Daniel v. Wayans

Filed 2/9/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

PIERRE DANIEL, B261814

Consolidated with B263950

Plaintiff and Appellant,

(Los Angeles County

v. Super. Ct. No. BC555610)

MARLON WAYANS,

Defendant and Respondent.

APPEAL from a judgment and an order of the Superior

Court of Los Angeles County, Rafael A. Ongkeko, Judge.

Affirmed.

Reisner & King, Adam J. Reisner, Tessa M. King;

Benedon & Serlin, Melinda W. Ebelhar and Douglas G.

Benedon for Plaintiff and Appellant.

Venable, William J. Briggs II, Celeste M. Brecht and

Eric J. Bakewell for Defendant and Respondent.

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 Procedure1 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

1 All further statutory references are to the Code of

Civil Procedure unless otherwise indicated.

2

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.

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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!’ ”

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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,

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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

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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

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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 encouraged to improvise, ad lib, and have

fun as part of the creative process. Mr. Wayans and the

other actors regularly joked amongst themselves and with

others on the set to develop dialogue and create an

atmosphere that was humorous and conducive to comedy.”

(Italics omitted.)

Alvarez, like Pressly, noted that the word nigga, and

variants such as nigger and niggie, are used “dozens of

times, throughout the movie as part of the comedy.” Alvarez

goes on to note that the movie “includes a scene that

specifically explores the idea that the use of the terms ‘nigga’

and ‘nigger’ are sometimes considered socially acceptable for

black people to use but not people with other racial

backgrounds.” Like Pressly, Alvarez affirmed that Wayans

uses the term nigga as a term of endearment, noting that

Wayans “has even called [him] ‘nigga’ during the time [they]

spent writing together, and [he is] not black.”

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III. Daniel’s opposition

Daniel opposed Wayans’s motion, arguing, inter alia,

that the anti-SLAPP statute does not reach claims for racial

harassment and that there was no “public interest” in the

photo of him and the Cleveland Brown character that

Wayans posted to the Internet. In addition, he argued that

there was sufficient evidence to show a probability of

prevailing on each of his claims.

In support of his opposition Daniel submitted a

declaration of his own in which he, inter alia, elaborated

upon Wayans’s alleged harassment of him on the set. Daniel

stated that Wayans first called him Cleveland while he was

“waiting off camera to receive [his] acting directions,” when

filming was not underway. Wayans also said, “ ‘O’l

Cleveland Brown with your afro and thick mustache, you

need to shed some pounds.’ ” Wayans then called Daniel a

“ ‘black fat ass’ and began laughing at” him. Daniel declared

that throughout the day, while he was on break and cameras

were not rolling, Wayans repeatedly approached him and

called him Cleveland at least 15 more times, looked and

pointed at him while saying nigga at least three to four

times, called Daniel’s hair an “ ‘Afro’ ” while laughing on at

least 10 occasions, called Daniel a “ ‘black fat ass’ in the

presence of others at least twice, and “continuously”

approached Daniel and leered, “sneeringly smile[d],” rolled

his eyes, and watched Daniel. Daniel stated that at no time

did he laugh when Wayans called him Cleveland and that he

found Wayans’s use of nigga when directed at him to be

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“racially offensive and derogatory.” However, Daniel did not

assert that Wayans’s conduct and/or comments on the set

adversely affected his work in any way on the movie.

As for the photograph of him that was posted to the

Internet, Daniel disputed that he gave his consent and/or

laughed about the posting while on the set. According to

Daniel, he did not learn of the posting until later that night

after he left the set when his brother informed him of the

post. When he finally did view the post, Daniel felt

“extremely offended.” Because other people besides his

brother have called him and approached him to ask if he is

“the ‘Cleveland Brown’ character” from the post, Daniel has

suffered apprehension when going out in public, nightmares,

anxiety, depression, and stress headaches as a result of

Wayans’s alleged misconduct.

In his declaration, Daniel did not dispute the

improvisational nature of the movie’s creative process, as

described by Wayans, Pressly and Alvarez. Nor did he

dispute that the signature on the voucher is his. Instead, he

objected to the voucher on various evidentiary grounds,

including lack of foundation. Daniel did not submit any

declarations by any experts or any other members of the cast

or crew of A Haunted House 2.

IV. The trial court’s findings

On December 11, 2014, the trial court heard oral

argument on the motion. On December 31, 2014, the trial

court issued a 17-page ruling, which, inter alia, overruled

Daniel’s objection to the voucher and granted Wayans’s

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motion in its entirety. On January 23, 2015, the trial court

entered a judgment in favor of Wayans. On March 13, 2015,

the trial court, in accord with the anti-SLAPP statute

(§ 425.16, subd. (c)), awarded attorney fees to Wayans in the

amount of $96,040. Daniel filed a timely appeal with regard

to both the judgment and the award of attorney fees.

DISCUSSION

I. Standard of review

We review an order granting or denying an anti-

SLAPP motion de novo. (Oasis West Realty, LLC v. Goldman

(2011) 51 Cal.4th 811, 820.) We consider the “pleadings, and

supporting and opposing affidavits stating the facts upon

which the liability or defense is based.” (§ 425.16,

subd. (b)(2).) We do not “weigh evidence or resolve

conflicting factual claims. [Our] inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and

made a prima facie factual showing sufficient to sustain a

favorable judgment. [We] accept[ ] the plaintiff’s evidence as

true, and evaluate[ ] the defendant’s showing only to

determine if it defeats the plaintiff’s claim as a matter of

law.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.)

II. Anti-SLAPP principles

“A SLAPP suit—a strategic lawsuit against public

participation—seeks to chill or punish a party’s exercise of

constitutional rights to free speech and to petition the

government for redress of grievances. [Citation.] The

Legislature enacted . . . section 425.16—known as the anti-

SLAPP statute—to provide a procedural remedy to dispose of

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lawsuits that are brought to chill the valid exercise of

constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th

1048, 1055–1056.)

To determine whether a lawsuit or cause of action

should be disposed of as a SLAPP suit, section 425.16

establishes a two-part test. “First, the court decides whether

the defendant has made a threshold showing that the

challenged cause of action is one arising from protected

activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this

burden by demonstrating that the act underlying the

plaintiff’s cause [of action] fits one of the categories spelled

out in section 425.16, subdivision (e).’ ” (Navellier v. Sletten

(2002) 29 Cal.4th 82, 88.) A cause of action arises from

protected activity if “the defendant’s acts underpinning the

plaintiff’s cause of action involve[s] an exercise of the right of

petition or free speech.” (Gerbosi v. Gaims, Weil, West &

Epstein, LLP (2011) 193 Cal.App.4th 435, 443.)

If the defendant makes this showing, the court

proceeds to the second step of the anti-SLAPP analysis.

(Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) In the

second step, the court decides whether the plaintiff has

demonstrated a reasonable probability of prevailing at trial

on the merits of its challenged causes of action. (Ibid.)

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. “Only a cause of action that

satisfies both prongs of the anti-SLAPP statute—i.e., that

arises from protected speech or petitioning and lacks even

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minimal merit—is a SLAPP, subject to being stricken under

the statute.” (Id. at p. 89, italics omitted.)

III. Step one: Wayans met his burden

Under the two-step process applicable to anti-SLAPP

motions, we must first determine whether Wayans made a

threshold showing that Daniel’s claims arise from a

protected activity.

A. WAYANS’S BURDEN

In assessing whether a cause of action arises from

protected activity, “ ‘we disregard the labeling of the claim

[citation] and instead “examine the principal thrust or

gravamen of a plaintiff’s cause of action . . . .” . . . [Citation.]

We assess the principal thrust by identifying “[t]he allegedly

wrongful and injury-producing conduct . . . that provides the

foundation for the claim.’’ [Citation.] If the core injury-

producing conduct upon which the plaintiff’s claim is

premised does not rest on protected speech or petitioning

activity, collateral or incidental allusions to protected

activity will not trigger application of the anti-SLAPP

statute.’ ” (Tuszynska v. Cunningham (2011) 199

Cal.App.4th 257, 267.) “[T]he critical point is whether the

plaintiff’s cause of action itself was based on an act in

furtherance of the defendant’s right of petition or free

speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69,

78.) “In other words, ‘the defendant’s act underlying the

plaintiff’s cause of action must itself have been an act in

furtherance of the right of petition or free speech.’ ”

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(Peregrine Funding, Inc. v. Sheppard Mullin Richter &

Hampton LLP (2005) 133 Cal.App.4th 658, 670.)

When evaluating whether the defendant has carried its

burden under the first prong of the anti-SLAPP statute,

“courts must be careful to distinguish allegations of conduct

on which liability is to be based from allegations of motives

for such conduct. ‘[C]auses of action do not arise from

motives; they arise from acts.’ ” (People ex rel. Fire Ins.

Exchange v. Anapol (2012) 211 Cal.App.4th 809, 823.) “ ‘The

court reviews the parties’ pleadings, declarations and other

supporting documents to determine what conduct is actually

being challenged, not to determine whether the conduct is

actionable.’ ” (Id. at p. 822.)

A defendant need only make a prima facie showing

that the plaintiff’s claims arise from protected activity.

(Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408; People ex

rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th at

p. 822.) “The Legislature did not intend that in order to

invoke the special motion to strike the defendant must first

establish her actions are constitutionally protected under the

First Amendment as a matter of law.” (Fox Searchlight

Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.)

“Instead, under the statutory scheme, a court must generally

presume the validity of the claimed constitutional right in the

first step of the anti-SLAPP analysis, and then permit the

parties to address the issue in the second step of the

analysis, if necessary. [Citation.] Otherwise, the second

step would become superfluous in almost every case,

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resulting in an improper shifting of the burdens.” (Chavez v.

Mendoza (2001) 94 Cal.App.4th 1083, 1089, italics added;

City of Los Angeles v. Animal Defense League (2006) 135

Cal.App.4th 606, 621.)

