Transcript Of Summary Judgement Hearing

Case 3:05-cv-00432-JSW

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120106GoldenDawn

Volume I Pages 1 - 65 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JEFFREY S. WHITE, JUDGE THE HERMETIC ORDER OF THE GOLDEN DAWN,

) ) ) Plaintiff, ) ) v. ) ) DAVID GRIFFIN, ) ) Defendant. ) ______________________________)

NO. C-05-432 JSW

San Francisco, California Friday, December 1, 2006 TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: BY:

Law Offices of Harris Zimmerman 1330 Broadway, Suite 710 Oakland, California 94612 MICHAEL JAMES CRONEN, ESQ.

BY:

Law Offices of Jorge Hevia 1440 Brickell Bay Drive, Suite 309 Miami, Florida 33131 JORGE HEVIA, ESQ.

For Defendant:

Reported By:

BELLE BALL, CSR, RMR, CRR Official Reporter

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FRIDAY, DECEMBER 1, 2006

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9:38 A.M. Page 1

Case 3:05-cv-00432-JSW

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Document 202-2

THE CLERK:

Filed 05/19/2008

120106GoldenDawn Calling Case C-05-00432, the Hermetic

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Order of the Golden Dawn versus David Griffin.

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step forward and state your appearances.

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MR. CRONEN:

Counsel, please

Good morning, Your Honor, Mike Cronen for

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Plaintiffs, Hermetic Order of the Golden Dawn, Inc.

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Webster is our client representative.

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THE COURT:

Good morning.

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MR. HEVIA:

Good morning, Your Honor.

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Page 2 of 57

And Mr. Sam

Jorge Hevia

representing Mr. Griffin.

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THE COURT:

And Mr. Griffin is in court?

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MR. HEVIA:

Yes.

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THE COURT:

All right, thank you very much.

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The

client's representative may be seated.

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Okay.

We are here on the motions for summary judgment

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and related motions.

And I want to know whether the parties

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received the Court's notice of tentative ruling, and the

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questions.

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MR. CRONEN:

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MR. HEVIA:

Yes, Your Honor.

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THE COURT:

All right.

23

MR. HEVIA:

Your Honor, may I ask if the Court got our

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Yes, we have, Your Honor.

Before --

statement of recent cases?

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THE COURT:

I did. 3

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MR. HEVIA:

Thank you, sir.

2

THE COURT:

We did get it.

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A couple of preliminary matters that I want to get

Thank you.

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into before we get into the questions that were submitted.

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first one has to do with the requirement of filing chambers

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copies.

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The

I want to say to Counsel, what people do on their own Page 2

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personal time is no business of the Court's, but I want to say

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that there is some sensitivity on the part of the Court and

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staff to secondhand smoke.

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that the filings that you have sent to chambers have had an

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aroma of cigarette smoke, and we find it an aroma difficult to

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deal with.

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And I want to say to Defense Counsel

So, again, I'm not going to, obviously, impinge upon

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the rights that anybody has -- either you or anybody in your

16

office -- to smoke, but if you -- when you do submit your

17

papers, you need to make sure that they are free of that.

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it's impossible to do that, then you should let the Court know,

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and I will suspend the obligation of filing chambers copies.

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Is that understood?

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MR. HEVIA:

Yes, sir.

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THE COURT:

All right.

If

I apologize, Your Honor. Okay.

The second order of

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business is the following.

The Court has -- as the parties will

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remember, early in this case, the Court admonished the parties,

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and particularly in an order granting the motion to vacate entry 4

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of default and denying as moot the motion for entry of default

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that was filed earlier, on September 20th, 2005.

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The Court said in Footnote No. 1, quote, "The parties

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are hereby admonished that at all court appearances and at all

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future pleadings, they are to address the legal issues raised,

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and refrain from including attacks on one another and their

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Counsel that are peppered throughout the motions currently

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pending before this Court," unquote.

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The Court noticed in the current filings before the

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Court, for today's papers, that that -- that admonition was not

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honored, that there are ad hominem attacks on Counsel, on the Page 3

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120106GoldenDawn parties by Counsel, by the parties on each other.

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mean name calling, accusing one side or the other of committing

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crimes in this court, before this Court, or lying to this Court,

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or otherwise characterizing the arguments or the people involved

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in this case, either attorneys or clients.

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And by that I

The problem that this causes to the Court is that

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dealing with that kind of behavior is time consuming, it clouds

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the message that you and your clients are trying to bring to

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this Court, and generally speaking, it disadvantages the clients

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of this case and the resources of the Court.

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In addition, I understand from the nature of this case

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that there's a lot of passionate feelings and personal feelings

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about the case and possibly the parties that the parties have,

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the respective parties have, and that there's probably -- there 5

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is a desire by clients to say things about their opponent and

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their lawyers.

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But the lawyers are officers of the Court, and it's

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their job, it's their duty to educate their clients that if they

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engage in such attacks, it demeans their position.

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clouds the message that they are trying to give to the Court,

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because the Court has to try to ferret out those statements.

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And it also

And just as a matter of -- from a pedagogical perspective, I'll tell you that it's much more effective that

10

you let the Court draw its own conclusions about the credibility

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of the opposing party, the credibility and character of the

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opposing party based upon objective arguments and statements of

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facts, than drawing those conclusions yourself and bringing

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those forth to the Court, because it only cries out for

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responses in kind.

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effective and zealous advocacy on behalf of your clients to do Page 4

And so you're not -- it does not help the

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so.

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So, here is what I'm going to do this time.

I was

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thinking about what should I do, to make, if you will, the

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punishment fit the crime here.

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this instance is the following.

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December 8th -- I'm going to hear your arguments, I want to get

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responses to the questions, but in order to make the point that

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I want to make, and to purge this Court of the enmity and the

25

vitriol that's been heaped upon the Court, by one week from

And what I've decided to do in By one week from today,

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today I want each side to file a new version of their respective

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briefs and declarations.

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And I'm ordering that in those new versions, any

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characterizations of the opponents, the opponent's arguments,

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the opponent's Counsel, or positions, or any other unflattering

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references to the opponent or their arguments, are to be edited

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out.

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are looking for parts of speech, and possibly nouns as well.

And that would include any adjectives or adverbs, if you

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And I want you to file the edited copy, red-lined to

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show where these inappropriate statements were removed.

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want the red-lined version to be filed, so the Court will know

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where you edited out the inappropriate statements.

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that the client representatives participate in this process.

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And I

I'm ordering

I want a declaration from both sides that their

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respective clients participated in the process and approved the

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briefs.

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this process not be -- that the legal fees and expenses

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associated with it not be charged to the clients.

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And I'm also ordering that the time incurred in doing

I'm ordering that this exercise be handled by Counsel currently in court, personally, and not delegated to an Page 5

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120106GoldenDawn associate or paralegal. And then, that should be done by next

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Friday.

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If -- I am not going to give you any help in terms of

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telling you exactly what I'm thinking about, but just to give

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you an egregious example, one side accuses the other side of 7

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committing felonies before this Court.

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recognizable as something that is inappropriate for this Court,

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and is an affront to the dignity of this Court and the decorum

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of this Court.

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That is pretty

If the -- if the editing is not adequate in the

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Court's determination, then the Court will decide what the

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appropriate sanction is, including striking the offending

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document.

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both to the lawyers and to the clients -- any future violation

And then in the future -- and this is going to go out

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of this rule that I have previously set down for you, will

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result in the Court issuing sanctions to its full authority,

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which could include anything up to and including dismissal of

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the case, issue preclusion, monetary sanctions, or other

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sanctions of like kind.

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So, I don't like doing this because we're all

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professionals here, acting professionally, and trying to

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vindicate the interests of your respective clients.

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it appropriate to tone this down now.

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before we get into the oral hearing, because I don't want that

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kind of behavior to occur here.

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But I felt

And I wanted to do this

I'm not ordering group hugs, I'm not ordering people

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feel one way or the other toward the parties.

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that what is submitted to this Court be professional and free of

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the ad hominem attacks and the acrimony that I've seen.

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understandable, Counsel? Page 6

I'm only ordering

Is that

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MR. CRONEN:

Your Honor, if I may make one comment,

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there's another interest here.

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suborning perjury --

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THE COURT:

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I don't want to hear that.

I don't want

to hear that, because --

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MR. CRONEN:

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It's very offensive.

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THE COURT:

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I have never been accused of

I don't want to hear it either, you know.

What I'm saying to you is the remedy from

your perspective is this, to the extent -- and again, I have

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avoided pointing fingers.

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side or the other will be -- and the nature of the brief that is

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submitted pursuant to this order, subject to a possible motion

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to strike, will be the ultimate remedy.

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But the level of work required by one

And I think one interesting piece of evidence of when

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you know that you are offending the decorum of this Court is

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when it requires the other side to file a self-testimonial to

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indicate why they wouldn't do something like this.

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need that.

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up resources.

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We don't

That is not appropriate, it takes up space, it takes

So I don't need to hear -- again, I've avoided

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pointing anyone out at this point.

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through your papers with your client whether there is any

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criticism to be heaped, and to what extent it is to be heaped,

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and my -- my view of this point is to address both parties.

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You will see when you go

And by doing so, it's without derogation of the Court 9

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knowing -- I've read these papers several times, and it is

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without derogation to the Court knowing exactly what is going on Page 7

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120106GoldenDawn But there is no point at this point in making findings of

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here.

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any blame, because I want to maintain my impartiality.

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So if I don't address the specifics, Counsel, you don't need to address the specifics.

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MR. CRONEN:

Your Honor, I understand.

I just wanted

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to make my point, because it's my reputation, too, that's at

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stake.

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THE COURT:

I understand that, and that is why I'm

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doing what I'm doing.

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MR. CRONEN:

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THE COURT:

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Do you understand?

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MR. HEVIA:

Yes, Your Honor.

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THE COURT:

All right, very well.

Okay. To get that out of the Record.

Now, one other --

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and this is sort of a minor request, but when you do your

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briefs -- and this particularly applies to the Defendant,

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Mr. Griffin -- that when you file a brief, please refer to

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Mr. Griffin by his name, and not in what capacity he is in the

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case.

