JOHNSON, J. —
On September 4, 2013, Pierre Daniel (Daniel), an actor, worked as an extra in a movie entitled, A Haunted House 2 (Open Road Films 2014). Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie. In August 2014, Daniel sued Wayans and others, alleging, inter alia, that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called "`[n]igga.'" In response, Wayans, pursuant to Code of Civil Procedure
On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans's anti-SLAPP motion — that is, the conduct at issue was not part of the "`creative process'" inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest. In the alternative, Daniel contends that even if the conduct at issue implicated Wayans's right to free speech, he presented sufficient evidence to the trial court to establish a probability of prevailing. We find both of Daniel's arguments to be unpersuasive. Accordingly, we affirm the judgment.
I. Daniel's complaint
On August 25, 2014, in an unverified complaint, Daniel alleged that defendants EFS Entertainment, ICM Partners, and IM Global employed him as an actor for A Haunted House 2. He further alleged that Wayans was a manager, officer, shareholder, director, supervisor, managing agent, owner, principal, or employee of all of the other defendants.
The complaint asserted a total of 13 different causes of action, eight of which were asserted against Wayans: a race-based harassment claim brought pursuant to Government Code section 12940 et seq.; a claim alleging a
Daniel's claims against Wayans stem from two different but related contexts of alleged misconduct. The first alleged misconduct occurred solely on the movie set (the on-set comments and conduct). Specifically, Daniel alleged that Wayans subjected him to "offensive and derogatory language regarding his race/national origin," such as repeatedly referring to him "in a demeaning manner, as `Nigga,' a derogatory term and racial slur used to refer to African-Americans"; "repeatedly mocking [Daniel]'s `afro'"; "repeatedly and negatively referr[ing] to [Daniel] as `Cleveland Brown,' an African American cartoon character in the adult cartoon comedy series `Family Guy'"; routinely leering, staring, and rolling his eyes at Daniel; ridiculing Daniel in the presence of other crew members; and treating Daniel "differently, disparately, and negatively because of his race/national origin, including making demeaning, abusive, and derogatory comments and gestures."
The second arena or context of alleged misconduct evolved primarily on the Internet (the Internet posting). Specifically, Daniel alleged that Wayans took Daniel's photograph without his consent and then posted it on the Internet and "Defendants' websites alongside a photograph of [a] popular African-American cartoon character, `Cleveland Brown' with the inappropriate caption, `Tell me this nigga don't look like ... THIS NIGGA!!! Ol cleveland Brown ass lookin @ahhmovie 2 @whatthefunny I'm hurtin!'"
II. Wayans's anti-SLAPP motion
On November 5, 2014, Wayans filed a special motion to strike pursuant to section 425.16. Wayans's anti-SLAPP motion challenged all causes of action in which he was named. Wayans argued that he met his burden under the anti-SLAPP statute because his creative spark in referring to Daniel as "Cleveland" resulted in the birth of a character in the film; his use of the word nigga, a term liberally used throughout the film, helped advance or assist in the creation of dialogue for the film; and by promoting Daniel in the Internet and Twitter post as a Cleveland Brown look-alike, Wayans helped promote the film. The motion was supported by three declarations: one by Wayans himself; one by the movie's leading actress, Jaime Pressly (Pressly); and one by Rick Alvarez (Alvarez), "a producer and cowriter" of both A Haunted House and A Haunted House 2.
A. Wayans's declaration
In his declaration, Wayans admitted joking with Daniel about his resemblance to the Cleveland Brown cartoon character. Wayans stated he then named the character portrayed by Daniel "Cleveland" and used that name as he improvised dialogue for the scene in which Daniel appeared. Wayans emphasized that on-set improvisation, including "[j]oking around," constituted a key part of the creative process both in A Haunted House 2 and in his other movies, as the scripts for those movies were often just an "outline of scenes." To demonstrate the improvisational nature of the movie's creative process, Wayans submitted the certified transcript of three different "takes" of the scene in which Daniel appeared; in each of those takes the action is the same — Wayans's character calling Daniel's character to help get a heavy safe off of his dog — but the dialogue is markedly different each time as Wayans experiments or improvises.
Wayans also admitted taking Daniel's photograph, but declared that Daniel consented and posed for the photograph. Wayans then "juxtaposed the photo with a humorously similar photo of Mr. Daniel's cartoon look-alike, Cleveland Brown, with the caption" alleged in the complaint and previously quoted herein. Wayans continued: "My reference to `@ahhmovie2' was a link to the Twitter and Instagram pages for A Haunted House 2. My reference to `whatthefunny' is a reference to my website, which posts humorous videos. I then posted the juxtaposed photos and caption to my Twitter account, which at that time had over a million followers." (Italics omitted.) Wayans stated that Daniel at no time objected or stated he was uncomfortable when Wayans joked with him, took the photo, or posted it.
B. Pressly's declaration
In her declaration, Pressly stated that she observed Wayans and Daniel interacting on the set and declared that Daniel laughed at Wayans's joke that Daniel looked like the Cleveland Brown cartoon character and noted that Wayans was so struck by the resemblance that he decided to use Cleveland as the name for Daniel's character. Pressly further declared that Daniel not only agreed to be photographed by Wayans but posed for the photograph and later joined in the laughter among the cast and crew on the set once the photograph and the image of the Cleveland Brown character were posted to the Internet.