Daniel argues that Wayans’s conduct necessarily falls

outside the protections of the anti-SLAPP statute because

the gravamen of his complaint is race-based harassment and

such conduct is not a protected activity. We are

unpersuaded by Daniel’s argument because the exercise of

free speech here was central, not incidental, to his alleged

injuries. (See Nam v. Regents of University of California

(2016) 1 Cal.App.5th 1176, 1190 (Nam) [“protected activity

that is incidental to a cause of action [does not] justify an

anti-SLAPP dismissal”]; see also Hunter v. CBS

Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1521, 1525.)

The distinction between communicative conduct that is

central versus that which is incidental to the exercise of the

right to petition or the right of free speech is illustrated by

the two cases upon which Daniel relies: Department of Fair

Employment & Housing v. 1105 Alta Loma Road

Apartments, LLC (2007) 154 Cal.App.4th 1273 (DFEH);

Martin v. Inland Empire Utilities Agency (2011) 198

Cal.App.4th 611 (Martin). In both DFEH and Martin, the

alleged injury-producing conduct were acts of discrimination

largely, if not completely, untethered to the exercise of the

defendant’s free speech/petitioning rights.

In DFEH, supra, 154 Cal.App.4th 1273, the trial court

denied the defendant’s anti-SLAPP motion and the Court of

15

Appeal affirmed because, although the complaint discussed

in detail a number of communications, those

communications were not the source of the alleged injury.

Rather, “the allegations of wrongdoing in DFEH’s complaint

arose from [the landlord]’s alleged acts of failing to

accommodate [the tenant]’s disability.” (Id. at p. 1284.)

In Martin, supra, 198 Cal.App.4th 611, the court found

the employee’s claims for discrimination and retaliation

against his former employer were not based on protected

activity, because although the complaint contained some

references to protected activity—namely, poor performance

reviews and a discussion of plaintiff’s performance during a

board meeting—those references were “mentioned only

minimally in plaintiff's pleading.” (Id. at p. 625.) Instead,

the focus of plaintiff's claims was the harassing and

retaliatory acts by plaintiff’s supervisor (e.g., “he hired

plaintiff’s employees without his input, restructured

plaintiff’s division, and announced the latter decision in a

manner allegedly meant to disgrace him”), none of which

were based on the rights of petition or free speech. (Id. at

p. 624.)

Similarly, in the more recent decision in Nam, supra, 1

Cal.App.5th 1176, the core conduct at issue did not implicate

defendant’s petition or free speech rights. In Nam, while

there was some allegedly protected activity (the defendant’s

disciplinary process and related communications), the

gravamen of plaintiff’s complaint focused on defendant’s acts

of “retaliation for her public challenge of department policies

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and her rejection of [a supervisor’s] inappropriate overtures.”

(Id. at p. 1192.) Accordingly, the Court of Appeal affirmed

the denial of defendant’s anti-SLAPP motion because “the

basis of [plaintiff’s] claim, as in [DFEH, supra, 154

Cal.App.4th 1273] and Martin[, supra, 198 Cal.App.4th 611]

was defendant’s retaliation,” not defendant’s exercise of its

petition or free speech rights. (Nam, at p. 1193.)

Here, in contrast (and as discussed in more detail

below), the gravamen of Daniel’s complaint stems not from

any conduct incidental to Wayans’s free speech rights;

rather, all of the alleged misconduct is based squarely on

Wayans’s exercise of free speech—the creation and

promotion of a full-length motion picture, including the off-

camera creative process. As such, Daniel’s complaint is

subject to an anti-SLAPP motion.

B. THE ACTS AT ISSUE AROSE OUT OF PROTECTED

ACTIVITY

Section 425.16, subdivision (e) sets forth four

categories of protected activity. Wayans contends that the

conduct underlying Daniel’s claims falls within

section 425.16, subdivisions (e)(3) and (4), which define

protected activity to include the following: “ ‘(3) 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, or (4) any other conduct in furtherance of the

exercise of the constitutional right of petition or the

constitutional right of free speech in connection with a public

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issue or an issue of public interest.’ ” As discussed below, we

agree with Wayans.

As noted above, the acts at issue fall into two basic

categories: the on-set comments and conduct; and the

Internet posting. We discuss each in turn.

1. The on-set conduct and comments

The allegedly harassing and offensive conduct and

comments by Wayans on the set of A Haunted House 2 were

made in furtherance of his constitutional right of free speech

in connection with an issue of public interest. (§ 425.16,

subd. (e)(4).)

a. Free speech

Movies and films generally are considered “expressive

works” subject to First Amendment protections. (Guglielmi

v. Spelling–Goldberg Productions (1979) 25 Cal.3d 860, 872.)

Movies are a “significant medium for the communication of

ideas. They may affect public attitudes and behavior in a

variety of ways, ranging from direct espousal of a political or

social doctrine to the subtle shaping of thought which

characterizes all artistic expression. The importance of

motion pictures as an organ of public opinion is not lessened

by the fact that they are designed to entertain as well as to

inform.” (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495,

501, fn. omitted.) Whether exhibited in theaters or on

television, a film is a medium which is protected by the

constitutional guarantees of free expression. (U.S. Const.,

1st & 14th Amends.; Cal. Const., art. I, § 2; Joseph Burstyn,

Inc., at pp. 501–502; Red Lion Broadcasting Co. v. FCC

18

(1969) 395 U.S. 367, 386–390.) Nor do films and movies lose

their constitutional protection because they are undertaken

to generate a profit. (Guglielmi v. Spelling–Goldberg

Productions, at pp. 867–868.) In short, “it is beyond dispute

that movies involve free speech.” (Dyer v. Childress (2007)

147 Cal.App.4th 1273, 1280.) Because a film is an

expressive work, its creation is also an exercise of free

speech. (See Tamkin v. CBS Broadcasting, Inc. (2011) 193

Cal.App.4th 133, 143 [creating, casting and broadcasting

T.V. episode is exercise of free speech].)

Although it is undisputed that the conduct and

comments at issue were made on the set of A Haunted

House 2, Daniel argues that they were not made in

furtherance of Wayans’s free speech rights because they

occurred “during breaks, while no cameras were rolling.”

Daniel’s argument is unavailing for several reasons.

First, Daniel’s argument that the movie’s creative

process occurred only when the cameras were rolling rests

on an unreasonably narrow or constrained view of the

creative process generally. “As stated in a different context,

‘[t]he creative process [for a raunchy comedy] must be

unfettered, especially because it can often take strange

turns, as many bizarre and potentially offensive ideas are

suggested, tried, and, in the end, either discarded or

used . . . . [¶] . . . We must not permit juries to dissect the

creative process in order to determine what was necessary to

achieve the final product and what was not, and to impose

liability . . . for that portion deemed unnecessary. Creativity

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is, by its nature, creative. It is unpredictable. Much that is

not obvious can be necessary to the creative process.’ ”

(Tamkin v. CBS Broadcasting, Inc., supra, 193 Cal.App.4th

at pp. 144–145, quoting Lyle v. Warner Brothers Television

Productions (2006) 38 Cal.4th 264, 298 (conc. opn. of

Chin, J.) [addressing workplace sexual harassment claim];2

2 Lyle, supra, 38 Cal.4th 264 itself is not directly

applicable to this case either procedurally (it involved a

motion for summary judgment, not a special motion to

strike) or substantively (it concerned alleged sexual

harassment, not racial harassment, which occurred over the

course of four months, not during the course of a single day).

Nonetheless, the majority opinion, as well as the concurring

opinion of Justice Chin, provides a number of illuminating

insights about the creative process for developing a

somewhat raunchy comedy. Lyle involved a claim by a

female employee of a television production company that the

use of sexual language in the workplace by the male writers

of the television show Friends gave rise to a hostile work

environment. (Id. at p. 271.) The Supreme Court “granted

review to address whether the use of sexually coarse and

vulgar language in the workplace can constitute harassment

based on sex within the meaning of the [Fair Employment

and Housing Act] . . . .” (Id. at p. 272.) It concluded: “Based

on the totality of the undisputed circumstances, particularly

the fact that the Friends production was a creative

workplace focused on generating scripts for an adult-

oriented comedy show featuring sexual themes, we find no

reasonable trier of fact could conclude such language

constituted harassment directed at plaintiff because of her

sex within the meaning of the FEHA.” (Ibid.) The Lyle

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Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th

665, 677 [declining “ ‘ “to dissect the creative process” ’ ” and

affirming granting anti-SLAPP].)

Second, Daniel’s argument about the boundaries of the

creative process for A Haunted House 2—it only occurs on-

set when the camera is rolling—is flatly contradicted by the

undisputed testimony offered by Wayans, Pressly and

Alvarez, who affirmed that the creative process for A

Haunted House 2 was highly improvisational in nature and

majority went on to state: “That the writers commonly

engaged in discussions of personal sexual experiences and

preferences and used physical gesturing while brainstorming

and generating script ideas for this particular show was

neither surprising nor unreasonable from a creative

standpoint.” (Id. at p. 287.)

Based on the testimony of Wayans, Pressly and

Alvarez about the improvisational creative process used for

the making of A Haunted House 2—an adult-oriented, R-

rated feature-length comedy featuring race-based humor—it

is not surprising or unreasonable that terms such as nigga,

nigger and niggie, which were used dozens of times in the

final version of the movie, were also used by the cast and

writers as they brainstormed ideas for the script while on-set

but in-between the filming of scenes (i.e., “during breaks,

while no cameras were rolling”).

In short, the creative process should not be confined, as

Daniel argues, to a fixed place or point in time (i.e., only

when the cameras are rolling). To borrow from Ernest

Hemingway, the creative process, depending on the

circumstances, may well be a movable feast.

21

occurred when the camera was rolling and when it was not.

