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    9/15/17

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    4K views22 pages

    De Havilland Opposition To Defendants' Motion To Strike

    Uploaded by

    THROnline
    9/15/17

    Copyright:

    © All Rights Reserved
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    | HOWARTH & SMITH DON HOWARTH, (SBN 53783) hovarth@howarth-smith.com SUZELLE M. SMITH, (SBN 113992) ssmith@howarh-smith.com ZOE E. TREMAYNE, (SBN 310183) ‘remayne@howarth-smith.com 523 West Sixth Street, Suite 728, Los Angeles, California 90014 Telephone: (213) 955-9400 Facsimile: (213) 623-0791 Attorneys for Plaintiff OLIVIA DE HAVILLAND, DBE. OLIVIA DE HAVILLAND, DBE an individ, 3 Paint ) ) ws } FANETWORKS, LLC, acalifoniatimied Tibiity company: PACIFIC 21 } ENTERTAINMENT GROUP. INC, a California} oxporation, and DOES 3 through 100, inclusive, ts 3 Defendan 3 ) ) ) ) ) ) ) wt mn wt uw on mu uw ~ PLAINTIFF'S OPPOSITION TO DE ‘SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ~ CENTRAL DISTRICT CASE NO. BC667011 {Complaint Filed June 30, 2017] Assigned forall purposes to: Hon, Holly E. Kendig PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION TO STRIKE PLAINTIFF'S THIRD AMENDED COMPLAINT PURUSANT TO CALIFORNIA'S ANTLSLAPP STATUTE, CAL. CIV. PROC. CODE § 425.16 Hearing Date: September 29,2017 Time: 30am Location: Department 42 ‘Reservation ID: 170727238249 DANTS' MOTION TO STRIKE 10 " 2 13 14 15 16 ” 18 19 20 a 2 ‘TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF DEFENDANTS’ POSITION. DE HAVILLAND’S CLAIMS CANNOT BE DEFEATED BY DEFENDANTS" MOTION. ‘A. Reasonable Probability Legl Standard Defined B, Plaintiff Has a Probability of Success on Her Right to Publicity Cains.. 1, All Element fr Right o Publicity Common Law and Statutory Actions Are Conceded or Proved. 2. Plaintiff's Right to Publicity Claims Are Not Barred by Any Afficmative Defenses i. The First Amendment Does Not Grant Absolute Immunity fi, Defendants Cannot Meet Their Burden onthe Public fairs or Public Interest Affirmative Defenses iii, Defendants Cannot Meet their Burden of Proof tha the Use of Plant's entity Was Transformative 3. The Public Interest and Public Affairs Affirmative Defense Doctrines Do Not Precue Suits Where Plant Offrs Proof of Intentional or Reckless Disregard ofthe Trath C. Plants Has Probability of Success on Her Fase Light Claim 1. Elements for False Light 2. _Bvidence in Suppor of Fase Light Comes from Defendants and Plainif.. ‘CONCLUSION 1 PLAINTIFF'S OPPOSITION TO DEFENDANTS: MOTION T0 STRIKE ‘TABLE OF AUTHORITIES CASES Page(s Beroie . Wahl, 84 Cal. App. 4th 485 (2000)... Browne v. MeCain, (611 F. Supp. 2 1062 (C.D. Cal. 2009), 4,5,6,7,11 Burnes» Nat'l Enquirer Ine., 144 Cal, App. 34 991 (1983) 12 Carver . Bonds, 135 Cal. App. 4th 328 (2005) «mn a 4 ‘Comedy II Productions, Inc v. Gary Saderup, ine., 25 Cal, 4th 387 (2001) orn se 4,8,9,11 Daly ». Viacom, Ine., 238 F, Supp, 2d 1118 (N.D. Cal 2002).. Davis v. Costa-Gravias, (654 F. Supp. 653 (S.D.N.Y. 2015). i Davis ». Blectronie Arts Ine., 795 R34 1172 (9th Cit, 2015) ou Dora v. Frontline Video, 15 Cal. App. 4th 536 (1993) Eastwood v. National Enquirer, In, 123 F.3d 1249 (9th Cit. 1997), 6,1,10, 11,12 Eastwood ». Superior Court, 149 Cal, App. 3d 409 (1983) 24,67 Gilbert. Sykes, 147 Cal. App. 4th 13 (2007) 4 Gionfriddo v. Major League Baseball, 94 Cal, App 4th 400 (2001), 2 PLAINTIFF'S OPPOSITION TO DEFENDANTS: MOTION T0 STRIKE u 2 13 4 15 16 17 18 9 a n 2B 4 25 26 n Guglicimt w. Spelling-Goldberg Productions, 25 Cal, 3d 860 (1979) 45 Heawran v. Hixson, 209 Cal. App. 4th 256 (2012). 