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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DOUGLAS WAYNE PERRY, a California

Resident d/b/a Click 1003,

Plaintiff,

v.

PAUL and SUZIE ZUPAN, California

Residents, Latitude Financial,

Inc., a California Corporation

d/b/a www.latfin.com, and DOES 1-

100, inclusive,

 Defendants.

CIV. S-04-0868 DFL PAN PS

FINDINGS AND RECOMMENDATIONS

— —

Plaintiff is Douglas Wayne Perry, a California resident. 

Defendants are Latitude Financial, Inc., a California

corporation, and Paul and Suzie Zupan.

Plaintiff alleges defendants violated his registered

copyright in “Click 1003,” a script written in hypertext markup

language (HTML) that functions as a unique program that compiles

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data furnished by borrowers allowing them to complete loan

applications by internet and interacts with brokers’ and lenders’

programs facilitating a loan transaction. Plaintiff alleges

defendants copied Click 1003 and published it on their web site,

making only minor changes in the process. 

On April 7, 2005, Paul and Suzie Zupan moved for summary

judgment denying they copied plaintiff’s work and denying that

their “Online 1003" software is “substantially similar” to

plaintiff’s program. 

A party may move, without or without supporting

affidavits, for summary judgment and the judgment sought shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law. Fed. R. Civ. P. 56(a)-(c). 

An issue is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the opposing party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A fact is

“material” if it affects the right to recover under applicable

substantive law. Id. The moving party must submit evidence that

establishes the existence of an element essential to that party’s

case and on which that party will bear the burden of proof at

trial. Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986). 

The moving party “always bears the initial responsibility of

informing the district court of the basis for its motion and

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identifying those portions of ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any’” that the moving party believes

demonstrate the absence of a genuine issue of material fact. 

Id., at 323. If the movant does not bear the burden of proof on

an issue, the movant need only point to the absence of evidence

to support the opponent’s burden. To avoid summary judgment on

an issue upon which the opponent bears the burden of proof, the

opponent must “go beyond the pleadings and by her own affidavits,

or by the “‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’” Id., at 324. The opponent’s

affirmative evidence must be sufficiently probative that a jury

reasonably could decide the issue in favor of the opponent. 

Matsushita Electric Industrial Co., Inc. v. Zenith Radio

Corporation, 475 U.S. 574, 588 (1986). 

Fed. R. Civ. P. 56(e) provides that “supporting and

opposing affidavits shall be made on personal knowledge, shall

set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify

to the matters stated therein.” Nevertheless, the Supreme Court

has held that the opponent need not produce evidence in a form

that would be admissible at trial in order to avoid summary

judgment. Celotex, 477 U.S. at 324. Rather, the questions are

(1) whether the evidence could be submitted in admissible form

and (2) “if reduced to admissible evidence” would it be

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sufficient to carry the party’s burden at trial. Id., at 327;

Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003).

A verified complaint based on personal knowledge setting

forth specific facts admissible in evidence is treated as an

affidavit. Schroeder v. McDonald, 55 F.3d 454 (9th Cir. 1995);

McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987). A verified

motion based on personal knowledge in opposition to a summary

judgment motion setting forth facts that would be admissible in

evidence also functions as an affidavit. Johnson v. Meltzer, 134

F.,3d 1393 (9th Cir. 1998); Jones v. Blanas, 393 F.3d 918 (9th

Cir. 2004). Defects in opposing affidavits may be waived if no

motion to strike or other objection is made. Scharf v. United

States Attorney General, 597 F.2d 1240 (9th Cir. 1979).

Only the following facts are undisputed: Plaintiff

Douglas Wayne Perry maintains an internet site at

www.click1003.com; defendants Paul and Suzie Zupan are

individuals; defendant Latitude Financial, Inc., is a licensed

mortgage broker and maintains an internet site at www.latfin.com. 

See parties’ respective Statement(s) of Undisputed Facts.

Suzie Zupan presented no denial and no other evidence

and, accordingly, her motion should be denied. 

Latitude has not moved for summary judgment. 

In support of his motion, Paul Zupan submitted a

declaration admitting that he created a page on defendant

Latitude’s web site known as Online 1003 to gather information

from prospective borrowers to complete the Fannie Mae 1003 form

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used by Latitude. He avers he has compared the two scripts and

that only one page bears any similarity. Conspicuously, he does

not in his declaration deny copying that part. 

Plaintiff opposes. He presents no direct evidence of

copying but avers in his declaration that the Latitude online

application contains 200 unique field names created by plaintiff

that are not part of the Fannie Mae application, that Online 1003

contains unnamed fields that are useless to Latitude, and

contains plaintiff’s typographical errors, which is substantial

circumstantial evidence of verbatim copying. 

In reply, defendants meet plaintiff’s evidence with Paul

Zupan’s declaration that to develop Latitude’s internet site he

used HTML script from “similar forms I found on the internet.”

(Both assert in their opposing brief they did not copy

plaintiff’s work but the statement is unsworn.) Most of

defendants’ arguments are off target. Defendants contend

plaintiff cannot claim copyright protection for field names,

programming language and the like but that is not plaintiff’s

claim. 

Defendants, who represent themselves, appear to rest

their defense in one way or another upon Landsberg v. Scrabble

Crossword Game Players, Inc., 736 F.2d 485 (9th Cir. 1984), cert.

denied, 469 U.S. 1037 (1984). That decision first holds that to

make out a case of copyright infringement plaintiff must

establish that he owns the copyright in the work in question,

that defendant had access to it and that there is “substantial

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similarity” of the ideas and their expression. Second,

recognizing that copyright protects only an author’s expression

of an idea and not the idea itself, Landsberg draws a distinction

between fictional works on the one hand and factual works on the

other, which permit only a narrow range of expression such that

substantial similarity must amount to verbatim reproduction or

very close paraphrasing. In passing, the court noted the

doctrine of “scenes à faire.” 

Literally, “scenes à faire” in French means “scenes to be

made.” It is a principle of copyright law that elements of a

creative work are not protected when they are required by or

customary to the genre of the work. For example, a spy novel is

expected to contain elements such as numbered Swiss bank

accounts, a femme fatale, and various spy gadgets hidden in

wristwatches, belts shoes and other personal effects. These

elements are not protected by copyright, though specific

sequences and compositions of them can be. See Ets-Hokin v. Skyy

Spirits, Inc., 323 F.3d 763 (9th Cir. 2003)(“scenes à faire”

upheld as an affirmative defense, upon which defendant, not

plaintiff, bears the burden of proof). 

In other words, defendants claim that despite plaintiff’s

registered copyright, the content of his program is not protected

without proof of “slavish copying.” But that is exactly what

plaintiff does claim and he has supported the claim with evidence

that defendant simply ignores (if he does not in fact admit),

e.g., copying of his program including his typographical errors.

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Accordingly, I recommend that Paul Zupan’s motion also be

denied. 

Based on the parties’ contentions, the court believes

defendants’ defense to plaintiff’s claims may better lie upon the

decision in Baker v. Selden, 101 U.S. 99 (1879). Should the

district judge adopt these findings and recommendations,

defendants may file a second motion for summary judgment within

thirty days of that order. 

These findings and recommendations are submitted to the

Honorable David F. Levi, the United States District Judge

assigned to this case. 28 U.S.C. § 636(b)(l). Written

objections may be filed within ten days after being served with

these findings and recommendations. The document should be

captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” The failure to file objections within the

specified time may waive the right to appeal the District Court’s

order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: November 10, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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