SAGAN v. APPLE COMPUTER, INC.
874 F.Supp. 1072 (1994)
United States District Court, C.D. California.
June 27, 1994.
The first type of appropriation is the right of publicity, as was at issue in Lugosi, which is `in essence that the reaction of the public to name and likeness, which may be fortuitous or which may be managed or planned, endows the name and likeness of the person involved with commercially exploitable opportunities.' [citations omitted.] The other is the appropriation of the name and likeness that brings injury to the feelings, that concerns one's own peace of mind, and that is mental and subjective. [citations omitted.]
Dora, 15 Cal.App.4th at 541-42, 18 Cal.Rptr.2d 790. Thus, Plaintiff's fourth and fifth causes of action are brought under a single tort which affords two separate types of relief.4 Plaintiff's fourth cause of action affords relief in the form of economic damages, while the fifth affords relief in the form of emotive damages. Plaintiff asks for both types of damages under both causes of action.
Defendant seeks to strike the fifth cause of action as being redundant. Although Rule 12(f) provides that a court may order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter," such a 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.
Although the fifth cause of action makes allegations which are redundant with allegations made in the fourth cause of action, such a redundancy does not act to prejudice Defendant in any way. Furthermore, the fifth cause of action is not redundant to the extent that it requests punitive damages. Therefore, rather than striking the fifth cause of action, the Court will simply deem that the fourth and fifth causes of action state a single cause of action for common law misappropriation.
Therefore, the Court hereby ORDERS that Defendant's motion to strike is DENIED, and that Plaintiff's fourth and fifth causes of action are consolidated into a single cause of action for common law misappropriation.
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).