Arnold G. Dorsey, A.K.A. Engelbert Humperdinck v. National Enquirer, Inc.

ORDER

This case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. The panel voted unanimously to grant the petition for rehearing for the limited purpose of removing the references to Cox v. Los Angeles Herald Examiner because the California Supreme Court ordered the Cox opinion decertified.

The opinion filed on December 11, 1991 and cited at 952 F.2d 259 (9th Cir.1992) is withdrawn. A new opinion is filed herewith and the clerk shall issue the mandate forthwith.

*1433 OPINION

Arnold Dorsey, better known as Engel-bert Humperdinck, sued the National Enquirer, Inc. alleging that an article in its tabloid defamed him. The district court granted summary judgment in favor of the Enquirer and Dorsey appeals. We affirm.

I

In 1980, Kathy Jetter obtained a determination in New York Family Court that Dorsey was the father of her daughter. The court ordered Dorsey to pay child support and educational expenses. See Kathy G.J. v. Arnold D., 116 A.D.2d 247 , 501 N.Y.S.2d 58 (1986), cert. denied, 479 U.S. 1054 , 107 S.Ct. 927 , 93 L.Ed.2d 979 (1987). In May, 1988, Jetter petitioned the same court for an increase in child support…

concurring in part and dissenting in part.

I agree with the majority’s view that there is no merit to Dorsey’s argument that California Civil Code § 47(4) does not apply to family court proceedings from which the general public is excluded.

But I disagree with the majority’s view that in the circumstances of this case the “fair and true” issue is one of law which a court can decide on summary judgment.

We all recognize certain basic rules governing summary judgment. District courts may properly grant summary judgment where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In reviewing a grant of summary judgment, we [are required to] draw all inferences of fact in favor of the party opposing the motion.” Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 138 (9th Cir.1981). Moreover, where divergent ultimate inferences may reasonably be drawn from the undisputed facts, the moving party is not entitled to judgment as a matter of law and summary judgment is improper. Id. at 140 .

Cases decided by California state courts under California Civil Code § 47(4) have not created an…

973 F.2d 1431 20 Media L. Rep. 1745 Arnold G. DORSEY, a.k.a. Engelbert Humperdinck, Plaintiff-Appellant, v. NATIONAL ENQUIRER, INC., Defendant-Appellee. Nos. 90-55017, 90-55344. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 7, 1991. Opinion Filed Dec. 11, 1991. Opinion Withdrawn Aug. 17, 1992. Decided Aug. 17, 1992. Robert H. Rotstein, Rosenfeld, Meyer & Susman, Beverly Hills, Cal., for plaintiff-appellant. Richard S. Hoffman, Williams & Connolly, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before: PREGERSON, BEEZER and KOZINSKI, Circuit Judges. ORDER This case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. The panel voted unanimously to grant the petition for rehearing for the limited purpose of removing the references to Cox v. Los Angeles Herald Examiner because the California Supreme Court ordered the Cox opinion decertified. The opinion filed on December 11, 1991 and cited at 952 F.2d 259 (9th Cir.1992) is withdrawn. A new opinion is filed herewith and the clerk shall issue the mandate…