August 1999 Vol. 5 No. 8 ISSN 1087-6219
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In This Issue

• California Supreme Court issues two important decisions on press access rights
• Issues of fact bearing on likelihood of confusion preclude summary judgment for domain name registrant
• County has tort duty to guard against weapons being brought into its courthouses
• Landlord has duty to take reasonable steps to prevent young children from falling out of windows in common areas
• Videotaping phone call to inform parents of child's death could constitute invasion of privacy
• UPDATES

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California Supreme Court issues two important decisions on press access rights

The California Supreme Court has handed the press a victory and a defeat in two cases involving requests by the press for access to closed proceedings:

In the Daily Journal case, the trial court ordered the District Attorney to release grand jury materials from the investigation of Merrill Lynch's conduct during the events that led to Orange County's bankruptcy. The Supreme Court reversed.

California has codified the long-established tradition of grand jury secrecy in several statutes that bar disclosure of grand jury materials. That statutory scheme addresses the questions of secrecy and disclosure comprehensively. Therefore, the trial court did not have authority to order release of grand jury materials, except in those instances, such as after an indictment, where a statute specifically provides for it.

The NBC Subsidiary case involved the trial of Sandra Locke's claim that Clint Eastwood promised to assist her in the development of movie projects. The trial court had excluded the press and the public from all proceedings that were outside the presence of the jury, to preserve the litigants' right to a fair and impartial jury.

Code of Civil Procedure section 124 states that “the sittings of every court shall be public.” It must be construed consistently with the constitutional requirements for criminal trials established by the United States Supreme Court. A court may close substantive courtroom proceedings only after it notifies the public, and finds, after a hearing, that (1) an overriding interest supports closure, (2) there is a substantial probability that the interest will be prejudiced, (3) the proposed closure is narrowly tailored to serve that overriding interest, and (4) there is no less restrictive means of achieving that overriding interest. The trial court's blanket closure order in this case did not rest on such findings.

Daily Journal Corp. v. Superior Court, 1999 WL 516087 (Cal. Sup. Ct. Jul. 22, 1999); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 1999 WL 538181 (Cal. Sup. Ct. Jul. 27, 1999).

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Issues of fact bearing on likelihood of confusion preclude summary judgment for domain name registrant

The Ninth Circuit has reversed a summary judgment granted to a domain name registrant who claimed that its “epix.com” domain did not infringe the “EPIX” trademark. There were issues of fact about the likelihood of confusion.

Epix, Inc. registered “EPIX” with the United States Patent and Trademark Office in 1990. The mark encompassed printed circuit boards, and computer programs for image acquisition, processing, display and transmission. It also had a pending trademark application for consulting services that it provided in connection with the products.

In 1996, Interstellar Starship (ISS) applied to register “EPIX” as a mark for computer graphics and design services. It also registered “epix.com” with Network Solutions, the Internet domain name registrar. Epix presented its trademark registration to Network Solutions, and asked it to cancel ISS's registration. Network Solutions told ISS that it would cancel “epix.com” unless ISS obtained a declaratory judgment of non-infringement. ISS obtained such relief from the district court, but the Ninth Circuit reversed.

To determine whether there is a likelihood of confusion, a court evaluates the following factors: (1) similarity, (2) relatedness of the competing products or services, (3) strength of the mark, (4) marketing channels used, (5) degree of care that purchasers are likely to exercise, (6) the alleged infringer's intent, (7) any evidence of actual confusion, and (8) likelihood of expansion in product lines. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).

In this case, the evidence unquestionably established two factors in Epix's favor and one in ISS's. The marks and the marketing channels were similar, but Epix's customers were extremely sophisticated, and likely to use great care.

The evidence on the other five factors was conflicting, and precluded entry of summary judgment. Of particular note with regard to the strength of the mark, ISS contended that “EPIX” simply describes “electronic pictures,” just as “e-mail” describes “electronic mail.” That would make it a weak mark. Epix contended that the mark was strong because it was fanciful or arbitrary, and not merely descriptive.

Interstellar Starship Serv., Ltd. v. Epix, Inc., 1999 WL 515658 (9th Cir. Jul. 19, 1999).

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County has tort duty to guard against weapons being brought into its courthouses

The Second District Court of Appeal in Los Angeles has decided that the children of a woman shot to death in the downtown Los Angeles courthouse by her ex-husband may pursue a claim against the County. The County owed a duty to implement reasonable security measures to protect against a foreseeable danger of criminal activity that might injure the patrons of its courthouses.

Dr. Harry Zelig shot his ex-wife, Eileen Zelig, to death in the hallway of Los Angeles County's main civil courthouse. Before the murder, Ms. Zelig had repeatedly put the County on notice of her fear of her ex-husband, including written and recorded murder threats. She had obtained restraining orders against him. Once, her concerns had convinced the courtroom bailiff to search Dr. Zelig before allowing him to enter the courtroom for a hearing.