12 Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cit, 2010).. | HMS Capital, Ine v. Lawyers Title Co, 118 Cal, App. Ath 204 (2004) Inve Reno, $55 Cal. Ath 428 2012) nn nn ackson . Mayweather, 10 Cal, App. Sth 1240 2017) 13,14 Jacobson » Schwarzenegger, 357 F, Supp. 2d 1198 (C.D. Cal. 2004) SS 2 Kanarck». Bugliost, 108 Cal. App. 34327 (1980). a 2 Linder». Thrifty Oi Co 23 Cal. th 429 2000) se see Melvin. Reid, 112 Cal. App. 285 (1931) 4 Michaels . Internet Enim't Grp, Ine, 5 F. Supp, 24 823 (C.D, Cal. 1998) nnn et} Mindys Cosmetics, Ine. v. Dakar, 611 F.3d $90 (9th Cit. 2010)... ‘Montana v. San Jose Mercury News, Ine, 134 Cal. App. 4th 790 (1995), Navellier ¥. Sletten, 29 Cal. 4th 82 2002) 2 3 PLAINTIFF'S OPPOSITION TO DEFENDANTS” MOTION TO STRIKE Naupen-Lam v. Cao, TTI Cal. App. dt $58 (2009) 0 2,10 No Doubt v, Activision Publg, Ine, 192 Cal. App. th 1018 (2011)... 1,8,9,10 Overstock.com, Ine. ¥. Gradient Analytics, Ine., 2,8 151 Cal, App. 4th 688 (2007) Partington v. Buglosi, 56 F 3d 1147 (Oth Cir. 1995). Paulus . Bob Lynch Ford, Inc, 139.Cal. App. 4th 659 (2006) 10 Peregrine Funding, In. ». Sheppard Maltin, 133 Cal. App, 4th 658 (2005). 2 Polydoros v. Twentieth Cent Fox Film Corp., (67 Cal. App. 4th 318 (1997)... s Polygram Records, Inc. v. Superior Court, 170.Cal, App. 34 $43 (1985) send Seale v. Gramercy Pictures, {964 F. Supp. 918 (E.D. Penn. 1997) won 2 Solano v. Playgirl, 292 F.3d 1078 (9th Ci. 2002) nnn 7,12 Winter v. DC Comics, 30 Cal. dth 881 (2003), 8,9 Yury. Signet Bank Virginia, 103 Cal. App. 4th 298 (2002) 118 Cal. App. 4th 204 (2004) 2 Zacchiniv Scripps-Howard Broadcasting, 433 US, 562 (1977). 4 ZL Techs, Inc. . Does 1-7, BD 13 Cal. App. Sth 603 (2017)... 4 PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION TO STRIKE " 2 B 1“ 15 16 1” 18 » 2» a B 28 n STATUTES Cal. Civ. Code § 3348 OTHER AUTHORITIES Merriam Webster, ntps//ww.merriam-webster com! 5 PLAINTIFF'S OPPOSITION TO DEFENDANTS” MOTION ‘STRIKE 5,6,7,8 13 0 2 B 4 16 "7 18 1” 0 en 2 23 4 25 26 n 28 1. INTRODUCTION AND SUMMARY OF DEFENDANTS’ POSITION “NJot all expression with espect to celebrities is insulted by the Fist Amendment.” No Doubt», Activision Publ, In, 192 Ca. App 4th 1018, 1029 (2011), Defendants FX Networks, LLC and Pacifi 2.1 Entertainment Group, In. ("Defendant") made an eight-part highly suocesful television series, “Feud: Bette and Joan” (“Feud”), which stared Catherine Zeta-Jones (Zeta Jones”) as Olivia de Havilland (‘Plainif” or “de Havilland”) and sired in March of 2017. Motion to Swike (*Motion” at 4; Exs, 55-57 to Deel of James Berkley ("Berkley Dee”). Defendants do ‘ot deny that de Havilland i the only living prinipal character in “Feud” that they dd not obtain onsen, nor tha they intentionally broadcast fake interview of de Havilland speaking from a personal insider perspective about the alleged “feud” between Bette Davis ("Davis") and Joan Crawford (“Crawford”), whichis structured tobe an endorsement of “Feud” by Pani, Matin at 2 (*Plaintf?’s consent was not needd.”); Decl. of Timothy Minear (Minar Deck”) 7, 15 "Asa device to tell the story. [oe] eeated imagined interviews conducted at he 1978 Academy Decl. of ‘Awards, In these interviews... de Haviland... diseuss{es} Crawford and Davis Michael Zam (“Zam Dee.”) 99-11. They als portay Plaintiff making negstive, vulgar statements, which are false and were never made, about her sister, Joan Fontaine (“Fontaine”), and Frank Sinatra (“Sinatra”), among others Despite these uncontested facts, Defendants claim that their conduct was in “furtherance of [thee it to fee speech .. orn connection with