiff or to the courts 

that the judgment-creditor already had received payments 

that would have reduced the amount of the foreign judgment. 

Id. at 544–45. The plaintiff allegedly had inquired about 

some of these payments while the foreign action was 

pending, but the defendant’s attorney had denied knowledge 

of them. Id. at 544 n.5. As to other payments, the Court of 

Appeal observed that the plaintiff “had not even a suspicion

that credit should have been given.” Id. at 544. Taking the 

complaint’s allegations as true, then, the “plaintiff was 

denied the opportunity to acquaint the [Mexican] court” with 

information crucial to her case. Id. at 545. The court 

accepted that this conduct would constitute extrinsic fraud, 

concluding that on the alleged facts of the case, the plaintiff 

“was denied her day in court as to all of the issues tendered 

by her pleading[.]” Id. (italicization in original).

Sicre de Fontbrune stated in his 2011 complaint in the 

Astreinte Proceeding that he owned the copyrights to the 

photographs that the resulting judgment found to have been 

copied. In fact, as the French Cour d’Appel later confirmed 

in a separate copyright infringement proceeding, Sicre de 

Fontbrune had transferred those copyrights in December 

2001 to a business entity. Whether this false representation 

mattered depends on whether Sicre de Fontbrune 

nonetheless retained a legal interest in liquidating the 

astreinte after transferring the relevant intellectual property 

that the astreinte was awarded to protect. That is, at least in 

part, a question of French law.

We need not resolve it in this appeal. Even assuming 

that Sicre de Fontbrune deceived the TGI as to his legal 

interest in the astreinte, Wofsy is not entitled to summary 

judgment on the claim that the misrepresentation “deprived 
42 SICRE DE FONTBRUNE V. WOFSY

[him] of an adequate opportunity to present [his] case.” See 

Cal. Civ. Proc. Code § 1716(c)(2). The misrepresentation 

may have enabled Sicre de Fontbrune to obtain the astreinte 

judgment. But unlike the party asserting fraud in Pentz, 

Wofsy did not participate in the proceeding to liquidate the 

astreinte. He accordingly did not request evidence that was 

denied. Cf. Pentz, 107 Cal. Rptr. at 544 n.5. Moreover, Sicre 

de Fontbrune affirmatively represented in his complaint that 

he owned the copyrights. That fact suggests that if Wofsy 

had participated in the Astreinte Proceeding, he might have 

had occasion to question that assertion. Cf. id. at 544 (losing 

party “had not even a suspicion” regarding the concealed 

information). For the reasons discussed with respect to the 

notice defense, whether Wofsy had a valid explanation for 

failing to mount a defense in the Astreinte Proceeding is 

subject to factual dispute.

A question thus remains as to whether Wofsy reasonably 

should have detected the alleged fraud during the French 

proceedings—and, therefore, as to whether such fraud 

deprived him of an adequate opportunity to present his case. 

The district court did not err by denying Wofsy summary 

judgment on the fraud defense.

CONCLUSION

Wofsy was not entitled to summary judgment based on 

the public policy defense. No other ground for 

nonrecognition at issue in this appeal supplies an alternative 

basis for affirming the judgment below. We therefore 

REVERSE and REMAND for further proceedings 

consistent with this opinion.

REVERSED AND REMANDED.