As Wayans explained, “[j]oking around on set is part of my

creative process for making a comedy film.” According to

Pressly, it is “important” on the set of any comedy to have a

“light, funny atmosphere,” and on the set of A Haunted

House 2 “[e]veryone . . . joked around with each other as part

of the creative process.”

The improvisational nature of the creative process for

the movie is amply demonstrated in the widely varying

dialogue that was used in the three out-takes and in the

final version of the scene in which Daniel appears. In fact,

Daniel’s contention that Wayans’s comments and conduct

when the camera was rolling was completely divorced from

his comments and conduct when the cameras were not

rolling is flatly belied by those outtakes. For example,

Daniel contends that during breaks when the cameras were

not rolling Wayans made disparaging comments about

Daniel’s hair—“Throughout the day, at least ten times,

Wayans called my hair an ‘Afro’ and would start laughing.”

However, in one of the outtakes, Wayans’s character

commented repeatedly on the hair of Daniel’s character,

promising to get Daniel’s character a “perm . . . a nice moist

[Jheri] curl”3 if he will help Wayans’s character move the

3 “A Jheri curl is created by a chemical process that

gives black people’s hair a glossy, loosely curled

look. . . . The most famous person to wear a Jheri curl likely

was the late Michael Jackson during the mid-1980s.”

(Onwuach-Willig, Another Hair Piece: Exploring New

22

safe off his dog. In addition, the name given to Daniel’s

character, Cleveland was also born from the creative process

that occurred when the cameras were not rolling—Wayans

noticing and commenting on Daniel’s resemblance to the

cartoon character. In other words, the evidence shows a

direct linkage between the allegedly injury-producing off-

camera comments and the film’s creative process.

Third, Daniel’s argument is bereft of any supporting

evidence. Daniel does not offer any testimony or documents

rebutting the testimony by Wayans, Pressly, and Alvarez

about the creative process for A Haunted House 2. There is,

in other words, no evidence showing or even suggesting that

the creative process for A Haunted House 2 ceased when the

cameras stopped rolling.

In short, an act is in furtherance of the right of free

speech if the act helps to advance that right or assists in the

exercise of that right. (See Lieberman v. KCOP Television,

Inc. (2003) 110 Cal.App.4th 156, 166 [“Furtherance means

helping to advance, assisting.”]) Here, the testimony and

documentary evidence submitted by Wayans regarding the

movie’s creative process—which was uncontradicted by

Daniel—established that the on-set comments and conduct

Strands of Analysis under Title VII (2006) 98 Geo. L.J. 1079,

1129, fn. 252; see People v. Fudge (1994) 7 Cal.4th 1075,

1089, 1092 [witness identification based on man’s “ ‘jheri-

curls’ ”]; People v. Harrison (2005) 35 Cal.4th 208, 231

[same].)

23

were done to assist Wayans in the exercise of his right to

free speech—that is, to make A Haunted House 2.

b. Issue of public interest

The term “issue of public interest” is construed broadly

in the anti-SLAPP context. (Hecimovich v. Encinal School

Parent Teacher Organization (2012) 203 Cal.App.4th 450,

464.) An issue of public interest is “any issue in which the

public is interested.” (Nygard, Inc. v. Uusi–Kerttula (2008)

159 Cal.App.4th 1027, 1042, italics omitted.) The issue does

not need to be “ ‘significant’ ” to be covered by the anti-

SLAPP statute. (Ibid.) For example, in Hecimovich, a

California appellate court determined that a dispute

between a fourth grade basketball coach and members of a

parent teacher organization regarding parental complaints

about the plaintiff’s abrasive coaching style constituted an

issue of public interest because “the safety of children in

sports” is an issue of public interest, the “suitability of [the

plaintiff’s] coaching style was a matter of public interest

among the parents,” and “problem coaches/problem parents

in youth sports” is an issue of public interest. (Hecimovich,

at pp. 467–468.) With regard to entertainment, California

courts have found that there is a public interest within the

meaning of the anti-SLAPP statute “in the writing, casting

and broadcasting” of an episode of a popular television

program. (Tamkin v. CBS Broadcasting, Inc., supra, 193

Cal.App.4th at p. 144.)

Here, Wayans submitted evidence that the making of

A Haunted House 2 was an issue of public interest. Wayans

24

is a popular and prolific entertainer—since 1988, Wayans

has acted in 21 films; since 1991, he has acted in 13 different

television shows, specials, or movies; since 1992, he has

written or co-written 16 different films and/or television

movies or shows; and since 1996, he has produced or served

as an executive producer of 13 different films and/or

television movies or shows. The longevity and breadth of

Wayans’s career demonstrate continuing public interest in

his work. In addition, many of Wayans’s projects “involve

making fun of pop culture, racial stereotypes, [and] current

events,” adding to the public’s interest in his work. In light

of Wayans’s extensive body of work and the subject matter of

that work, A Haunted House 2 falls easily within the anti-

SLAPP statute’s definition of an “issue of public interest.”4

In sum, Wayans met his burden of making a prima

facie showing that the on-set comments and conduct fell

within the definition of protected activity set forth in

section 425.16, subdivision (e)(4).

The dissenting opinion describes a parade of horribles

that the majority opinion would unleash. But these horrible

are not before us. And in any case, we agree that the

examples described by the dissent would not be in

furtherance of the right of free speech. Here, we only hold

that Wayans’s conduct, including calling Daniel nigga,

4 Although A Haunted House 2 was a major theatrical

production, we do not intend to suggest that smaller

productions would not qualify for protection as being in the

public interest.

25

during the creative process of molding a theatrical work is

protected by free speech.

2. The Internet posting

The allegedly harassing and offensive Internet posting

was a writing made in a place open to the public or a public

forum and it was made in connection with an issue of public

interest. (§ 425.16, subd. (e)(3).)

a. Statement made in a public forum

“[O]ur Supreme Court has held that public access, not

the right to public comment, is the hallmark of a public

forum: ‘Web sites accessible to the public . . . are “public

forums ” for purposes of the anti-SLAPP statute.’ ” (Nygard,

Inc. v. Uusi–Kerttula, supra, 159 Cal.App.4th at p. 1039,

italics added.)

Here, both Daniel’s and Wayans’s declarations state

that the juxtaposed pictures of Daniel and the Cleveland

Brown cartoon figure and the accompanying caption were

posted to Wayans’s Twitter account, which had over a

million followers. The Twitter account constitutes a publicly

accessible social media forum. Indeed, according to Daniel’s

declaration, both he and his brother saw the Twitter post

online. Accordingly, the Internet posting was a statement

made in a public forum.

b. Issue of public interest

Although “not every Web site post involves a public

issue” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226), the

bar for an anti-SLAPP defendant to overcome is not a

particularly demanding one. In Kronemyer v. Internet Movie

26

Database Inc. (2007) 150 Cal.App.4th 941, the mere listing of

producer credits for a movie on defendant’s website was

found to be “an act in furtherance of the right of free speech

protected under the anti-SLAPP statute.” (Id. at p. 947.)

Here, the posting at issue references a Twitter account

that had more than one million followers (and, per Wayans’s

declaration, an Instagram account) for the movie A Haunted

House 2, as well as Wayans’s Whatthefunny Web site. As

noted above, Wayans is a popular actor, writer, and producer

with many films and television shows to his credit.

Moreover, A Haunted House 2 was a sequel to A Haunted

House (IM Global Octane 2013), which apparently was

sufficiently popular and profitable to lead to financing and

production of a sequel. According to Wayans’s declaration,

when A Haunted House 2 was released, it played in 2,310

theaters and grossed $8.8 million in its first week.

Accordingly, advance information from Wayans about

the making of A Haunted House 2, including a photo of

someone acting in the film, constitutes a topic of public

interest, even though Daniel himself may not have been

known to the public.5 The post both referred to a topic of

5 It should be noted that although Daniel may not have

been widely known prior to his appearance in A Haunted

House 2, he actively sought to increase his standing before

the public when he agreed to act in the movie. By agreeing

to appear in the movie, Daniel “voluntarily subjected

[him]self to inevitable scrutiny and potential ridicule by the

27

widespread public interest (the film) and contributed to the

public “debate” or discussion regarding the film by giving

fans and those interested a glimpse of someone in the film.

We therefore conclude that the Internet posting constituted

protected activity as provided in section 425.16,

subdivision (e)(3).

IV. Step two: Daniel did not meet his burden

In the second step of an anti-SLAPP analysis, we

determine whether plaintiff has produced evidence

demonstrating a probability of prevailing on his claims.

To show a probability of prevailing on his claims, “ ‘the

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.”

[Citations.] . . . [T]hough the court does not weigh the

credibility or comparative probative strength of competing

evidence, it should grant the motion if, as a matter of law,

the defendant’s evidence supporting the motion defeats the

plaintiff’s attempt to establish evidentiary support for the

claim.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 713–714.)

“ ‘The plaintiff may not rely solely on its complaint, even if

verified; instead, its proof must be made upon competent

admissible evidence.’ ” (Paiva v. Nichols (2008) 168

Cal.App.4th 1007, 1017.)

public and the media.” (Seelig v. Infinity Broadcasting Corp.

(2002) 97 Cal.App.4th 798, 808.)

28

Here, we conclude that Daniel did not meet his burden

with respect to any of his claims against Wayans.6

A. RACIAL HARASSMENT

Daniel’s racial harassment claim against Wayans (first

cause of action) is brought pursuant to the California Fair

Employment and Housing Act (FEHA) (Gov. Code, § 12940

et seq.). Although federal court rulings are not binding on

the Court of Appeal, California courts “frequently turn to

federal authorities interpreting Title VII of the Civil Rights

Act of 1964 . . . for assistance in interpreting the FEHA . . . .”

(Miller v. Department of Corrections (2005) 36 Cal.4th 446,

463; Mitchell v. State Dept. of Public Health (2016) 1

Cal.App.5th 1000, 1009, fn. 4.)