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In your briefs, you use his name, sometimes you call

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him "Defendant," sometimes you call him "Defendant and

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Counter-Claimant," and it was necessary for the Court to

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actually go through and do its own red-lining so it was clear 10

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who we were referring to. So in the future, and when you file this new amended

3

brief, please refer to Mister -- I know his position in the

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case, but it makes it very difficult to deal with it when you

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use that name.

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a rule in the District Court, but I'm making it a rule in this

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case for both sides.

That is by rule in the Ninth Circuit.

Page 8

It's not

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Just use the name of your client. easier to read your briefs.

MR. CRONEN:

"Plaintiff" and "Defendant" acceptable,

too?

13 14

And we save a lot of space that way

as well.

11 12

It makes it much

THE COURT:

I would rather you use the -- you use the

"HOGDI."

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MR. CRONEN:

16

THE COURT:

Okay. That's perfect.

"David Griffin" is

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perfect, and that way, I'll know who's what.

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into "Defendant" --

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MR. CRONEN:

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THE COURT:

But if you get

And "Counter-Claimant" --- then you get Defendant position or his

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Counter-Claimant position, and it is not necessary or helpful at

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that point.

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All right.

I want to go to the questions.

And for

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those of you who have not been in this court before,

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presumptively, in this district, you don't get the right to 11

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argue.

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case.

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parties.

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There's no right to argue on law and motion in a civil And, the law and motion is for the Court, and not the

So, when I ask the questions that I ask, it's because

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I need answers.

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answers to real questions.

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opportunity for rearguing your papers, which I'm very familiar

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with, unless it is responsive.

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I have not made up my mind, and I need real So, please don't use this as an

Some of the questions are factual, some of them may be

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actually contained throughout your briefs, but I'm asking for

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your -- your sort of last and best answer on a point where the Page 9

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120106GoldenDawn Court thinks that it needs information -- it needs your

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positions in order to -- in order to properly reflect the

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parties' positions.

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brief, objective, responsive answers.

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So, I want to get, as much as possible,

If your answer is such to the question that you

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think, "Gee, this is adverse to my side," I am giving you the

18

opportunity at the end of each section to add anything you want,

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if you feel you need to.

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hidden agenda.

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question, or the question is irrelevant, or beside the point.

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It may very well be, but these are the questions that the Court

23

had in reviewing your papers.

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But on these questions there's no

Don't tell me that I've asked the wrong

So I'm asking you -- there's a lot of questions, more than I usually ask.

And I really just need answers, and let the 12

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chips fall where they may.

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questions, it's just what I need in order to flesh out my

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thinking.

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Because they are not trick

So, and, I also should tell you that the rules here

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are that you don't just get to answer what was on the homework

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assignment; there are pop quiz questions as well.

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MR. CRONEN:

8

THE COURT:

9 10

Okay, sure. So be prepared for those.

Because as I

continue to prepare, the Court continues to prepare, additional questions arise that didn't get onto the take-home, if you will.

11

So, with that in mind, let's start with Question

12

No. 1.a.

and in fact, there, the preliminary question, I've

13

given you sort of a sense of what leads up to the question.

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And I will start with the Defendant.

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MR. HEVIA:

16

Yes, Your Honor.

So, Counsel?

Defendant David John

Griffin believes that upon execution of the agreement, he Page 10

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acquired a vested property interest in the U.S. mark, and that

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opposing party never has had full control of use and ownership

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of the H.O.G.D. mark.

20

In the first recital of the agreement, both parties

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recognized each other as lineal descendants of the original

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order, with the right to use --

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THE COURT:

Slow down when you read.

We all tend to

24

speed up, and the Court Reporter has a great deal of difficulty,

25

so you should actually slow down when you read.

Thank you. 13

1

MR. HEVIA:

The first recital of the agreement, both

2

parties recognized each other equally as lineal descendants of

3

the original order, founded in London in 1988.

4

recital, the parties recognized that both parties were concerned

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with wrongful usage and infringement by third parties.

And the second

6

The third recital recognizes that both parties have

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similar names and marks, i.e., one party, H.O.G.D., the other

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party H.O.G.D., Inc.

9

the Golden Dawn"; the U.S. mark is "The Hermetic Order of the

10 11

The E.U. open mark is "Hermetic Order of

Golden Dawn." The third recital goes on to say that but for the

12

agreement, there would be confusion in the public, because you

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have two organizations involved in substantially the same lines

14

of business, but wishing to develop their own distinct identity.

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And that without an agreement, there would be confusion in the

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marketplace.

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The third recital states that each party wishes to

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develop its own reputation, and repeats the confusion issue.

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Paragraph 1 reads in its relevant part (As read), "Each party

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grants to the other the unconditional perpetual and irrevocable Page 11

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120106GoldenDawn right to usage in the United States of America and worldwide of

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the granting party's respective name -- names, when used in

23

conjunction with the trademark or service mark as defined by the

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Lanham Act Citation.

25

shall interfere with or otherwise directly or indirectly

Paragraph 2, Covenants:

Neither party

14

1

challenge the trademark, name mark, registration or usage by the

2

other party of that other party's aforesaid named names."

3

Paragraph 2 further states, "Both parties agree that

4

this agreement or a memorandum evidencing its details may be

5

reported in the United States Patent and Trademark Office."

6 7

THE COURT:

10

MR. HEVIA:

Yes.

The -- the legal authority, I would

like to refer to the case that I submitted in the Statement of Recent Cases.

If the Court would just let me --

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THE COURT:

Sure.

12

MR. HEVIA:

Here we go.

13

anyone would want --

14

THE COURT:

15

I brought several copies.

No, the Court has them.

If

You have got

them, right?

16 17

What about legal authority?

You have given me the --

8 9

All right.

MR. CRONEN:

I'm sorry, which case are we referring

to?

18

THE COURT:

Yeah, which case?

19

MR. HEVIA:

Iskenderian v. Iskenderian, filed

20

November 17, 2006, State of California, Appellate Decision, that

21

they have jurisdiction in trademark matters also.

22

precedent, but we believe that it is very persuasive.

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THE COURT:

24

MR. CRONEN:

25

the question under a.

It is not the

What is your response to 1.a.? I don't think he actually responded to I'm not sure if Defendant is contending Page 12

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whether or not it's a license or a cross-license, from that

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response.

3

assignment recordation document was filed, a couple of weeks

4

later, Mr. Hevia apparently received a notice from the Trademark

5

Office.

6

Evidentiary Objections to the declaration of Cicero.

But I noted that in the trademark office, when that

This was attached to Document 881, which is Defendant's

7

And in there, it's a notice from the trademark office.

8

And it says (As read), "Dear Mr. Hevia, please review all

9

information contained in this notice and let us know if there's

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an error." And in that notice it says, "This assigns the entire

12

interest and the good will," assigns the entire interest and the

13

good will from our organization to his client.

14

an opportunity to correct that, so I don't know how that -- if

15

that's really responsive to your question.

16

thought at some point it was an assignment of an entire interest

17

or -- I don't know.

18 19 20 21 22 23 24 25

THE COURT:

That's a fair point.

He obviously had

He apparently

Do you maintain that

the 1996 agreement is or is not a license or a cross-license? MR. HEVIA:

We do not believe that it is either a

license or a cross-license. THE COURT:

Do you maintain that it is a partial

assignment? MR. HEVIA:

We maintain that it is, at the very least,

a partial assignment of a vested property interest. 16

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Conceivably, we have, since the date of issuance, been the

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effective co-owner of that mark. Page 13

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120106GoldenDawn All right. Do you have anything to say on

that particular point?

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MR. CRONEN:

I guess this is going to get to

6

Your Honor's point, in Preliminary Question 1 and a couple of

7

other of these questions.

8

I believe, hopelessly ambiguous.

9

And that is, this agreement is -- is,

I have tried mightily to make some sense of it,

10

myself, in my own office.

11

it, you know.

12

to say "If it walks like a duck and quacks, it's probably a

13

duck."

14

Mr. Zimmerman and I have gone over

And, I'm not sure.

Judge Orrick (Phonetic) used

This does have language about usage of names; it

15

doesn't say what names.

16

also -- that sounds like license language to me.

17

THE COURT:

And usage of marks, I believe, it was

Why don't we go on to Question d,

18

because on what authority do you rely on to support the

19

Plaintiff's contention that it is a license or a cross-license?

20

MR. CRONEN:

Essentially just the language of the

21

agreement, itself, where it says "usage of a name," and that

22

generally implies a license arrangement.

23

assignment --

24 25

THE COURT:

Certainly not an

Do you have legal authority to that

effect? 17

1

MR. CRONEN:

Other than the right to freedom of

2

contract, I mean, it's simply a -- a written contract is a

3

license, so that's generally the freedom-of-contract issue.

4 5 6 7

THE COURT:

What do you have to say, Counsel, with

respect to b, the cross-license issue? MR. HEVIA: assignment.

We believe that it was in effect a partial

Getting back to the -- or alternatively, that we Page 14

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were co-owners of the mark from the date that it was issued.

9

Getting back to the case that we submitted,

10

Iskenderian v. Iskenderian, the Court of Iskenderian, quoting

11

McCarthy on trademarks, states (As read), "One method of

12

balancing is to presume that the parties' contractual agreements

13

will prevent confusion of customers.

14

rest on the assumption that it is in the best self-interest of

15

the parties to avoid fragmentation of their trademark's image.

16

In adopting such a presumption, the Trademark Trial and Appeals

17

Board stated, 'Considering that the joint applicants were

18

trademark registration, here have a strong interest in

19

protecting the validity and integrity of their marks, and

20

presumably would not engage in activity detrimental to the

21

long-established rights therein, that confusion in trade would

22

be inimical to their best interests, and that the agreement

23

reflects the joint effort governing the use of their marks,

24

including a viable effort to avoid confusion.'"

25

Such a presumption would

One of the stated purposes in the agreement was to 18

1

avoid that very confusion.

2

THE COURT:

3

MR. CRONEN:

4

All right. May I address the Iskenderian case?