The trial court sustained the County's demurrer without leave to amend. The Court of Appeal reversed, because plaintiffs should have the opportunity to amend their complaint to allege negligence under two theories: (1) special relationship and (2) defective condition of property.

Generally, no one has a duty to prevent the criminal conduct of another person. Such a duty may arise if there is a special relationship between the defendant and the plaintiff, or between the defendant and the other person. A landowner has such a relationship with business visitors to its property. That relationship imposes a duty to protect its visitors from foreseeable risks of physical harm.

Plaintiffs had not sufficiently alleged foreseeability. However, they should be allowed to amend to allege that prior shootings or other attacks at any of the many courthouses in the County had provided notice of a peculiar risk. Failure to provide metal detectors or other safety measures would constitute a breach of that duty.

Government Code section 835 imposes liability on a public entity for a dangerous condition of its property, if one of its employees created the condition, or if it had actual or constructive notice of the condition in time to protect against it. Criminal activity is not a dangerous condition in itself. There must be a contributing defect in the property. Here, the inadequate security measures constituted the defect, in light of the County's knowledge of the volatile nature of the cases litigated in its courthouses.

Under Government Code section 845, public entities are not liable for failure to provide sufficient police protection services. That immunity did not apply here, because security measures for the County's courthouses were not police protection services. Police services involve the kind of budgetary and political decisions entailed in hiring and deploying a police force. Providing security for the courthouse is a precautionary service that does not involve such decisions.

Zelig v. County of Los Angeles, 1999 WL 512491 (Cal. Ct. App. Jul. 21, 1999).

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Landlord has duty to take reasonable steps to prevent young children from falling out of windows in common areas

The Second District Court of Appeal in Los Angeles has ruled that a landlord may be liable for injuries sustained by a toddler who fell from a low, open, unprotected window in a common passageway of the landlord's apartment building. It reversed summary judgment for the landlord.

Two and a half year old Carl Amos and his mother lived in an apartment building owned and managed by defendants. One afternoon, while Carl was visiting in a neighboring apartment, the neighbor put him in front of the television, and went into the kitchen to make lunch. When someone yelled that a baby had fallen out a window, the neighbor noticed that her front door was open, and Carl was missing.

Carl was seriously injured in a fall from a window at the end of the second floor hallway. The sill was approximately 28 inches above the floor. The building manager testified that the window was always open. Although it had a screen, the tenants frequently removed it to throw their trash into a dumpster below. When the accident occurred, there was nothing to deter Carl from climbing through the window and falling onto the concrete alley below.

Landlords have a duty to exercise due care for their tenants' safety in areas under the landlords' control. That includes a duty to take reasonable precautions to prevent young children from falling out windows in common areas of the building.

In this case, there was a triable issue of fact as to whether the landlord had breached its duty. At trial, plaintiff might be able to prove that the window was unreasonably low to the ground, that it was not maintained adequately, or that the defendants had unreasonably failed to implement other protective measures, such as security bars, which would have prevented the fall.

Amos v. Alpha Property Management, 1999 WL 529552 (Cal. Ct. App. Jul. 26, 1999).

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Videotaping phone call to inform parents of child's death could constitute invasion of privacy

The Second District Court of Appeal in Los Angeles has overturned the dismissal of a privacy suit under the anti-SLAPP statute. The statute applied, because the subject was newsworthy. However, there was a legitimate basis for the lawsuit.

The TV show “LAPD: Life on the Beat” showed police officers going into the apartment of a young man who died from a drug overdose, and then calling the man's parents to tell them of his death. The segment did not contain any identifying information about the decedent or his parents.

Invasion of privacy by intrusion focuses on the conduct at the time of the event being taped, and not on the information broadcast. Here, the parents had a viable claim for intrusion. They could reasonably expect that the contents of their conversation with the police officer might be passed on to others involved in the investigation. However, they could also reasonably expect that their personal agonizing moment, would be free from eavesdropping by a third person who intended to broadcast it on a commercial television program.

Marich v. QRZ Media, Inc., 73 Cal. App. 4th 299 (1999).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Benavidez v. San Jose Police Dep't (June 1999 issue), review denied (Jul. 21, 1999).

Bernstein v. United States Dep't of Justice (June 1999 issue), now reported at 176 F.3d 1132 (9th Cir. 1999).

Jewish Defense Org., Inc. v. Superior Court (July 1999 issue), petition for review filed (Jul. 14, 1999).

Lurye v. Southern California Edison Co. (June 1999 issue), review denied and official reporter directed not to publish the decision (Jul. 29, 1999). The decision may no longer be cited. Cal. R. Ct. 976(d), 977. If you would like to know more about such directions from the Supreme Court, get the facts about depublication.

Oona R.-S. v. McCaffrey (September 1997 issue), cert. denied, 119 S.Ct. 2039 (1999).

Stanley v. University of Southern California (July 1999 issue), now reported at 178 F.3d 1069 (9th Cir. 1999).

Stoll v. Runyon (February 1999 issue), now reported at 165 F.3d 1238 (9th Cir. 1999).

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