In his complaint, Daniel alleges that while on the set of

A Haunted House 2 he was subjected to a racially hostile

work environment. “To establish a prima facie case of a

racially hostile work environment, [a plaintiff] [is] required

to show that (1) he was a member of a protected class; (2) he

was subjected to unwelcome racial harassment; (3) the

harassment was based on race; (4) the harassment

6 Both Wayans’s special motion to strike and Daniel’s

opposition thereto addressed the fourth cause of action,

which alleges a violation of the Unruh Civil Rights Act. On

appeal, however, Daniel provides no argument with respect

to that cause of action. We necessarily conclude that he has

either conceded the propriety of granting the anti-SLAPP

motion as to that cause of action or has forfeited any

contention regarding it.

29

unreasonably interfered with his work performance by

creating an intimidating, hostile, or offensive work

environment; and (5) the [defendant] is liable for the

harassment.” (Thompson v. City of Monrovia (2010) 186

Cal.App.4th 860, 876.)

To establish the fourth element—that the harassment

created a hostile work environment—a plaintiff “ ‘must

prove that the defendant’s conduct would have interfered

with a reasonable employee’s work performance and would

have seriously affected the psychological well-being of a

reasonable employee . . . .’ ” (Aguilar v. Avis Rent A Car

System, Inc. (1999) 21 Cal.4th 121, 130–131.) Harassment,

which may be verbal, physical, or visual and “communicates

an offensive message to the harassed employee” (Roby v.

McKesson Corp. (2009) 47 Cal.4th 686, 706), “ ‘cannot be

occasional, isolated, sporadic, or trivial[;] rather the plaintiff

must show a concerted pattern of harassment of a repeated,

routine or a generalized nature.’ ” (Aguilar, at p. 131.)

Whether the harassment is sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create

an abusive environment “must be assessed from the

‘perspective of a reasonable person belonging to the racial or

ethnic group of the plaintiff.’ ” (Nazir v. United Airlines, Inc.

(2009) 178 Cal.App.4th 243, 263–264.) In addition,

determining whether an environment is hostile requires

looking at the totality of the circumstances, including “the

frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a

30

mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” (Harris v.

Forklift Systems, Inc. (1993) 510 U.S. 17, 23.)

Daniel relies upon Dee v. Vintage Petroleum, Inc.

(2003) 106 Cal.App.4th 30, for his assertion that “a single

racial slur by a supervisor may also create a hostile work

environment.” (Id. at p. 36.) Dee involved much more than a

single racial slur. The plaintiff’s supervisor “called her a

‘bitch’ and ‘constantly’ used the word ‘asshole.’ He berated

her, ‘harassed’ her, ordered her to lie and blamed her for

tasks he ordered her to perform.” (Id. at p. 37.) After the

plaintiff complained to her supervisor about being asked to

lie, the supervisor told the plaintiff that “ ‘it is your Filipino

understanding versus mine.’ ” This comment was, as the

Court of Appeal stated, “an ethnic slur, both abusive and

hostile.” (Ibid.) The court concluded that the evidence

supported a reasonable inference that “the racial slur was

not an isolated event” and that the supervisor “wished to

intimidate [the plaintiff] so that she would not complain to

higher management about his conduct.” (Ibid.) The court

did not hold, as Daniel asserts, that “a single racial slur by a

supervisor may also create a hostile work environment.”

Although the Dee court made this statement, it preceded it

with the phrase, “[i]n other jurisdictions.” (Id. at p. 36,

italics added, citing Rodgers v. Western–Southern Life

Insurance Co. (7th Cir. 1993) 12 F.3d 668, 675 (Rodgers).)

Dee cannot be read as Daniel urges.

31

Daniel argues on appeal that “ ‘It is beyond question

that the use of the word “nigger” is highly offensive and

demeaning, evoking a history of racial violence, brutality,

and subordination. This word is “perhaps the most offensive

and inflammatory racial slur in English, . . . a word

expressive of racial hatred and bigotry.” ’ ” We agree with

our Supreme Court that although “ ‘nigger’ may once have

been in common usage,” it is now considered to be

“particularly abusive and insulting . . . as it pertains to the

American Negro.” (Alcorn v. Anbro Engineering, Inc. (1970)

2 Cal.3d 493, 498, fn. 4.)

Nigger, however, is not the term at issue here. Rather,

the term at issue is nigga. As Daniel makes clear in his

declaration opposing the motion, he was not called nigger by

Wayans, but nigga. Nigga is not an unambiguous racial

epithet in today’s world, especially when used intra-racially,

as it was here. In fact, one noted legal scholar, Harvard Law

professor, Randall Kennedy has observed that “ ‘[today,]

when African Americans are speaking to each other,

“nigger,” and especially its more genial cousin, “nigga” can

be an affectionate greeting, a compliment, or a term of

respect.’ ” (Perdu and Parks, The Nth Degree: Examining

Intraracial use of the N-word in Employment Discrimination

Cases (2014) 64 DePaul L.Rev. 65, 67; see Kennedy, Nigger:

The Strange Career of a Troublesome Word (2002) p. 5

[“Currently, some people insist upon distinguishing nigger—

which they see as exclusively an insult—from nigga, which

32

they view as a term capable of signaling a friendly

salutation.”].7)

7 See Parks and Jones, “Nigger”: A Critical Race

Realist Analysis of the N-Word within Hate Crimes Law”

(2008) 98 J.Crim. L. & Criminology 1305, 1306 (“the N-word

has a different connotation when used intra-racially among

Blacks than when directed at Blacks by Whites”). It should

be noted, however, that others see little difference between

nigger and nigga: “whether it ends in -a or -er, the first

thing that comes to mind is a negative image of a black

person.” (Frost, What is the Difference Between “Nigga” and

“Nigger” (Feb. 27, 2014), The Pioneer

<http://thepioneeronline.com/20399/opinions/what-is-the-

difference-between-nigga-and-nigger> [as of December 12,

2016].)

The key fact for our purposes here is that in

contemporary usage nigga is not an unambiguous racial

epithet, but a term which can have a number of different

meanings when used by different people in different

contexts. The highly ambiguous/context-specific nature of

the term nigga is captured by Dictionary.com: “Nigga is

used mainly among African Americans, but also among other

minorities and ethnicities, in a neutral or familiar way and

as a friendly term of address. It is also common in rap

music. However, nigga is taken to be extremely offensive

when used by outsiders. Many people consider this word to

be equally as offensive as nigger.”

(<http://www.dictionary.com/browse/nigga?s=t>).

To borrow from and paraphrase Professor Kennedy,

“[m]ore vividly than most words, then [nigga] illustrates

Justice Oliver Wendell Holmes’s observation, that ‘a word is

33

Wayans introduced evidence that nigga as used by

him—generally and on the set of A Haunted House 2—and

as received by others working on the movie was not a racial

slur, but a term of endearment. In rebuttal, Daniel stated

that, regardless of how others found Wayans’s use of the

term, he found the term personally offensive when directed

at him. But Daniel limited his rebuttal to only his subjective

perspective. In other words, Daniel did not introduce any

evidence showing that an objectively reasonable Black actor

in his situation would also find the term offensive such that

its usage would unreasonably interfere with his work

performance. Under the law that is not a sufficient showing.

(See Hope v. California Youth Authority (2005) 134

Cal.App.4th 577, 588 [“harassment must satisfy an objective

and a subjective standard”] italics added.)

Moreover, the evidence introduced below suggests the

contrary to Daniel’s claim—that is, a reasonable Black actor

who voluntarily agreed to participate in a movie addressing

racial stereotypes that was written, produced and starred

Wayans—an artist known for his frequent use of both nigger

and nigga in his work8—would be on notice that potentially

not a crystal, transparent and unchanged, . . . [it is] the skin

of a living thought [and] may vary greatly in color and

content according to the circumstances and the time in

which it is used.’ ” (Kennedy, Nigger: The Strange Career of

a Troublesome Word, supra, at p. 55.)

8 In the original Haunted House, the word nigga was

used “numerous times” and in another prior movie in which

34

racially charged language would be used in the film, and,

given the improvisational nature of the production, that such

language might be used among the actors and production

staff when the cameras were not rolling to help develop

storylines and dialogue. Consequently, under the facts of

this case the use of the term nigga did not create a “ ‘hostile

or abusive work environment.’ ” (Aguilar v. Avis Rent A Car

System, Inc., supra, 21 Cal.4th at p. 130.)

The doubts about Daniel’s ability to prevail on his

racial harassment claim are raised to a fatal level when he

fails to mention, let alone discuss, how the use of the

allegedly offensive language adversely affected him in his

work for the movie and would have affected a reasonable

Black actor’s performance. Although Daniel states that

Wayans’s alleged harassment made him feel “self-conscious,

insecure,” “humiliated,” and “embarrassed” while he was on

the set, his declaration is completely and tellingly silent with

regard to how Wayans’s on-set comments and conduct

adversely affected his work performance that day. None of

the other declarants who were on the set that day—Wayans,

Pressly, and Alvarez—observed Daniel having any trouble in

performing his duties. None of the declarants, including

Daniel himself, states, for example, that his scene had to be

reshot and/or delayed in being shot because Daniel was

plainly troubled by something that occurred when the

Wayans starred, authored, and produced, the word nigger

was used 55 times in the final, released version of the film.