That

case involved --

5

THE COURT:

6

MR. CRONEN:

No, I can read the case. That case involved Vartkes and Markrid

7

who started a chicken place, and did well.

8

children, Mardiros and two daughters.

9

names.

A tragedy occurred.

And they had three

I can't pronounce their

The son, a daughter and the father

10

were murdered.

And there became a probate dispute between the

11

son's wife, the daughter-in-law, and the mother who had started Page 15

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120106GoldenDawn this restaurant chain with her own garlic sauce and everything

13

else.

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And the case, the holding of the case is that the

15

person with those rights, the mother, the original rights, kept

16

them.

17

whole notion is, in that case, the mother had transferred her

18

entire -- her entire interest in the restaurant.

And the outsider, the daughter-in-law, didn't.

19

And the

They did not recite good will specifically being

20

transferred, but she transferred everything, the whole -- like

21

we say in the trademark business, if you -- you know, sell

22

something lock, stock and barrel, you don't need that good will

23

necessary, that -- that incantation language, as you might

24

ordinarily if you are just selling the mark.

25

So here, Vartkes had assigned her entire interest, 19

1

which included the good will.

And so that's -- I don't think

2

this case supports his position.

3

THE COURT:

I'll give you the last word on this point.

4

MR. HEVIA:

Yes, sir.

The point is that the federal

5

trademark was registered by the son.

6

name.

7

MR. CRONEN:

8

MR. HEVIA:

9

trademark.

And it was in the son's

It was a state trademark. There was both a state and a federal

The federal trademark was registered in the son's

10

name.

The mother, who had never had any involvement with the

11

federal mark, left all of her trademark rights to her two

12

daughters.

13

The Court found that the son had never had exclusive

14

use and ownership of that mark, so that the -- the estates of

15

the two murdered sisters were in effect co-owners of the mark

16

with him. Page 16

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120106GoldenDawn 17

THE COURT:

All right.

I want to move on to Question

18

1.c.

19

really where the rubber meets the road.

20

And I'll start with Plaintiff's Counsel, because this is

We have cross motions for summary judgment.

We've got

21

an agreement that is really the operative or the key agreement

22

in this case.

23

you say there are no disputed facts, which disputed facts would

24

preclude summary judgment?

25

I want to know how you can say -- on what basis

MR. CRONEN:

In the effect that that agreement is 20

1

still in effect.

2

THE COURT:

3

MR. CRONEN:

4

agreement can't be interpreted.

5

second Whereas clause, it says "registration of their respective

6

names," but they don't say what the names are.

7 8

Correct. At least three.

It's ambiguous.

That

There are, for example, in the

In the grant provision, in Paragraph 1, it says -"License and a revocable right to" (sic) --

9

THE COURT:

10

MR. CRONEN:

Slow down. I'm sorry.

I did it myself,

I'm so

11

sorry.

12

respective names, so long as it's used in conjunction with a

13

trade or service mark as defined under the Lanham Act."

14

I'm not sure -- I don't know what that means.

15 16

"Irrevocable right to usage of the granting parties'

I don't

know which name -THE COURT:

What is your bottom line?

Is your

17

bottom-line position that if the Court finds that this agreement

18

is in effect, would you agree that there are questions of fact

19

on both sides?

20

MR. CRONEN:

No, I wouldn't. Page 17

I think the agreement is

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21

120106GoldenDawn -- there's no question of fact that the agreement is ambiguous.

22

If it is a cross-license, as has been mentioned here and

23

there -- not by us, by the way, I'm not sure exactly what this

24

is -- it extinguished upon the dissolution of the partnership.

25

And if it's a settlement agreement, as Mr. Hevia seems 21

1

to indicate now, where there was this desire to keep separate,

2

then that was breached when the Defendant attempted to assign

3

the registered mark to himself through the trademark office.

4

So it is either ambiguous, it extinguished, or it was

5

breached, materially breached, when the Defendant went ahead and

6

attempted to transfer that registration to himself.

7

THE COURT:

So you say, your position is, the

8

Plaintiff's position is it is purely a question of law.

9

are no facts in --

10 11

MR. CRONEN:

There

There are no facts with respect to that

agreement.

12

THE COURT:

Counsel?

13

MR. HEVIA:

Before I address that, sir, may I say that

14

the first communication that I received from the Trademark

15

Office was when I got the whole eight-page submission.

16

actually back in March -- at or about March 21st of 2000.

17

-- a year later.

18

Counsel refers to, and I don't know what he is referring to.

19 20 21

And And

I did not receive the document that opposing

THE COURT:

All right.

But what is your answer to

that question? MR. HEVIA:

The answer to that question, in the first

22

place, opposing party has not up to now pled ambiguity in any of

23

its filings, so it is precluded from so stating at the summary

24

judgment proceedings.

25

In the second instance, the two challenges that I have Page 18

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120106GoldenDawn 22

1

made, that it's an assignment in gross, I think we showed very

2

clearly that it was not.

3

one of the liner questions.

4

I noticed that Your Honor has it in

The other challenge that they make is that the

5

sublicensing rule applies.

6

but we believe that even if it were to apply, because of several

7

factors that I can cover, the trademark would still be in full

8

force and effect, and we do not believe that there is any

9

question as to the full force and effect of that agreement.

10

THE COURT:

We don't believe that it does apply,

All right.

So what facts do you -- so,

11

implicitly you are agreeing that there are no facts in dispute.

12

Is that correct?

13

MR. HEVIA:

Yes, Your Honor.

14

THE COURT:

All right.

15

I'll give you the

last word on this point, if you wish.

16 17

All right.

MR. CRONEN:

That's fine.

I think I have made my

point.

18

THE COURT:

All right.

I want to go to a pop quiz

19

question for Plaintiff's Counsel.

20

on the last sentence of Paragraph 2 of the agreement.

21

MR. CRONEN:

22

THE COURT:

23

And I'm going to be focusing

The last sentence. The last sentence.

Get that in front of

you.

24

MR. CRONEN:

25

THE COURT:

Yes, sir. And the question is, why does the last 23

1

sentence of Paragraph 2 not give the Griffin-Behman Partnership

2

the right to license the Golden Dawn mark to any successors it Page 19

Case 3:05-cv-00432-JSW

3

MR. CRONEN: finding a period.

Page 20 of 57

I'm sorry, I'm not -- I'm having trouble

Oh, the "notwithstanding"?

6

THE COURT:

7

MR. CRONEN:

8

Filed 05/19/2008

120106GoldenDawn may have without express permission of H.O.G.D.I.?

4 5

Document 202-2

Yes. From there.

And your question, sir?

I'm

sorry.

9

THE COURT:

The question was, why does the last

10

sentence of Paragraph 2 not give the Griffin-Behman partnership

11

the right to license the Golden Dawn mark to any successors that

12

they have without express permission of your client?

13

MR. CRONEN:

14

THE COURT:

All right.

15

MR. HEVIA:

What provision, sir?

16

THE COURT:

The last provision is the last sentence of

17

I don't know.

I don't know.

Do you have an answer?

Paragraph 2.

18

MR. CRONEN:

19

THE COURT:

I have one thought, but I don't know -Well, and the question is, why does that

20

sentence, the last paragraph of Paragraph 2, not give the

21

Griffin-Behman Partnership the right to license the Golden Dawn

22

mark to any successors it may have without express permission of

23

H.O.G.D.I.?

24 25

MR. HEVIA:

It gives them the -- it gives both parties

permission to license third parties so long as the landmarks of 24

1

the original order are followed.

2 3

THE COURT:

6 7

You had another point you

wanted to make on that, another thought about it?

4 5

All right.

MR. CRONEN:

I'm not sure.

I'm not sure why it was

not -THE COURT:

All right.

Now, another question.

Paragraph 3 of the agreement. The one that states "Both parties Page 20

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120106GoldenDawn 8

warrant and represent."

9

Why should Paragraph 3 of the agreement not be

10

interpreted to mean that the Griffin-Behman Partnership had

11

ownership rights in the, quote, "Hermetic Order of the Golden

12

Dawn" name?

13

MR. CRONEN:

We're not sure what names and marks are

14

at issue.

That's kind of one of the issues here.

15

what names and marks they're talking about.

16

the problem from the very beginning.

17

I don't know

And that's kind of

Remember, we have a design element in our registered

18

trademark.

19

Order of the Golden Dawn, and some of these other organizations

20

that are different.

21 22

And they refer to a Golden Dawn mark, a Hermetic

And it's just -- I don't know.

THE COURT:

All right.

Do you have a response to

MR. HEVIA:

Yes, Your Honor.

that?

23

We do.

The plain

24

language of the agreement, again, save for acknowledging that

25

the other party claims a right therein.

As to what marks are 25

1

covered by the agreements, and toward the middle of Paragraph 1,

2

opposing party objects to the use of the RR+AC mark in trade and

3

commerce.

4

They have never used it in trade and commerce. We have limited ourselves to using the seal on our

5

website, and in Mr. Griffin's 1999 book, The Ritual Magic

6

Manual.

7

They objected to its use in trade and commerce. We included a mention there, because we want to

8

preclude them from filing an opposition to it, because they felt

9

that it was inappropriate because of the nature of the RR+AC to

10

use that name in trade and commerce.

11

its specific use.

Again, they objected to

We only got that there to preclude an Page 21

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120106GoldenDawn 12

opposition.

13

The mark mutuality of the marks in the agreement was

14

the OHIM E.U. "Hermetic Order of the Golden Dawn," and the U.S.

15

"The Hermetic Order of the Golden Dawn."

16

THE COURT:

17

MR. CRONEN:

Response? One other point, I think, coming back to

18

what you had asked about, in the last sentence of Paragraph 2,

19

it said "Both parties shall have the right to license and/or

20

warrant other temples without interference or permission of the

21

other party, provided the temples adhere to the landmarks of the

22

original order."

23 24

But again, it says "license or warrant," and we don't know license what, or warrant what.

25

THE COURT:

We have covered that point. 26

1

MR. CRONEN:

2

THE COURT:

3

Okay.

Just another ambiguity.

Now, another pop quiz question for the

Plaintiff.

