and bi-national justice for all California Conference

“…and (bi-national) justice for all. ” California Conference on Self- Represented Litigants April 28 – 30, 2010

Bi-National Issues • • Letters Rogatory Service of process Enforcement of orders Cases with identical issues pending in both California and Mexico

One Child’s Story n n Jean Paul Lacombe Video http: //www. youtube. com/watch? v=NVjh. TCLKlh. U

Definition of Letters Rogatory Also known as a letter of request, a letter rogatory is a formal request from a court in one country to "the appropriate judicial authorities" in another country, used to request compulsion of testimony or documentary or other evidence or to effect service of process and enforcement of judgment.

Guidelines on Drafting Letters Rogatory n Should be written in simple English n Should be addressed "To Appropriate Judicial Authority” Include a brief synopsis of the case, including identification of the parties and the nature of the claim and relief sought to enable the foreign court to understand the issues involved n n State the nature of the assistance requested Include a statement expressing a willingness to provide similar assistance to judicial authorities of the receiving state n

Example of a Letter Rogatory

Con’t Example of a Letter Rogatory

Requirements for Execution of Letters Rogatory n n n Must be translated to the language of the country where it is being sent Must attach certified copies of relevant court documents (summons, petition, judgment, etc) to the letter rogatory Must be authenticated with an Apostille

Convention Abolishing the Requirement of Legalization for Foreign Public Documents n n n Facilitates the circulation of public documents executed in one State party to the Convention and to be produced in another State party to the Convention. It does so by replacing the cumbersome and often costly formalities of a full legalization process (chain certification) with the mere issuance of an Apostille (also called Apostille Certificate or Certificate). The Convention applies only to public documents, emanating from an authority or official connected with a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server); administrative documents; notarial acts; and official certificates.

Example of a California and Baja California Apostille

How to Obtain an Apostile n n Through the California Secretary of State: In Person (Regional Offices in San Diego, Los Angeles and San Francisco) n By mail to Sacramento offices n Issuance Fee: $26

Central Authority Procedure Issuance of Letter Rogatory by requesting authority Send to Central Authority U. S. Department of State (Process Forward International) U. S. Department of State Verifies the LR. If satisfies all Requirements it is forwarded to Mexico’s Central Authority - Ministry of Foreign Affairs Letter Rogatory is received by the Proper Judicial Authority, who executes it, Returns it to Mexico Central Authority. Letter Rogatory is received by Mexico’s Central Authority and Forwarded it to the proper judicial Authority in the Republic of Mexico

Judicial Channels Procedure Issuance of Letter Rogatory by requesting authority Letter Rogatory carried by the interested party to the proper judicial authority in Mexico Letter Rogatory is received by Mexico’s Judicial Authority and processed through the clerk of the courtroom

Judicial Channels vs. Central Authority §Save time - Letter Rogatory can be processed in a month §Save Money - It can be carried out by the interested party §You can establish a contact and direct communication with the foreign judicial authority for future cases

Example of Response to a Letter Rogatory

Con’t Example of Response to a Letter Rogatory

Service of Process

Service of Process and Service Abroad – Mexican Law n n n n Personal service Substituted service Publication and posting Certified Mail (only if respondent resides out of state) (§ 117) Service of process is generally made by an actuario- (clerk) – a government employee If respondent is in a foreign country, service shall be made by means of letter rogatory (§ 108) International letters rogatory are also governed by the Mexican Federal Code of Civil Procedure, and by international treaties to which Mexico is a signatory

Service Abroad - California Law n n n Outside of the United States, a summons shall be served: As provided in this chapter, or As directed by the court in which the action is pending, or If the court finds that service is reasonably calculated to give actual notice, As prescribed by the law of the place where the person is served, or As directed by the foreign authority in response to a letter rogatory. (CCP § 413. 10(c); CCP § 413. 30)

n CAVEAT: “Subject” to the Hague Service Convention on the Service Abroad of Judicial or Extrajudicial Documents in civil or commercial matters CCP § 413. 10(c) n “Subject” to is not the same as “pursuant” to, but treaties trump state law – Yamaha case