With regard to the creative process for the movie, Pressly affirmed that "[m]any of the scenes in A Haunted House 2 were improvisational in nature," meaning that "the actors and actresses spontaneously make up jokes as they go along." On a related note, Pressly stated that much of the comedy in the
C. Alvarez's declaration
One of Alvarez's roles with regard to A Haunted House 2 was to "oversee the entire production of the film." Alvarez affirmed that Daniel was hired as a nonspeaking extra for the movie and attached to his declaration a copy of a standard union voucher signed by Daniel in connection with his work on the movie (the voucher). The voucher, in part, states that Daniel agreed to give the movie's production company broad rights with regard to the use of his image: "I hereby grant to the Production Company of The Production, its successors, assignees, licenses or any other person or company who might gain title or rights to the production, the right to photograph me and record my voice to use, alter, dub, edit, and or otherwise change such photographs and recordings, in any manner whatsoever and for any reason in connection with The Production, such right to be worldwide and in perpetuity."
As with Wayans and Pressly, Alvarez described the creative process for the movie as improvisational: "A Haunted House 2 is an R-Rated comedy. To make the film as funny as possible, much of the dialogue was intended to be, and was, developed on the set through improvisation. The actors were encouraged to improvise, ad lib, and have fun as part of the creative process. Mr. Wayans and the other actors regularly joked amongst themselves and with others on the set to develop dialogue and create an atmosphere that was humorous and conducive to comedy." (Italics omitted.)
Alvarez, like Pressly, noted that the word nigga, and variants such as "nigger" and "niggie," are used "dozens of times, throughout the movie as part of the comedy." Alvarez goes on to note that the movie "includes a scene that specifically explores the idea that the use of the terms `nigga' and `nigger' are sometimes considered socially acceptable for black people to use but not people with other racial backgrounds." Like Pressly, Alvarez affirmed that Wayans uses the term nigga as a term of endearment, noting that Wayans "has even called [him] `nigga' during the time [they] spent writing together, and [he is] not black."
III. Daniel's opposition
Daniel opposed Wayans's motion, arguing, inter alia, that the anti-SLAPP statute does not reach claims for racial harassment and that there was no
In support of his opposition Daniel submitted a declaration of his own in which he, inter alia, elaborated upon Wayans's alleged harassment of him on the set. Daniel stated that Wayans first called him Cleveland while he was "waiting off camera to receive [his] acting directions," when filming was not underway. Wayans also said, "`O'l Cleveland Brown with your afro and thick mustache, you need to shed some pounds.'" Wayans then called Daniel a "`black fat ass' and began laughing at" him. Daniel declared that throughout the day, while he was on break and cameras were not rolling, Wayans repeatedly approached him and called him Cleveland at least 15 more times, looked and pointed at him while saying nigga at least three to four times, called Daniel's hair an "`Afro'" while laughing on at least 10 occasions, called Daniel a "`black fat ass'" in the presence of others at least twice, and "continuously" approached Daniel and leered, "sneeringly smile[d]," rolled his eyes, and watched Daniel. Daniel stated that at no time did he laugh when Wayans called him Cleveland and that he found Wayans's use of nigga when directed at him to be "racially offensive and derogatory." However, Daniel did not assert that Wayans's conduct and/or comments on the set adversely affected his work in any way on the movie.
As for the photograph of him that was posted to the Internet, Daniel disputed that he gave his consent and/or laughed about the posting while on the set. According to Daniel, he did not learn of the posting until later that night after he left the set when his brother informed him of the post. When he finally did view the post, Daniel felt "extremely offended." Because other people besides his brother have called him and approached him to ask if he is "the `Cleveland Brown' character" from the post, Daniel has suffered apprehension when going out in public, nightmares, anxiety, depression, and stress headaches as a result of Wayans's alleged misconduct.
In his declaration, Daniel did not dispute the improvisational nature of the movie's creative process, as described by Wayans, Pressly and Alvarez. Nor did he dispute that the signature on the voucher is his. Instead, he objected to the voucher on various evidentiary grounds, including lack of foundation. Daniel did not submit any declarations by any experts or any other members of the cast or crew of A Haunted House 2.
IV. The trial court's findings
On December 11, 2014, the trial court heard oral argument on the motion. On December 31, 2014, the trial court issued a 17-page ruling, which, inter
I. Standard of review
We review an order granting or denying an anti-SLAPP motion de novo. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [124 Cal.Rptr.3d 256, 250 P.3d 1115].) We consider the "pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) We do not "weigh evidence or resolve conflicting factual claims. [Our] inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. [We] accept[ ] the plaintiff's evidence as true, and evaluate[ ] the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385 [205 Cal.Rptr.3d 475, 376 P.3d 604].)
II. Anti-SLAPP principles
"A SLAPP suit — a strategic lawsuit against public participation — seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted ... section 425.16 — known as the anti-SLAPP statute — to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [39 Cal.Rptr.3d 516, 128 P.3d 713].)
III. Step one: Wayans met his burden
Under the two-step process applicable to anti-SLAPP motions, we must first determine whether Wayans made a threshold showing that Daniel's claims arise from a protected activity.
A. Wayans's burden
A defendant need only make a prima facie showing that the plaintiff's claims arise from protected activity. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408 [138 Cal.Rptr.3d 464]; People ex rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th at p. 822.) "The Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law." (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 [106 Cal.Rptr.2d 906].) "Instead, under the statutory scheme, a court must generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the analysis, if necessary. [Citation.] Otherwise, the second step would become superfluous in almost every case, resulting in an improper shifting of the burdens." (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089 [114 Cal.Rptr.2d 825], italics added; see City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 621 [37 Cal.Rptr.3d 632].)
Daniel argues that Wayans's conduct necessarily falls outside the protections of the anti-SLAPP statute because the gravamen of his complaint is race-based harassment and such conduct is not a protected activity. We are unpersuaded by Daniel's argument because the exercise of free speech here was central, not incidental, to his alleged injuries. (See Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, 1190 [205 Cal.Rptr.3d 687] (Nam) ["protected activity that is incidental to a cause of action [does not] justify an anti-SLAPP dismissal"]; see also Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1521, 1525 [165 Cal.Rptr.3d 123].)
