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July 1997 
Vol. 3 No. 7 ISSN 1087-6219
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The Ninth Circuit has ruled that use of film clips from two Fred Astaire movies does not infringe on his widow's rights under Civil Code section 990. The decision did not discuss any First Amendment or copyright issues that such use might raise.
Fred Astaire granted Ronby Corporation an exclusive license to use his name and certain photographs and images in operating dance studios and related activities. Ronby in turn authorized Best Film & Video Corporation to produce and distribute a series of five instructional videotapes, known as the “Fred Astaire Dance Series.” Each videotape included 90 seconds of footage from two Astaire movies. After Astaire died in 1987, his widow Robyn Astaire filed a lawsuit claiming that Best needed her permission to use the film footage in the videotapes.
Section 990 prohibits use of a deceased personality's name or likeness for advertising, selling or soliciting, without permission from an appropriate representative. It exempts use in “a play, book, magazine, newspaper, musical composition, film, radio or television program,” and advertisements for such uses. For example, the Los Angeles Times may use Fred Astaire's name and likeness in an article about American dancers without permission. It may also use them in advertisements promoting its coverage of American dancers. However, it could not use his name or likeness in advertising divorced from its news coverage. For example: “Fred Astaire wants you to read the Los Angeles Times.”
The Ninth Circuit ruled that “film” included pre-recorded videotapes. Mrs. Astaire argued that Best included the film footage solely for its promotional value, and not for instructional purposes. However, that made the footage, at worst, an advertisement for the videotapes of which it was a part, an exempt use.
In dissent, Judge Schroeder separated the film footage from the dance instruction. Best had used the film footage to promote the dance instruction. “Under the majority's reasoning one could with impunity hawk a videotape on fashion for the next century by introducing it with footage of Jacqueline Kennedy. The statute was intended to prevent such exploitation, not immunize it.”
Astaire v. Best Film & Video Corp., 1997 WL 336110 (9th Cir. Jun. 20, 1997).
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The California Supreme Court has ruled that the damages recoverable from a municipal defendant for false arrest and imprisonment are limited to those incurred before formal charges are filed. The decision establishes a different rule for state law claims than the Ninth Circuit has applied for federal civil rights claims based on the same conduct.
On December 15, 1987, a Los Angeles Police Detective arrested Ardeshir Asgari for possession of heroin with intent to sell. He was arraigned on the District Attorney's felony complaint on December 22, 1987. Asgari remained in custody until a jury found him not guilty on July 21, 1988. Asgari sued several City of Los Angeles defendants for false arrest and imprisonment.
California law exempts public employees and their employers from liability for malicious prosecution. Cal. Gov. Code §§ 815.2, 821.6. There is no immunity from claims for false arrest and imprisonment. Cal. Gov. Code § 820.4. The Supreme Court used that distinction to establish its rule on damages. The flow of damages from the false arrest stopped upon Asgari's arraignment seven days after his arrest.
The lower courts erroneously used the rule for false arrest claims under section 1983 established in Smiddy v. Varney, 665 F.2d 261 (9th Cir 1981). That rule immunizes arresting officers from any damages sustained after filing of a criminal complaint, unless the plaintiff can overcome the presumption that the prosecutor exercised independent judgment in filing the complaint. Pressure on the prosecutor or submission of false information by the arresting officers can overcome the presumption.
Asgari v. City of Los Angeles, 63 Cal. Rptr. 2d 842 (1997).
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The San Bernardino division of the Fourth District Court of Appeal has ruled that bond counsel for a municipal finance project is not liable to a developer whose project may benefit from the financing. The court rejected claims for professional negligence and negligent misrepresentation.
According to the allegations of its complaint, B.L.M. sought public financing from the City of Rialto to construct an apartment project. The City Council appointed Sabo & Deitsch as bond counsel for the project. Sabo & Deitsch initially opined that public bidding and payment of a prevailing wage would not be required. It later changed its mind, and refused to provide a final bond counsel opinion for the project. B.L.M. lost its $3.5 million developer's fee.
The Court of Appeal relied on Bily v. Arthur Young & Co., 3 Cal. 4th 370 (1992). There, the Supreme Court ruled that accountants generally do not owe a duty of professional care to non-clients. They may be liable for negligent misrepresentation where they intend to supply information for the benefit of a non-client for a specific transaction or type of transaction. The decision suggested that those principles should apply to other professionals, including attorneys.
B.L.M. argued that Bily's limitation on liability for professional negligence did not apply, because it was an express third party beneficiary of Sabo & Deitsch's agreement with Rialto. However, B.L.M. did not establish that the prime purpose of retaining Sabo & Deitsch was to benefit B.L.M.
The facts alleged could not support a claim for negligent misrepresentation. The complaint did not allege that Sabo & Deitsch intended to induce B.L.M. to rely on its representations. Further, B.L.M. could not justifiably rely on representations by Rialto's bond counsel. B.L.M.'s own lawyers had stated an opinion contrary to Sabo & Deitsch's.
B.L.M. v. Sabo & Deitsch, 1997 WL 309860 (Cal. Ct. App. Jun. 10, 1997).
