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Superior Court of California
County of Los Angeles

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Sherri R. Carter, Exe Mire Q ,icer/Clerk

By----

Deputy
~,.Y!(Janno

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

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Plaintiff,

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Case No.: BC555610

DANIEL,

RULING RE SUBMITTED MATTER

vs.
ICM, etc., et al.,
Hearing date:

12/11/14

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Defendants

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Counsel for defendant/moving party Marlon Wayans:

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Celeste Brecht (Venable)

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Counsel for plaintiff/opposing party:

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Alisa Khousadian (Reimer, etc.)

William Briggs;

Adam Reimer; Tessa King;

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Defendant Wayans' special motion to strike complaint (CCP ~

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425.16), filed 11/5/14; hearing date 12/11/14.

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Defendant Wayans seeks an order striking the eight causes of

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action (1St and 4th through 10th) alleged against him.

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

RULING RE SUBMITTED MATTER

Having read and considered the moving and opposing papers, heard

argument, and having taken the matter under submission, the court

now rules as follows:

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Evidentiary rulings:

Plaintiff's objections to defendant's evidence:

#14, 25.

Defendant's objections to plaintiff's evidence:

Sustained as to

Overrule all others.

Sustained.

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Defendant Wayans' motion to strike is GRANTED as to each

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challenged cause of action against Wayans, namely, the lst and 4tn

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through 10th causes of action.

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causes of action against Wayans, the complaint against Wayans is

There being no other surviving

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DISCUSSION

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Timeliness

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Plaintiff's "amended objection" (filed 12/2/14) is based on a

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hearing scheduled beyond the 30-day period under CCP 425.16(f).

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This objection is overruled.

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is given by court staff as soon as practicable.

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caseload and heavily congested motion calendar, despite daily law

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...and motion settings, the very slight delay here of six days is not

Motion date availability in Dept. 73

Given the court's

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an issue for the court and certainly not a sufficient ground to

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deny a hearing on the motion.

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

Continuance request

By his ex parte application filed on 11/21/14, plaintiff sought an

order continuing the motion and authorizing limited discovery to

conduct three depositions, including inquiries into the "standard

union voucher" defendant submitted (Ex. A to Alvarez' declaration)

and Wayans' alleged nondisclosure agreement.

requests without prejudice.

good cause to reconsider the ruling denying these requests.

voucher applies in Wayans' favor given his various roles in the

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production of the film and any nondisclosure agreement he might

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have would not change the result as against this plaintiff.

The court denied the

Given the rulings below, there is no

The

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CCP ~ 425.16

`requires that a court engage in a two-step process

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when determining whether a defendant's anti-SLAPP motion should be

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granted.'

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the defendant has made a threshold showing that the challenged

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cause of action is one arising from protected activity.

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[Citation.] "A defendant meets this burden by demonstrating that

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the act underlying the plaintiff's cause [of actions fits one of

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the categories spelled out in section 425.16, subdivision (e)"

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[citation].' [Citation.] ... [y[] If the defendant makes this

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showing, the court proceeds to the second step of the anti-SLAPP

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analysis. [Citation.] In the second step, the court decides

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whether the plaintiff has demonstrated a reasonable probability of

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prevailing at trial on the merits of its challenged causes of

(Citation omitted.)

`First the court decides whether

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

RULING RE SUBMITTED MATTER

action. [Citations.] [~] Conversely, if the defendant does not

meet its burden on the first step, the court should deny the

motion and need not address the second step. [Citation.]"

(Citation omitted.)"

Hunter v. CBS Broadcasting (2013) 221 Cal.App.4th 1510, 1519

(italics added).

prongs of the anti-SLAPP statutei.e., that arises from protected

speech or petitioning and lacks even minimal meritis a SLAPP,

subject to being stricken under the statute."

~~Only a cause of action that satisfies both

Navellier v.

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Sletten (2002) 29 Cal.4th 82, 89 (Italics omitted).

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//

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//

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

RULING RE SUBMITTED MATTER

1
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First Prong - Protected Activity

Defendant Marlon Wayans' motion to strike contends, at 6:26-

7:1, that plaintiff's claims against him are based on activity

that qualifies for protection under the anti-SLAPP statute's

"public forum-public interest" statement, i.e., "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."