The distinction between communicative conduct that is central versus that which is incidental to the exercise of the right to petition or the right of free speech is illustrated by the two cases upon which Daniel relies: Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 [65 Cal.Rptr.3d 469] (DFEH); Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 [130 Cal.Rptr.3d 410] (Martin). In both DFEH and Martin, the alleged injury-producing conduct was acts of discrimination largely, if not completely, untethered to the exercise of the defendant's free speech/petitioning rights.
In DFEH, supra, 154 Cal.App.4th 1273, the trial court denied the defendant's anti-SLAPP motion and the Court of Appeal affirmed because, although the complaint discussed in detail a number of communications, those communications were not the source of the alleged injury. Rather, "the allegations of
In Martin, supra, 198 Cal.App.4th 611, the court found the employee's claims for discrimination and retaliation against his former employer were not based on protected activity, because although the complaint contained some references to protected activity — namely, poor performance reviews and a discussion of plaintiff's performance during a board meeting — those references were "mentioned only minimally in plaintiff's pleadings." (Id. at p. 625.) Instead, the focus of plaintiff's claims was the harassing and retaliatory acts by plaintiff's supervisor (e.g., "he hired plaintiff's employees without his input, restructured plaintiff's division, and announced the latter decision in a manner allegedly meant to disgrace him"), none of which were based on the rights of petition or free speech. (Id. at p. 624.)
Similarly, in the more recent decision in Nam, supra, 1 Cal.App.5th 1176, the core conduct at issue did not implicate defendant's petition or free speech rights. In Nam, while there was some allegedly protected activity (the defendant's disciplinary process and related communications), the gravamen of plaintiff's complaint focused on defendant's acts of "retaliation for her public challenge of department policies and her rejection of [a supervisor's] inappropriate overtures." (Id. at p. 1192.) Accordingly, the Court of Appeal affirmed the denial of defendant's anti-SLAPP motion because "the basis of [plaintiff's] claim, as in [DFEH, supra, 154 Cal.App.4th 1273] and Martin[, supra, 198 Cal.App.4th 611] was defendant's retaliation," not the defendant's exercise of its petition or free speech rights. (Nam, at p. 1193.)
B. The acts at issue arose out of protected activity
Section 425.16, subdivision (e) sets forth four categories of protected activity. Wayans contends that the conduct underlying Daniel's claims falls within section 425.16, subdivision (e)(3) and (4), which defines protected activity to include the following: "(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." As discussed below, we agree with Wayans.
1. The on-set comments and conduct
The allegedly harassing and offensive conduct and comments by Wayans on the set of A Haunted House 2 were made in furtherance of his constitutional right of free speech in connection with an issue of public interest. (§ 425.16, subd. (e)(4).)
a. Free speech
Although it is undisputed that the conduct and comments at issue were made on the set of A Haunted House 2, Daniel argues that they were not made in furtherance of Wayans's free speech rights because they occurred "during breaks, while no cameras were rolling." Daniel's argument is unavailing for several reasons.
First, Daniel's argument that the movie's creative process occurred only when the cameras were rolling rests on an unreasonably narrow or constrained view of the creative process generally. "As stated in a different
Second, Daniel's argument about the boundaries of the creative process for A Haunted House 2 — it only occurs on-set when the camera is rolling — is flatly contradicted by the undisputed testimony offered by Wayans, Pressly and Alvarez, who affirmed that the creative process for A Haunted House 2
The improvisational nature of the creative process for the movie is amply demonstrated in the widely varying dialogue that was used in the three outtakes and in the final version of the scene in which Daniel appears. In fact, Daniel's contention that Wayans's comments and conduct when the camera was rolling was completely divorced from his comments and conduct when the cameras were not rolling is flatly belied by those outtakes. For example, Daniel contends that during breaks when the cameras were not rolling Wayans made disparaging comments about Daniel's hair — "Throughout the day, at least ten times, Wayans called my hair an `Afro' and would start laughing." However, in one of the outtakes, Wayans's character commented repeatedly on the hair of Daniel's character, promising to get Daniel's character a "perm ... a nice moist [Jheri] curl"
Third, Daniel's argument is bereft of any supporting evidence. Daniel does not offer any testimony or documents rebutting the testimony by Wayans, Pressly, and Alvarez about the creative process for A Haunted House 2. There is, in other words, no evidence showing or even suggesting that the creative process for A Haunted House 2 ceased when the cameras stopped rolling.
b. Issue of public interest
Here, Wayans submitted evidence that the making of A Haunted House 2 was an issue of public interest. Wayans is a popular and prolific entertainer — since 1988, Wayans has acted in 21 films; since 1991, he has acted in 13 different television shows, specials, or movies; since 1992, he has written or co-written 16 different films and/or television movies or shows; and since 1996, he has produced or served as an executive producer of 13 different films and/or television movies or shows. The longevity and breadth of Wayans's career demonstrate continuing public interest in his work. In addition, many of Wayans's projects "involve making fun of pop culture, racial stereotypes, [and] current events," adding to the public's interest in his work. In light of Wayans's extensive body of work and the subject matter of that work, A Haunted House 2 falls easily within the anti-SLAPP statute's definition of an "issue of public interest."
The dissenting opinion describes a parade of horribles that the majority opinion would unleash. But these horribles are not before us. And in any case, we agree that the examples described by the dissent would not be in furtherance of the right of free speech. Here, we only hold that Wayans's conduct, including calling Daniel nigga during the creative process of molding a theatrical work is protected by free speech.
