Metropolitan News-Enterprise


Wednesday, November 5, 2014


Page 1


Court of Appeal Expresses Due Process Concern Over Lack of Court Reporter at Civil Motion Hearing


By a MetNews Staff Writer


The lack of a court reporter at a civil motion hearing raises due process concerns, particularly where the trial judge relies on reasons stated in open court but does not explain those reasons in a written order, the Court of Appeal for this district said yesterday.

Div. Seven ruled that Los Angeles Superior Court Judge Russell S. Kussman erred in sustaining a demurrer to one cause of action but correctly sustained a demurrer to the other in a suit for invasion of privacy. Justice Laurie Zelon said the lack of a transcript did not preclude review, because both conclusions “were both readily apparent from a review of the operative complaint and the demurrer.”

The justice cautioned, however:

“[W]e view this case as an exception.  We remain profoundly concerned about the due process implications of a proceeding in which the court, aware that no record will be made, incorporates within its ruling reasons that are not documented for the litigants or the reviewing court.”

The lawsuit was brought by Jordan Maxwell, who has described himself online as an expert on the occult and similar subjects. Maxwell claimed that the defendant, Josef Dolezal, had entered into a business relationship with him, only to take over Maxwell’s website and used the plaintiff’s name and image without permission, taking advantage of plaintiff’s celebrity and preventing plaintiff from using his own name and likeness to sell photographs and videos.  

Maxwell alleged that Dolezal breached the contract, under which the plaintiff was to assign his intellectual property rights to the defendant in exchange for free housing, free food, and half of all monies obtained by exploiting the rights. He said he “never received money, food and housing was terminated in 2011.”

Maxwell also claimed that any permission he gave to Dolezal to use Maxwell’s name and likeness was invalid, because Maxwell had a contract with a manager, and was precluded from entering into contracts without the manager’s approval.

After sustaining two demurrers to the original complaint with leave to amend, Kussman sustained a third demurrer without leave, resulting in the dismissal of the action.

According to the minute order:

“For the reasons stated in open court, and as set forth in defendant’s moving papers, it appears that plaintiff’s claims against the defendant are not only vague and internally inconsistent, but are also not actionable. The gravamen of his contentions relate to an agreement that he allegedly entered with defendant that he himself describes as ‘unauthorized’ and ‘unallowable’ because of a contract that he had with his manager. In essence, plaintiff is alleging that defendant failed to protect him from himself.  In whatever manner the causes of action are framed, there are insufficient facts or allegations supporting a contractual or tort duty to the plaintiff that was breached by the defendant.”

Zelon, writing for the Court of Appeal, however, said the breach of contract claim pled all of the required elements.

The privacy claim, on the other hand, failed to state a cause of action either at common law or under Civil Code §3344, the justice concluded, because the allegation that his agreement with defendant was “unauthorized” did not amount to an assertion that he did not give actual consent.

The case is Maxwell v. Dolezal, B254893.


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