Daniel v. Wayans
8 Cal. App. 5th 367
| Cal. Ct. App. | 2017Background
- Plaintiff Pierre Daniel was hired as a one-day nonspeaking extra on the film A Haunted House 2; he alleges on-set racial harassment (being called “nigga,” mocked for his hair, compared to the cartoon character Cleveland Brown) and that Marlon Wayans later posted a photo of him juxtaposed with Cleveland Brown on social media with a caption.
- Daniel sued Wayans and others for FEHA racial harassment, Unruh Act violation, statutory and common-law misappropriation of likeness, false light, quasi-contract/unjust enrichment, and intentional infliction of emotional distress.
- Wayans filed an anti‑SLAPP motion (Code Civ. Proc. §425.16) arguing the on-set conduct was part of the creative process for an expressive work and the social‑media posting was public speech in connection with a matter of public interest.
- The trial court granted Wayans’s anti‑SLAPP motion, dismissed Daniel’s claims against Wayans, and awarded Wayans attorney fees; Daniel appealed.
- The Court of Appeal reviewed de novo, accepted plaintiff’s evidence as true for step two, and ultimately affirmed dismissal and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the challenged acts arise from protected activity under §425.16 (step one) | Daniel: on‑set conduct occurred off camera during breaks and is not part of the creative process and Internet post has no public‑interest nexus | Wayans: on‑set joking/improvisation is part of the film’s creative process; the Twitter post was public and promoted a film of public interest | Held for Wayans: both on‑set conduct (as creative improvisation) and the Internet posting (public forum re: film) met §425.16(e) protected‑activity categories |
| Whether Daniel demonstrated a probability of prevailing on FEHA hostile work environment claim (step two) | Daniel: single‑day repeated slurs and mocking created hostile environment | Wayans: language was part of improvisational comedic process; plaintiff did not show objective interference with work performance | Held for Wayans: plaintiff failed objective hostileness element and did not show impact on work performance |
| Whether the social‑media posting supports misappropriation/false‑light/quasi‑contract/unjust enrichment claims | Daniel: photo used without consent and caused reputational/harmful effects | Wayans: Daniel signed a broad union voucher consenting to use of his image; alternatively, the juxtaposition/post was a transformative expressive use protected by First Amendment | Held for Wayans: voucher authenticated and covers use; alternatively posting was transformative; false light/quasi‑contract/unjust enrichment lacked probable merit |
| Whether the intentional infliction of emotional distress claim had a probability of success | Daniel: on‑set conduct plus public posting caused severe emotional distress | Wayans: conduct amounted to insults/banter within creative context and did not exceed bounds of decency | Held for Wayans (majority): conduct not extreme/outrageous as matter of law; claim lacked probability. (Concurring/dissent would have allowed IIED to proceed on on‑set theory.) |
Key Cases Cited
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (de novo review of anti‑SLAPP rulings)
- Baral v. Schnitt, 1 Cal.5th 376 (anti‑SLAPP burden framework; accept plaintiff evidence when assessing step two)
- Guglielmi v. Spelling‑Goldberg Productions, 25 Cal.3d 860 (films are expressive works entitled to First Amendment protection)
- Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133 (creation/casting/broadcasting as protected speech; courts should not dissect creative process)
- Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (context on creative workplace and limits where speech is aimed at individuals)
- Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (transformative‑use test balancing likeness rights and First Amendment)
- Winter v. DC Comics, 30 Cal.4th 881 (application of transformative test; parody/caricature protected)
- Nam v. Regents of Univ. of Cal., 1 Cal.App.5th 1176 (distinguishing protected incidental speech from nonprotected retaliatory or discriminatory acts)