2. The Internet posting
The allegedly harassing and offensive Internet posting was a writing made in a place open to the public or a public forum and it was made in connection with an issue of public interest. (§ 425.16, subd. (e)(3).)
a. Statement made in a public forum
Here, both Daniel's and Wayans's declarations state that the juxtaposed pictures of Daniel and the Cleveland Brown cartoon figure and the accompanying caption were posted to Wayans's Twitter account, which had over a million followers. The Twitter account constitutes a publicly accessible social media forum. Indeed, according to Daniel's declaration, both he and his brother saw the Twitter post online. Accordingly, the Internet posting was a statement made in a public forum.
b. Issue of public interest
Although "not every Web site post involves a public issue" (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 [106 Cal.Rptr.3d 399]), the bar for an anti-SLAPP defendant to overcome is not a particularly demanding one. In Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941 [59 Cal.Rptr.3d 48], the mere listing of producer credits for a movie on defendant's website was found to be "an act in furtherance of the right of free speech protected under the anti-SLAPP statute." (Id. at p. 947.)
Here, the posting at issue references a Twitter account that had more than one million followers (and, per Wayans's declaration, an Instagram account)
Accordingly, advance information from Wayans about the making of A Haunted House 2, including a photo of someone acting in the film, constitutes a topic of public interest, even though Daniel himself may not have been known to the public.
IV. Step two: Daniel did not meet his burden
To show a probability of prevailing on his claims, "`the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.] ... [T]hough the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.'" (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714 [54 Cal.Rptr.3d 775, 151 P.3d 1185].) "`The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.'" (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017 [85 Cal.Rptr.3d 838].)
A. Racial harassment
Daniel relies upon Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 [129 Cal.Rptr.2d 923], for his assertion that "a single racial slur by a supervisor may also create a hostile work environment." (Id. at p. 36.) Dee involved much more than a single racial slur. The plaintiff's supervisor "called her a `bitch' and `constantly' used the word `asshole.' He berated her, `harassed' her, ordered her to lie and blamed her for tasks he ordered her to perform." (Id. at p. 37.) After the plaintiff complained to her supervisor about being asked to lie, the supervisor told the plaintiff that "`it is your Filipino understanding versus mine.'" (Ibid.) This comment was, as the Court of Appeal stated, "an ethnic slur, both abusive and hostile." (Ibid.) The court concluded that the evidence supported a reasonable inference that "the racial slur was not an isolated event" and that the supervisor "wished to intimidate [the plaintiff] so that she would not complain to higher management about his conduct." (Ibid.) The court did not hold, as Daniel asserts, that "a single racial slur by a supervisor may also create a hostile work environment." Although the Dee court made this statement, it preceded it with the phrase, "[i]n other jurisdictions." (Id. at p. 36, italics added, citing Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 675 (Rodgers).) Dee cannot be read as Daniel urges.
Daniel argues on appeal that "`It is beyond question that the use of the word "nigger" is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination. This word is "perhaps the most offensive and inflammatory racial slur in English, ... a word expressive of racial hatred and bigotry."'" We agree with our Supreme Court that although "`nigger' may once have been in common usage," it is now considered to be "particularly abusive and insulting ... as it pertains to the American Negro." (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, fn. 4 [86 Cal.Rptr. 88, 468 P.2d 216].)
Nigger, however, is not the term at issue here. Rather, the term at issue is nigga. As Daniel makes clear in his declaration opposing the motion, he was not called nigger by Wayans, but nigga. Nigga is not an unambiguous racial epithet in today's world, especially when used intraracially, as it was here. In fact, one noted legal scholar, Harvard Law professor, Randall Kennedy has
Wayans introduced evidence that nigga as used by him — generally and on the set of A Haunted House 2 — and as received by others working on the movie was not a racial slur, but a term of endearment. In rebuttal, Daniel stated that, regardless of how others found Wayans's use of the term, he found the term personally offensive when directed at him. But Daniel limited his rebuttal to only his subjective perspective. In other words, Daniel did not introduce any evidence showing that an objectively reasonable Black actor in his situation would also find the term offensive such that its usage would unreasonably interfere with his work performance. Under the law that is not a sufficient showing. (See Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588 [36 Cal.Rptr.3d 154] ["harassment must satisfy an objective and a subjective standard" (italics added)].)
Moreover, the evidence introduced below suggests the contrary to Daniel's claim — that is, a reasonable Black actor who voluntarily agreed to participate in a movie addressing racial stereotypes that was written, produced and
The doubts about Daniel's ability to prevail on his racial harassment claim are raised to a fatal level when he fails to mention, let alone discuss, how the use of the allegedly offensive language adversely affected him in his work for the movie and would have affected a reasonable Black actor's performance. Although Daniel states that Wayans's alleged harassment made him feel "self-conscious, insecure," "humiliated," and "embarrassed" while he was on the set, his declaration is completely and tellingly silent with regard to how Wayans's on-set comments and conduct adversely affected his work performance that day. None of the other declarants who were on the set that day — Wayans, Pressly, and Alvarez — observed Daniel having any trouble in performing his duties. None of the declarants, including Daniel himself, states, for example, that his scene had to be reshot and/or delayed in being shot because Daniel was plainly troubled by something that occurred when the cameras were not rolling and, as a result, he was unable to get into character and/or perform his role in an efficient and effective manner. The only reasonable conclusion that can be drawn from such silence is that the alleged racial harassment had no adverse effect on Daniel's work performance.
Daniel's claims for statutory and common law misappropriation of name and likeness (fifth and sixth causes of action) are based solely on the Internet posting. Daniel failed to meet his burden of showing a probability of prevailing with respect to these claims for two reasons: first, Daniel failed to overcome evidence that he waived his claims when he signed the voucher, which contained a broad release consenting to the use of his image in connection with the movie; second, even if Daniel did not release his claims or the voucher was inadmissible, Wayans's transformative use of Daniel's photograph established a complete defense.
