a California corporation, D.C. No. 2:09-cv-02248-R-CW v. O-TA PRECISION INDUSTRIES ) CO., LTD., a Taiwan company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOLEX GOLF INDUSTRIES, INC., ) No. 13-55643
a California corporation, )
) D.C. No. 2:09-cv-02248-R-CW
Plaintiff - Appellant, )
) MEMORANDUM *
v. )
)
O-TA PRECISION INDUSTRIES )
CO., LTD., )
)
Defendant - Appellee. )
)
FOLEX GOLF INDUSTRIES, INC., ) No. 13-56331
a California corporation, )
) D.C. No. 2:09-cv-02248-R-CW
Plaintiff - Appellee, )
)
v. )
)
O-TA PRECISION INDUSTRIES )
CO., LTD., a Taiwan company, )
)
Defendant - Appellant. )
)
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
FILED
MAR 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Argued and Submitted March 2, 2015
Pasadena, California
Before: PREGERSON, FERNANDEZ and NGUYEN, Circuit Judges.
Folex Golf Industries, Inc. (“Folex”) appeals the district court’s summary
judgment in favor of O-TA Precision Industries Co., Ltd. (“O-TA”) in Folex’s suit
for damages and declaratory relief (No. 13-55643). O-TA appeals the district
court’s order denying its motion for attorney’s fees (No. 13-56331). We reverse in
part and vacate in part.
Folex and Luoyang Ship Material Research Institute (“LSMRI”) entered into
an agency agreement later supplemented by an addendum (hereafter “Agreement”).
O-TA was introduced to LSMRI by Folex and became a customer of LSMRI.
Ultimately LSMRI filed an action against Folex in a court in the People’s Republic
of China (“PRC”), and obtained a default judgment against Folex that dissolved the
Agreement. In the meantime, Folex brought this action against O-TA. After the
PRC judgment issued, the district court granted summary judgment to O-TA on the
basis that by applying international comity, the PRC judgment against Folex would
be recognized in California 1 and would have collateral estoppel effect.
1 Because this is a diversity case, California law applies. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938); Yahoo! Inc.
v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1212–13 (9th
(continued...)
2

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(1) Folex asserts that due to a lack of proper service of the PRC action
upon it, California would not recognize the judgment. We agree because the PRC
court lacked personal jurisdiction over Folex. California will apply the principles
of international comity and recognize the judgments of a foreign court if that court
had personal jurisdiction. See San Diego Cnty. Dep’t of Soc. Servs. v. Norma M.
(In re Stephanie M.), 7 Cal. 4th 295, 314, 27 Cal. Rptr. 2d 595, 605, 867 P.2d 706,
716 (1994); see also Hilton v. Guyot, 159 U.S. 113, 202–203, 16 S. Ct. 139, 158,
40 L. Ed. 95 (1895); Pennoyer v. Neff, 95 U.S. 714, 732, 24 L. Ed. 565 (1877),
overruled in part on other grounds by Shaffer v. Heitner, 433 U.S. 186, 206, 97 S.
Ct. 2569, 2580–81, 53 L. Ed. 2d 683 (1977). However, absent proper service upon
a defendant, personal jurisdiction cannot be obtained. See Dill v. Berquist Constr.
Co., 24 Cal. App. 4th 1426, 1439 & n.13, 29 Cal. Rptr. 2d 746, 753 & n.13 (1994);
see also Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct.
404, 409, 98 L. Ed. 2d 415 (1987). Here the record demonstrates that process was
never delivered to Folex personally — at the one possible attempt in China, the
papers were not even left, and when service in California was attempted under the
1 (...continued)
Cir. 2006) (en banc) (plurality opinion) (per curiam).
3

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provisions of The Hague Convention, 2 the papers were never delivered. The only
other attempt was publication, but, while that can be proper in some instances, in
this instance the record shows that California’s law regarding publication was not
followed,3 and, more to the purpose, neither was PRC’s. 4 We are satisfied that
California would find that fatal to recognition. 5
O-TA argues that if Folex knew of the PRC action, the defective service
would be cured. Not so; that conflates jurisdictional and due process inquiries.
Certainly, California does not accede to O-TA’s theory. See Honda Motor Co. v.
Superior Court, 10 Cal. App. 4th 1043, 1048, 12 Cal. Rptr. 2d 861, 864 (1992); see
also Cal-Micro, Inc. v. Cantrell (In re Cantrell), 329 F.3d 1119, 1122–24 (9th Cir.
2003).
In short, on this record California would not determine that Folex is bound
2 Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, art. 5, Nov. 15, 1965, 20 U.S.T. 361.
3 Under California law, publication in California would have been necessary.
See Cal. Civ. Proc. Code § 415.50(b). That was not done, nor was reasonable
diligence demonstrated. See id. § 415.50(a).
4 According to the expert evidence in the record, publication under Chinese
law would have to have been both in China and abroad. The record does not show
that it was published abroad. Nor does the record show that personal service was
not possible, another requirement under Chinese law.
5 See Restatement (Third) of Foreign Relations Law § 471 cmt. a (1987).
4

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by the PRC judgment. See Hansberry v. Lee, 311 U.S. 32, 40–41, 61 S. Ct. 115,
117–18, 85 L. Ed. 22 (1940).
(2) Folex also asserts that even if the PRC judgment is recognized on the
basis that the court had jurisdiction over it, Chinese law does not recognize the
principle of third-party collateral estoppel (issue preclusion). According to the
expert evidence in the record, that is correct.
Under California law, if another United States jurisdiction does not give
preclusive effect to its judgments, California will not give preclusive effect to those
judgments. See Gilmer v. Spitalny, 84 Cal. App. 2d 39, 44–45, 189 P.2d 744, 747
(1948); cf. Proctor v. Vishay Intertechnology, Inc., 213 Cal. App. 4th 1258,
1274–75, 152 Cal. Rptr. 3d 914, 926–927 (2013); Burdette v. Carrier Corp., 158
Cal. App. 4th 1668, 1688–91, 71 Cal. Rptr. 3d 185, 200–03 (2008). Moreover,
California does not expect foreign courts to give California judgments greater
effect than California would. See Pentz v. Kuppinger, 31 Cal. App. 3d 590, 598,
107 Cal. Rptr. 540, 545 (1973).
Therefore, we agree that the California courts would not bar Folex’s action
against O-TA, even if they did recognize the PRC judgment in favor of LSMRI.
(3) O-TA appeals the district court’s determination that, under California
5

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law,6 O-TA was not entitled to an award of attorney’s fees against Folex. In light
of our reversal of the judgment in O-TA’s favor, we vacate the district court order
regarding fees without deciding the merits of O-TA’s argument.
Summary judgment REVERSED and REMANDED (No. 13-55643); fee
order of July 11, 2013, VACATED (No. 13-56331). Folex is awarded its costs on
appeal (No. 13-55643; No. 13-56331).
6 See Cal. Civ. Code § 1717(a); Santisas v. Goodin, 17 Cal. 4th 599, 610–11,
71 Cal. Rptr. 2d 830, 837–38, 951 P.2d 399, 406–07 (1998).
6

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