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SAGAN v. APPLE COMPUTER, INC.
874 F.Supp. 1072 (1994)
United States District Court, C.D. California.
June 27, 1994.
Standard Rule 12(f) provides that a court may order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter." "`Redundant' matter consists of allegations that constitute a needless repetition of other averments." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 704 (1990). The motion may be denied "if the redundancy consists only of alleging specifically that which has been alleged generally in other paragraphs, or if there is any doubt whether pleaded material is redundant and some party may be prejudiced by striking it." Wright & Miller at 706. Moreover, if the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied and the sufficiency of the allegations left for adjudication on the merits. Wright & Miller at 700; see also United States v. 729.773 Acres of Land, Etc.,531 F.Supp. 967, 971 (D.Haw.1982) ("A motion to strike is a severe measure and it is generally viewed with disfavor."). Furthermore, a court should keep in mind that the function of a Rule 12(f) motion to strike is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, Inc. v. Fogerty,984 F.2d 1524, 1527 (9th Cir.1993) (citing Sidney-Vinstein v. A.H. Robins Co.,697 F.2d 880, 885 (9th Cir.1983)). Defendant argues that under California law, the right of publicity (the appropriation, for the defendant's commercial advantage, of plaintiff's name or likeness) is the same as the right of privacy. As a result, Plaintiff may assert different theories of relief, but they must be maintained under one claim. In Lugosi v. Universal Pictures,25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (1979), the California Supreme Court recognized Dean Prosser's identification of the four torts comprising the law of privacy: (1) "Intrusion" upon the plaintiff's seclusion or solitude or into his private affairs, (2) Public disclosure of embarrassing "private facts," (3) Publicity which places the plaintiff in a "false light," and (4) "Appropriation," for the defendant's advantage, of the plaintiff's name or likeness. Id. at 819, 160 Cal.Rptr. 323, 603 P.2d 425. The Court stated that the right of publicity is at the heart of the law of privacy. Id. at 824, 160 Cal.Rptr. 323, 603 P.2d 425. Therefore, the Court impliedly held that the protection of the right of publicity emanates from the misappropriation branch of the law of privacy. Later, in Dora v. Frontline Video, Inc.,15 Cal.App.4th 536, 18 Cal.Rptr.2d 790 (1993), the California Court of Appeal recognized that the misappropriation branch of the law of privacy has two aspects:
1. Sagan attempts to introduce a newspaper article containing the alleged defamatory statement. (Memorandum in Opposition to Defendant's Motion to Dismiss, Exhibit A.) However, this Court's analysis is limited to the four corners of the complaint. Nevertheless, consideration of the article would not help Sagan's position. Sagan asserts that the article implies facts which are capable of being proven false. If this is true, then Sagan's action lies against the publisher of the article, and not Defendant herein. 2. Although Milkovich limits Ault in other ways, it does not upset this portion of the Ault ruling. 3. This would explain the quotation marks Plaintiff places around the words "code name" in Paragraphs 11 and 12 — i.e., Plaintiff was simply quoting what he had been told. 4. See also Eastwood v. Superior Court,149 Cal.App.3d 409, 416, 198 Cal.Rptr. 342 (1983) (cause of action for common law commercial appropriation of right of publicity rested on appropriation branch of law of privacy).
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