1. The voucher
On appeal, Daniel makes two related arguments: (a) the trial court improperly overruled his objection to the voucher on authentication grounds; and (b) the voucher does not establish that the release runs in favor of Wayans. We do not find either argument to have merit.
a. The trial court did not err by overruling Daniel's authentication objection to the voucher
"Evidentiary challenges [on an anti-SLAPP motion] are reviewed only for abuse of discretion. [Citation.] As such, we will not overturn an evidentiary ruling on appeal unless `the trial court exceeded the bounds of reason, all of
Here, Wayans presented sufficient circumstantial evidence for the trial court to find that the document had been authenticated. As discussed above, the voucher was attached as an exhibit to Alvarez's declaration. The voucher indicates that the production or project name is "Dumb Ass Prod.," not A Haunted House 2. However, Alvarez stated in his declaration that the "production company for A Haunted House 2 was Dumb Ass Productions, which is why that company is listed on the [voucher]." (Italics omitted.) In addition, Alvarez indicated in his declaration that he was in a position to have personal knowledge of the corporate entities involved in the making of the movie, as well as the vouchers used with extras, such as Daniel, and Daniel's execution of the voucher. Alvarez states that as the coproducer of the movie he was responsible for "oversee[ing] the entire production." (Italics added.) In addition, Alvarez states he was "on the set the one day that Mr. Daniel was on the set and was present during the shooting of the scene in which Mr. Daniel appeared."
From the facts in Alvarez's declaration, it can be readily inferred that the voucher was a true and accurate copy of the document that Daniel signed allowing him to be present on the set of A Haunted House 2 and to work as an extra on that movie on September 4, 2013. (Daniel does not dispute that he signed the voucher or that the voucher contains his address, phone number and redacted social security number.) Accordingly, the trial court, considering all of the facts before it, did not exceed the bounds of reason by overruling Daniel's objection.
b. The voucher's release extends to Wayans
Daniel asserts that there is "nothing in this record to demonstrate that Wayans was entitled to the benefit of the contract between Daniel and Dumb Ass Productions." Daniel's assertion is incorrect. As discussed above, Alvarez states in his declaration that Dumb Ass Productions is the production company responsible for making A Haunted House 2. Both Alvarez and Wayans identify Wayans as one of the movie's coproducers. Those two undisputed facts are sufficient for purposes of an anti-SLAPP motion to show that the voucher's broad release includes Wayans.
2. Wayans's use of Daniel's image was transformative
In Comedy III, supra, 25 Cal.4th 387 and again in Winter, supra, 30 Cal.4th 881, our Supreme Court addressed the balance between an individual's right to control the commercial exploitation of his or her likeness or identity and the First Amendment right of free expression. (See Comedy III, at p. 400; Winter, at pp. 887-888.) In Comedy III, the court held a defendant may raise the First Amendment as an affirmative defense to an allegation of appropriation if the defendant's work "`adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message....'" (Comedy III, at p. 404.) In other words, the new work must contain significant "transformative elements." (Id. at pp. 406-407.)
Applying this test in Comedy III, supra, 25 Cal.4th 387, which involved drawings depicting The Three Stooges, and T-shirts made from those drawings, the court concluded the drawings and T-shirts were not entitled to First Amendment protection. The artist who created them, while highly skilled, contributed nothing other than a trivial variation that transformed the drawings from literal likenesses of the three actors. (Id. at pp. 408-409.)
The Supreme Court applied the transformative test again two years later in Winter, supra, 30 Cal.4th 881. In that case, the defendant published a series of comics featuring two half-worm, half-human characters based on singers Edgar and Johnny Winter. Both characters had long white hair and albino features similar to the Winter brothers, while one wore a hat similar to one often worn by Johnny Winter. (Id. at p. 886.) The Winter brothers sued for statutory appropriation and lost on summary judgment. The Court of Appeal affirmed in part, reversed in part, and remanded. The Supreme Court, however, granted review. Applying the transformative test, the court found for the defendants, holding that the comic depictions contained significant expressive content beyond the Winters' mere likenesses and were "entitled to First Amendment protection." (Id. at pp. 890, 892.) As the Supreme Court explained, the Winters were merely part of the raw material from which the comics' plot and characters were fashioned. In addition, the characters were distorted pictures of the Winters for the purpose of lampoon, parody or caricature. In short, and in stark contrast to the near literal depictions of the Three Stooges in Comedy III, supra, 25 Cal.4th 387, the comic book characters depicted were "fanciful, creative characters, not pictures of the Winter brothers." (Winter, at p. 892.)
Here, although Wayans used two unaltered images — one of Daniel and one of the Cleveland Brown character — his use of those images was nonetheless transformative. Wayans's use was transformative in the combination of the juxtaposed images with his commentary. That combination of images and arguably humorous commentary provided the Internet posting with an element of caricature, lampoon, or parody. It is this element that puts the
In sum, because the voucher was authenticated and because its release is not only broad but can reasonably be read to extend to Wayans, Daniel failed to show a probability of prevailing. Alternatively, even if the voucher had not been authenticated, or the evidence was insufficient to show that its release extended to Wayans, the Internet posting was a transformative use of Daniel's image and, as a result, Wayans has an affirmative defense to Daniel's misappropriation claims. In light of the voucher's release and the Internet posting's transformative use, the trial court properly struck the misappropriation claims.