a pubic issue.” Motion at 1. They also claim that de Havilland cannot demonstrate that her causes of action meets the minimal showing of merit standaed, fd a3, Defendants are wrong under the controlling lw and fact here, and de Havilland’ complaint may not be properly stricken under ant-SLAPP. Tl, DEHAVILLAND'S CLAIMS CANNOT BE DEFEATED BY DEFENDANTS! MOTION A. Reasonable Probability Legal Standard Defined Establishing a“‘reasonable probability’ in the anti-SLAPP statute... requires only a ‘minimum level of legal sulficiency and tiabilty.” Minds Cosmetics, Ine. v. Dakar, 611 F: 590, 598 (Oth Cir. 2010) (quoting Linder v. Thrifty Oil Co.,23 Cal. Ath 429, 438 n.5 (2000); see also 1 iNTIFP'S OPPOSITION TO DEFENDANTS" MOTION T0 STRIKE " 2 1B 4 15 16 0 18 1» 20 a 2 23 4 25 26 n | Davis». Electronic Arts Ine, 775 F-3d 1172, 1177 (th Cir. 2015) (denying anti-SLAPP motion to strike §3344 claims for unauthorized use of professional football players’ likenesses in video game), “(PJlainit's burden of establishing a [reasonable] probability of prevailing is not high Overstock.com, Ine. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 699 (2007), California's anti-SLAPP statute “poses no obstacle to suits that possess minimal merit” Navellier», Sletten, 29 Cal, 4th 82, 93 (2002). “The court's responsibility isto accept as true the ‘evidence favorable to the plaintiff and evaluate the defendants evidence only to determine iit has defeated that submitted by the plaintiff as a matter of law.” HIMS Capital, In. » Lawyers Title Co., 118 Cal. App. 4th, 204, 212 2004) (internal citation omitted) “Thus, plaintiff's burden as tothe second prong ofthe anti-SLAPP tes is akin to that of« party opposing a motion for summary judgment.” Yu v. Signet Bank/Virginia, 103 Cal. App. 4th 298, 317 (2002) ‘An anti-SLAPP defendant advancing affirmative defenses, including those based on the First Amendment, transformative use, publi interest and public affairs “bears the burden of proof con the defense..." Peregrine Funding, Ine. v. Sheppard Mullin, 133 Cal. App. 4th 658, 676 (2005). This burden is a heavy one. “Only if [defendant is entitled to the defense as a matter of Jaw can it prevail on its motion to strike.” Hilton v, Hallmark Cards, 599 F.36 894, 910 (9th Cit 2010) (emphasis added), 1B. PlainGiff Has a Probability of Success on Her Right to Publicity Claims 1, All Elements for Right to Publicity Common Law and Statutory Actions Are Conceded or Proved ‘The clement oa claims for misappropriation ofthe ight of publicity under the common lw and Section 3344 are: “(1) the defendant's use ofthe plaintif’s identity; (2) the appropsiaton of plaintf’s name o likeness to defendant's advantage... ; (3) lack of consent; and (4) resulting injury." Hilton, 599 F.3d at 909; Bastwood v, Superior Court, 149 Cal. App. 34 409,417 (1983) "Ifthe Court should find any shortcomings with the TAC due to lack of detail onthe claim clements ofthe claims, Plaintiff seeks leave to amend based on the evidence presented herein. Newen-Lam v. Cao, 171 Cal. App. 4th 858, 873 (2009) (where “plaintiff demonstrated a probability of prevailing t trial ifshe could amend her complaint {to cure a pleading deficiency], fit should be allowed] ....") 