(CCP 425.16(e)(3) ).

on (e)(4) as well, i.e., "any other conduct in furtherance of the

In his reply (filed 12/4/14), Wayans relies

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exercise of the constitutional right of petition or the

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constitutional right of free speech in connection with a public

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issue or an issue of public interest."

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The motion contends that the protected conduct involves

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Wayans' Internet (via Twitter) "post to social networking sites

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humorously comparing Daniel to the popular cartoon character

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Cleveland Brown."

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further contends that other acts and conduct (e.g., racial

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harassment in the FEHA 1 St cause of action) are involved.

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Although defendant acknowledges that plaintiff describes other

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conduct by Wayans that may not be protected, defendant relies on

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the protections extended to such conduct "if the gravamen or

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principal thrust of the claim is protected activity" (7:26-28,

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fn.1, citations omitted).

(7:1-2, footnote omitted.)

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

However, plaintiff

Having considered the admissible evidence from both sides,

including the transcripts and the viewing of actual film footage,

the court finds that the entirety of the claimed conduct meets th.e

first prong of the anti-SLAPP analysis, fulfilling defendant

Wayans' burden to show all of his statements and conduct are

protected activity under paragraphs 3 and 4 of subdivision (e) of

the anti-SLAPP statute.

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In determining the applicability of CCP 425.16 to the myriad'.

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of factual situations presented in anti-SLAPP cases, courts should

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look at the "principal thrust or gravamen" of a plaintiff's

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claims.

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Notwithstanding his 43-page complaint and declarations in

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opposition, plaintiff's claims ignore the holdings in recent cases

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which make it clear that even where FEHA violations are alleged,

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so long as the protected activity was "not incidental" to the FEHA

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claims, the discrimination claims which constitute the "very

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conduct" on which such claims are based, are still subject to

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anti-SLAPP protections.

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Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257.

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Hunter, where "all of the allegations underlying Hunter's

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discrimination claims relate to the allegedly unlawful manner in

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which CBS selected its weather anchors" (Hunter, supra, at 1521),

Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.

Hunter, supra, at 1522-1525, citing

Just as in

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made in connection with his one-day participation in the filming

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of the movie, ultimately distilled to his five seconds of film

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

G~
RULING RE SUBMITTED MATTER

Wayans' actions and conduct, particularly the decision to

time.

compare plaintiff to, and eventually name him as, the Cleveland

cartoon character, were not simply incidental to plaintiff's

claims, but comprise the "very conduct" upon which plaintiff's

claims are based.

Hunter, supra, at 1525.

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Wayans has shown that plaintiff's role was limited as an

extra to one day's work as a non-speaking furniture mover in an R.-

rated comedy that lived up (or down) to its rating, complete with.

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trashy, raunchy, racist, and offensive humor.

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body of work that deals with racial humor, among others, has also

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shown that the comedy depended on the artists' creativity based on

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improvisation that is encouraged and occurs spontaneously on the

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set.

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cameras were not rolling.

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plaintiff as shown in the outtakes and final version is a prime

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example of the improvisational ad lib process.

Wayans, who has a

The creative process was ongoing and continued even when the
The evolution of the scene involving

The "Cleveland"

18 (character was born precisely from that process, using a name and
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20 (him by that name sometime that day before the cameras began to
The name was not chosen accidentally, but was based on

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roll.

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Wayans' noticing plaintiff's physical similarities with the

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cartoon character.

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the names of Cleveland and Cleveland Brown both on and off camera.

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It is undisputed that plaintiff willingly answered to Cleveland

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and Cleveland Brown and took direction from those in a position to

It is undisputed that plaintiff was called by

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

(give directions (including Wayans) while so addressed.

It is

undisputed that plaintiff's brief role and purpose in the film was

limited to his character, which developed eventually as the

comical Cleveland Brown character.

like plaintiff, obviously black, heavy (plaintiff's role cast him

as a heavy-set furniture mover strong enough to move and lift the

safe that flattened the dog), with curly "Afro" hair (hence, the

perm and Jheri curl jokes), were all incorporated humorously into

the filming of the scene involving Wayans, his dog, and plaintiff.

The Cleveland Brown character,

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Indeed, plaintiff fulfilled his role as an extra.

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and film clips show that plaintiff's concerns regarding Wayans'

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statements and conduct were part of the improvisational humor that

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was important to the creative process and should have come as no

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surprise to plaintiff as a participant in that process.