C. False light
"In determining whether a statement is libelous we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communication." (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803 [163 Cal.Rptr. 628, 608 P.2d 716].) "`"[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication ... he may be held responsible for the defamatory implication, ... even though the particular facts are correct."'" (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1003, fn. 10 [283 Cal.Rptr. 644].) A court examines the totality of the circumstances, including the context in which the statement was made. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261 [228 Cal.Rptr. 206, 721 P.2d 87].) Opinions are constitutionally protected and cannot form the basis of a defamation-type claim. (Id. at p. 260.) Whether a statement constitutes a statement of fact or opinion is a question of law. (Ibid.) "In making such a determination, the court must place
Here, the Internet posting referred only to Daniel's physical resemblance to the Cleveland Brown cartoon character. It twice expressly referred to how Daniel looked. It did not insinuate or imply that Daniel shared any personality characteristics or, as Daniel argues, "suggest[ ] that Daniel is a real-life incarnation of the cartoon figure." Moreover, it was a combination of an expression of an opinion by Wayans that Daniel looked like Cleveland Brown and an accurate photographic comparison. Accordingly, Daniel did not show a probability of prevailing on his false light claim, and the trial court properly struck it.
Daniel's quasi-contract claim (eighth cause of action) is based solely on the Internet posting. According to the complaint, Wayans obtained an improper "benefit" from using Daniel's likeness in the Internet posting. The Internet posting, according to the complaint, was improper because the photograph of Daniel used in that posting was taken "without [his] consent."
Here, there was a valid express contract covering the use of Daniel's photograph in connection with A Haunted House 2: the voucher. By signing the voucher, Daniel not only gave Wayans the right to use his photograph "in any manner whatsoever and for any reason" in connection with the movie, but also acknowledged that the wages he received for his work on the movie were "payment in full" — that is, he is not entitled to any other payment,
E. Unjust enrichment
Like his quasi-contract claim, Daniel's claim for unjust enrichment is based solely on the Internet posting. Technically, "[u]njust enrichment is not a cause of action, ... or even a remedy"; it is instead a principle or state "describing `"the result of a failure to make restitution."'" (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 [20 Cal.Rptr.3d 115].) However, because this appeal concerns an anti-SLAPP motion, we disregard how a plaintiff may have styled or labeled a particular cause of action and focus instead on the claim's merits. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272 [99 Cal.Rptr.3d 805].)
Second, and more substantively, Daniel's unjust enrichment claim suffers from many of the same problems that bedevil his quasi-contract claim: Daniel (1) was hired as a nonspeaking extra in a one day role; (2) was paid in full for his services; (3) acknowledged in writing that he received "payment in full"; and (4) released any right to any use of his image in connection with the promotion of A Haunted House 2. Consequently, Daniel failed to show a probability of prevailing on his quasi-contract claim, and the trial court properly struck it.
F. Intentional infliction of emotional distress
Daniel's claim for the intentional infliction of emotional distress is based on both the on-set comments and conduct and the Internet posting.
Here, the allegedly outrageous conduct consisted of a number of boorish and/or juvenile comments about Daniel's physical appearance, the use of the term nigga, which in contemporary usage may or may not be a term of endearment among African-Americans depending on the circumstances, and an arguably comic juxtaposition of photographs on the Internet. Although Daniel may have found such conduct hurtful, under all the circumstances Wayans's conduct was not so extreme as to exceed all bounds of that usually tolerated in a civilized community. Rather, the alleged misconduct falls more in the category of insults, indignities, annoyances, and petty oppressions. Accordingly, the trial court properly struck this claim.
V. Attorney fees award
The trial court, pursuant to section 425.16, subdivision (c), awarded Wayans his attorney fees as the prevailing party. Daniel does not challenge the amount of those fees. Instead, his challenge to those fees is a global one — that is, Wayans was not entitled to those fees because his anti-SLAPP motion should not have been granted. Because we hold that the trial court properly granted Wayans's anti-SLAPP motion, we further hold that the award of attorney fees was proper.
The judgment and order granting the anti-SLAPP motion and dismissing the complaint are affirmed. The order granting Marlon Wayans's attorney fees is also affirmed. Marlon Wayans is awarded his costs on appeal.
Rothschild, P. J., concurred.
LUI, J., Concurring and Dissenting.
Although I agree with the majority on some of its analysis, I disagree with the majority's conclusions concerning both the scope of the creative process and the scope of the release that appellant Pierre Daniel (Daniel) signed. I also believe that Daniel demonstrated a reasonable probability that he would prevail on his cause of action
Because this is an appeal from an order granting an anti-SLAPP motion, we must accept the "plaintiff's evidence as true." (Baral v. Schnitt (2016) 1 Cal.5th 376, 385 [205 Cal.Rptr.3d 475, 376 P.3d 604] (Baral).) We evaluate the defendant's showing "only to determine if it defeats the plaintiff's claim as a matter of law." (Ibid.) Under that standard, we are faced with the following facts.
Daniel was hired for one day as an extra on a movie, A Haunted House 2. While on the set, when no filming was occurring, the producer, cowriter and star of the movie, Wayans, repeatedly called Daniel "`nigga'" and a "`black fat ass,'" mocked him for his "`Afro'" hairstyle, approached Daniel while sneering, leering and rolling his eyes, compared Daniel to an unflattering character (Cleveland Brown) in the animated series Family Guy, and generally treated him in a demeaning and abusive manner. Daniel had no prior relationship with Wayans and did not participate in this insulting conduct that Wayans characterized as "joking." Indeed, he testified that he walked away.
The insulting conduct was not limited to the set. Without Daniel's permission, Wayans took Daniel's picture on Wayans's cell phone. Wayans posted the picture on his personal Twitter account next to a picture of the Cleveland Brown animated character with a caption comparing "`this nigga'" (Daniel) to "`THIS NIGGA'" (Cleveland Brown). Many people saw the pictures, resulting in repeated embarrassing questions as to whether Daniel is the "`Cleveland Brown'" character from Wayans's post.
1. Wayans's on-set conduct, as alleged, was not in furtherance of his constitutional right to free speech
The majority concludes that Wayans's alleged on-set conduct was protected under the anti-SLAPP statute because it was part of the creative process of making the movie. (Code Civ. Proc., § 425.16, subd. (e)(4).)
