Wasserman's Appellate Summaries
September 18, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
Holmes v. Jones, Secretary of State
Case No. B129808
California Court of Appeal, Second District, Division Three
GOVERNMENT-SUMMARY OF INITIATIVE MEASURE EXCEEDING 100 WORDS
Holmes sued Jones and other state officials because the summary prepared for the California Civil Rights Initiative (Proposition 209) exceeded 100 words in length and violated sections of the Elections code. Defendant's demurrer was sustained.
HELD: The Legislature did not intend that the fiscal estimate or opinion be used in calculating the 100-word limit. The additional text, which estimated the fiscal impact of the proposed initiative and which the Attorney General obtained from other sources pursuant to Elections Code should not be counted as part of the 100-word limit imposed by statute. No statutory violation occurred. Affirmed.
Los Angeles County Department of Children and Family Services v. Superior COurt/Rebecca H.
Case No. B142040
California Court of Appeal, Second District, Division Seven
FAMILY LAW-TERMINATION OF PARENTAL RIGHTS OF BOTH PARENTS-EFFECT OF APPEAL BY ONE PARENT AND REVERSAL
The juvenile court initially terminated the parental rights of both parents, in a single proceeding. On the father’s appeal it was ordered that his rights to be reinstated. The juvenile court reinstated both the father's and the mother's rights.
HELD: Rebecca’s rights had been terminated by a California court of competent jurisdiction, and the order terminating her rights could not be set aside by the juvenile court absent an appeal by Rebecca. A peremptory writ of mandate issued. directing the respondent court to vacate that part of its order reinstating the parental rights of real party Rebecca H.
Worldwide Church of God v. Philadelphia Church of God
Case Nos. 99-55850/99-55934/99-56005/99-56489
U.S. Court of Appeals for the Ninth Circuit
OTHER-COPYRIGHT-FAIR USE OF COPYRIGHT RELIGIOUS PUBLICATION
Worldwide Church of God is a non-profit religious organization whose late Pastor General, Herbert W. Armstrong, wrote a 380-page book entitled Mystery of the Ages, the copyright to which is held by WCG. The MOA, conveyed outdated views that were racist in nature. After Armstrong's death, WCG retired MOA from distribution and use. The Philadelphia Church of God, a nonprofit religious organization, then used MOA in its religious observance, copying it in its entirety and distributing large numbers of copies to its members and the public. PCG ignored WCG's demand that it cease infringing its copyright. WCG sued. The district court denied WCG's motion for summary judgment and held that WCG did not own the copyright.
HELD: Armstrong's copyright passed to WCG through his will and that WCG is the owner of the copyright in MOA. Whether there was "fair Use" of the MOA by PCG is a mixed question of law and fact. Under the Copyright Act, WCG, as the owner of the copyright, has the exclusive right to reproduce and distribute copies of MOA. That right is not diminished or qualified by the fact that WCG is a not-for-profit organization and does not realize monetary benefit from the use of the copyrighted work. Nor is that right affected by the religious nature of its activity. Reversed.
*American Association of Naturpathic Physicians v. Hayhurst
Case No. 99-35823
U.S. Court of Appeals for the Ninth Circuit
CIVIL-MOTION TO SET ASIDE DEFAULT-WAIVER BY FAILURE TO RAISE ALL THRESHOLD DEFENSES IN MOTION
The American Association of Naturpathic Physicians is a non-profit organization that acts as an advocate for naturpathic physicians nationwide. Hayhurst has a long history of creating and controlling groups with names or acronyms curiously similar to the Association. At the center of this case is an entity Hayhurst operated called the American Academy of Naturopathic Physicians. This Academy's acronym, like the Association's, is AANP, and Hayhurst has acquired an internet dominion name of ".aanp" and refers his organization as the "Association." The Association sued and served Hayhurst, who defaulted. Hayhurst motion to set aside the default was based on lack of service, and was denied.
HELD: The defense of lack of jurisdiction that Hayhurst seeks to raise on appeal has been waived. A fundamental Rule of Civil Procedure is that certain defenses, such as jurisdiction over the person must be raised at the first available opportunity or, if they are not, they are forever waived. If a party makes a motion under the rules but omits any defense or objection then available to the party which is permitted to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted. A trial court's denial of a motion to vacate a default judgment will be affirmed if the defendant's own culpable conduct prompted the default. That is precisely the situation in this appeal. The attorney fee award to the Association was not properly raised by an appeal of the order denying the motion for relief from default. Affirmed.
*Change in law, interesting case, or just watch out!
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