4

If the Court accepts H.O.G.D.I.'s view that the 1996

5

agreement was effectively terminated by the dissolution of the

6

Griffin-Behman Partnership, does H.O.G.D.I. concede that any

7

rights it may have had to use the partnership's marks under the

8

1996 agreement also cease to exist?

9

MR. CRONEN:

I don't know.

10

so.

11

extinguished that agreement.

I'm not sure.

But I think

I think once that partnership extinguished, that basically

12

THE COURT:

Do you agree with that?

13

MR. HEVIA:

No, sir, I don't.

14

THE COURT:

And the reason?

15

MR. HEVIA:

Well, opposing party claims that the

16

assignment in gross rule is applicable here. Page 22

In fact, it is

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120106GoldenDawn 17

not.

The partnership, apart from its other activities of

18

operating the Confederatio, licensing several temples,

19

lecturing, publishing various materials and the web site, --

20

THE COURT:

Slow down, please.

21

MR. HEVIA:

-- obtained five trademarks.

Obtained or

22

applied five trademarks, as submitted into evidence in the

23

supplemental declaration of David John Griffin.

24 25

Three of the trademarks were originally applied for and issued in the name of David John Griffin.

One was assigned 27

1

indirectly to the name of David John Griffin by a Canadian

2

national.

3

Mr. Griffin and Ms. Behman.

4

Only the fifth mark was jointly applied by both

So, all of the five were listed in the agreement, just

5

to reinforce that in selling him the full stock and barrel of

6

the operating partnership, she retained no claim against the

7

trademarks issued only in his name, or the one trademark issued

8

jointly to the partners.

9 10

THE COURT: MR. CRONEN:

All right.

Counsel?

I think there was just a bit of a

11

confusion with respect to this notion of assignment in gross.

12

The assignment in gross relates to those trademarks, but not the

13

1996 agreement.

14

Ms. Behman never had an ownership interest that she

15

could have transferred to him through a sale of partnership

16

agreement, or anything else.

17

agreement is -- if it's a license, this's all she had.

All she ever had was whatever this

18

So, that -- that assignment in gross issue, it may --

19

may or may not apply to those five trademarks, but it certainly

20

does not apply to the 1996 agreement. Page 23

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21

THE COURT:

22

MR. HEVIA:

Filed 05/19/2008

Page 24 of 57

120106GoldenDawn What is your position on that? We acquired a property interest, or were,

23

alternatively, co-owners in the mark when it was issued.

24

time the partnership was owned by David John Griffin and

25

Patricia Behman, they acquired a property interest.

At the

28

1

Neither H.O.G.D.I. nor Charles Cicero have any

2

standing to object to one partner selling full lock, stock and

3

barrel of an operating partnership to the other partner.

4

THE COURT:

5

MR. CRONEN:

All right.

Let's move on.

One last -- he says "lock, stock and

6

barrel" a few times, but there is no evidence of that.

7

have this -- the chicken restaurant or a cheese company or a

8

Gallo salami thing or anything from --

9

THE COURT:

10

MR. CRONEN:

11

THE COURT:

I understand.

I want to move on, now.

Okay. Let's go back to the published questions

12

under the Plaintiff's motion for summary judgment.

13

answer to Question No. 3?

14

MR. CRONEN:

We don't

What is your

I believe that we had -- I believe that

15

that agreement extinguished, yes, and that we would have no

16

further rights under that agreement.

17

figured the answer out with respect to authorities on that yet,

18

but --

19 20 21

THE COURT:

I -- I believe.

I've not

So you agree that the sublicensing rule

would not apply? MR. CRONEN:

Oh, I'm sorry.

No, I think it -- it

22

wouldn't be called a sublicensing party because -- I'm sorry.

23

If it's a --

24

THE COURT:

25

MR. CRONEN:

Let's stop. Yes. Page 24

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120106GoldenDawn 29

1

THE COURT:

Because I made a mistake, all right,

2

because I did not give the parties a chance to answer Question

3

No. 2.

4

And it is an important question, regarding considering

5

the motions that were filed on November 19 and 20th, when the

6

Defendant did not seek leave of Court to file these motion under

7

the cited local rule.

8 9

MR. HEVIA:

What is your best argument? We could not have possibly filed those

motions until such point as opposing party filed a reply brief

10

which relied in part on a declaration which attempted to

11

introduce into evidence the non-renewal of one mark as evidence

12

of non-usage of another mark.

13

Secondly, it relied in part on a declaration by

14

opposing party's president, Charles Cicero, which stated that he

15

did not license his licensees.

16

Thirdly, based on that declaration, trying to

17

introduce the non-renewal of the RR+AC mark to prove non-usage

18

of the OHIM E.U. Hermetic Order of the Golden Dawn mark,

19

opposing party introduces a theory unsupported in -- anywhere in

20

the Record that David John Griffin did not engage in use of the

21

H.O.G.D. name in trade and commerce prior to 2004.

22

THE COURT:

Those may be all very good arguments and

23

reasons, but wasn't the appropriate procedure to make an

24

administrative request to the Court for permission to file such

25

a brief -30

1

MR. HEVIA:

Yes.

2

THE COURT:

-- stating that, as opposed to taking it Page 25

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3

120106GoldenDawn upon yourself, taking self-help to file such a -- what otherwise

4

would be lay-filed motions?

5

MR. HEVIA:

Your Honor is, of course, correct.

6

However, we read 7.3(d) to -- because of its further elaboration

7

on statement of recent decisions, that anything that could not

8

have been replied before would have been covered by that rule.

9

We also felt that if a motion to strike would be

10

precluded from a reply memorandum that is flawed on its face,

11

because of 7.3(d), then the opposing party could basically file

12

anything that they want, and we would be precluded from

13

answering.

14

It was a wrong interpretation. THE COURT:

"However," I think everything after the

15

word "However" is not really pertinent.

16

do what it is going to do.

17

appropriate procedure in such situation is to do exactly what

18

the rules require, which is you file an application, you state

19

your position that they filed an inappropriate brief, or reply,

20

or a new matter, and then the Court decides whether that is

21

appropriate, and we will decide.

22

The Court is going to

But I will tell you that the

But when the parties engage in self-help, there will

23

be nothing to preclude them, the Plaintiff, from then putting in

24

their own -- whatever it's called, surreply or response.

25

all it does is perpetuate the paperwork the Court has to look

And

31

1

at.

And I'm telling you, in the future, that is not going to be

2

tolerated.

3

I don't need to hear a response from you.

4

MR. CRONEN:

I just don't -- one response is that I

5

don't think they could have a good faith belief in complying

6

with the local rule, because none of the materials that they

7

filed in connection with that were new. Page 26

None of them -- all of

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120106GoldenDawn 8

those things have existed for some time.

9

THE COURT:

10

MR. CRONEN:

11

THE COURT:

12

MR. CRONEN:

14

THE COURT:

They violated the rules, as far as the

That's not the first time. I don't want to hear that, either, all

right?

16

MR. CRONEN:

17

THE COURT:

18

That's fine.

Court's concerned, and I wanted to get an explanation.

13

15

I don't really want to hear argument.

Okay. I have now a pop quiz question for the

Defendant.

19

The Court understands that Mr. Griffin asserts as

20

defenses to the Plaintiff's infringement claim, H.O.G.D.I.'s

21

infringement claim, that he is entitled to use the mark by way

22

of the 1996 agreement, and because of laches.

23

however, address H.O.G.D.I.'s arguments on the Sleekcraft --

24

S-L-E-E-K-C-R-A-F-T -- factors.

25

Griffin does not,

Is Mr. Griffin conceding that but for application of 32

1

these defenses, H.O.G.D.I. would be entitled to judgment on the

2

infringement claims?

3

defenses to H.O.G.D.I.'s claims?

4

MR. HEVIA:

I.e., is the focus of this case about the

No, Your Honor.

We simply mentioned

5

laches, estoppel, and unclean hands way down the list, as a

6

third line of defense.

7

1994 onwards has been lawful.

8

use.

9

We believe that our use of the mark from Sleekcraft refers to unlawful

Now, we do believe that our use was lawful.

10

been continuous since 1994.

11

laches.

It has

So yes, it would be barred by

Page 27

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12

THE COURT:

13

MR. HEVIA:

14

Filed 05/19/2008

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120106GoldenDawn All right. If the Court were to find it unlawful,

which we do not concede and do not believe.

15

THE COURT:

16

MR. CRONEN:

Response? That they don't have any position with

17

respect to Sleekcraft, because they fit right into it.

18

copied the mark, right down to the registration notice.

19

THE COURT:

Let me ask you a question now.

They

H.O.G.D.I.

20

contends that the Golden Dawn mark is incontestable, and submits

21

the certificates attesting to that fact, which is dated April of

22

2006.

23

MR. CRONEN:

24

THE COURT:

25

Yes, sir. When was the -- when was H.O.G.D.I.'s

Section 15 affidavit filed with the U.S. Patent and Trademark 33

1

Office?

2

MR. CRONEN:

Approximately around that time.

3

Generally speaking, we filed those between the fifth and sixth

4

year after registration.

5

at that point.

6

the incontestability certificate at that time.

7

We did not represent the corporation

They had filed their renewal, and had not filed

So, we -- I believe it was -- I don't know, six months

8

before, let's say, within a --

9

THE COURT:

10 11

Is there any evidence of that in the

record? MR. CRONEN:

Yeah, I don't know.

I don't know if the

12

filing date was in the record or -- I may be able to discern

13

that from the notice, itself.

14

THE COURT:

But you concede that the affidavit had to

15

be filed within one year of after the expiration of the

16

five-year usage? Page 28

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120106GoldenDawn 17

MR. CRONEN:

No, the law is that you get the Section

18

15 incontestability after five years of continuous use, and you

19

can file it essentially at any time.

20

between the fifth and sixth years, but you may.

21

You don't have to file

You do have to file a Section 8, which is a continued

22

use.