The problem with this analysis is that Daniel did not willingly participate in this creative process. Under Daniel's version of events — which we must
The humor was racially charged. We have no reason to question Wayans's claim that he commonly uses the term "`nigga'" as a term of endearment with friends of all races. But it hardly stretches credibility when Daniel claims that the use of such an historically fraught term offended and insulted him.
Daniel's claim that the conduct at issue here was specifically directed at him creates a critical difference between the facts of this case and the facts in Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264 [42 Cal.Rptr.3d 2, 132 P.3d 211] (Lyle), which the majority suggests provides "insights about the creative process for developing a somewhat raunchy comedy." (Maj. opn. ante, at p. 384, fn. 2.) In Lyle, a former comedy assistant on the television show Friends brought a claim for sexual harassment based upon sexually explicit language that the male writers used. In affirming summary judgment, our Supreme Court was careful to note that the record showed that the sexual antics and discussions at issue "did not involve and were not aimed at plaintiff or any other female employee." (Lyle, at p. 287.) Here, the conduct at issue was allegedly aimed at Daniel.
In his concurring opinion in Lyle, Justice Chin explained that protection of the creative process is particularly important in lawsuits that are "directed at restricting the creative process in a workplace whose very business is speech related." (Lyle, supra, 38 Cal.4th at p. 297 (conc. opn. of Chin, J.).) But he also concluded that, "[j]ust as criminal threats are not protected, just as no
The record in this case supports such a limit. Wayans did not claim that offensive conduct targeting a particular person is part of his creative process. Rather, he testified that Daniel was "laughing and joking" along with the rest of the cast and claimed that Daniel never objected or suggested that "he was uncomfortable in any way with the joke."
There are no discernible limits to the conduct that would be protected under the majority's interpretation of the creative process. What if, for example, a producer/writer/actor claimed that he needed to inspire his creative muse by repeatedly using racial epithets toward and mocking the appearance of a caterer who happened to be near the set? Or what if he engaged in unwanted sexual conduct with a female extra during a lunch break as a way to try out a new joke? Or parodied a disabled production assistant? Under the majority's analysis, it seems that a writer or actor has free rein to insult and degrade others so long as he or she claims that it somehow helps him or her to make movies.
True, victims of such conduct might get past an anti-SLAPP motion if they manage to convince a court that they will probably succeed on their claims. But requiring them to make such a showing before they have even had an opportunity for discovery is an unwarranted extension of the prelitigation screening authorized by the anti-SLAPP statute and stretches the definition of conduct that is "in furtherance of" the constitutional right of free speech beyond any reasonable bound. (§ 425.16, subd. (e)(4).)
I recognize, of course, that the anti-SLAPP statute is to be broadly construed and that to prevail on an anti-SLAPP motion a defendant need not
However, in considering how far to extend the definition of the creative process for purposes of anti-SLAPP protection, it is appropriate to consider the stated legislative purpose of the anti-SLAPP statute, which is to address "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a); see Nam, supra, 1 Cal.App.5th at pp. 1189, 1193.) The record of this case does not suggest that permitting a lawsuit by an extra for racially offensive conduct directed toward him on the set would have any effect on the content of movies or the creative process for making them. While improvisation and racially tinged bantering might be a part of Wayans's creative process, there is no reason to believe that this process must include conduct amounting to racial harassment of a subordinate employee. To the contrary: As discussed above, Wayans's evidence showed that his typical creative process was intended to be collaborative and to make sure that no one is made to feel uncomfortable.
On the other hand, extending the definition of the creative process to encompass such conduct does threaten to chill meritorious lawsuits with the prospect of losing an anti-SLAPP motion. Individuals such as Daniel — who is hardly an "economic powerhouse" in the hierarchy of Hollywood — are far more likely to be intimidated by the possibility of a substantial attorney fee award than they are to file suit for the purpose of intimidation. (See Nam, supra, 1 Cal.App.5th at pp. 1188-1189 [anti-SLAPP law "was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award"].)
In concluding that the conduct at issue here — alleged racially offensive and degrading comments specifically aimed at Daniel — should not be considered in furtherance of constitutionally protected free speech, I do not suggest that the trial court should have evaluated the merits of Daniel's racial harassment claim as part of the first step in the SLAPP analysis. The relevant distinction
Therefore, I would hold that, with respect to Wayans's alleged on-set conduct, Wayans failed to prove the first step of his anti-SLAPP motion. The alleged conduct was not in furtherance of his constitutional right of free speech, and the trial court should have permitted Daniel's claim for racial harassment to proceed with respect to such conduct. For the same reason, the trial court should have permitted Daniel's 10th cause of action for intentional infliction of emotional distress to proceed with respect to Wayans's alleged on-set conduct.
2. Wayans failed to provide evidence sufficient to show that the scope of Daniel's release extended to Wayans's Internet posting
I agree with the majority that the "allegedly harassing and offensive Internet posting was a writing made in a place open to the public or a public forum and it was made in connection with an issue of public interest." (Maj. opn. ante, at p. 387; see § 425.16, subd. (e)(3).) The trial court therefore properly concluded that Wayans met his burden with respect to the first step of the SLAPP analysis with respect to the Internet posting.
However, I disagree with the majority's analysis of the second step of the anti-SLAPP inquiry concerning the merits of Daniel's claims. The majority accepts Wayans's argument that Daniel executed a broad union voucher that precludes his claims for statutory and common law misappropriation of likeness (Daniel's fifth and sixth causes of action) and for implied contract and unjust enrichment (Daniel's eighth and ninth causes of action). In my view, Wayans did not meet his burden to show that the scope of the consent that Daniel provided in the voucher extended to Wayans's Internet posting.