Service by Mail to Mexico? n n A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. (CCP 415. 40) Query: Would that apply to Mexico? (International registered mail available but survey results contra)

Service Abroad – International Law n n n Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Criminal Matters U. S. and Mexico are both signatories to the convention Inter-American Convention on Letters Rogatory - for members of Organization of American States: includes U. S. and Mexico

Hague Convention on Service n n n Applies in civil cases To transmit judicial documents For service abroad Does not apply where defendant’s address is not known Convention deals with transmittal of documents, not the actual service

Hague Transmission channels n n n Central Authority Consular or diplomatic channels Postal channels Direct communication between judicial officers, officials or other competent persons of the State of origin and the State of destination Direct communication between an interested party and judicial officers, officials or other competent persons of State of destination

Hague Model Form Requirements n n Request for Service Certificate (proof of service) Summary of Documents to be Served Recommended warning of legal nature, purpose, and effects of documents being served

Inter-American Convention n n Applies to letters rogatory in civil or commercial cases before judicial or adjudicatory authorities For the performance of procedural acts of a merely formal nature, such as service of process, summons or subpoenas abroad

I – A Convention Options for Sending Letters Rogatory May be transmitted by interested party: n To Central Authority n Through diplomatic or consular agents a copy n Through judicial channels n States parties in “economic integration systems” may agree directly between themselves upon special methods and more expeditious methods

Imperial Court Forms n n n Ex Parte Application for Issuance of Letter Rogatory for Service of Process Abroad; Order Letter Rogatory: Request for International Judicial Assistance for Service of Process Abroad Based on California and international laws and treaties

Ex parte Application for Issuance of Letter Rogatory

Letter Rogatory Example

Con’t Letter Rogatory Example

Guardianships/Passports Issues n n Guardianships: One or both parents in Mexico Passports: No order or joint custody, with one parent in Mexico

Guardianship n n A parent or person with legal custody should receive personal service 15 days before the hearing or signed Notice and Acknowledgement Prob. Code § 1511 (b) (2)(3); CCP §§ 415. 10, 415. 30 Relative(s) named in petition receive service by mail 15 days before hearing unless court waives Prob. Code § 1511(c)(2)

Guardianship - Good Cause Exception to Personal Service n n Legislative Comment examples: (a) notice would be useless or detrimental to the person to receive notice and (b) after the exercise of reasonable diligence, the whereabouts of the person is unknown

Guardianship n n n Is it “good cause” if the only factor is that one of the parents/legal guardians resides in Mexico? They may have important but unknown information about the proposed guardian. Personal service could be made by means of letter rogatory

Passports: Establishing Parental Consent If Only One Parent Applies n n If non-applying parent will consent, have non-applying parent sign Statement of Consent (Form DS-3053) If non-applying parent will not consent, applying parent may complete a Statement of Special Circumstances explaining why written consent of non-applying parent cannot be obtained (Form DS-3053)

Passports - Motions/Orders to Show Cause n n n Assume U. S. citizen minor needs a U. S. passport Minor must have parental consent to obtain U. S. passport. What if one parent is in Mexico and does not consent? Solution: obtain a sole custody order or court order specifically permitting applying parent’s travel with child Serve absent parent with motion/OSC by means of letter rogatory

Enforcement of Judgments/Orders in Dual Jurisdictions

Registration of Mexican Child Support Judgments in California under UIFSA n n Family Code Section 4951 (UIFSA) Fill out form Judicial Council Form FL-570 and Registration Statement form OMB 0970 – 0085. http: //www. courtinfo. ca. gov/forms/fillable/fl 570. pdf http: //www. acf. hhs. gov/programs/cse/forms/OMB-0970 -0085 -R. pdf n n n A letter of transmittal or letter rogatory from Mexico requesting registration and enforcement (in English) Two copies of the order to be registered (including one certified) The name of the obligor and if known: obligor’s SSN, employer or any other source of income a description. (Comment: where does that go? )

Process of Registration of Child Support Judgment Once the petition is filed, the clerk will mail the Respondent a copy of the Notice of Registration with a copy of all attachments File judicial form FL-570, with the Registration form and all the necessary attachments and judicial Form FL-575 (Request for Hearing Regarding Registration Of Support Order) The Respondent has 25 days from the date the notice was mailed to contest the validity of the registered order by filing Judicial Form FL-575 Hearing Regarding Registration of Support Order If Respondent does not contest the validity or enforcement of the registered order the order will be registered.