So you have to file a Section 8, showing that we are still

23

using this mark, and then incontestability may be filed any time

24

after that date, essentially, as long as you have got five years

25

of continuous use. 34

1

THE COURT:

In responding to that question, I want to

2

know what is Mr. Griffin's response to H.O.G.D.I.'s assertion

3

that the Golden Dawn mark has become incontestable, and what

4

impact, if any, does that have on Mr. Griffin's argument that

5

the 1996 agreement permits him to use it?

6

U.S. Code, Section 1115.

7

MR. HEVIA:

And I'm citing 15

It merely makes the property interest that

8

we acquired at or about November 20th, 1996, equally

9

incontestable.

10

THE COURT:

11

MR. CRONEN:

12 13 14 15

All right.

Do you agree with that?

No, obviously.

They haven't -- it's my

client's registration, not theirs. THE COURT:

Let's move on.

Now we are up to Question

No. 3, which is where I started before. If the Court concluded that the '96 agreement is not a

16

license or a cross-license, is it your position that the

17

sub-licensing rule would not apply in this case?

18

MR. CRONEN:

Yes, and in a technical sense, but I

19

think that the effect would be the same.

20

of that partnership, that agreement went away. Page 29

Upon the termination If it's not a

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21

120106GoldenDawn license agreement, it went away, and if it is a license

22

agreement, it went away.

23

different situations.

Different rules applying in the

24

THE COURT:

Do you agree with that?

25

MR. HEVIA:

No, Your Honor, we do not.

Though we do 35

1

not believe that it is a license or a cross-license, the Ninth

2

Circuit did not adopt the sub-licensing rule until 2006, with

3

the Glenn Miller case.

4

We also believe that if it did apply, there would have

5

been a breach of contract at or about May 30th, 1998, when the

6

sale of partnership took place.

7

years to attack that.

And they would have had four

They did not.

8

Your Honor, may I revisit a previous question?

9

THE COURT:

Certainly.

10

MR. HEVIA:

As to what interest that it is that we

Which one is it?

11

acquired, I would like to read a brief quote from -- I can't

12

pronounce it -- Iskenderian.

13

The Court stated (As read), "The law does not prohibit

14

joint ownership of a trademark.

15

permits concurrent registrations of mark under certain

16

circumstances, including when the Court has finally determined

17

that one or more person is entitled to use the same or similar

18

mark or marks in commerce."

19 20 21

Indeed, federal law expressly

15 USC, Section 1052(d).

The quote is quoting from there -- the Court is quoting from there, in Iskenderian. THE COURT:

All right.

Would you now respond, do you

22

have anything to say in response to Question No. 3 on the

23

sub-licensing?

24 25

MR. HEVIA:

We do not believe that there was ever a

sub -- a license or a cross-license, so the sub-licensing rule Page 30

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120106GoldenDawn 36

1

did not apply.

2

from May 30th, 1998, to challenge the agreement.

3

If it did apply, they would have had four years They did not.

We would further say that the Ninth Circuit did not

4

adopt that rule until 2006, with the Glenn Miller case.

5

Northern District adopted it in 2004, with the first round of

6

the Glenn Miller case.

7

THE COURT:

All right.

Question No. 4.

The

And just for

8

the parties' -- everybody's information, we are going to take a

9

break after this, because we have been going for about an hour

10

and a half.

11

brief recess.

So after this question, we are going to take a

12

What is Plaintiff's answer to Question 4?

13

MR. CRONEN:

When I read the question, it seemed to me

14

that a consent-to-use agreement really is a license.

15

don't think that there is a distinction -- at least not in my

16

mind, I don't know that -- perhaps like a consent-to-register

17

type of situation, or something like that?

18

And I

I don't know.

It seems to me that if there is a consent-to-use

19

agreement, like a license, then Defendant has no rights under

20

that agreement, that it extinguished upon dissolution of the

21

partnership.

22

were engaged in that sale at that time.

23 24 25

And we had no indication that this these folks

THE COURT:

Counsel, anything to say on Question No.

MR. HEVIA:

We do not believe, again, that there's a

4?

37

1

license or a sub-license.

The very nature of a license is that

2

the licensor retains certain measure of supervision and control. Page 31

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3

120106GoldenDawn Neither ourselves over them or them over us retained

4

any supervision or control for the other, but entered into the

5

agreement for the orderly use of the same, similar mark.

6 7

THE COURT:

We will take ten minutes now,

and then move on to Question No. 5.

8 9

All right.

MR. HEVIA:

Your Honor, on the filings and the

secondary smoke?

10

THE COURT:

11

MR. CRONEN:

12

THE COURT:

Yes?

13

MR. HEVIA:

I was just asking about the filings and

14

the secondary smoke.

15

THE COURT:

Yes.

16

MR. HEVIA:

Unfortunately, my office sits under a

17

I'm sorry? I'm sorry, Your Honor.

three-inch cloud of smoke.

18

THE COURT:

Well, then, if you are telling me that it

19

is impossible to avoid that problem, then I'm going to issue an

20

order, and I am suspending the requirement for both sides --

21

because I think it's fair -- that there be chambers copies.

22

It is unfortunate, but it's -- again, this Court won't

23

interfere with anybody's right to smoke or do anything else

24

that's legal.

25

it's just a matter that the Court is not able to deal with those

But when it gets to the issue of secondary smoke,

38

1 2

papers. So therefore, in light of what you just said, if that

3

is your final answer, then neither party -- then the Court is

4

suspending the obligation of filing chambers copies.

5 6 7

MR. HEVIA:

Thank you, Your Honor.

could, comply. THE COURT:

All right. Page 32

I would, if I

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120106GoldenDawn 8

MR. HEVIA:

Sorry.

9

THE COURT:

Ten minutes.

10

(Recess from 10:28 to 10:47 a.m.)

11 12

THE COURT:

Okay, we are back on the Record, and up to

Question No. 5, which is addressed to Plaintiff.

13

MR. CRONEN:

And on No. 5, I believe it's a somewhat

14

similar type of question to 1.c., and that would be the

15

ambiguity of it.

16

use, then it was breached when Mr. Griffin attempted to assign

17

the entire interest and good will of the mark to himself.

18

If it was a settlement agreement or a right to

And that further defense that was pled is unclean

19

hands, and it's really kind of -- if Mr. Griffin is going to

20

assert that agreement, and then kind of be contending that it's

21

a right of usage as opposed to a license, that he had no

22

license, and it's clearly not an assignment, then he had

23

absolutely no right to assign the entire interest and good will

24

to himself, and shouldn't be allowed to enforce that agreement

25

for just unequitable considerations. 39

1

THE COURT:

All right.

2

MR. HEVIA:

We never tried to assign the entire

3 4

interest.

Counsel?

The document to which Cronen refers, I do not know. Our entire submission to the PTO consisted of eight

5

pages, which included a copy of the agreement, and very

6

carefully stated that we were assigning that partial interest

7

which devolved upon ourselves upon execution.

8

Your Honor?

9

THE COURT:

Yes.

10

MR. HEVIA:

Before we go on, may I say two very brief

11

things on previous points? Page 33

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12

THE COURT:

13

MR. HEVIA:

Filed 05/19/2008

Page 34 of 57

120106GoldenDawn Very brief. Tell me which points. As to the matter of the nature of the

14

agreement, and as to the transfer of good will from Behman to

15

Griffin.

16

THE COURT:

Fine.

17

MR. HEVIA:

On the nature of the agreement, I would

18

point out that apart from Paragraph 2, which permits both

19

parties to record a copy of the agreement with the PTO, this

20

certainly -- a proof that each party acquired a property

21

interest in the mark of the other.

22

As to the partnership sale, I would point out that

23

fully one year after the sale of the partnership, when

24

Mr. Griffin's 1999 book appeared, Ms. Behman wrote the

25

introduction, which is submitted into evidence as Exhibit 5 in 40

1

the Declaration of David John Griffin.

2

And -- and I would -- she never -- she never competed

3

with him in the use of the mark, and encouraged him by writing

4

that introduction a year later.

5

because of the esteem that she had for him as a magician, she

6

gifted him the magical tools of the late Dr. Isreal Regardie.

7

THE COURT:

8

MR. CRONEN:

9

And in there, she mentions that

All right. Your Honor, Mr. Hevia has a couple of

times referred to his not having seen the document related to

10

the entire good will.

11

I don't know whether -- Your Honor, I've made copies.

12

one for Mr. Hevia.

13 14

Here is

If I may approach the bench, just to show you -- this was given to --

15 16

This, I mentioned to you earlier, was 88.

THE COURT:

Well, wait.

record? Page 34

Is this in the current

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120106GoldenDawn 17

MR. CRONEN:

18

THE COURT:

19

MR. CRONEN:

20

THE COURT:

This is in the current record, yes. What is the citation to the record? It is -I believe I have seen this document or a

21

document like it, in going over the record.

22

citation?

23

For the Record, it is on USPTO --

24

MR. CRONEN:

25

THE COURT:

What is the

Letterhead. And it's dated March 15, 2004, addressed 41

1

to Mr. Hevia.

2

MR. HEVIA:

3

MR. CRONEN:

4

Yes, Your Honor. That was -- that was a month after -- you

just want the cite right now?

5

THE COURT:

6

MR. CRONEN:

Yes. That is Document 88-1, Defendant

7

Counter-Claimant's Evidentiary Objections to the Declaration of

8

Charles Cicero.

9

Now, that may also be elsewhere in the record.

I just

10

came across that this morning.

11

was saying he had no notice of it and didn't know it, they had

12

effected that recordation back in March of '03, and then he

13

received this notice here.

14

And it struck me, when Mr. Hevia

Obviously, he received it, because he submitted it.

15

It's dated, I'm sorry, February of '04.

16

recordation.

17

please review all the information -- to Mr. Hevia -- in this

18

notice.

19 20

They submitted the

March 15th, this notice gets issued.

And it says

If you find any errors, please give us a call. And it says down here, briefly, and it says "ASSIGNS

THE ENTIRE INTEREST AND GOOD WILL" of the H.O.G.D.I. to David Page 35

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120106GoldenDawn 21

Griffin.

22

THE COURT:

All right.

Counsel?

23

MR. HEVIA:

Your Honor, we submitted our recordation

24

to the USPTO on or about February 20th, 2003.