Wayans's only evidence concerning the scope of the union voucher was the voucher itself and two sentences in a declaration submitted by a producer and cowriter of A Haunted House 2, Rick Alvarez. The Alvarez declaration purports to identify the voucher as a "Standard Union Voucher" that Daniel signed, and states that "Dumb Ass Productions" was a production company for A Haunted House 2, "which is why that company is listed on the Standard Union Voucher."
The voucher, which bears the signature "Pierre Daniel," grants to the "Production Company of The Production, its successors, assignees, licensees
I do not believe that this evidence is sufficient as a matter of law to overcome Daniel's testimony that Wayans did not have his consent to take his picture and to post it on the Internet. (Baral, supra, 1 Cal.5th at p. 385 [defendant's showing must "defeat the plaintiff's claim as a matter of law"].) The record does not establish that the consent in the voucher (1) applied to Wayans or (2) applied to the use that Wayans made of it.
The majority concludes that Wayans was entitled to the benefit of the release because there was evidence that Dumb Ass Productions was a production company for A Haunted House 2 and Wayans was a coproducer of the movie. (Maj. opn. ante, at p. 395.) But there was no evidence of any connection between Wayans and Dumb Ass Productions, which is the only entity identified on the voucher. Thus, there is insufficient evidence to show that Wayans either was acting on behalf of Dumb Ass Productions in making the Internet post or was one of the "successors, assignees, licensees" of Dumb Ass Productions or a person with rights to the production.
There was also insufficient evidence to establish that Wayans was acting "in connection with The Production" in making that post. Wayans made the post to his own Twitter account. The only connection to A Haunted House 2 was a link to the movie's Twitter and Instagram pages, which Wayans included along with a link to his own website. Wayans's declaration does not address why he made the post. According to Daniel, Wayans took Daniel's picture on Wayans's cell phone without Daniel's knowledge or permission during a break. There is a difference between photography done for the purpose of filming and photography allegedly done during a break on a personal device for the purpose of posting on a personal Twitter account. Without more evidence to show that Wayans's particular use of Daniel's picture was "in connection with The Production" as contemplated by the standard release in the union voucher, I would not preclude Daniel's claim as a matter of law.
I am also not persuaded that Wayans's Internet post was a "transformative use" of Daniel's likeness as a matter of law. The Internet post in issue in this case contained no significant transformative elements. Wayans used Daniel's
3. Daniel demonstrated a reasonable probability that he would succeed on his claim for intentional infliction of emotional distress
Because I conclude that Wayans's Internet posting was protected free speech under the anti-SLAPP statute, it is necessary to consider whether Daniel showed that he had a reasonable probability of prevailing on his claim that the Internet post referring to him as "nigga" and comparing his picture to the picture of Cleveland Brown amounted to intentional infliction of emotional distress.
The majority finds that Wayans's alleged conduct, including the Internet post, "was not so extreme as to exceed all bounds of that usually tolerated in a civilized community," but was "more in the category of insults, indignities, annoyances, and petty oppressions." (Maj. opn. ante, at p. 400.) For the reasons discussed earlier, I disagree that Wayans's use of the term "nigga" in his post to refer to Daniel was not extreme as a matter of law. Again, context is important. Daniel saw the post after a day in which he claims Wayans subjected him to in-person racial harassment and demeaning treatment. If, as he claims, he was the target of racial insults by Wayans previously, it was reasonable to expect that he would react to the term "nigga" in the Internet post as more of the same. It was also highly foreseeable that Wayans's comparison of Daniel to an unflattering African-American animated character on Wayans's personal Twitter account — which he testified had over a million followers — could cause extreme distress. Daniel testified that it did, claiming that he lost sleep and was apprehensive about going out in public. Wayans's post has been reposted and could easily be viewable for years.
California courts have repeatedly held that the use of racial epithets can support a cause of action for intentional infliction of emotional distress.
Accordingly, I would reverse the judgment and the order granting the anti-SLAPP motion and dismissing the complaint and direct the trial court to enter a new order partially granting the anti-SLAPP motion and striking the false light and Unruh Civil Rights Act (Civ. Code, § 51 et seq.) causes of action in their entirety and paragraph 9(h) of the racial harassment claim.
Based on the testimony of Wayans, Pressly and Alvarez about the improvisational creative process used for the making of A Haunted House 2 — an adult-oriented, R-rated feature-length comedy featuring race-based humor — it is not surprising or unreasonable that terms such as nigga, nigger and niggie, which were used dozens of times in the final version of the movie, were also used by the cast and writers as they brainstormed ideas for the script while on-set but in between the filming of scenes (i.e., "during breaks, while no cameras were rolling").
In short, the creative process should not be confined, as Daniel argues, to a fixed place or point in time (i.e., only when the cameras are rolling). To borrow from Ernest Hemingway, the creative process, depending on the circumstances, may well be a movable feast.
The key fact for our purposes here is that in contemporary usage nigga is not an unambiguous racial epithet, but a term which can have a number of different meanings when used by different people in different contexts. The highly ambiguous/context-specific nature of the term nigga is captured by Dictionary.com: "Nigga is used mainly among African Americans, but also among other minorities and ethnicities, in a neutral or familiar way and as a friendly term of address. It is also common in rap music. However, nigga is taken to be extremely offensive when used by outsiders. Many people consider this word to be equally as offensive as nigger." (<http://www.dictionary.com/browse/nigga?s=t> [as of Feb. 9, 2017]).
To borrow from and paraphrase Professor Kennedy, "[m]ore vividly than most words, then [nigga] illustrates Justice Oliver Wendell Holmes's observation, that `a word is not a crystal, transparent and unchanged, ... [it is] the skin of a living thought [and] may vary greatly in color and content according to the circumstances and the time in which it is used.'" (Kennedy, Nigger: The Strange Career of a Troublesome Word, supra, at p. 55.)