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The Third District Court of Appeal in Sacramento has ruled that the Boy Scouts may exclude girls from membership. The organization is not a “business establishment” within the meaning of the Unruh Civil Rights Act. Cal. Civ. Code § 51.
The Boy Scouts of America is a private, nonprofit, congressionally chartered volunteer organization. The operating units are local troops, which typically meet in locations provided by churches or community organizations chartered by the Boy Scouts to sponsor a troop. Troop No. 349 refused to accept 11-year old Katrina Yeaw as a member because she was a girl.
Civil Code section 51 prohibits discrimination “in all business establishments of every kind whatsoever.” “Business establishment” can include nonprofit organizations. Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995) (the Act applies to a private country club that regularly engages in business transactions with nonmembers); Isbister v. Boys Club of Santa Cruz, 40 Cal. 3d 72 (1985) (the Act applies to a nonprofit membership association that owns and operates recreational facilities for boys). Warfield was discussed in the August 1995 issue of Appellate Decisions Noted. The Boy Scouts is different from the country club in Warfield, because it does not routinely engage in business transactions with nonmembers. It is different from the Boys Club in Isbister, because it does not provide recreational facilities to a broad segment of the general public.
This case will not be the last word on the Boy Scouts' status under the Unruh Civil Rights Act. The California Supreme Court has granted review in two cases that came to opposite conclusions. Curran v. Mount Diablo Council of the Boy Scouts, review granted (Jun. 2, 1994); Randall v. Orange County Council, review granted (Jun. 2, 1994).
Yeaw v. Boy Scouts of America, 64 Cal. Rptr. 2d 85 (Ct. App. 1997).
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The Second District Court of Appeal in Los Angeles has ruled that the owner and the operator of a commercial parking garage owe a duty of due care to protect those who enter the garage from criminal activity. It does not matter if the defendants had notice of prior similar criminal activity, because commercial parking garages are inherently dangerous.
Sharon P. was sexually assaulted at gun point in the underground parking garage of the commercial office building where she worked. She sued the entity that owned the building and the entity that managed the garage. There was evidence of armed robberies at a bank branch in the office building, but no evidence of any sexual assaults.
In Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993), the Supreme Court held that a shopping center owner did not have a duty to provide armed guards to prevent rapes, absent proof of prior similar criminal activity. It left open the question of whether parking garages, all-night convenience stores, and other types of commercial structures might prove so tempting to criminals as to justify a different rule.
The court of appeal held that a parking garage is so inherently dangerous that its owner and operator have a duty to protect visitors from criminal attack. It does not matter whether prior similar conduct has alerted them to the danger. The court left it to the factfinder to determine what security measures were adequate, and whether any breach of duty was a substantial factor in the assault. The court excluded multi-residential parking garages from its holding.
Sharon P. v. Arman, Ltd., 1997 WL 289868 (Cal. Ct. App. May 30, 1997).
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The Ninth Circuit has held San Diego's nighttime curfew unconstitutional. The ordinance was either too vague to withstand a due process challenge, or too broad to withstand challenges based on equal protection, free expression and the right to rear children.
The ordinance forbade any minor “to loiter, idle, wander, stroll or play” in public places after 10:00 p.m. There were four exceptions: (1) When the minor was accompanied by a parent or guardian. (2) When the minor was on an emergency errand directed by a parent or guardian. (3) When the minor was returning directly home from an activity sponsored by local educational authorities. (4) When the minor was lawfully engaged in a business, trade, profession or occupation.
If the City meant to prohibit something less than just being present, its wording was too vague. The phrase “to loiter, idle, wander, stroll or play” did not provide reasonable notice of what conduct was illegal.
On the other hand, if the City meant to prohibit minors' presence completely, its ordinance was not narrowly tailored enough. The City had a legitimate interest in protecting its minors' well-being. However, its exceptions did not extend to many legitimate recreational activities. The ordinance did not allow any exception for constitutionally protected expressive activity. It also failed to allow parents sufficient flexibility to allow their children to function independently at night, if they so chose. The City could have adopted a constitutionally valid curfew by incorporating additional exceptions to leave a breathing space for protected activity.
Nunez v. City of San Diego, 1997 WL 304747 (9th Cir., Jun. 9, 1997).
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Subsequent treatment of decisions reported on in earlier issues:
Braun v. Chronicle Publ'g Co. (March 1997 issue), review denied (Jun. 11, 1997).
Cohen v. San Bernardino Valley College (September 1996 issue), cert. denied, 117 S.Ct. 1290 (1997).
Compassion in Dying v. State of Washington (April 1996 issue), reversed, 1997 WL 348094 (U.S. Jun. 26, 1997).
Guz v. Bechtel National, Inc. (June 1997 issue), now reported at 63 Cal. Rptr. 2d 572 (Ct. App. 1997).
Parsons v. Crown Disposal Co. (June 1997 issue), now reported at 15 Cal. 4th 456 (1997).
Phraner v. Cote Mark, Inc. (June 1997 issue), now reported at 63 Cal. Rptr. 2d 740 (Ct. App. 1997).
Sanders v. Arneson Products, Inc. (September 1996 issue), cert. denied, 117 S.Ct. 1247 (1997).
Warden v. State Bar of California (April 1997 issue), review granted (Jun. 5, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
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