25

later, we did indeed receive this notice.

Thirteen months

42

1

THE COURT:

All right.

Let's move on.

2

MR. HEVIA:

Thirteen months after our original --

3

THE COURT:

I can review this document further, but we

4

are here to answer my questions, and I don't have a question

5

about that.

So let's move on to --

6

MR. CRONEN:

7

THE COURT:

8

covered.

9 10

I'm sorry. I believe Question No. 6 we have already

Do you have a different -- do you agree that -MR. CRONEN:

I agree that we have covered that, yes,

sir.

11

THE COURT:

12

MR. CRONEN:

13

THE COURT:

14

MR. CRONEN:

Then let's move on to Question No. 7. Do you want me to -It is addressed to Plaintiff. Yes.

This dealt with that notion of the

15

exception, because the law, the black-letter law that I have

16

been advising clients for about 20 years now, is that you can't

17

have an assignment without the good will.

18

will not be allowed to do that.

19

That's verboten.

The cases, though, have a couple of exceptions they

20

have come up with, and mostly based around this notion of

21

continuity, where there is no likely --

22

You

THE COURT:

Wait, let's first answer the question.

23

The question, after the Court's preamble, is, what evidence is

24

in the record to demonstrate that Griffin did not receive the

25

good will of the partnership? Page 36

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120106GoldenDawn 43

1

MR. CRONEN:

The agreement itself, obviously, is

2

absent of any good will.

3

there was any continuity of one -- again, I've not seen anything

4

that indicates that there was any commercial activity going on,

5

on the part of this Defendant, any time prior to about two

6

thousand and -- I forget the date, -three or -four.

7

really wasn't any good will in the notion of commercial activity

8

to transfer.

9

There's no evidence in the record that

So, there

In terms of the lock, stock and barrel that Mr. Hevia

10

has said was transferred, there's no evidence of that.

11

see an adding machine or a postage machine or anything like that

12

being transferred.

13

trademark rights, and a dissolution of partnership.

14

We don't

THE COURT:

There was simply a naked assignment of

All right.

I want you to stick in

15

responding, Mr. Hevia, to the answer.

16

the record to demonstrate one way or the other, as to whether

17

Mr. Griffin received the good will of the partnership?

18

MR. HEVIA:

Yes, sir.

Is there any evidence in

The continuity as evidenced by

19

the publication of the book, the continued operation of the

20

website, the continued lecturing and publication of articles by

21

Mr. Griffin.

22

There is ample evidence submitted in the record,

23

either in the declaration of David John Griffin or in the

24

supplemental declaration, that he continued the activities of

25

the partnership throughout, continuously. 44

1 2

THE COURT:

Why isn't that evidence of the transfer of

good will? Page 37

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120106GoldenDawn MR. CRONEN: Well, for one thing, the publication of

3 4

that book does not bear that mark.

5

Publishing or something else.

6

It was by Golden Dawn

So, that's not relevant.

A website is not a commercial activity if you are just

7

displaying information on it, and they're not selling anything.

8

We have some indication that a few folks sent him some checks; I

9

guess they filled out a form.

10

a check.

11

may just have filled that out in confusion, believing it was my

12

client.

13

We don't know.

We don't even know they sent him

We know they filled out a form.

They

I mean, I don't -- there's no evidence of any

14

commercial activity that would indicate any good will in the

15

notion of a business context.

16

THE COURT:

Mr. Hevia?

17

MR. HEVIA:

Your Honor, opposing Counsel mentions in a

18

footnote in his latest letter of submission --

19

MR. CRONEN:

20

THE COURT:

21

MR. CRONEN:

22

MR. HEVIA:

Oh, I'm sorry. Don't interrupt, please. I'm sorry.

Please.

Opposing Counsel mentions in a footnote

23

that those names are just indication that people were confused,

24

and thought they were joining their organization.

25

that of the three people mentioned, Ralph Fytton -- and this is

I would note

45

1

reflected in Exhibit 12 to the Declaration of David John

2

Griffin -- was sued in 1999 by Charles Cicero and Maria

3

Babwasingh, H.O.G.D.I., et al, in the Southern District of

4

New York.

5

joining.

So he knew very well what organization he was

6

The other two people mentioned in the States, Mark

7

Griggs joined our organization, was initiated in the Atlanta Page 38

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120106GoldenDawn 8

Temple in September of 2002, and he was, six months later,

9

recruited by Mr. Cicero for his organization, and licensed as

10

The Hermetic Sanctuary of Ma'at.

11

THE COURT:

All right.

12

MR. HEVIA:

And the third person, I forget her name,

13

Lorette, was the administrative assistant to Mr. Griggs.

14

THE COURT:

15

MR. CRONEN:

All right. One thing that is critically important

16

with respect to No. 7, and I want to be so clear about that, is

17

that that would relate to those five trademarks, we'd be looking

18

for continuity or something like that.

19

It does not relate to that '96 agreement.

20

license, she can't transfer any good will.

21

good will.

22 23

If it was a

That is my client's

She can't transfer my client's good will. THE COURT:

I want to move on.

I have what I need on

that question.

24

MR. CRONEN:

25

THE COURT:

Okay. Question No. 8 has to do with the -- if 46

1

the -- if the Court grants your motion on the trademark claim,

2

which of the other causes of action would remain to be resolved

3

at the trial?

4

MR. CRONEN:

There would be no further causes of

5

action to remain at trial.

6

be sufficient to resolve the dispute.

7 8

THE COURT:

The simple injunctive relief would

All right.

Do you agree with that?

And

we're not talking about the counter-claim now.

9

MR. HEVIA:

Exactly.

10

THE COURT:

Only the complaint.

11

MR. HEVIA:

Yes, we do agree. Page 39

I assume you agree?

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120106GoldenDawn All right.

12

THE COURT:

13

MR. CRONEN:

14

Filed 05/19/2008

I do anticipate motions for costs and

attorneys' fees potentially, at the end, but --

15

THE COURT:

16

MR. CRONEN:

17

THE COURT:

No, I understand that. Okay. This is the question -- before we get into

18

the "Are there any other issues," I have a pop quiz question for

19

the Plaintiff, which is as follows:

20

Section B of H.O.G.D.I.'s reply brief addresses

21

matters raised in Mr. Griffin's reply in support of his motion

22

for summary judgment.

23

motion to strike the reply as to this aspect of H.O.G.D.I.'s

24

reply brief as an improper surreply filed by leave of the Court?

25

MR. CRONEN:

Why should the Court not grant Griffin's

I'm sorry, I'm just not -47

1

THE COURT:

2

MR. CRONEN:

3

THE COURT:

4

MR. CRONEN:

5

THE COURT:

Section B of your reply brief -Yes.

That's dealing with the license?

Correct. Yes. -- addressed what the Court views as a

6

renegade filing by the Defendants.

7

strike your response to that?

8

get permission from the Court --

9

MR. CRONEN:

Why shouldn't the Court

Because you filed -- you didn't

I believe you did give me permission to

10

file an opposition to that, on a date certain.

11

did.

12 13 14

I believe you

I wouldn't have done that, I don't think. THE COURT:

You are saying that you requested and

received -MR. CRONEN:

I believe, as part of your order,

15

Your Honor, there was a provision that I respond by a date

16

certain, because I remember I had like three days or something. Page 40

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120106GoldenDawn 17

I think it was the 20 -- I would be talking out of school at

18

this point.

I believe I had a right to --

19

THE COURT:

Did the Court grant that permission?

20

MR. HEVIA:

Not to my knowledge, Your Honor.

21

THE COURT:

Well, so many papers -- that's what

22

happens when you all file all these ancillary motions.

23

even difficult for the Court to keep track.

24

certainly check on that.

25

MR. CRONEN:

It's

But I will

But --

I can check for you, or however you wish 48

1

to proceed.

2 3

THE COURT:

No, I'll check on it.

But what's good for

the goose is good for the gander.

4

MR. CRONEN:

5

THE COURT:

Yes, sir. Next question for the Plaintiff, with

6

respect to Mr. Griffin's laches defense that we have discussed

7

earlier, H.O.G.D.I. argue that Griffin submits no evidence of

8

the use of the Golden Dawn mark in commerce before 2004.

9

How does H.O.G.D.I. respond to Exhibits 4 and 5, and

10

Griffin's contention that he had been using the website

11

www.golden-dawn.com since 1997?

12

MR. CRONEN:

I don't know what was on that website

13

since 1997.

14

time, so that if it was a cross-license, I guess that would have

15

been okay.

16

I know that the agreement was in effect at that

I don't know what that was. But, in terms of those exhibits, they don't show -- I

17

mean, it shows that somebody filled out a form, and that came --

18

I believe the earliest of those was 2002.

19 20

And, the other deal is a manifesto, it is an article that appeared in some magazine. Page 41

That's not a commercial use.

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21

120106GoldenDawn And that was in conjunction with that Ordo Roseae mark, the

22

other -- the now expired registration.

23

there.

24 25

You see them both up

And that was Ms. Monastre's article with Mr. Griffin, so she was, you know, operating at that time as -- under the 49

1

partnership, I presume.

2

THE COURT:

Mr. Hevia?

3

MR. HEVIA:

Our position is that we have continually

4

used the mark in commerce since 1994, and we have substantiated

5

it with the evidence on the Record.

6 7

THE COURT:

Let's move on now to the

Defendant's motion for summary judgment, and Question No. 1.

8 9

All right.

MR. HEVIA:

When we filed our motion on the 3rd of

October before opposing party filed the cross motion, we moved

10

to dismiss Plaintiff's top count, and to grant our breach of

11

contract.

12

Our reading of the applicable local rule and Rule 56

13

of the Federal Rules is that if you were to grant our motion to

14

deny the top count, it would not be presented at trial in

15

February.

16

motion that way.

17

We may be incorrect, but that is why we filed the

THE COURT:

All right.

So, in other words, so you

18

think the effect of what you filed would be to require the Court

19

to --

20

MR. HEVIA:

If both were granted.

21

THE COURT:

If both were granted.

22 23 24 25

What's your

position on that? MR. CRONEN:

I'm sorry.