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from the photograph consent issue (discussed below in connection

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with the 5th and 6th causes of action), Wayans' single Twitter post

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The transcripts

Apart

~of plaintiff's photo alongside the Cleveland Brown cartoon

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media links to the film itself ("ahhmovie2") and even a separate

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reference to Wayans' own website "whatthefunny" (CCP 425.17(d)(2j)

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falls well within the ambit of the humor emanating from

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plaintiff's role in the film and its promotion.

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Despite the above circumstances, plaintiff claims the case is

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about "a FEHA violation premised upon Wayans' race harassment,

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including posting a picture of Daniel that refers to him as a

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

RULING RE SUBMITTED MATTER

(Open. 4:19-21).

`nigga.'

Although not mentioned in his

complaint, it cannot be disputed that Wayans, like plaintiff, is

African-American.

calling him a "black fat ass," "nigga"

times," and referring to his hair as an "Afro," all the while

evoking laughter from other individuals.

9[gI7, 9, 10, 11, 12)

it is inescapable that the principal thrust or gravamen of his

claims fall within activity protected by Wayans' rights of free

Plaintiff's declaration also refers to Wayans'

"at least three to four

(Daniels decl.

Even construing plaintiff's evidence liberally,

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speech in the context of the production of this type of film.

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is undisputed that the statements and actions were made in

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"furtherance of the constitutional right of free speech" under

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(e)(4).

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of free speech"

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or assist in the creation, casting, and broadcasting"

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CBS (2011) 193 Ca1.App.4 th 133, 143), the creation of the

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Cleveland character through plaintiff, and all positive or

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negative statements and conduct that may arguably come with it,

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was part of the improvisational humor, both on and off camera that

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advanced or assisted the exercise of free speech.

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supra, at 1521, citing Tamkin, supra, at 143.

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complaints about conduct occurring during breaks and throughout

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the filming day implicate Wayans' free speech rights under (e)(4)

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which qualify as a form of protected activity as the statute

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should be broadly construed.

Just as the "creation of a television show is an exercise

and where the "defendants' acts helped to advance

CCP 425.16(a)

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

It

RULING RE SUBMITTED MATTER

(Tamkin v.

Cf. Hunter,

Thus, plaintiff's

Wayans' posting of the photo occurred via social media over the

Internet, a public forum under (e)(3).

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The remaining issue concerns the "public issue" or "public

interest" requirement, as they appear in (e)(3) and (4).

425.16 does not define `public interest' or `public issue.' Those

terms are inherently amorphous and thus do not lend themselves to

a precise, all-encompassing definition." Cross v. Cooper (2011)

197 Cal. App. 4th 357, 371.

"Section

In the court's view these are easily

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met by Wayans' linking plaintiff's specific role in the film to

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the Cleveland Brown character (an existing cartoon character in

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whom there was already an existing public interest- e.g., "I hope

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the Cleveland Brown show gets another season") and to the public's

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interest in Wayans' work, the movie sequel, and issues relating to

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race, stereotypes, and the like.

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became the focus of certain statements and conduct is unfortunate,

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but well within the protections intended by the anti-SLAPP

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statute.

That plaintiff, as an extra,

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Defendant Wayans has met his burden under the protected

activity prong of the anti-SLAPP statute.

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Second Prong - Probability of Success on the Merits

Once a defendant has established that the anti-SLAPP statute

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applies, the burden shifts to the plaintiff to demonstrate a

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"probability" of success on the merits.

CCP ~ 425.16(b);

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

Equilon

Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.

"[T]he 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."

40 Cal.App.4th 539, 548 (internal quotations omitted).

evidentiary showing by the plaintiff must be made by competent and

admissible evidence.

District (2007) 149 Ca1.App.4th 1424, 1444.

Matson v. Dvorak (1995)

The

Morrow v. Los Angeles Unified School

"We decide the second

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step of the anti-SLAPP analysis on consideration of `the pleadings

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and supporting and opposing affidavits stating the facts upon

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,which the liability or defense is based.'

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',Looking at those affidavits, `[w]e do not weigh credibility, nor

( 425.16, subd. (b)).

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do we evaluate the weight of the evidence.

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true all evidence favorable to the plaintiff and assess the

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defendant's evidence only to determine if it defeats the

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plaintiff's submission as a matter of law.'

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That is the setting in which we determine whether plaintiff has

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met the required showing, a showing that is `not high.'

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[Citation.]" Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989.

