Daniel v. Wayans

8 Cal.App.5th 367

213 Cal.Rptr.3d 865

Pierre DANIEL, Plaintiff and Appellant,

v.Marlon WAYANS, Defendant and Respondent.

B261814

C/w B263950

Court of Appeal, Second District, Division 1, California.

Filed February 9, 2017

Reisner & King, Adam J. Reisner, Tessa M. King, Sherman Oaks; Benedon & Serlin, Melinda W. Ebelhar and Douglas G. Benedon, Woodland Hills, for Plaintiff and Appellant.

Venable, William J. Briggs II, Celeste M. Brecht and Eric J. Bakewell, Los Angeles, for Defendant and Respondent.

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 ¹ section 425.16, moved to strike Daniel's claims against him as a SLAPP suit (strategic lawsuit against public participation), arguing that all of Daniel's claims arose from Wayans's constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet. The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans. As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees.

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.

BACKGROUND

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 violation of the Unruh Civil Rights Act ( Civ. Code, § 51 et seq. ); a claim brought pursuant to Civil Code section 3344 for the unauthorized use of another's photograph for advertising; a common law misappropriation of likeness claim; a common law "false light"/invasion of privacy claim; a common law claim for breach of a quasi-contract; a common law claim for unjust enrichment; and a common law claim for intentional infliction of emotional distress.

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 movie derived from making fun of various stereotypes, including racial stereotypes. As a result, the word nigga was used "dozens of times of times throughout the movie"; in fact, at one point in the movie Wayans's character calls Pressly's character nigga, even though Pressly is Caucasian. In addition, Pressly noted that Wayans has called her " 'nigga' in the past, and frequently uses it as a term of endearment with his friends and family."

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 non-speaking 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...