2 PLAINTIFF'S OPPOSITION TO DEFENDAN MOTION TO STi Motion at 12.10. Defendants do not deny Plaintiff can establish all the elements ofthe right to publicity prima facie ease. Defendants, as they admit, clearly and knowingly used Plaintiff's name, identity, image and likeness (collectively “Identity”) in “Feud,” a commercial production. Minear Deel. 4 7-15 (“de Havilland... appears in six of the eight episodes ‘Murphy Decl. $7, 14:20; Gibbons Decl, Exs. 49; Berkley Decl. Ex. 4. Defendants do not claim Zam Desk $9 11-14; ‘hey obtained Plants consent ox compensate hero use her Menity and they did at. Deel. of Olivia de Havilland *ODH Decl”) 14, Plintif asa esult of Defendant’ unauthorized ws of her ‘dentty, has ben injured and Defendants have been unjustly enriched, Rossler Des. 921-25; Smith Des. 945; Casady De. 911-13, ‘The appropriation of Pint’ Identity was to Defendants” advantage, and she payed a key role, which Defendants’ themscves admit, Murphy Del. 15 Che de Haviland character served ssn counterbalance tothe more volatile Davis and Crawford and also as an objective, authoritative bridge to the viewer, Put differently, it was important that viewers tut the de Havilland character ">; Miner Del. 15 [W]e beieved thatthe de Haviland character was perfect for introducing the theme af he show ...": Gibbons Del. 10 (six video advertisements. need... de Havilland..." which Defendans chose to “mimic the show isl in which the de Havilland character introduces some ofthe themes of “Feu through an imagined interview at th 1978 Oscars... Zam Decl 9 10-11; Minea Deel. 77,13. The use of Planifs Wdeaty was intended oinerease the appeal and succes of “Fea,” as well asf rete the ipesion that Plait, who the midionce would tat, endorsed “Feu" Defendants and their entrinment services, Casdy Decl $411, 13 (the consmction of Fed's’ storyline designed t appear the viewer as ifthe sil-iving Miss de Havilland endorsed the prodeton and its content...) Ladd Des. 117 (“Feud was constructed as if Mis de Havilland... endorsed “Feu"); Murphy Ded $15.7 ut ut mw 2 Defendants filed thousands of pages of exhibits, most are irelevant tothe issues here 3 PLAINTIFF'S OPPOSITION TO DEFENDANTS” MOTION TO STRIKE " n 1B “4 15 16 ” 18 19 2» a 2 25 a 2 Plaintiff's Right to Publici ‘Claims Are Not Barred by Any Affirmative Defenses i, The First Amendment Docs Not Grant Absolute Immunity ‘Defendants bear the burden of showing that their First Amendment based affimative defenses eliminate virtually any chance of plaintiff prevailing on her common law and statutory right to publicity causes of action. See Section (IIA) supra. Here, Defendants claim that a movie or television show enjoys virtually unlimited protection under the First Amendment. Motion at 13. This is wrong on the nature and scope of the law. Television and movie broadcasts may come ‘under Constitutional protection, but, even ifthey do, it is not unlimited. Browne v. MeCain, 611 F. ‘Supp. 24 1062 (C.D. Cal, 2009); Metvin v Reid, 112 Cal. App. 285 (1931) (right of privacy common law action allowed for unauthorized use of plaintiff's Identity in semi-historiel movie “The Red Kimono,” notwithstanding public interest defense), In the only United States Supreme Court case to consider the constitutionality ofa right to publicity statute, Zacchin!v Scripps-Howard Broadeasting, 433 U.S. $62 (1977), the Cour reversed the Ohio Supreme Cour, which held the statute violated the First and Fourteenth Amendments to the ‘the Constitution, Zacchini involved a television broadcast of the 15 second act of Zace ‘human eannon ball atthe county far. Zacchini sued the local station for violation of hs right to publicity. The Court stated: “The rationale [for protecting the right to publicity] isthe straight-forward ‘one of preventing unjust enrichment by the theft of goodwill. No social purpose is served by having the defendant get free same aspect of the plain that would have market value and for which he would normally pay.” Hd. a0 576, Defendants cite Chief Justice Bird's concurrence in Guglielmi v. Spelling. Goldberg Produetions, 25 Cal, 3d 860, 862 (1979), which of course isnot contlling. In so faras it suggests that nothing in a television broadeast or even a newspaper account can be a besi for aight 10 publicity claim, it has boon rejected by later controlling Supreme Court and Second District authority. Comedy IH Produetion, Ine. v. Gary Saderu, Ine. 25 Cal. Ath 387 (2001); Eastwood, 149 Cal. App. 3d at 422. 