I was looking at something

else, Your Honor. THE COURT:

Well, the question is -- the question had Page 42

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120106GoldenDawn 50

1

to do with whether the Defendant moved for summary judgment

2

solely on his claim for breach of contract, and not on the

3

remaining cause of action.

4

Mr. Hevia just said that although they didn't

5

specifically move -- they only moved on what he called the top

6

count, the breach of contract, that the effect of a ruling for

7

the Defendants would be to preclude any further activity.

8

you, I think you just agreed with that.

9

MR. CRONEN:

10

And

THE COURT:

I'm in agreement, yes, sir. All right.

Question No. 2, 2.a., what is

11

Plaintiff's response to Defendant's argument that he is entitled

12

to judgment on the breach of contract claim?

13

MR. CRONEN:

Well, we discussed some of the issues

14

with respect to ambiguity.

15

little confusing.

16

And again, this is where it gets a

Griffin alleged that H.O.G.D.I. breached the 1996

17

agreement by misappropriating the name "Hermetic Order of the

18

Golden Dawn."

19

could have breached the contract by using his own name.

20

can't misappropriate his own mark, or it can't appropriate its

21

own mark.

22

It's difficult for me to conceive how my client He

He, the Defendant, misappropriated it. The contract is, again, ambiguous.

There is the issue

23

of the unclean hands with respect to that agreement, in view of

24

the attempt to assign all of their entire right, title and

25

interest in that mark to the Defendant. 51

1 2

And I guess that would be the summary of our positions, Your Honor. Page 43

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3

THE COURT:

4

MR. HEVIA:

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120106GoldenDawn All right. Response? They executed the agreement as H.O.G.D.I..

5

We executed it as H.O.G.D..

6

differentiate ourselves, and to make it very clear that we are

7

not affiliated with the Florida corporation or H.O.G.D.I..

8 9

We have always been very careful to

We believe that they breached their contract by appropriating our name.

We also believe that they breached it

10

for a series of other reasons:

11

the contract on or about April 23rd, 2003; trying to once again

12

implicitly repudiate the contract on or about November 5th,

13

2004.

14

agreement, which was there for an orderly control of the

15

issuance of license to third parties.

A total disregard of the landmarks provision of the

16

THE COURT:

17

MR. CRONEN:

18 19 20

Trying to implicitly repudiate

All right.

Counsel?

I pretty much said all I have to say on

that point, Your Honor. THE COURT:

All right.

Question b. with respect to

Mr. Griffin's damages.

21

MR. HEVIA:

As to the evidence now on the Record?

22

THE COURT:

Yes.

23

MR. HEVIA:

Their solicitation asked for the so-called

24

Golden Dawn Legal Defense Fund [Cicero], which accuses

25

Mr. Griffin and myself of fraud, and implies that we have no 52

1

right to use the H.O.G.D. name, the trademark, that's submitted

2

into the record as Exhibit 20, Declaration of David John

3

Griffin, dated October 3rd.

4

There is also their trademark page submitted as, I

5

believe, Exhibit 6 or 7, which implies that they are the sole

6

licensing authority to the H.O.G.D. mark, and which notes that

7

it has licensed Esoteric Order of the Golden Dawn, the Sanctuary Page 44

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120106GoldenDawn 8

of Ma'at, Golden Dawn, Open Source Golden Dawn, the Sodalitas,

9

et cetera, and others, and states that it has licensed them

10

without any supervision or control.

11

Apart from what is on the record, Your Honor, and I

12

didn't expect to prove up damages today, I have 50 or 60

13

exhibits in which their licensees in Italy, Germany, Sweden, and

14

a variety of countries --

15

THE COURT:

I'm not interested in that here --

16

MR. HEVIA:

-- attack us while using our European

18

THE COURT:

All right.

19

MR. CRONEN:

17

mark. Response?

That is another problem with the papers.

20

They are filled with things going on in Europe and Sweden.

And

21

I don't think that is really what we are focusing on here.

I

22

don't see any damages in any of that.

23 24

THE COURT:

All right.

Let's go to Question No. 3.

And, and this goes to Defendant, Mr. Griffin.

25

Given when the applicable discovery requests were 53

1

submitted, how can the Court deem H.O.G.D.I. to have admitted

2

the -- admitted the requested facts, given when the request was

3

filed?

4

MR. HEVIA:

Our reading of Rule 36 is that it is

5

self-executing in its nature.

6

compel for an item to be deemed admitted.

7 8 9

It does not require a motion to

If it is not specifically refuted with particularity within 30 days, it should be deemed admitted. THE COURT:

But the rule is quite clear, that

10

discovery closes on the day that the response was due.

11

words, you have to -- you have to -- you have to serve your Page 45

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12

120106GoldenDawn discovery requests such that there's enough time for the

13

responding party to respond to the request before the date set.

14

Obviously, the request that you are attempting to

15

require deemed admissions were filed in such a way as to be

16

construed as being filed after the close of discovery.

17

understand how that -- that is not an ambiguous rule.

18

MR. HEVIA:

The only case that I've found on point is

19

a Seventh Circuit case.

20

in my papers.

21

I don't know the cite, offhand.

for admission is a discovery item.

23

does seem to be self-executing, just by its very nature.

25

It's

It does not reach the question as to whether a request

22

24

I don't

It -- it does say that it

So, I cannot point on a procedural issue of that type to a published case.

However, it is our position that it is 54

1

self-executing.

And we also --

2

THE COURT:

Yes?

3

MR. HEVIA:

We also do notice that the Court, in their

4

order dated October 11th, 2005, stated that both parties have a

5

duty to voluntarily comply with discovery under Rule 26.

6

I note that I have complied, but I have never received

7

a discovery request.

8

THE COURT:

9 10

We have received no discovery from -Well, that is referring to the voluntary

disclosure under Rule 26, which is different than what we are talking about here.

I believe that --

11

MR. HEVIA:

I understand.

12

THE COURT:

-- a clear reading of this rule, which has

13

always been the rule in this district, so as to avoid having

14

discovery continue well beyond the closure date with the

15

response and then a motion to compel, must be -- that is why

16

discovery cutoff is defined as the date by which all response to Page 46

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120106GoldenDawn 17 18 19

written discovery are due. So, I don't agree.

I'll look at this further, but I

don't agree with your characterization.

20

Anything you want to say on this?

21

MR. CRONEN:

Just for the sake of accuracy, this is

22

precisely what I wrote in a response that I did file, within 30

23

days after receiving the request, pointing this out, that they

24

had failed to comply.

25

extension of time or anything that they are supposed to do under

They didn't ask, come back and ask for an

55

1 2

the local rules. And then I objected in general to the various

3

requests, thinking that if it ever came up again, I would have

4

an opportunity to actually respond to those requests.

5 6 7

THE COURT:

All right.

Let me move on.

Does the

Plaintiff move to strike the declaration in its entirety? MR. CRONEN:

Well, no.

I -- in that motion, we moved

8

to strike Paragraphs 5, 11, 12, 16, 17, 19, and 22, on hearsay

9

grounds, lack of personal knowledge grounds, and all of that.

10

Much of the rest of that declaration is filled with a

11

lot of irrelevant information, and we pointed out in general, I

12

didn't want to waste a lot of the Court's time, but that

13

material can certainly be stricken from the Record.

14

THE COURT:

Well, I understand your position, you

15

don't need to respond because you filed a response.

16

to rule on those objections in the course of issuing the order

17

on these motions.

18

I'm going

All right.

With respect -- so, those are the -- all the

19

substantive questions.

Are there any other issues that the

20

parties have a burning need to -- a desire to cover which were Page 47

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21

120106GoldenDawn not discussed in the papers, or in response to the Court's

22

questions?

23

MR. CRONEN:

I will stand pat, and not bring up the

24

material that we discussed at the beginning of this hearing.

25

That was one of the matters I was going to reserve for the end 56

1

here, but --

2 3

THE COURT:

All right.

Anything further you want to

MR. HEVIA:

Your Honor, the only thing I would add is

say?

4 5

that while we do apologize for the tone, we do believe that

6

every statement that we made was substantively and substantially

7

correct.

8 9

THE COURT:

That may very well be, but again, as I

told you, that is for the Court to determine.

10

MR. HEVIA:

Yes, sir.

11

THE COURT:

And I'm not going to indulge any argument

12

on that.

I stated what's going to govern this case, what I

13

thought had governed this case, and it's going to be strictly

14

enforced.

15

MR. CRONEN:

16

THE COURT:

Thank you, Your Honor. Put another way, the rules that I've

17

imposed are for the protection and for the benefit of your

18

client and you, and the integrity of the process.

19

flexible, nor am I.

20

MR. CRONEN:

21

THE COURT:

22

They are not

Thank you, Your Honor. You need to figure out what movie that

comes from, because that's a quote from a movie.

23

MR. HEVIA:

Thank you, Your Honor.

24

THE COURT:

Let's move on -- just to put a little bit

25

of levity in here.

Very little bit, I should add. Page 48

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1

I want to talk about the upcoming deadlines here,

2

because given the -- what's surrounded the -- the efforts

3

surrounding these motions, they may have gotten lost in the

4

smoke here.

5

There's currently a pretrial conference set for

6

January 8th.

7

cross motions.

8

of '07.

9

Again, obviously awaiting the outcome of these Pretrial on January 8, and trial on January 29

So it is coming right up. MR. CRONEN:

10

THE COURT:

11

MR. CRONEN:

12

THE COURT:

Do you have any -Let me finish. Sorry.

Please.

The parties are obviously -- the Court

13

changed its pretrial order with respect to pretrial filings.

14

So, I will allow the parties, since I don't believe in ex post

15

facto, to operate under the existing guidelines as they existed

16

when the Court set those dates.

17

Generally speaking, the pretrial submissions would be

18

due to the Court on January 2nd.

I would like to prevail on the

19

parties to submit their pretrial filings, given the Court's

20

schedule, by December 29th at noon, which would give the Court

21

adequate time to prepare for the pretrial.

22

Is that acceptable to the Plaintiff?

23

MR. CRONEN:

I suppose it is.