Instead, we accept as

[Citation.]

[~]

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1S
t cause of action- Race/national origin harassment in employment.

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(Govt. Code 12940, et sea):

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Plaintiff has not shown that the various statements and actions

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attributed to Wayans unreasonably interfered with his work

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performance by creating an intimidating, hostile, or offensive

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

Thompson v. City of Monrovia (2010) 186

work environment.

Cal.App.4th 860, 876.

"sufficiently severe or pervasive to alter the conditions of

[plaintiff's] employment and create an abusive working

environment."

397, 409.

this cause of action.

The alleged harassment was not

Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App,4 tr'

Plaintiff has not shown a probability of success on

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4t
h cause of action-Unruh Act violation (Civil Code 51, et seq.):

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Plaintiff alleges the same conduct relied on in the 15t cause of

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action. (~78) He alleges defendants "denied; discriminated, and/or

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made a distinction that denied full and equal accommodations,

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advantages, facilities, privileges, and/or services to Plaintiff."

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(~75)

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and where treatment is unequal, based upon race, color, and

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ancestry, among other protected classifications.

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Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 523, 527.)

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Unruh Act does not apply to employment. Rojo v. Kliger (1990) 52

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Cal. 3d 65.

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Plaintiff would not succeed on these allegations.

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concern, not the denial, but the rendition of services in

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connection with his employment (arguably the entire employment

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period of one day) which themselves are alleged to constitute the

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tortious acts. The Unruh Act should not be turned on its head in

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this manner.

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that he can demonstrate a likelihood of success on this cause of

The Unruh Act applies where businesses exclude individuals,

DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

The

The cases cited by Plaintiff are inapposite.

The allegations

Even assuming the statute does apply, in arguing

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Cohn v.

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RULING RE SUBMITTED MATTER

action, Plaintiff argues he was not only terminated but was

excluded from working on any other projects with defendant on the

basis of his race and "black characteristics."

been rehired is different from being excluded under Unruh and

plaintiff cites no authority in support.

nothing more than pure speculation without any basis in fact.

Plaintiff has not offered any legislative history or case law on

point to support this cause of action.

demonstrated a "probability" of success on this cause of action.

That he has not

Such allegations are

Plaintiff has not

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5t
h cause of action- Violation of Civil Code 3344 (use of name or

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h cause of action- name and likeness

likeness); and 6t

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appropriation, common law:

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With regard to statutory misappropriation, one

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discussed above.

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must demonstrate (1) the defendant knowingly used plaintiff's

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name, photograph, or likeness; (2) in specified ways: (a) on, or

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in, products, merchandise, or goods;

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advertising or selling,. or soliciting purchases of, products,

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merchandise, goods or services; (3) without plaintiff's consent.

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Montana v. San Jose Mercury News (1995) 34 Cal. App. 4th 790, 793;

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Civil Code X3344.

or (b) for purposes of

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In proving common law misappropriation, Plaintiff must demonstrate

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(1) the unauthorized use of the plaintiff's identity; (2) to

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defendant's advantage; (3) by commercially or otherwise

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

appropriating plaintiff's name, voice, likeness, et. cetera; and

(4) resulting injury.

Cal. App. 4th 47, 55.

Kirby v. Sega of America, Inc. (2006) 144

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Here, Plaintiff maintains he never gave permission for his

photograph to be taken or used on the Internet. (Daniel decl.

~~14-24, Ex. A.)

application of a waiver signed by plaintiff.

Voucher that plaintiff signed provides, in relevant part:

The parties dispute the

scope of the
The Standard Union

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"By signing this voucher; I acknowledge and agree to the

following:

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(2) That I hereby grant to the Production Company of The

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Production, its successors, assignees, licensees or any other

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person or company who might gain title or rights to the

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production, the right to photograph me and record my voice to

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use, alter, dub, and or otherwise change such photographs and

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recordings, in any manner whatsoever and for any reason in

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connection with Production, such right to be worldwide and in

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perpetuity."

(Alvarez Decl. Ex. A.)

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Despite plaintiff's argument to the contrary, the above language

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is broad enough to include the right of defendant Wayans, a co-

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producer, to photograph plaintiff,

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include the use of plaintiff's photograph in the tweet, which, per.

and certainly broad enough to

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DEPT. 73
RAFAEL ONGKEKO,

JUDGE PRESIDING

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RULING RE SUBMITTED MATTER

the Voucher, was in connection with the film, notwithstanding an

additional link to Wayans' separate website.

transformative use defense is a secondary ground preventing

plaintiff from prevailing, as argued in the moving papers.

