The case of the day is Korea Deposit Insurance Corp. v. Suh (Cal. Ct. App. 2018). Tomato Savings Bank, a Korean bank, loaned ₩500 million to Debbie A. Suh. Suh failed to pay. The bank went bankrupt, and the KDIC was appointed trustee. It sued Suh in Korea on the loan. After a trial, the Korean court entered judgment for nearly ₩1 billion.
KDIC then sought recognition and enforcement of the judgment in the Riverside County (California) Superior Court—Suh was a US citizen residing in California. Suh’s evidence was that her father, who nominally was the guarantor of the loan, in fact had entered into the loan on her behalf without her knowledge and that he had kept all the proceeds.
The question was whether the KDIC had shown that the Korean judgment was final and conclusive in Korea. Apparently the KDIC failed to prove the relevant Korean law, either by offering expert testimony or by asking the court to take judicial notice. Thus the court reversed a lower court judgment recognizing the judgment.
If indeed the KDIC failed to offer a real explanation of the relevant law, the failure was surprising and probably justified the appellate court’s ruling. But the court’s language, which treats the issue of Korean law as a question of fact that must be proved like any other fact, is concerning. It may be that California has simply not caught up in this area. But the modern trend, embodied in FRCP 44.1 and in many states’ rules, is to treat foreign law as a question of law, not fact. Of course, even treating the question as one of law, it’s incumbent on the party relying on foreign law to explain the foreign law to the court.