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January 1999 
Vol. 5 No. 1 ISSN 1087-6219
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The Second District Court of Appeal in Los Angeles has ruled that the manufacturer of T-shirts and prints containing reproductions of a charcoal sketch of the Three Stooges traded on likenesses of deceased personalities in violation of Civil Code section 990. However, plaintiff was only entitled to damages, because it did not show a likelihood that defendant would continue to violate section 990.
Comedy III Productions owns all the publicity rights of the Three Stooges. Gary Saderup is a celebrity sketch artist who created a charcoal sketch of the Three Stooges. The sketch was reproduced onto T-shirts and prints that were sold for $75,000 in profits, with Saderup's participation.
In Lugosi v. Universal Pictures, 25 Cal. 3d 813 (1979), the California Supreme Court recognized a right of publicity in one's name and persona, but ruled that the right expired upon the death of the person. In 1984, the Legislature enacted section 990, which made the publicity right transferable and descendible. The statute contains a number of exemptions, including use of a deceased personality's likeness for “material that is of political or newsworthy value,” and in “single and original works of art.”
The newsworthy exemption did not apply, because it is not enough that the Three Stooges themselves may still be newsworthy. That exemption contemplates an exemption for uses of a deceased personality's name and likeness in connection with other newsworthy material, such as a newspaper article about the Three Stooges. The art exemption did not apply, because, even if the original sketch was a work of art, commercial reproductions of it were not.
The court also rejected a First Amendment defense. Saderup did not use the sketch to convey a message. He was just selling the image. Reproductions of an image, made to be sold for profit, are not protected speech.
Section 990 was discussed in the July 1997 issue of Appellate Decisions Noted in a report on Astaire v. Best Film & Video Corp., 116 F.3d 1297 (9th Cir. 1997), amended on rehearing, 136 F.3d 1208 (9th Cir. 1998), cert. denied, 119 S.Ct. 161 (1998).
Comedy III Prods., Inc. v. Gary Saderup, Inc., 80 Cal. Rptr. 2d 464 (Ct. App. 1998).
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The Santa Ana division of the Fourth District Court of Appeal has ruled that supervisors are not individually liable for discrimination under the Federal Americans with Disabilities Act (ADA). It also affirmed summary judgment for the employer, because it had established a legitimate non-discriminatory reason for not taking back a disabled employee.
Larry Le Bourgeois worked as a credit manager for Fireplace Manufacturers. After an on-the-job injury, he took a medical leave. When asked nine months later about his progress, Le Bourgeois said that he was in a lot of pain and did not know when he could return. His employer filled the credit manager position with someone else. Several months later Le Bourgeois said that he was ready to come back, but there was no position for him. A short time later, the employer created a new marketing coordinator position for Le Bourgeois, but he would not take it. Instead, he had filed discrimination complaints with federal and state administrative agencies.
In Reno v. Baird, 18 Cal. 4th 640 (1998) (discussed in the August 1998 issue of Appellate Decisions Noted), the California Supreme Court held that supervisors were not individually liable for employment discrimination under California's Fair Employment and Housing Act. The same reasoning applies to the ADA. Supervisors should not be subjected to the ever-present threat of a lawsuit each time they make a personnel decision.
Fireplace Manufacturers's summary judgment motion established as a matter of law that it had not discriminated against Le Bourgeois. When he announced that he was ready to return, there were no positions available, as a result of a bona fide business decision. Le Bourgeois had no admissible evidence that the stated reason for the lack of a position was pretextual.
Le Bourgeois v. Fireplace Mfrs., Inc., 1998 WL 887573 (Cal. Ct. App. Dec. 22, 1998).
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The Ninth Circuit has ruled that requiring an employer to violate a bona fide seniority clause in a collective bargaining agreement would be an unreasonable accommodation as a matter of law.
David Willis and Paul Gomez were members of the International Longshore and Warehouse Union. The union's contract with the association of employers of dockworkers established a seniority system for assigning preferred light duty work on the docks. Willis and Gomez sought light duty work as an accommodation for their disabilities, but they did not get it. They were not eligible under the seniority rules. Under the Americans with Disabilities Act (ADA), disabled employees are entitled to “reasonable” accommodations.
One district court and a number of commentators have said that a bona fide seniority system is but a factor to be considered in deciding whether an accommodation is reasonable. The Ninth Circuit rejected that view. Instead, it aligned itself with five other Courts of Appeals, which have held that the ADA does not require an employer to violate a bona fide seniority provision. A balancing approach would leave employers too vulnerable to the possibility of guessing wrong in weighing the relative benefits and burdens for their disabled and non-disabled employees.
Willis v. Pacific Maritime Ass'n, 1998 WL 852973 (9th Cir. Dec. 11, 1998).
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The First District Court of Appeal in San Francisco has ruled that police officers and their employers are not liable for negligence in their handling of a suicidal man.