35

cameras were not rolling and, as a result, he was unable to

get into character and/or perform his role in an efficient and

effective manner. The only reasonable conclusion that can

be drawn from such silence is that the alleged racial

harassment had no adverse effect on Daniel’s work

performance.9

9 One of the cases upon which Daniel relies, Rodgers,

supra, 12 F.3d 668, illustrates how big of a gap there is

between Daniel’s allegations of a hostile work environment

and what courts have actually found to be a hostile work

environment. In Rodgers, the plaintiff’s supervisor, a White

man, who also hired the plaintiff, a Black man, used

profanity and personal insults to motivate the plaintiff and

other subordinates. The insults included unambiguous

racial remarks—including the use of the word nigger—as

well as many race-neutral epithets over the course of 12

years. (Id. at p. 671.) In addition to verbal abuse, the

plaintiff’s supervisor on one occasion dumped out the

contents of the plaintiff’s desk. (Ibid.) As a result of the

“harsh treatment and racist language,” plaintiff suffered a

number of physical problems for which he sought medical

treatment. (Ibid.) Despite the job-related stress resulting

from the harsh treatment and racial insults, the plaintiff

continued to work for the defendant. (Ibid.) However, the

stress became so severe that the plaintiff repeatedly asked

for a demotion and when the last of those requests were

refused, he resigned. (Id. at p. 672.) Here, in contrast to the

plaintiff in Rodgers, Daniel was exposed to a handful of

arguably racist comments and some arguably offensive but

race-neutral comments over the course of a single work day,

comments which apparently did not interfere with his work

36

In sum, looking, as we must, at the totality of the

circumstances, the alleged acts of racial harassment here did

not alter the conditions of Daniel’s employment and create

an abusive environment. Even when we credit Daniel’s

evidence, that evidence is insufficient as a matter of law to

sustain a judgment favorable to him. Accordingly, we hold

that the trial court properly struck Daniel’s racial

harassment claim against Wayans.

B. MISAPPROPRIATION

Daniel’s claims for statutory and common law

misappropriation of name and likeness (fifth and sixth

causes of action) are based solely on the Internet posting.

Daniel failed to meet his burden of showing a probability of

prevailing with respect to these claims for two reasons: first,

Daniel failed to overcome evidence that he waived his claims

when he signed the voucher, which contained a broad release

consenting to the use of his image in connection with the

movie; second, even if Daniel did not release his claims or

the voucher was inadmissible, Wayans’s transformative use

of Daniel’s photograph established a complete defense.

1. The voucher

An essential element for either a common law or

statutory misappropriation claim is the unauthorized use of

performance at all or force him to seek reduced

responsibilities or any other on-the-job relief from the

alleged misconduct. Nor does the record reflect that the

alleged harassment has caused Daniel to seek any

subsequent medical treatment.

37

plaintiff’s image. (See Kirby v. Sega of American, Inc. (2006)

144 Cal.App.4th 47, 55 [common law misappropriation

claim]; Montana v. San Jose Mercury News, Inc. (1995) 34

Cal.App.4th 790, 793 [statutory misappropriation claim].)

As discussed above, the voucher contains a broad release

regarding the use of Daniel’s image “in any manner

whatsoever and for any reason in connection with The

Production.” (Italics added.)

On appeal, Daniel makes two related arguments:

(a) the trial court improperly overruled his objection to the

voucher on authentication grounds; and (b) the voucher does

not establish that the release runs in favor of Wayans. We

do not find either argument to have merit.

a. The trial court did not err by

overruling Daniel’s authentication objection to the voucher

“Evidentiary challenges [on a anti-SLAPP motion] are

reviewed only for abuse of discretion. [Citation.] As such,

we will not overturn an evidentiary ruling on appeal unless

‘the trial court exceeded the bounds of reason, all of the

circumstances before it being considered.’ ” (Public

Employees’ Retirement System v. Moody's Investors Service,

Inc. (2014) 226 Cal.App.4th 643, 683.)

“[W]hile all writings must be authenticated before they

are received into evidence ([Evid. Code,] § 1401), the

proponent’s burden of producing evidence to show

authenticity ([Evid. Code,] § 1400) is met ‘when sufficient

evidence has been produced to sustain a finding that the

document is what it purports to be. [Citation.]’ [Citation.]

38

The author’s testimony is not required to authenticate a

document ([Evid. Code,] § 1411); instead, its authenticity

may be established by the contents of the writing ([Evid.

Code,] § 1421) or by other means ([Evid. Code,] § 1410 [no

restriction on ‘the means by which a writing may be

authenticated’]). ‘As long as the evidence would support a

finding of authenticity, the writing is admissible. The fact

conflicting inferences can be drawn regarding authenticity

goes to the document’s weight as evidence, not its

admissibility. [Citations.]’ [Citation.] ‘ “[L]ike any other

material fact, the authenticity of a [document] may be

established by circumstantial evidence . . . .” ’ ” (People v.

Valdez (2011) 201 Cal.App.4th 1429, 1435.)

Here, Wayans presented sufficient circumstantial

evidence for the trial court to find that the document had

been authenticated. As discussed above, the voucher was

attached as an exhibit to Alvarez’s declaration. The voucher

indicates that the production or project name is “Dumb Ass

Prod.,” not A Haunted House 2. However, Alvarez stated in

his declaration that the “production company for A Haunted

House 2 was Dumb Ass Productions, which is why that

company is listed on the [voucher].” (Italics omitted.) In

addition, Alvarez indicated in his declaration that he was in

a position to have personal knowledge of the corporate

entities involved in the making of the movie, as well as the

vouchers used with extras, such as Daniel, and Daniel’s

execution of the voucher. Alvarez states that as the

coproducer of the movie he was responsible for “oversee[ing]

39

the entire production.” (Italics added.) In addition, Alvarez

states he was “on the set the one day that Mr. Daniel was on

the set and was present during the shooting of the scene in

which Mr. Daniel appeared.”

From the facts in Alvarez’s declaration, it can be

readily inferred that the voucher was a true and accurate

copy of the document that Daniel signed allowing him to be

present on the set of A Haunted House 2 and to work as an

extra on that movie on September 4, 2013. (Daniel does not

dispute that he signed the voucher or that the voucher

contains his address, phone number and redacted social

security number.) Accordingly, the trial court, considering

all of the facts before it, did not exceed the bounds of reason

by overruling Daniel’s objection.

b. The voucher’s release extends to

Wayans

Daniel asserts that there is “nothing in this record to

demonstrate that Wayans was entitled to the benefit of the

contract between Daniel and Dumb Ass Productions.”

Daniel’s assertion is incorrect. As discussed above, Alvarez

states in his declaration that Dumb Ass Productions is the

production company responsible for making A Haunted

House 2. Both Alvarez and Wayans identify Wayans as one

of the movie’s coproducers. Those two undisputed facts are

sufficient for purposes of an anti-SLAPP motion to show that

the voucher’s broad release includes Wayans.

40

2. Wayans’s use of Daniel’s image was

transformative

The freedom of expression protected by the First

Amendment exists to preserve an uninhibited marketplace

of ideas and to further individual rights of self expression.

(Winter v. DC Comics (2003) 30 Cal.4th 881, 887 (Winter).)

The protections may extend to all forms of expression,

including written and spoken words (fact or fiction), music,

films, paintings, and entertainment, whether or not sold for

a profit. (Comedy III Productions, Inc. v. Gary Saderup, Inc.

(2001) 25 Cal.4th 387, 406 (Comedy III).)

In Comedy III, supra, 25 Cal.4th 387 and again in

Winter, supra, 30 Cal.4th 881, our Supreme Court addressed

the balance between an individual’s right to control the

commercial exploitation of his or her likeness or identity and

the First Amendment right of free expression. (See

Comedy III, at p. 400; Winter, at pp. 887–888.) In

Comedy III, the court held a defendant may raise the First

Amendment as an affirmative defense to an allegation of

appropriation if the defendant’s work “ ‘adds something new,

with a further purpose or different character, altering the

first with new expression, meaning, or message . . . .’ ” (Id.

at p. 404.) In other words, the new work must contain

significant “transformative elements.” (Id. at pp. 406–407.)

The transformative test is straightforward: The

“inquiry is whether the celebrity likeness is one of the ‘raw

materials' from which an original work is synthesized, or

whether the depiction or imitation of the celebrity is the very

41

sum and substance of the work in question.” (Comedy III,

supra, 25 Cal.4th at p. 406.) If the “product containing the

celebrity’s likeness is so transformed that it has become

primarily the defendant’s own expression” of what he or she

is trying to create or portray, rather than the celebrity's

likeness, it is protected. (Id. at pp. 406–407.) In developing

the test, the Comedy III court made two important

observations. First, the right to control one’s image “cannot,

consistent with the First Amendment, be a right to control

the . . . image by censoring disagreeable

portrayals. . . . [T]he First Amendment dictates that the

right to comment on, parody, lampoon, and make other

expressive uses of the celebrity image must be given broad

scope.” (Id. at p. 403.) Second, “in determining whether the

work is transformative, courts are not to be concerned with

the quality of the artistic contribution—vulgar forms of

expression fully qualify for First Amendment protection.”

(Id. at p. 407.) In short, all that is necessary is that the

defendant’s work add “ ‘something new, with a further

purpose or different character, altering the first with new

expression, meaning, or message.’ ” (Id. at p. 404.) A work

is transformative if it adds “ ‘new expression.’ ” That

expression alone is sufficient; it need not convey any

“ ‘meaning or message.’ ” (Ibid.)

Applying this test in Comedy III, supra, 25 Cal.4th 387,

which involved drawings depicting The Three Stooges, and

T-shirts made from those drawings, the court concluded the

drawings and T-shirts were not entitled to First Amendment

42

protection. The artist who created them, while highly

skilled, contributed nothing other than a trivial variation

that transformed the drawings from literal likenesses of the

three actors. (Id. at pp. 408–409.)

The Supreme Court applied the transformative test

again two years later in Winter, supra, 30 Cal.4th 881. In

that case, the defendant published a series of comics

featuring two half-worm, half-human characters based on

singers Edgar and Johnny Winter. Both characters had long

white hair and albino features similar to the Winter

brothers, while one wore a hat similar to one often worn by

Johnny Winter. (Id. at p. 886.) The Winter brothers sued

for statutory appropriation and lost on summary judgment.

