Right of Publicity Case Gets SLAPPed

Pott v. Lazarin, No. H044587 (D6 Mar. 30, 2020)

Plaintiffs’ daughter was sexually assaulted, and afterwards, her assailants distributed photographs of the assault. She committed suicide shortly thereafter. Defendant runs some kind of suicide prevention org> He used the victim’s name and photograph at a press conference in connection with his advocacy and (although this is disputed) some fundraising.

Plaintiffs sued Defendant for violating California’s right of publicity statute, Civil Code § 3344.1, which creates a tort for commercially exploiting the likeness of another. Defendant filed an anti-SLAPP motion, which the trial court denied on the grounds that the conduct was facially illegal under Flatley v. Muoro.
The Flately argument, of course, is wrong. It basically always is. And nobody defends it on appeal. 

But there’s also no other basis to affirm. Defendant had been sued for his speech, made in a public forum, on an issue of public interest. (The last point is bolstered by the fact that, with Plaintiffs’ authorization, a documentary had been produced about their daughter.) That satisfies the “arising from protected activity” test under Code of Civil Procedure § 425.16(e)(3).

On the merits, § 3344.1 applies only to commercial speech. (That’s the only reason it’s constitutional.) Here, there’s no question that Defendant’s use wasn’t commercial. It had no connection with the sale of goods or services. It was instead political. That’s the case even if Plaintiffs were right that their daughter’s image and name were used in connection with fundraising for Plaintiff’s advocacy organization.

Reversed.

A Private Dispute on the Internet Is Not a Public Issue

Jepson v. Ley, B292166 (D2d8 Jan. 30, 2020)

This is a defamation case over a blog post related to a neighborhood dispute. One neighbor called the other, essentially, a well-armed jerk. Litigation ensued. The poster claims the case is a SLAPP. But it’s not. A private dispute between neighbors is not an issue of public interest, even if it spills out on to the Internet. So the claim does not satisfy Code of Civil Procedure § 425.16(e)(3) or (4).

FWIW, this opinion has a very solid summary of the public issue case law in the runup to, and including, the Supreme Court’s recent decision in FilmOn.

Affirmed.

Waiting on Wilson

Rall v. Tribune 365 LLC, No. B284566 (D2d8 Jan. 17, 2019)

In 2015, a Cartoonist and blogger for the Los Angeles Times wrote a blog post complaining about the way an LAPD officer treated him during a jaywalking stop back in 2001. That must peeved the LAPD pretty bad. Because the cops dug up evidence that the stop—fourteen years in the past—didn’t go down the way Cartoonist claimed and gave it to the Times. The Times did its own investigation. It decided that Cartoonist wasn’t playing it straight. The Times ultimately published a statement and a report of its investigation. It cut ties with Cartoonist and stopped publishing his work. 

Mockery of Private People Is Not of Public Interest

Daniel v. Wayons, No. B261814 (D2d1 Feb. 9, 2017)

Just when we were starting to have a run of good anti-SLAPP decisions . . .

Too Narrow to Be a Public Issue

Dual Diagnosis Treatment Cntr. v. Buschel, No. G053046 (D3d2 Dec. 20, 2016)

The trial court in this case denied an anti-SLAPP motion addressed to libel claims brought against the publisher of a drug treatment community newsletter. The claims were based on the newsletter’s republication of a story from the OC Register that reported that a drug treatment facility was not properly licensed in California. The Court of Appeal affirms, holding that the licensure status of an individual treatment facility, without more, is not a public issue sufficient for the claims to arise from protected activity under Code of Civil Procedure § 425.16(e)(3). That provision protects written statements in a public forum, but only to the extent that they relate to a public issue.

Affirmed.

The Other Lee v. Silveira Is a SLAPP

Lee v. Silveira, No. D068835 (D4d1, Dec. 8, 2016)

When I first skimmed the opinion in this case, I thought it was another bad opinion along the lines of Nunez, applying the anti-SLAPP statute to a declaratory relief case just because the evidence of a live legal controversy existed consisted of protected speech. But I was mistaken.

"I Can Do Whatever the F@%k I want. I’m a Super Lawyer!"

Abuemeria v. Stephens, No. B264542 (D2d6 Apr. 27, 2016)

Justice Gilbert starts off this opinion with a little flair:

The parties in this case are neighbors. Appellants ignored Rodney King’s famous entreaty. Instead of getting along, they initiated events resulting in a brawl with respondent.