The Fremont police responded to a report of a possible attempted suicide with a gun. They found Patrick Adams in his backyard behind a bush, clad only in his underwear, and holding a gun to his chest. His wife told the police that Adams had been drinking, and had already fired a shot inside their house. The police repeatedly asked Adams to give up his gun. He refused, and demanded that the police leave.
Eventually, Adams told the police, “I can do something to make you leave.” Then, there was some gunfire from the area of the bush. Believing that Adams had fired at them, the police officers fired at him. Adams died after suffering numerous bullet wounds, including a self-inflicted one that penetrated his heart and liver. A jury awarded Adams's wife and stepdaughter $4 million for wrongful death and negligent infliction of emotional distress.
An appellate court determines the existence of a tort duty as a matter of law. This court analyzed the issue under two different standards-the traditional multi-factor duty test described in Rowland v. Christian, 69 Cal. 2d 108 (1968), and the special relationship doctrine, exemplified by McCorkle v. City of Los Angeles, 70 Cal. 2d 252 (1969).
There was no duty under the multi-factor test, primarily because the nexus between the police conduct and Adams's injury was attenuated. Adams's emotional state and access to the gun were much more important factors. In addition, the actions of the police, even if negligent in some way, were not morally blameworthy. Further, public policy does not favor precautions for the safety of the potential suicide at the expense of the safety of his family and the public.
Under the special relationship doctrine, the police have no duty to control the conduct of others, unless a special relationship is formed with a particular individual. A special relationship may exist where police conduct places a citizen in harm's way. In this case, the police did not place Adams in harm's way. At worst, the police conduct in this case incrementally increased the pre-existing risk of suicide, which the doctrine was not intended to cover.
Adams v. City of Fremont, 80 Cal. Rptr. 2d 196 (Ct. App. 1998).
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The Third District Court of Appeal in Sacramento has ruled that a school's statutory duty to supervise does not abrogate common law assumption of the risk. It affirmed a judgment against a student who suffered a broken arm while wrestling.
Joshua Lilley was a 14-year old student at Joseph Kerr Middle School when he decided to participate in an after-school wrestling program. On the second day of practice, his coach, Brandon Matsumoto, was demonstrating control holds by taking each participant to the mat himself. While grappling with Matsumoto, Lilley braced himself with his right forearm on the mat, and broke his arm.
The primary assumption of the risk doctrine bars tort actions based on injuries resulting from risks that are inherent in an activity, in which plaintiff voluntarily participates. Bodily injury is a risk inherent in the sport of wrestling. The fact that Matsumoto was Lilley's instructor did not eliminate the bar. That an instructor might ask a student to do more than the student can manage is itself an inherent risk.
Education Code section 44807 requires school authorities to supervise their students so as to prevent practices that are likely to result in physical injury. However, it does not make schools insurers of student safety, and does not expressly impose a duty to insure against inherent risks. If the Legislature had wanted to abrogate the primary assumption of the risk doctrine in such circumstances, it would have done so.
Lilley v. Elk Grove Unified Sch. Dist., 1998 WL 883862 (Cal. Ct. App. Dec. 21, 1998).
The Second District Court of Appeal in Los Angeles has ruled that a school district is statutorily immune from liability for misleading a high school student about what science class was necessary to meet NCAA eligibility requirements.
James Brown, Jr. received a basketball scholarship from USC, which was revoked when one of his high school science classes did not meet NCAA requirements. The high school wrote a letter accepting blame for having given bad advice.
However, Government Code section 822.2 immunized school employees from liability for misrepresentation, except for actual fraud. Section 818.8 extends that same immunity to the school district.
Brown v. Compton Unified Sch. Dist., 68 Cal. App. 4th 114 (1998).
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Subsequent treatment of decisions reported on in earlier issues:
Carter v. Holiday Ice Skating Ctr. (November 1998 issue), petition for review filed (Nov. 24, 1998).
Delew v. Wagner (June 1998 issue), cert. denied, 119 S.Ct. 538 (1998).
Etter v. Veriflow Corp. (November 1998 issue), petition for review filed (Nov. 30, 1998).
Johnson v. City of Loma Linda (October 1998 issue), review granted (Dec. 16, 1998). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Kelly v. Vons Companies, Inc. (December 1998 issue), now reported at 67 Cal. App. 4th 1329 (1998).
Khawar v. Globe Int'l, Inc. (December 1998 issue), modified (Dec. 22, 1998).
Lo v. Superior Court (December 1998 issue), now reported at 67 Cal. App. 4th 1045 (1998).
Wiley v. County of San Diego (December 1998 issue), now reported at 19 Cal. 4th 532 (1998).
Williams v. MacFrugal's Bargains Close-Outs, Inc. (December 1998 issue), petition for review filed (Dec. 7, 1998).
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