The Court of Appeal affirmed in part, reversed in part, and

remanded. The Supreme Court, however, granted review.

Applying the transformative test, the court found for the

defendants, holding that the comic depictions contained

significant expressive content beyond the Winters’ mere

likenesses and were “entitled to First Amendment

protection.” (Id. at pp. 890, 892.) As the Supreme Court

explained, the Winters were merely part of the raw material

from which the comics’ plot and characters were fashioned.

In addition, the characters were distorted pictures of the

Winters for the purpose of lampoon, parody or caricature. In

short, and in stark contrast to the near literal depictions of

the Three Stooges in Comedy III, supra, 25 Cal.4th 387, the

comic book characters depicted were “fanciful, creative

43

characters, not pictures of the Winter brothers.” (Winter, at

p. 892.)

Here, although Wayans used two unaltered images—

one of Daniel and one of the Cleveland Brown character—his

use of those images was nonetheless transformative.

Wayans’s use was transformative in the combination of the

juxtaposed images with his commentary. That combination

of images and arguably humorous commentary provided the

Internet posting with an element of caricature, lampoon, or

parody. It is this element that puts the Internet posting

within the protection of the First Amendment. In other

words, Wayans’s juxtaposition of Daniel’s image with the

image of the Cleveland Brown character and his caption

added “ ‘something new’ ” to Daniel’s image, altering it with

a “ ‘new expression, meaning, or message.’ ” (Comedy III,

supra, 25 Cal.4th at p. 404.)

In sum, because the voucher was authenticated and

because its release is not only broad but can reasonably be

read to extend to Wayans, Daniel failed to show a probability

of prevailing. Alternatively, even if the voucher had not

been authenticated, or the evidence was insufficient to show

that its release extended to Wayans, the Internet posting

was a transformative use of Daniel’s image and, as a result,

Wayans has an affirmative defense to Daniel’s

misappropriation claims. In light of the voucher’s release

and the Internet posting’s transformative use, the trial court

properly struck the misappropriation claims.

44

C. FALSE LIGHT

“ ‘One who gives publicity to a matter concerning

another that places the other before the public in a false

light is subject to liability to the other for invasion of his

privacy, if (a) the false light in which the other was placed

would be highly offensive to a reasonable person, and (b) the

actor had knowledge of or acted in reckless disregard as to

the falsity of the publicized matter and the false light in

which the other would be placed.’ ” (5 Witkin, Summary of

Cal. Law (10th ed. 2005) Torts, § 673, p. 988.) A “false light”

cause of action is a variety of defamation and is subject to

the same requirements. (Aisenson v. American Broadcasting

Co. (1990) 220 Cal.App.3d 146, 161.)

“In determining whether a statement is libelous we

look to what is explicitly stated as well as what insinuation

and implication can be reasonably drawn from the

communication.” (Forsher v. Bugliosi (1980) 26 Cal.3d 792,

803.) “ ‘ “[I]f the defendant juxtaposes [a] series of facts so as

to imply a defamatory connection between them, or

[otherwise] creates a defamatory implication . . . he may be

held responsible for the defamatory implication, . . . even

though the particular facts are correct.” ’ ” (Weller v.

American Broadcasting Companies, Inc. (1991) 232

Cal.App.3d 991, 1003, fn. 10.) A court examines the totality

of the circumstances, including the context in which the

statement was made. (Baker v. Los Angeles Herald

Examiner (1986) 42 Cal.3d 254, 260–261.) Opinions are

constitutionally protected and cannot form the basis of a

45

defamation-type claim. (Id. at p. 260.) Whether a statement

constitutes a statement of fact or opinion is a question of

law. (Ibid.) “In making such a determination, the court

must place itself in the position of the hearer or reader, and

determine the sense or meaning of the statement according

to its natural and popular construction.” (Ibid.) Based on

the language used and the totality of the surrounding

circumstances, the court determines whether the average

reader or hearer “could have reasonably understood the

alleged defamatory statement to be one of fact.” (Id. at

p. 261.) “Photographs are not actionable if they are fair and

accurate depictions of the person and scene in question, even

if they place the person in a less than flattering light, so long

as the photographs do not surpass the limits of decency by

being highly offensive to persons of ordinary sensibilities.”

(Aisenson v. American Broadcasting Co., supra, 220

Cal.App.3d at p. 161.)

Here, the Internet posting referred only to Daniel’s

physical resemblance to the Cleveland Brown cartoon

character. It twice expressly referred to how Daniel looked.

It did not insinuate or imply that Daniel shared any

personality characteristics or, as Daniel argues, “suggest[ ]

that Daniel is a real-life incarnation of the cartoon figure.”

Moreover, it was a combination of an expression of an

opinion by Wayans that Daniel looked like Cleveland Brown

and an accurate photographic comparison. Accordingly,

Daniel did not show a probability of prevailing on his false

light claim, and the trial court properly struck it.

46

D. QUASI-CONTRACT

Daniel’s quasi-contract claim (eighth cause of action) is

based solely on the Internet posting. According to the

complaint, Wayans obtained an improper “benefit” from

using Daniel’s likeness in the Internet posting. The Internet

posting, according to the complaint, was improper because

the photograph of Daniel used in that posting was taken

“without [his] consent.”

“[I]t is well settled that an action based on an implied-

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

between the parties a valid express contract covering the

same subject matter.” (Lance Camper Manufacturing Corp.

v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203;

Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223

Cal.App.4th 221, 231.)

Here, there was a valid express contract covering the

use of Daniel’s photograph in connection with A Haunted

House 2, the voucher. By signing the voucher, Daniel not

only gave Wayans the right to use his photograph “in any

manner whatsoever and for any reason” in connection with

the movie, but also acknowledged that the wages he received

for his work on the movie were “payment in full”—that is, he

is not entitled to any other payment, including payment for

the use of his photograph. Because Daniel did not show a

probability of prevailing on his quasi-contract claim, the trial

court properly struck it.

47

E. UNJUST ENRICHMENT

Like his quasi-contract claim, Daniel’s claim for unjust

enrichment is based solely on the Internet posting.

Technically, “[u]njust enrichment is not a cause of

action, . . . or even a remedy”; it is instead a principle or

state “describing ‘ “the result of a failure to make

restitution.” ’ ” (McBride v. Boughton (2004) 123

Cal.App.4th 379, 387.) However, because this appeal

concerns an anti-SLAPP motion, we disregard how a

plaintiff may have styled or labeled a particular cause of

action and focus instead on the claim’s merits. (Hylton v.

Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264,

1272.)

Daniel’s claim for unjust enrichment suffers from two

related problems. First, a party to an express contract can

assert a claim for restitution based on unjust enrichment by

only “ ‘alleg[ing in that cause of action] that the express

contract is void or was rescinded.’ ” (Rutherford Holdings,

LLC v. Plaza Del Rey, supra, 223 Cal.App.4th at p. 231.)

Here, Daniel does not allege in his complaint and has not

demonstrated in his declaration opposing Wayans’s motion

that the voucher was void or rescinded.

Second, and more substantively, Daniel’s unjust

enrichment claim suffers from many of the same problems

that bedevil his quasi-contract claim: Daniel: (1) was hired

as a non-speaking extra in a one day role; (2) was paid in full

for his services; (3) acknowledged in writing that he received

“payment in full”; and (4) released any right to any use of his

48

image in connection with the promotion of A Haunted

House 2. Consequently, Daniel failed to show a probability

of prevailing on his quasi-contract claim, and the trial court

properly struck it.

F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Daniel’s claim for the intentional infliction of emotional

distress is based on both the on-set comments and conduct

and the Internet posting.

The elements of a prima facie case for the tort of

intentional infliction of emotional distress are:

“ ‘ “ ‘(1) extreme and outrageous conduct by the defendant

with the intention of causing, or reckless disregard of the

probability of causing, emotional distress; (2) the plaintiff's

suffering severe or extreme emotional distress; and

(3) actual and proximate causation of the emotional distress

by the defendant's outrageous conduct. . . .’ ” ’ ” (Potter v.

Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001;

Hughes v. Pair (2009) 46 Cal.4th 1035,1050.) “ ‘ “Conduct to

be outrageous must be so extreme as to exceed all bounds of

that usually tolerated in a civilized community.” ’ ” (Potter,

at p. 1001.) However, “liability ‘does not extend to mere

insults, indignities, threats, annoyances, petty oppressions,

or other trivialities,’ but only to conduct so extreme and

outrageous ‘as to go beyond all possible bonds of

decency . . . .’ ” (Alcorn v. Anbro Engineering, Inc. (1970) 2

Cal.3d 493, 499, fn. 5; Hughes, at p. 1051.)

Here, the allegedly outrageous conduct consisted of a

number of boorish and/or juvenile comments about Daniel’s

49

physical appearance, the use of the term nigga, which in

contemporary usage may or may not be a term of

endearment among African Americans depending on the

circumstances, and an arguably comic juxtaposition of

photographs on the Internet. Although Daniel may have

found such conduct hurtful, under all the circumstances

Wayans’s conduct was not so extreme as to exceed all bounds

of that usually tolerated in a civilized community. Rather,

the alleged misconduct falls more in the category of insults,

indignities, annoyances, and petty oppressions. Accordingly,

the trial court properly struck this claim.

V. Attorney fees award

The trial court, pursuant to section 425.16,

subdivision (c), awarded Wayans his attorney fees as the

prevailing party. Daniel does not challenge the amount of

those fees. Instead, his challenge to those fees is a global

one—that is, Wayans was not entitled to those fees because

his anti-SLAPP motion should not have been granted.

Because we hold that the trial court properly granted

Wayans’s anti-SLAPP motion, we further hold that the

award of attorney fees was proper.

50

DISPOSITION

The judgment and order granting the anti-SLAPP

motion and dismissing the complaint are affirmed. The

order granting Marlon Wayans’s attorney fees is also

affirmed. Marlon Wayans is awarded his costs on appeal.