I was hoping we might

24

put a little of this off while the dispositive motions are

25

pending. 58

1

THE COURT:

2

MR. CRONEN:

Well, I prefer not to. I understand, Your Honor. Page 49

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120106GoldenDawn The tentative is what the tentative is.

4

And I have to say, broadly, again, I want to -- first of all, I

5

think I'm going to direct the parties to order a transcript of

6

these proceedings.

7

I want the Record to have been in the parties' hands

8

about what the Court has ordered, so I'm going to order the

9

parties to jointly share in a transcript of these proceedings.

10

But my general view at this point is probably that the

11

motions will be denied.

12

say that as an operating assumption for the purposes of these

13

dates.

14

MR. CRONEN:

15

THE COURT:

Again, that could change, but I only

I understand.

16

vacate the trial date.

17

that --

Because I don't -- I would rather not So, noon on the 29th of December.

18

MR. HEVIA:

That's fine, Your Honor.

19

THE COURT:

All right.

Is

It is going to require you

20

folks to meet and confer in good faith, because the next sort of

21

test of compliance with the Court's rule and the new spirit of

22

cooperation among the parties is going to be that the

23

substantial meeting and conferring that was required by the

24

existing rule that you are operating under, to come up with

25

filings and squeeze any of the disputes out of this case where 59

1

it can be done on an expedited basis, so that we don't waste any

2

jury time with pretrial matters.

3

I take the pretrial process very seriously.

I spend a

4

lot of time.

5

and presentation of the issues, I will rule on it at pretrial,

6

and that's going to govern what happens at the trial here.

7

Basically, based upon your meeting and conferring

MR. CRONEN:

Your Honor, I'm glad you are emphasizing Page 50

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120106GoldenDawn 8

that nature of cooperation.

9

ordered by Your Honor to the Attorneys' Lounge to handwrite a

10

Because if you recall, we were

scheduling order, because we didn't get cooperation.

11

THE COURT:

Well --

12

MR. HEVIA:

Your Honor, we did cooperate with --

13

THE COURT:

I don't want to hear that.

Again, I don't

14

want to get into a who-struck-John here.

15

you that I expect the two of you, as officers of the Court --

16

you are in Federal Court now.

17

running with the big dogs here.

18

But I am just telling

And as one judge has said, you're We're not in state court.

And I expect literal compliance, because we are going

19

to have a jury trial here, and you will see when we get into the

20

pretrial that I don't take any time out of the jury's schedule

21

to have any bickering, and I don't like to have multiple

22

versions of a pretrial.

23

have that still need to be resolved by the Court.

24 25

So, you can maintain positions that you

By definition, you will, with respect to the motions in limine the Court allows to be filed in some other matters, 60

1

but you will see in the Court's rules that with respect to

2

exhibits, the Court -- deposition excerpts, the Court does not

3

want to take time to rule on what I call ticky-tack objections

4

on authenticity if there's no real dispute, you know, best

5

evidence rule, Queen Caroline's Rule, any rule.

6

MR. CRONEN:

7

THE COURT:

I understand. Whether they go back to antiquity or they

8

are current rules.

9

going to be argument, it is going to be on substantive matters.

10 11

I don't want to have -- I want, if there is

So the parties must meet and confer, and at that point if there is not meeting and conferring, I will determine who is Page 51

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120106GoldenDawn at fault, and I will issue an appropriate order.

13

going to pre-judge you.

14

Page 52 of 57

So, I'm not

We are starting a new era here of cooperation in this

15

case, if the case survives these motions, and I expect you to

16

come up with a result that maintains the positions of your

17

clients, understanding you're now going to be at trial, not the

18

time to fight out the last argument.

19

Yes, Mr. Hevia?

20

MR. HEVIA:

A small administrative matter.

We will

21

move to appear telephonically on January 8th, because we have to

22

come all the way from various points.

23

THE COURT:

Is that for the pretrial?

24

MR. HEVIA:

For the pretrial.

25

THE COURT:

No, that will be denied.

They'd have to 61

1

get local counsel.

2

MR. HEVIA:

Yes, sir.

3

THE COURT:

We will figuratively sit down and roll up

4

our sleeves, and I need you here, and I want the parties here

5

for that as well, because that's an important proceeding.

6

MR. HEVIA:

Yes, sir.

7

THE COURT:

The other thing I should tell you is that

8

there is another case that the Court has, it is an older case

9

than this one.

It's approximately a one-week trial that starts

10

before your case.

So you should be prepared to start on January

11

29th with the actual trial, unless that case settles.

12

-- in light of the pretrial in that case, it's pretty unlikely

13

that that case is going to settle, but hope springs eternal.

And it's

14

MR. HEVIA:

Okay.

15

THE COURT:

So, yes?

16

MR. HEVIA:

My client just signaled to me that on Page 52

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January 8th, he is going to be working.

18

THE COURT:

Well, he can be available by telephone.

19

MR. HEVIA:

All right, sir.

20

THE COURT:

If that's okay.

21

MR. HEVIA:

Yes, sir.

22

THE DEFENDANT:

23

MR. HEVIA:

24

But you need to be here.

Not January 8th, the trial date.

He is saying that on the trial date, he's

going to be --

25

THE COURT:

On the 29th? 62

1

MR. HEVIA:

Yes, on the 29th.

2

MR. CRONEN:

3

THE COURT:

We have known about this for -Well, no.

He doesn't have to -- this is a

4

civil case, it's not a criminal case.

5

forward.

The trial is going to go

6

MR. HEVIA:

Yes.

7

THE COURT:

If he's not here, he's not here.

8

should coordinate.

9

call Mr. Griffin as an adverse witness, everybody should

But he

10

Per my rules, if the Plaintiff is going to

coordinate with each other's schedules.

11

MR. HEVIA:

Yes.

12

THE COURT:

But a party is not required to be present

13

at trial, and the jury will be advised only that parties have a

14

right to be there when they can be there.

15

outside trial.

16

They have lives

And nobody is going to get any benefit from that, but

17

I'm not going to put off the trial because of the scheduling,

18

because of his scheduling.

19

MR. HEVIA:

I understand.

20

THE COURT:

The two other things I want to raise, Page 53

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21

120106GoldenDawn which is, now that we have turned a new leaf in terms of the

22

presets of the Hermetic Order, whoever owns the rights of good

23

will, what is the prospect for -- I know you have had

24

discussions, settlement discussions, about a further settlement

25

conference in this case. 63

1

Let me start with Plaintiff's Counsel.

2

MR. CRONEN:

We went through mediation, and efforts

3

were made at that time to come up with something reasonable, and

4

they failed.

5

settling this case, because of some of the things that have gone

6

on.

And I don't think there's a reasonable chance of

7

THE COURT:

All right.

8

MR. HEVIA:

Exactly the same thing that Mr. Cronen has

9

What is the Defendant's view?

said, but from our perspective.

10

THE COURT:

All right.

Be prepared.

It's quite

11

possible and it's been my practice in the past, after the

12

pretrial, to send the parties out to a Magistrate Judge.

13

Because what I find is when the parties are sort of on

14

the, you know, the war footing of just before trial, they've

15

heard what instructions the Court is going to give, because I

16

will rule on instructions as much as possible at the pretrial,

17

the in limine motions and et cetera, the parties are then in the

18

best position to, before they actually step into trial, to

19

settle.

20

that point.

And cases more contentious than this have settled at

21

MR. CRONEN:

22

THE COURT:

Sure. And the last point I want to ask about is

23

whether the parties, given the amount of time that it is likely

24

to continue to take, after the order is issued in this case,

25

assuming just for argument's sake that both motions were denied, Page 54

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120106GoldenDawn 64

1

whether the parties would agree to consent to having this case

2

heard by one of our excellent Magistrate Judges, who have a lot

3

more time.

4 5 6

MR. CRONEN:

No, Your Honor, we would prefer the

Court. THE COURT:

All right, fine.

Then I don't need to ask

7

you, because it doesn't really -- it's irrelevant at that point.

8

I'm not going to pressure anybody.

9 10

All right.

Ms. Ottolini, is there anything that you

wanted to --

11

MR. HEVIA:

No, Your Honor.

12

THE COURT:

Counsel?

13

MR. CRONEN:

14

THE COURT:

No, thank Your Honor. All right, thank you.

And again, Counsel,

15

the Court does not relish taking the parties and Counsel to task

16

as I did at the beginning of this hearing.

17

I don't have the time for it, and I don't, frankly, have the

18

judicial stomach for it.

19

Believe me, I don't.

But I will take the necessary steps, if I have to, to

20

control my calendar.

And I've spent too much time on a lot of

21

this static, and I don't intend to do it any more.

22

the lawyers to step up, and in cooperation with their clients,

23

both of whom -- all of whom are intelligent people, and conduct

24

this case on a more dignified basis, and keeping your opinions

25

to yourself.

And I expect

65

1 2

And that is going to rein -- you know, I will allow and expect a vigorous trial practice here, but I'm not going to Page 55

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3

120106GoldenDawn allow inappropriate conduct before a jury.

4

allowed to take place, and the consequences will be very severe.

That will not be

5

All right, gentleman, thank you very much.

6

MR. CRONEN:

7

MR. HEVIA:

8

Thank you, Your Honor. Thank you, sir. (Conclusion of Proceedings)

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66

1 2 3

CERTIFICATE OF REPORTER

4

I, BELLE BALL, Official Reporter for the United States

5

Court, Northern District of California, hereby certify that the

6

foregoing proceedings in Case No. C-05-432 JSW,

7

Order of the Golden Dawn v. David Griffin, were reported by me, Page 56

The Hermetic

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120106GoldenDawn 8

a certified shorthand reporter, and were thereafter transcribed

9

under my direction into typewriting; that the foregoing is a

10

true record of said proceedings as bound by me at the time of

11

filing.

12

The validity of the reporter's certification of

13

said transcript may be void upon disassembly and/or removal

14

from the court file.

15 16

________________________________________

17

Belle Ball, CSR 8785, RMR, CRR

18

Wednesday, December 13, 2006

19 20 21 22 23 24 25 =

Page 57