Modification: Foxcroft Productions, Inc. v. Universal City Studios LLC

FOXCROFT PRODUCTIONS, INC., et al.,

Plaintiffs and Appellants,

v.

UNIVERSAL CITY STUDIOS, LLC,

Defendant and Appellant.

No. B303161

Los Angeles County

Super. Ct. No. BC683206

California Court of Appeal

Second Appellate District

Division Eight

Filed April 26, 2022

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[No change in Judgment]

THE COURT:

IT IS ORDERED the opinion in the above-entitled matter filed on March 30, 2022, be modified in three ways:

1. On page 16, in the first full paragraph, the sentence "As Hirsch agreed, episodic photoplays are episodes" shall be replaced with:

As Hirsch agreed, this meant episodes for a series.  

2. On page 19, at the end of section II.B and before the beginning of section II.C, the following two paragraphs shall be added:

For the first time on appeal, the writers raise three new arguments for why the court should not have granted a new trial.  First, they argue Universal could not deduct standard fees when it distributed Columbo episodes through foreign syndication, re-runs, home video, and other distribution means because these methods exploit subsidiary rights rather than photoplays.  Second, they claim Universal cannot deduct standard fees for first-run Columbo episodes distributed as a "series."  Third, they assert it is unconscionable to allow Universal to deduct its distribution fees.

The writers forfeited these arguments by failing to raise them in the trial court.  As to their first and second new arguments, the writers say they "consistently emphasized" the difference between photoplays and "subsidiary rights in the series," but that is not the same as stating an argument. The writers' appellate briefing made no attempt to establish they raised the third argument at trial.  The three theories are new.  We decline to consider them.

3. On page 25, after the final sentence, which ends with the words, "which are now moot," the following sentence shall be added:

As the writers stated in their opening brief, "If the new trial order is affirmed, appeal of other aspects of the judgment will await entry of judgment after retrial."

There is no change in the judgment.

The petition for rehearing is denied.

GRIMES, Acting P. J.

STRATTON, J.

WILEY, J.