Longoria v. Kodiak Concepts LLC

527 F.Supp.3d 1085

Jaime Edmondson LONGORIA, et al., Plaintiffs,

v.KODIAK CONCEPTS LLC, et al., Defendants.

No. CV-18-02334-PHX-DWL

United States District Court, D. Arizona.

Signed March 23, 2021

Amy Marie Hoffman, James Edward Doman, Jr., Wilkins Law Firm PLLC, Richard Phillip Traulsen, Begam Marks & Traulsen PA, Phoenix, AZ, John V. Golaszewski, Pro Hac Vice, Joseph N. Casas, Casas Law Firm PC, New York, NY, for Plaintiffs Jaime Edmondson Longoria, Jessa Hinton, Lucy Pinder, Melanie Iglesias, Paola Canas.

Erik John Stone, John M. DiCaro, Jones Skelton & Hochuli PLC, Phoenix, AZ, for Defendant Kodiak Concepts LLC.

ORDER

Dominic W. Lanza, United States District Judge

Pending before the Court are the parties’ cross-motions for summary judgment. (Docs. 49, 50.) For the following reasons, both motions are granted in part and denied in part.

BACKGROUND

Defendant Kodiak Concepts, LLC ("Defendant") owns and operates a strip club called The Great Alaskan Bush Company Gentlemen's Club ("the Club") in Phoenix, Arizona. (Doc. 1-3 ¶¶ 19-20.) Plaintiffs are "models, business women, and well-known social media personalities." (Id. ¶ 1.) This case arises from Defendant's unauthorized use of Plaintiffs’ images and likenesses in advertisements appearing on the Club's social media accounts. (Id. ¶ 3.) This is one of several similar cases in this district.¹

On June 1, 2018, Plaintiffs filed suit in Maricopa County Superior Court. (Doc. 1-3 at 2-21.) On July 25, 2018, Defendant removed the case to federal court.² (Doc. 1.)

In their complaint, Plaintiffs allege the following misuses of their images and likenesses:

• On or about August 8, 2015, Defendant posted Iglesias's image on the Club's Facebook page. (Doc. 1-3 ¶ 41.)

• On or about November 19, 2016, Defendant posted Pinder's image on the Club's Instagram page. (Id. ¶ 40)

• On or about April 18, 2017, Defendant posted Hinton's image on the Club's Facebook page. (Id. ¶ 39.)

• On May 3, 2017, Defendant posted Canas's image on the Club's Yelp page. (Id. ¶ 42.) On May 4, 2017, and December 16, 2017, Defendant posted Canas's image on the Club's Instagram page. (Id. ) Between May 30, 2017, and September 18, 2017, Defendant posted Canas's image on the Club's Facebook page ten different times. (Id. )

• On August 21, 2017, Defendant posted Longoria's image on the Club's Facebook page twice. (Id. ¶ 38.)

Plaintiffs allege that the use of their images on the Club's social media accounts was without permission or consent, was for commercial purposes, and created the false perception that they had agreed to promote or endorse the Club. (Id. ¶¶ 38-41.) Plaintiffs also allege that Defendant never hired, contracted with, employed, or paid them. (Id. )

All five Plaintiffs assert claims for false association and false advertising under the Lanham Act, 15 U.S.C. § 1125(a). (Id. ¶¶ 56-74.) Four of the Plaintiffs (all but Iglesias) also assert state-law claims of misappropriation of likeness (id. ¶¶ 43-55) and false light invasion of privacy (id. ¶¶ 75-84).

On March 30, 2020, the Court issued an order denying Defendant's motion to sever Plaintiffs’ claims. (Doc. 43.)

On July 31, 2020, Plaintiffs filed a motion for summary judgment (Doc. 49) and a motion to exclude the expert opinions of Michael Einhorn (Doc. 45). That same day, Defendant filed a motion for summary judgment (Doc. 50) and motions to exclude the expert opinions of Martin Buncher (Doc. 51) and Stephen Chamberlin (Doc. 52). All five motions are fully briefed.

On March 1, 2021, the Court issued a tentative order addressing the three motions to exclude expert testimony. (Doc. 69.)

On March 9, 2021, the Court issued a tentative order addressing the cross-motions for summary judgment. (Doc. 70.)

On March 10, 2021, the Court heard oral argument on the motions to exclude expert testimony and the cross-motions for summary judgment. (Doc. 71.)

DISCUSSION

I. Legal Standard

"The court shall grant summary judgment if [a] movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue in the non-movant's favor." Fresno Motors, LLC v. Mercedes Benz USA, LLC , 771 F.3d 1119, 1125 (9th Cir. 2014). The court "must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in the nonmoving party's favor." Rookaird v. BNSF Ry. Co. , 908 F.3d 451, 459 (9th Cir. 2018). "Summary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts." Fresno Motors , 771 F.3d at 1125.

A party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102 (9th Cir. 2000). "If ... [the] moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Id. at 1103.

"If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Id. There is no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505. At the same time, the evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. "[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Id. at 254, 106 S.Ct. 2505. Thus, "the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant." Id. at 255, 106 S.Ct. 2505.

"[W]hen parties submit cross-motions for summary judgment, [e]ach motion must be considered on its own merits," but the Court must consider all evidence submitted in support of both cross-motions when separately reviewing the merits of each motion. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1136 (9th Cir. 2001) (quotation marks omitted). For "the party with the burden of persuasion at trial"—usually the plaintiff—to succeed in obtaining summary judgment in its favor, it "must establish beyond controversy every essential element" of each claim on which summary judgment is sought. S. California Gas Co. v. City of Santa Ana , 336 F.3d 885, 888 (9th Cir. 2003). The party without the burden of persuasion at trial—usually the defendant—is entitled to summary judgment where it establishes that the party with the burden of persuasion will be unable to prove at least one element of its claim in light of the undisputed facts. Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548. This distinction reflects that the burden is ultimately on the proponent of each claim to prove it. Id. (" Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.").

II. Analysis

Plaintiffs and Defendant each request summary judgment in their favor on all claims. Given the significant overlap in analysis, the Court groups the parties’ arguments together by issue.

A. State Law Claims

All Plaintiffs except Iglesias bring two Arizona common law claims: (1) "Violation of Common Law Right of Publicity: Misappropriation of Likeness" (Count I)³ and (2) "False Light Invasion of Property" (Count III). (Doc. 1-3 at 13-15, 18-19.)

1. Count I: Right Of Publicity

a. Cognizability Under Arizona Law

Defendant argues it is entitled to summary judgment on Count I because "Arizona does not grant private, non-military individuals the right to sue in tort for the misappropriation of that person's name or likeness." (Doc. 50 at 6.) Defendant notes that "the most recent Revised Arizona Jury Instruction for invasion of privacy explicitly states that there is no jury instruction for violation of the right of publicity for misappropriation of name or likeness because no such cause of action exists in Arizona." (Id. at 6-7.) Defendant further argues that the Arizona's legislature's enactment of A.R.S. § 12-761, which "give[s] that right only to a specific class of citizen"—a soldier—is proof that the legislature did not intend to confer such a right on other classes of citizens. (Id. at 7.)

Plaintiffs, in turn, argue that the Arizona Court of Appeals specifically recognized the cognizability of this theory of liability in In re Estate of Reynolds , 235 Ariz. 80, 327 P.3d 213 (Ariz. Ct. App. 2014), and that "since the Reynolds decisi...