Contesting the Validity of an Out. Of-State Child Support Order n Family Code §§ 4955, 4956 n The obligor is not the person named in the Registration Statement. n The court that issued the order did not have personal jurisdiction over the respondent n The support order was obtained by fraud n The order has been stayed pending appeal

Registration of Mexican Child Support Judgment in California under UIFSA §Family Code § 3445 (UCCJEA) §Fill out form Judicial Council Forms FL-580, FL-105, FL-585 http: //www. courtinfo. ca. gov/forms/fillable/fl 580. pdf http: //www. courtinfo. ca. gov/forms/fillable/fl 105. pdf http: //www. courtinfo. ca. gov/forms/fillable/fl 585. pdf §A letter or other document requesting registration (translated to English) §Two copies of the order to be registered (including one certified) §The name and address of the person seeking registration

Process of Registration of a Foreign Custody Judgment Once the petition is filed, the clerk will mail the Respondent a copy of the Notice of Registration with a copy of all attachments File judicial form FL-580, with the Registration form and all the necessary attachments and judicial Form FL-585 (Request for Hearing Regarding Registration Of Support Order) The Respondent has 20 days from the date the notice was mailed to contest the validity of the registered order by filing Judicial Form FL-585 Hearing Regarding Registration of Support Order If Respondent does not contest the validity or enforcement of the registered order the order will be registered.

Registration of Mexican Divorce Judgments under UDRA § Family Code § 2091 (UDRA). § One of the parties has to be domiciled in the foreign country at the time the proceeding for the divorce was commenced. § Foreign Acts are given full faith and credit as long as are not contrary to the dispositions of the U. S. Constitution. Family Code § 2093. § No special proceeding for registration is necessary unless there is something to be enforce. C. C. P. § 1913

Enforcement of California Orders and Judgments in Mexico LAWS REGULATING THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN MEXICO n The Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards n The Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments n Mexico Federal Code of Civil Procedure (FCCP) n Code of Civil Procedure for the State of Baja California) Baja CA CCP Section IV, Articles 585 – 594 n International Reciprocity principle - UIFSA for Child Support Cases

Conditions for Recognition and Enforcement of Foreign Judgments under the FCCP § All requirements for letters rogatory must be satisfied § The court rendering the judgment had proper jurisdiction to try the matter and to pass judgment on it. § Service of process on defendant has been made in due legal form. § There must be no similar case in a Mexican court as result of the same legal action § The judgment must not be contrary to Mexican public policy § The judgment must fulfill all the formal requirements to be considered authentic (Apostille)

PROCEDURE FOR ENFORCEMENT OF FOREIGN JUDGMENTS (“HOMOLOGACION DE SENTENCIAS EXTRANJERAS)” IN MEXICO ACCORDING TO THE FCCP Once the petition is filed, the parties involved are given a 9 days period to defend themselves against the allegations File a petition in the Family law court, for the registration and enforcement of a foreign judgment know as “Incidente de Homologación de Sentencias Extrnajeras” After the Court has heard the allegations, the Court will issue a judgment granting the recognition and enforcement or denying it. An appeal process is also available to both parties, for which a 5 day period is granted

Registration and Enforcement of Mexican Judgments in California n What could have been done in Lacombe case?