Defendant's

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7t
n cause of action- invasion of privacy of false light:

Plaintiff alleges the character of Cleveland Brown is known

primarily for being ~~slow and having physical and emotional

problems" and that by drawing comparisons between plaintiff and

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that fictional character, the comparison drew inferences that

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plaintiff possessed the same traits as Cleveland Brown thereby

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showing plaintiff in a false light. (Complaint ~~136-37.)

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prove a claim for false light, one must demonstrate (1) false; (2)

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unprivileged; (3) publication by writing, printing, or other fixed

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representation; (4) exposes a person to hatred, contempt,

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ridicule, or obloquy, or which causes person to be shunned

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or avoided, or which has a tendency to injure person in his

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occupation; and (5) malice as to public figures. Briscoe v.

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Reader's Digest Association, Inc. (1971) 4 Ca1.3d 529,.543,

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overruled on other grounds by Gates v. Discovery Communications,

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Inc. (2004) 34 Cal.4th 679, 697.

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of Cleveland Brown is associated with negative stereotypes of

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African Americans, exposing him to such assumptions based on the

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physical comparison. (Daniel Decl: 9124.)

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he has received questions about whether he is the person in the

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photograph on the twitter post. (Daniel Decl. 9[27.)

Plaintiff argues the character

Plaintiff provides that

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

To

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RULING RE SUBMITTED MATTER

Plaintiff has

failed to indicate that he has suffered any suffered any public

ridicule or lost work.

tweet did not contain any statements of facts has merit.

Plaintiff's claim relies on inferences he assumes one would make

based on the juxtaposition of photographs.

shown a probability of prevailing on this cause of action.

However, defendant's argument that the

Plaintiff has not

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St
n cause of action for breach of quasi contract; 9t
h cause of

action for unjust enrichment:

10 I Plaintiff alleges defendant obtained a benefit from plaintiff by

11 ( fraud, duress, conversion, or similar conduct when plaintiff's
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photo was taken and used for unjust gain on the Internet.

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(Complaint ~~154-156, 171-172.)

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alleged quasi contract arose or what benefit was allegedly derived

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by defendant.

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Am. (1996) 44 Cal. App. 4th 194, 203 ("[A]n action based on an

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implied-in-fact or quasi-contract cannot lie where there exists

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between the parties a valid express contract covering the same

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subject matter.");

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App. 4th 499, 518 ("implied contract cannot override the terms of

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an express agreement....");

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Cal.App.4th 1497, 1507 (implied-in-fact contract may be inferred

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from the conduct, situation or parties relationship, provided that

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there is an intent to promise);

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(1994) 29 Cal.App.4th 354, 366

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contracts normally is determined by triers of fact, except where

Here, it is unclear how the

Lance Camper Mfg. Corp. v. Republic Indem. Co. of

Falkowski v. Imation Corp. (2005) 132 Cal.

Gorlach v. Sports Club Co. (2012) 209

Davis v. Consolidated Freightways

(existence of implied-in-fact

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

RULING RE SUBMITTED MATTER

the facts are undisputed, and support only one conclusion, in

which case summary judgment may be entered).)

case regarding unjust enrichment as it is unclear what benefit

defendant is alleged to have received.

Partnership (2008) 164 Cal.App.4th 1583, 1593.)

declaration establishes that plaintiff was paid for his services.

(Alvarez Decl. y[4, Ex. A.)

in "(1)" provide that his wages will be "payment in full for all

services rendered by me."

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The same is the

Peterson v. Cellco
Alvarez'

In any event, the terms of the voucher

Plaintiff has not demonstrated a

probability of success on the merits on these causes of action.

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10t
h cause of action for IIED:

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survives against Wayans, particularly his FEHA claim, this claim

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fails as well.

Because no cause of action

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Defendant Wayans' motion is granted in its entirety.

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IIT IS SO ORDERED.

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DATED: December 31, 2014

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~'' , ,
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J

~AFAEL A. ONGKEKO
~E OF THE SUPERIOR COURT

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DEPT. 73
RAFAEL ONGKEKO,
JUDGE PRESIDING

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RULING RE SUBMITTED MATTER