CERTIFIED FOR PUBLICATION.

JOHNSON, J.

I concur:

ROTHSCHILD, P. J.

51

LUI, J., Concurring and Dissenting.

Although I agree with the majority on some of its

analysis, I disagree with the majority’s conclusions

concerning both the scope of the creative process and the

scope of the release that appellant Pierre Daniel (Daniel)

signed. I also believe that Daniel demonstrated a reasonable

probability that he would prevail on his cause of action for

intentional infliction of emotional distress. Accordingly, I

would reverse the trial court’s ruling in part and permit

Daniel’s action to proceed on claims relating to both the

alleged on-set conduct of respondent Marlon Wayans

(Wayans) and to his Internet posting.

Because this is an appeal from an order granting an

anti-SLAPP motion, we must accept the “plaintiff’s evidence

as true.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 385 (Baral).)

We evaluate the defendant’s showing “only to determine if it

defeats the plaintiff’s claim as a matter of law.” (Ibid.)

Under that standard, we are faced with the following facts.

Daniel was hired for one day as an extra on a movie,

A Haunted House 2. While on the set, when no filming was

occurring, the producer, cowriter and star of the movie,

Wayans, repeatedly called Daniel “ ‘nigga’ ” and a “ ‘black fat

ass,’ ” mocked him for his “ ‘Afro’ ” hairstyle, approached

Daniel while sneering, leering and rolling his eyes, compared

Daniel to an unflattering character (Cleveland Brown) in the

animated series Family Guy, and generally treated him in a

demeaning and abusive manner. Daniel had no prior

relationship with Wayans and did not participate in this

insulting conduct that Wayans characterized as “joking.”

Indeed, he testified that he walked away.

The insulting conduct was not limited to the set.

Without Daniel’s permission, Wayans took Daniel’s picture

on Wayans’s cell phone. Wayans posted the picture on his

personal Twitter account next to a picture of the Cleveland

Brown animated character with a caption comparing “ ‘this

nigga’ ” (Daniel) to “ ‘THIS NIGGA’ ” (Cleveland Brown).

Many people saw the pictures, resulting in repeated

embarrassing questions as to whether Daniel is the

“ ‘Cleveland Brown’ ” character from Wayans’s post.

1. Wayans’s on-set conduct, as alleged, was not in

furtherance of his constitutional right to free

speech

The majority concludes that Wayans’s alleged on-set

conduct was protected under the anti-SLAPP statute

because it was part of the creative process of making the

movie. (Code Civ. Proc., § 425.16, subd. (e)(4).)1 The

majority observes that Daniel did not rebut Wayans’s

evidence that creation of the movie involved a great deal of

on-set improvisation both before and during filming, along

with a “ ‘light, funny atmosphere’ ” in which “ ‘[e]veryone . . .

joked around with each other as part of the creative

process.’ ” (Maj. opn. ante, at p. 22.)

1Subsequent undesignated statutory references are to

the Code of Civil Procedure.

2

The problem with this analysis is that Daniel did not

willingly participate in this creative process. Under Daniel’s

version of events—which we must accept on this appeal—he

was not a collaborator in a crass but collegial brainstorming

session. He did not know Wayans. He was not hired to be a

writer or creative consultant. He was an extra hired for one

day to be a “non-descriptive furniture mover who would be

assisting in moving boxes in and out of a house.” He was the

target of, not a participant in, others’ demeaning and

offensive humor.

The humor was racially charged. We have no reason to

question Wayans’s claim that he commonly uses the term

“ ‘nigga’ ” as a term of endearment with friends of all races.

But it hardly stretches credibility when Daniel claims that

the use of such an historically fraught term offended and

insulted him.2 Most important, it is not our role to decide

2 The majority engages in a scholarly discussion of the

evolution of, and differences between, the terms “nigger” and

“nigga” and the current offensive and inoffensive usages of

the terms. But the key component of that analysis is that

the meaning of the terms depends upon the circumstances.

As the majority explains, the term “ ‘nigga’ ” “can have a

number of different meanings when used by different people

in different contexts.” (Maj. opn. ante, at p. 33, fn. 7.) No

one can seriously question that either term can be highly

offensive when used in an offensive manner. Indeed, in

recognition of the term’s connotations, in 2007 the NAACP

held a mock funeral for the “N” word, complete with a horse

drawn carriage carrying “a wooden coffin that adorned black

3

credibility. We accept Daniel’s testimony that he was

offended and evaluate the circumstances in which the

offensive conduct occurred.

Daniel’s claim that the conduct at issue here was

specifically directed at him creates a critical difference

between the facts of this case and the facts in Lyle v. Warner

Brothers Television Productions (2006) 38 Cal.4th 264 (Lyle),

which the majority suggests provides “insights about the

creative process for developing a somewhat raunchy

comedy.” (Maj. opn. ante, at p. 20, fn. 2.) In Lyle, a former

comedy assistant on the television show Friends brought a

claim for sexual harassment based upon sexually explicit

language that the male writers used. In affirming summary

judgment, our Supreme Court was careful to note that the

record showed that the sexual antics and discussions at

issue “did not involve and were not aimed at plaintiff or any

other female employee.” (Lyle, at p. 287.) Here, the conduct

at issue was allegedly aimed at Daniel.

In his concurring opinion in Lyle, Justice Chin

explained that protection of the creative process is

particularly important in lawsuits that are “directed at

restricting the creative process in a workplace whose very

roses and a ribbon with the word ‘nigga’ displayed.”

(<http://www.naacp.org/latest/the-n-word-is-laid-to-rest-by-

the-naacp> [as of Feb. 8, 2017].) The context that Daniel

describes in this case is use of the term “ ‘nigga’ ” by one

person (Wayans) to refer to another person (Daniel) who

found the term “racially offensive and derogatory.”

4

business is speech related.” (Lyle, supra, 38 Cal.4th at p. 297

(conc. opn. of Chin, J.).) But he also concluded that, “[j]ust

as criminal threats are not protected, just as no one has the

right to falsely shout ‘fire’ in a crowded theater, limits exist

as to what may occur in the writers’ room.” (Id. at p. 299.)

Even in that context, “speech that is directed, or ‘aimed at a

particular employee because of her race, sex, religion, or

national origin,’ is not protected.” (Ibid., quoting Volokh,

Freedom of Speech and Workplace Harassment (1992) 39

UCLA L.Rev. 1791, 1846.) I would draw that same line here.

The record in this case supports such a limit. Wayans

did not claim that offensive conduct targeting a particular

person is part of his creative process. Rather, he testified

that Daniel was “laughing and joking” along with the rest of

the cast and claimed that Daniel never objected or suggested

that “he was uncomfortable in any way with the joke.”3 His

costar, Jaime Pressly, went even further in explaining the

nature of the creative process that Wayans employed on the

set. She testified that ‘[t]he practice on set is that if anyone

is uncomfortable with anything that is said, we take it back

and agree not to use it. As part of his practice, Mr. Wayans

makes sure that the subject of the joke is okay with the

joke.” Thus, Wayans himself apparently does not believe

3 Parents might recognize a common defense to jokes

that bring their child to tears: “We’re not laughing at you,

we’re laughing with you.” The child’s typical response, “But

I’m not laughing,” is equally appropriate here. According to

Daniel, he was not laughing.

5

that the creative process must extend to conduct that

directly offends a cast member.

There are no discernible limits to the conduct that

would be protected under the majority’s interpretation of the

creative process. What if, for example, a

producer/writer/actor claimed that he needed to inspire his

creative muse by repeatedly using racial epithets toward and

mocking the appearance of a caterer who happened to be

near the set? Or what if he engaged in unwanted sexual

conduct with a female extra during a lunch break as a way

to try out a new joke? Or parodied a disabled production

assistant? Under the majority’s analysis, it seems that a

writer or actor has free rein to insult and degrade others so

long as he or she claims that it somehow helps him or her to

make movies.

True, victims of such conduct might get past an anti-

SLAPP motion if they manage to convince a court that they

will probably succeed on their claims. But requiring them to

make such a showing before they have even had an

opportunity for discovery is an unwarranted extension of the

prelitigation screening authorized by the anti-SLAPP statute

and stretches the definition of conduct that is “in

furtherance of” the constitutional right of free speech beyond

any reasonable bound. (§ 425.16, subd. (e)(4).)

I recognize, of course, that the anti-SLAPP statute is to

be broadly construed and that to prevail on an anti-SLAPP

motion a defendant need not prove that the plaintiff’s motive

in bringing the lawsuit was actually to chill the exercise of

6

the defendant’s constitutional rights or that the action has

actually had a chilling effect on the exercise of such rights.

(§ 425.16, subd. (a); Navellier v. Sletten (2002) 29 Cal.4th 82,

88.) The scope of the anti-SLAPP statute therefore can

extend beyond the “quintessential” SLAPP, which is “filed by

an economic powerhouse to dissuade its opponent from

exercising its constitutional right to free speech or to

petition.” (Nam v. Regents of University of California (2016)

1 Cal.App.5th 1176, 1193 (Nam).)

However, in considering how far to extend the

definition of the creative process for purposes of anti-SLAPP

protection, it is appropriate to consider the stated legislative

purpose of the anti-SLAPP statute, which is to address

“lawsuits brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the

redress of grievances.” (§ 425.16, subd. (a); Nam, supra, 1

Cal.App.5th at pp. 1189, 1193.) The record of this case does

not suggest that permitting a lawsuit by an extra for racially

offensive conduct directed toward him on the set would have

any effect on the content of movies or the creative process for

making them. While improvisation and racially tinged

bantering might be a part of Wayans’s creative process,

there is no reason to believe that this process must include

conduct amounting to racial harassment of a subordinate

employee. To the contrary: As discussed above, Wayans’s

evidence showed that his typical creative process was

intended to be collaborative and to make sure that no one is

made to feel uncomfortable.

