                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 29 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FIDELITY NATIONAL FINANCIAL                      No. 08-16967
INC.,
                                                 D.C. No. 2:03-cv-01222-RCB
              Plaintiff - Appellee,

FIDELITY EXPRESS NETWORK INC.,                   MEMORANDUM *

              Claimant - Appellee,

  v.

COLIN H. FRIEDMAN and HEDY
KRAMER FRIEDMAN, individually and
as trustee of the Friedman Family Trust
UDT, dated July 23, 1987,

              Defendants - Appellants,

  and

ANITA MESHKATAI, individually and
as a trustee of the Anita Kramer Living
Trust, dated July 23, 1987,

              Defendant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                            for the District of Arizona
               Robert C. Broomfield, Senior District Judge, Presiding

                             Argued December 11, 2009
                            Resubmitted October 27, 2010
                              San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

      Colin and Hedy Freidman (collectively “Appellants”) appeal the court’s

denial of their motion to quash the enforcement of a 2002 California fraud

judgment. Although the California judgment was registered in Arizona, Appellants

claim the judgment was not renewed pursuant to Arizona law within five years of

its entry and had consequently expired by 2008. Fidelity argues the California

judgment was renewed by certain collection activities in Arizona and by a related

racketeering lawsuit in California. We certified these questions to the Arizona

Supreme Court and now adopt their answers. See Fidelity Nat’l Fin., Inc. v.

Friedman, No. CV-10-0096-CQ, slip op. at 14 (Ariz. filed August 19, 2010).

      Arizona law provides that “an execution or other process shall not be issued

upon a judgment . . . [unless] an action is brought on it within five years from the

date of [its] entry . . . .” Ariz. Rev. Stat. Ann. § 12-1551(B); see id. § 12-1611

(“A judgment may be renewed by action thereon at any time within five years after

the date of the judgment.”).


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      Fidelity claims that, under Section 1-215, which defines “action” to include

“any matter or proceeding in a court, civil or criminal,” certain collection activities

undertaken by Fidelity in Arizona constitute “actions on” the original judgment.

Id. § 1-215. But these collection activities—filing for a writ of garnishment,

applying for orders from the court to inspect a safety deposit box, and requiring a

debtor’s exam—“were attempts to collect upon the 2002 judgment, not to renew

it.” Fidelity, No. CV-10-0096-CQ at 14. To “renew” a judgment pursuant to § 12-

1551(B) or § 12-1611, a party must bring a traditional “common law action on

[the] judgment,” not simply pursue an action to enforce the judgment. See id. at

8–9 (“The main purpose of an action on a judgment is to obtain a new judgment

which will facilitate the ultimate goal of securing the satisfaction of the original

cause of action. . . . [T]he amount sought is the outstanding liability on the original

judgment.” (internal citations omitted; emphasis added)).

      Additionally, the California racketeering lawsuit “clearly was not a common

law action on the judgment; it did not simply recite the amount owed and seek a

judgment on that debt.” Fidelity, No. CV-10-0096-CQ at 14. Instead, the suit

sought remedies under federal and California law merely relating to the California

judgment, which does not effect renewal. Id.; see id. at 10 (“These statutes . . .




                                           3
[require] not simply an action in some way related to the earlier judgment, but

rather a specific form of suit—the common law action on a judgment.”).

       Fidelity also questions (1) whether it successfully renewed the judgment by

affidavit in 2008, and (2) whether its 2007 registration of the final California

judgment also renewed the judgment. Because these issues were not considered by

the district court and the parties did not provide comprehensive briefing to inform

our review, we do not consider them on appeal. See Golden Gate Hotel Ass’n v.

San Francisco, 18 F.3d 1482, 1487 (9th Cir. 1994) (“As a general rule, ‘a federal

appellate court does not consider an issue not passed upon below.’”) (quoting

Singleton v. Wulff, 428 U.S. 106, 120 (1976)).

       Since Fidelity did not file a common law action for renewal on the 2002

judgment within five years of its entry, the judgment expired by 2008. See § 12-

1551(B) (“An execution or other process shall not be issued upon a judgment after

the expiration of five years from the date of its entry unless the judgment is

renewed . . . .”).

       We accordingly REVERSE.




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