4 PLAINTIFF'S OPPOSITION TO DEFENDANTS” MOTION TO STRIKE Guglielmi only bold that, atthe time ofthe action, Rudolph Valentino's heirs had no ght 10 publicity causes of ation because it was personal to the actor. Guglielmi, 25 Cal 3d at 861 (statute Inter amended). Defendants als cite Polydorosv. Twentieth Cem. Fox Film Corp.,67 Cal ‘App. 4th 318 (1997). Poldoros tured on whether plaints identity had been used at all. The Cour states that movies have just as much right to First Amendment protection as news reporting, ‘but doesnot state they have aright to more protection. ld. at 323 ("No person seing this film could confuse the (wo {paint and the purely tional character}.”) Finally, Defendants ete Daly» Viacom, Ine, 238 F.Supp. 24 1118 (N.D. Cal. 2002). In Daly, pati signed a contract and agreed tobe filmed in connection with television show. There was no claim that defendants {alsiied information in the xoadcas in which plait willingly participated, Doly doesnot stand forthe proposition thatthe Fest Amendment protects all spech o pictures simply because they are in film. 1d? Further, the reasoning of Day hasbeen criticized and limited to is fats by other courts in right to publicity cases involving false statements and endorsements. Browne, 611 F Supp. 2d at 1072 (RNC’s reliance on Daly v. Viacom is silly unpersuasive. This Cou isnot bound by the distet court's decision in that ase, which the Court finds fatally distinguishable from the current cas") Defendants Cannot Meet Their Burden on the Public Affairs or Public Interest Affirmative Defenses ‘When analyzing a defendant's affirmative defenses on an anti-SLAPP motion, in order to prevail, the defendant must show that its evidence bars the plaintfT’s claim as a matter of law. Overstock com, Ine, 151 Cal. App. 4th at 699-700. There are exceptions to righ to publicity claims which include news, sports and public affairs and public interest broadcasts. Cal. Civ. Code § 3344(€); Browne, 611 F. Supp. 2d at 1071-1072, 77 a in footnote 12, page 13 oftheir Motion, Defendants string cite a number of out-of-state, mostly federal dstict court and cout of appeals cases, which deal withthe law ofoter states, includ statutes which dif significantly fom Califomia lw. To the extent that any ofthese foreign eases contradict controlling California law, they are not authoritative: to the extent that they deal with different statutory langoage, they ae irelevant 0 " 2 B 4 18 16 1” 18 » 0 a n 2 4 25 n However, the District Court in Browne discussed the fat thatthe defense is limited: “a mere finding of “public interest alone does not automatically exempta defendant from liability on aright of publicity claim.” 