Final Considerations First: Verify that the judgment meets the conditions to be enforceable in Mexico: • The Court of origin had proper jurisdiction • The judgment is res judicata • No case is pending in Mexico involving the same parties/legal issues • Judgment is not contrary to public policy in México Secondly: Obtain a letter rogatory that meets all suggestions made earlier: • General guidelines and information • Statement from court to satisfy comity condition • Statement proving that judgment is res judicata • Statement giving full and specific powers to executing court

Final Considerations con’t n n Third: Get all documents needed ready: n Letter rogatory n Judgment n Copy proving proper service of process n Copy proving that judgment is res judicata (if it is not included in the letter rogatory) Finally: n Authenticate all documents (Apostille); n Translate everything into Spanish; and n File it in the proper court in Mexico. (Refer to Imperial local form for registration/enforcement)

Motion to Quash

Dual Jurisdiction Cases Common issues in Imperial County n Prior judgment in Mexico, or n Another action pending in Mexico between the same parties on the same cause – e. g. , dissolution, UPA, child support Remedy: Motion to Quash

Memorandum of Points and Authorities

Con’t Memorandum of Points and Authorities

Memo of P’s & A’s n n n Self Help Guideline No. 16: “A court self help-center may not create documents for litigants that require strategic decision making on behalf of litigants by self-help center staff…” OK - boilerplate, fillable form P’s & A’s Use boxes to check Refer to attached declaration written by litigant

P’s & A’s con’t n n Prior judgment of dissolution: no longer any marital res in second in time served jurisdiction. See Zierenberg – prior Puerto Rican disso Pending dissolution in Mexico – invokes the court’s discretion under theory of comity; consider abatement of action

P’s & A’s con’t n n Mexico is a “state” under UCCJEA (Fam. Code 3400 et seq. ) Prior Mexican judgment of child custody should be recognized if made in substantial conformity with UCCJEA Similar rule for pending child custody case in Mexico unless temporary emergency jurisdiction under FC 3424

P’s & A’s con’t n n Mexico is a “state” under UIFSA because California (rather than U. S. ) has reciprocal agreement with Mexico Child support judgment or pending action in Mexico should be recognized However voluntary payments (comprobante) not a bar to CA case

Contacts Directory Aguascalientes judicial web page www. poderjudicialags. gob. mx Baja California Judicial web page www. poder-judicial-bc. gob. mx Baja California Sur Judicial web page http: //www. tribunalbcs. gob. mx/ Campeche judicial web page http: //www. tribunalcampeche. gob. mx/ Chiapas judicial web page http: //www. poderjudicialchiapas. gob. mx/ Chiapas judicial web page Chihuahua Judicial web page http: //www. stj. gob. mx/ Coahuila judicial web page http: //www. poderjudicialcoahuila. gob. mx/pag/TSJ/index. php Colima Judicial web page http: //stj. col. gob. mx/ Distrito Federal web page http: //www. poderjudicialdf. gob. mx/ Durango judicial web page www. tsjdgo. gob. mx Estado de Mexico judicial web page http: //www. pjedomex. gob. mx/ Guanajuato judicial web page www. poderjudicial-gto. gob. mx Guerrero judicial web page www. tsj-guerrero. gob. mx Hidalgo judicial web page http: //www. pjhidalgo. gob. mx/ Jalisco Judicial web page http: //www. stjjalisco. gob. mx/ Michoacan judicial web page http: //www. tribunalmmm. gob. mx/ Morelos judicial web page www. tsjmorelos. gob. mx Nayarit judicial web page www. tsjnay. gob. mx

Con’t Contacts Directory Nuevo Leon judicial web page www. pjenl. gob. mx Oaxaca Judicial web Page http: //www. tribunaloax. gob. mx/ Puebla judicial web page http: //www. htsjpuebla. gob. mx/home. html Puebla Judicial web page Queretaro Judicial web page http: //www. tribunalqro. gob. mx/ Quintana Roo judicial web page www. tsjqroo. gob. mx San Luis Potosi web judicial page http: //www. stjslp. gob. mx/ Sinaloa Judicial web page http: //www. stj-sin. gob. mx/ Sonora Judicial web page http: //www. stjsonora. gob. mx/ Tabasco judicial web page http: //www. tsj-tabasco. gob. mx/ Tamaulipas Judicial web page http: //www. pjetam. gob. mx/ Tlaxcala judicial web page www. tsjtlaxcala. gob. mx Veracruz Judicial web page http: //www. pjeveracruz. gob. mx/ Yucatan judicial web page http: //www. tsjyuc. gob. mx/ Zacatecas Judicial web page http: //www. tsjzac. gob. mx/2010/