7

On the other hand, extending the definition of the

creative process to encompass such conduct does threaten to

chill meritorious lawsuits with the prospect of losing an anti-

SLAPP motion. Individuals such as Daniel—who is hardly

an “economic powerhouse” in the hierarchy of Hollywood—

are far more likely to be intimidated by the possibility of a

substantial attorney fee award than they are to file suit for

the purpose of intimidation. (See Nam, supra, 1 Cal.App.5th

at pp. 1188–1189 [anti-SLAPP law “was designed to ferret

out meritless lawsuits intended to quell the free exercise of

First Amendment rights, not to burden victims of

discrimination and retaliation with an earlier and heavier

burden of proof than other civil litigants and dissuade the

exercise of their right to petition for fear of an onerous

attorney fee award”].)

In concluding that the conduct at issue here—alleged

racially offensive and degrading comments specifically aimed

at Daniel—should not be considered in furtherance of

constitutionally protected free speech, I do not suggest that

the trial court should have evaluated the merits of Daniel’s

racial harassment claim as part of the first step in the

SLAPP analysis. The relevant distinction here is not

between conduct that would or would not support a

harassment claim. Rather, the important distinction for

purposes of defining the contours of the creative process is

between creative collaboration, even if it includes offensive

topics, and demeaning conduct that is directed at a specific

person. The latter is outside the bounds of constitutionally

8

protected free speech. (Lyle, supra, 38 Cal.4th at pp. 299–

300 (conc. opn. of Chin, J.).)

Therefore, I would hold that, with respect to Wayans’s

alleged on-set conduct, Wayans failed to prove the first step

of his anti-SLAPP motion. The alleged conduct was not in

furtherance of his constitutional right of free speech, and the

trial court should have permitted Daniel’s claim for racial

harassment to proceed with respect to such conduct. For the

same reason, the trial court should have permitted Daniel’s

10th cause of action for intentional infliction of emotional

distress to proceed with respect to Wayans’s alleged on-set

conduct.

2. Wayans failed to provide evidence sufficient to

show that the scope of Daniel’s release extended

to Wayans’s Internet posting

I agree with the majority that the “allegedly harassing

and offensive Internet posting was a writing made in a place

open to the public or a public forum and it was made in

connection with an issue of public interest.” (Maj. opn. ante,

at p. 26; § 425.16, subd. (e)(3).) The trial court therefore

properly concluded that Wayans met his burden with respect

to the first step of the SLAPP analysis with respect to the

Internet posting.

However, I disagree with the majority’s analysis of the

second step of the anti-SLAPP inquiry concerning the merits

of Daniel’s claims. The majority accepts Wayans’s argument

that Daniel executed a broad union voucher that precludes

his claims for statutory and common law misappropriation of

9

likeness (Daniel’s fifth and sixth causes of action) and for

implied contract and unjust enrichment (Daniel’s eighth and

ninth causes of action). In my view, Wayans did not meet

his burden to show that the scope of the consent that Daniel

provided in the voucher extended to Wayans’s Internet

posting.

Wayans’s only evidence concerning the scope of the

union voucher was the voucher itself and two sentences in a

declaration submitted by a producer and cowriter of A

Haunted House 2, Rick Alvarez. The Alvarez declaration

purports to identify the voucher as a “Standard Union

Voucher” that Daniel signed, and states that “Dumb Ass

Productions” was a production company for A Haunted

House 2, “which is why that company is listed on the

Standard Union Voucher.”

The voucher, which bears the signature “Pierre

Daniel,” grants to the “Production Company of The

Production, its successors, assignees, licensees 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.” The only identification

of “The Production” appears in a field for “PRODUCTION &

PROJECT NAME,” which lists “Dumb Ass Prod.” The

voucher does not mention Wayans or A Haunted House 2.

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I do not believe that this evidence is sufficient as a

matter of law to overcome Daniel’s testimony that Wayans

did not have his consent to take his picture and to post it on

the Internet. (Baral, supra, 1 Cal.5th at p. 385 [defendant’s

showing must “defeat[ ] the plaintiff’s claim as a matter of

law”].) The record does not establish that the consent in the

voucher (1) applied to Wayans or (2) applied to the use that

Wayans made of it.

The majority concludes that Wayans was entitled to

the benefit of the release because there was evidence that

Dumb Ass Productions was a production company for A

Haunted House 2 and Wayans was a coproducer of the

movie. (Maj. opn. ante, at p. 40.) But there was no evidence

of any connection between Wayans and Dumb Ass

Productions, which is the only entity identified on the

voucher. Thus, there is insufficient evidence to show that

Wayans either was acting on behalf of Dumb Ass

Productions in making the Internet post or was one of the

“successors, assignees, licensees” of Dumb Ass Productions

or a person with rights to the production.

There was also insufficient evidence to establish that

Wayans was acting “in connection with The Production” in

making that post. Wayans made the post to his own Twitter

account. The only connection to A Haunted House 2 was a

link to the movie’s Twitter and Instagram pages, which

Wayans included along with a link to his own Web site.

Wayans’s declaration does not address why he made the

post. According to Daniel, Wayans took Daniel’s picture on

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Wayans’s cell phone without Daniel’s knowledge or

permission during a break. There is a difference between

photography done for the purpose of filming and

photography allegedly done during a break on a personal

device for the purpose of posting on a personal Twitter

account. Without more evidence to show that Wayans’s

particular use of Daniel’s picture was “in connection with

The Production” as contemplated by the standard release in

the union voucher, I would not preclude Daniel’s claim as a

matter of law.

I am also not persuaded that Wayans’s Internet post

was a “transformative use” of Daniel’s likeness as a matter

of law. The Internet post in issue in this case contained no

significant transformative elements. Wayans used Daniel’s

photo not as raw material for an original work, but as a

literal depiction of Daniel’s appearance and a literal

depiction of the appearance of cartoon character Cleveland

Brown. Wayans simply repackaged the two images together

and added a caption remarking upon the resemblance of the

two. This was not a transformation that was primarily

Wayans’s own expression. Thus, the facts here are closer to

the use of the literal likeness of The Three Stooges in

Comedy III Production, Inc. v. Gary Saderup, Inc. (2001) 25

Cal.4th 387, 408, than to the comic book illustrations of

“fanciful, creative characters” in Winter v. DC Comics (2003)

30 Cal.4th 881, 892.

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3. Daniel demonstrated a reasonable probability

that he would succeed on his claim for

intentional infliction of emotional distress

Because I conclude that Wayans’s Internet posting was

protected free speech under the anti-SLAPP statute, it is

necessary to consider whether Daniel showed that he had a

reasonable probability of prevailing on his claim that the

Internet post referring to him as “nigga” and comparing his

picture to the picture of Cleveland Brown amounted to

intentional infliction of emotional distress.4 I conclude that

he did.

The majority finds that Wayans’s alleged conduct,

including the Internet post, “was not so extreme as to exceed

all bounds of that usually tolerated in a civilized

community,” but was “more in the category of insults,

indignities, annoyances, and petty oppressions.” (Maj. opn.

ante, at p. 50.) For the reasons discussed earlier, I disagree

that Wayans’s use of the term “nigga” in his post to refer to

Daniel was not extreme as a matter of law. Again, context is

important. Daniel saw the post after a day in which he

claims Wayans subjected him to in-person racial harassment

and demeaning treatment. If, as he claims, he was the

4 As mentioned, I believe that Wayans’s alleged on-set

conduct was not protected free speech activity, and it is

therefore unnecessary to reach the question whether

Daniel’s evidence was sufficient to support a claim for

intentional infliction of emotional distress on that aspect of

his claim.

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target of racial insults by Wayans previously, it was

reasonable to expect that he would react to the term “nigga”

in the Internet post as more of the same. It was also highly

foreseeable that Wayans’s comparison of Daniel to an

unflattering African-American animated character on

Wayans’s personal Twitter account—which he testified had

over a million followers—could cause extreme distress.

Daniel testified that it did, claiming that he lost sleep and

was apprehensive about going out in public. Wayans’s post

has been reposted and could easily be viewable for years.

California courts have repeatedly held that the use of

racial epithets can support a cause of action for intentional

infliction of emotional distress. (Alcorn v. Anbro

Engineering, Inc. (1970) 2 Cal.3d 493 [African-American

plaintiff stated a cause of action for intentional infliction of

emotional distress based upon allegations that his

supervisor referred to him using the term “niggers” in a

demeaning manner]; Agarwal v. Johnson (1979) 25 Cal.3d

932 [affirming jury verdict on the plaintiff’s claim for

intentional infliction of emotional distress based on conduct

that included the use of racial epithets by the plaintiff’s

supervisor to humiliate him], disapproved on another point

in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4;

Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d

1108 [supervisor insulted plaintiff and his race in an

employment setting].) A jury could reasonably find that

Wayans’s alleged conduct was outrageous, and I would

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therefore permit Daniel’s intentional infliction claim to

proceed.5

4. Conclusion

Accordingly, I would reverse the judgment and the

order granting the anti-SLAPP motion and dismissing the

complaint and direct the trial court to enter a new order

partially granting the anti-SLAPP motion and striking the

false light and Unruh Civil Rights Act causes of action in

their entirety and paragraph 9(h) of the racial harassment

claim.

LUI, J.

5 On the other hand, I do not believe that Daniel

demonstrated a reasonable probability of succeeding on the

portion of his racial harassment claim concerning the

Internet post. Because Daniel did not even know about

Wayans’s Internet post until he got home and checked the

Internet after his single day of employment on A Haunted

House 2 had ended, the Internet post could not have created

a hostile environment so severe as to interfere with his

(already completed) work performance. (Thompson v. City of

Monrovia (2010) 186 Cal.App.4th 860, 876.) Therefore,

paragraph 9(h) of the complaint, which alleges the Internet

posting, should have been stricken from Daniel’s racial

harassment claim.

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