1d. at 1071 (quotation omitted) denying motion and discussing inapplicability of privilege to use of plaintiff's identity ina knowingly false manner). None of the defenses preclude either eause of action where the broadcast includes false statements, particulary fake interviews wit a celebrity and false endorsements, 1d; se also Eastwood v. National Enguier, sn. 123 F.3d 1249 (8h Cit. 1997), ‘The Second Distiet Court of Appeal discused the limits on public interest inthe demurrer context in Eastwood, 149 Cal. App. 3d at 409 Actor Clint Eastwood brought an ation agains newspaper fr false light and intingement of his right to pbliity, the later under both common Jaw and the previous version of § 3344, when it published an unauthorized, false article about a love triangle between Eastwood, his real ile partner and another celebrity The Court of Appeal ranted Eastwood's writ of mandamus, eversng the tal court's order based on “public interest” protection of news under the First Amendment. Eastwood, 149 Ca. App. 34 a 413, The Coust of Appeal held that celebrities, a a consequence of ther fame, relinguish some, but not al, of thee rights to privacy and publicity [Absolute protection ofthe pres inthe case at bench requires a total sacrifice of the competing interest of Eastwood in controlling the commercial exploitation of his personality. Often considerable money, ime and energy are needed to develop the ability ina person's name or likenes to atract attetion and evoke a desired response in a paicular consumer market. ‘Thus, a proper accommodation between these competing concerns must be defined sine “the rights guaranteed by the First Amendment donot reuire total abrogation of the right o privacy” an in the ease at bench, he right of publicity. ‘As noted earlier, al fiction is itrall fase, but enjoys constitutional, protection. However, the deliberate Fctionalzation of Eastwood's personality constitutes commercial exploitation, and becomes actionable [under the common law and section 3344] when itis presented to the reader as true with the requisite scienter. “The Easrwood ave was not cited by Defendants. “Attorneys ae officers ofthe court and have an ethical obligation to advise the court of legal authority thai directly contay toa lis being pressed..." Inve Reno, $5 Cal. th 428, $10 2012). Mal Civ. Code § 3344 was amended in 1984, shortly after the wrt of mandamus was issued in Eastwood. However, the changes inthe law do nt change the analysis hee 6 ‘OPPOSITION TO DEFENDANTS" MOTION TO STRIRE " 2 1B “4 5 16 ” 18 19 0 a 2 BE a | 4 at 422, 425-26 (emphasis added (intemal citations omitted), Similny, na federal case involving Senator John MeCein’s bid for president the District Court denied the RNC's anSLAPP motion when defending against the right to publicity cause of action brought by celebrity singer Jackson Browne. Browne, 611 F.Supp. 2d at 1062. The Court hed that public interest did not preclude a caus of ation based onthe misuse of Brovne’s identity and a song he wrote, in a politcal broadcast, and that Browne demonstrated his denity was used, ‘without consent, forthe commercial benefit ofthe campaign. Jat 1071. Additionally, defendants, simply by using Browne singing his son, falsely suggested that Browne, a lifelong Democrat, endorsed McCain and the RNC, eausing him injury, which is not protected by the public interest or First Amendment defenses. /d. at 1065; Eastwood, 123 F.3d at 1249 (sustaining jury verdict on right to publicity claim based on magazine's publication of fake interview). Defendants erated «fake interview which pt false words into the mouth of Plant for their own commercial benefit without her consent, They did so knowingly or with reckless disregacd forthe standards of practice in the entertainment industry. Casady Deo. $Y 11,13: Ladd Decl. $9 15-17. They also intentionally or recklessly setup the portrayal of de Haviland asi she were endorsing “Feud” and Defendants, whic characterization i false. 1d; Supp Del. of Olivia

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