McKenna v. Sony Pictures Entertainment CA2/5 ( 2023 )

Filed 2/15/23 McKenna v. Sony Pictures Entertainment CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PAULE McKENNA, B304256, B310814
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19SMCV01329)
SONY PICTURES
ENTERTAINMENT, INC. et al,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Harry Jay Ford, III, Judge. Affirmed in part
and dismissed in part.
Paule McKenna, in pro. per., for Plaintiff and Appellant.
Ballard Spahr, Louis P. Petrich, and Elizabeth L. Schilken
for Defendants and Respondents.
Plaintiff and appellant Paule McKenna (plaintiff), the
executor of the estate of Christopher Jones, sued defendants and
respondents Sony Pictures Entertainment, Inc., Boss Film
Productions, Inc., and Visiona Romantica, Inc. (collectively
defendants) for allegedly misusing Jones’s name and likeness
(posthumously) in the film Once Upon a Time . . . in Hollywood.
Defendants filed a special motion to strike the complaint
pursuant to the anti-SLAPP statute (Code Civ. Proc.,1 § 425.16).
The trial court granted the motion in its entirety and, in later
proceedings, granted defendants’ motion for attorney fees.2 We
are asked to decide whether the challenged causes of action arise
from protected activity and, if so, whether plaintiff satisfied her
burden to show a probability of success on the merits of her
claims. We also consider whether plaintiff timely appealed the
order awarding defendants attorney fees.
I. BACKGROUND
A. Jones and the Film3
Christopher Jones was a popular actor in the 1960s. He
starred in the television series The Legend of Jesse James and a
1
Undesignated statutory references that follow are to the
Code of Civil Procedure.
2
On May 21, 2021, plaintiff’s separate appeals (B304256 and
B310814) were consolidated for briefing, argument, and decision.
3
The summary that follows is derived from the allegations in
the operative pleadings and, to some degree, the parties’ evidence
submitted in connection with the special motion to strike
(§ 425.16, subd. (b)(2)), including the copy of the film lodged with
the court.
2
number of movies including 3 in the Attic and Wild in the Streets.
Jones quit Hollywood in 1969. He died in 2014.
Once Upon a Time . . . in Hollywood (the film), is a film
written and directed by Quentin Tarantino. It was produced by
Boss Film Productions and released by Sony Pictures
Entertainment in 2019. The film stars Leonardo DiCaprio as
fictional actor Rick Dalton, Brad Pitt as his fictional stunt-double
Cliff Booth, and Margot Robbie as real-life actor Sharon Tate. It
depicts a few days in the lives of the three main characters in
February and August 1969, and imagines (or reimagines, in
Tate’s case), how their lives intersect with the Charles Manson
family.4
A variety of products with recognizable name brands
appear throughout the course of the film. For example, there is a
scene in which Pitt’s character Booth cooks a box of Kraft
macaroni and cheese. A box of Wheaties cereal is on his counter
while he does so, and a copy of TV Guide is seen elsewhere in his
home. The same scene includes brief glimpses of Booth’s
television, which at one point plays an advertisement for Jones’s
movie 3 in the Attic and identifies Jones as one of its stars. In
various other scenes, Booth wears a t-shirt with a logo for
Champion spark plugs on it. Characters also at one point drive
down Hollywood Boulevard and pass the Pantages Theatre,
which was displaying a marquee for 3 in the Attic featuring
Jones’s name.
4
While the film provides her with a happier ending, in
reality Sharon Tate was murdered by members of the Manson
family.
3
B. The Complaint
In July 2019, plaintiff filed a complaint alleging five causes
of action against defendants: (1) commercial misappropriation of
publicity rights in violation of Civil Code section 3344.1,
subdivision (a); (2) commercial misappropriation based on
common law publicity rights; (3) trademark infringement in
violation of the federal Lanham Act; (4) unfair business practices
under Business and Professions Code section 17200 (the UCL);
and (5) negligence.
Though the complaint is not a model of clarity, it can be
read to allege the Dalton and Booth characters were modeled and
styled after Jones and, taken together, constitute an
unauthorized use of Jones’s likeness that was used to endorse
brand name products depicted in the film. It also alleges
defendants used Jones’s likeness, identity, persona, publicity
rights, trademark, trade dress, photograph, name, and film clip
for commercial use in advertisements to market and promote the
film. The complaint further asserts defendants’ use of Jones’s
likeness in connection with brand endorsements could mislead
consumers into thinking the products shown in the film were
endorsed by Jones (or his estate) because the likeness is so
carefully and unnecessarily crafted to take advantage of the
popularity and authenticity of Jones. The complaint specifically
alleges Jones’s likeness was used to endorse brands including
Tabasco, Twinkies, Wheaties, Carnation, Champion, and Lion.
Factually, the complaint alleges Jones’s name is mentioned
twice during the film and a marquee with his name is depicted in
the background of a set. It emphasizes that Tarantino, during a
podcast interview, mentioned Jones as one of dozens of actors
4
used as inspiration for the film.5 The complaint also avers a
hairstylist who worked on the film said Tarantino instructed her
to copy Jones’s hairstyle.
The complaint goes on to allege various aspects of Jones’s
life mirror aspects of the characters in the film. For example, the
complaint alleges Jones had roles as a spy, a soldier, and in a
musical with Virna Lisi; it also alleges he was filmed shirtless for
one of his movies. In comparison, the complaint alleges Dalton is
portrayed shirtless on a roof and his movie credits in the film
include portraying a solider, portraying a spy, and acting in a
musical. As another example, the complaint alleges Jones often
wore cowboy boots, wore a gold pendant necklace, spent some
time with Tate while filming in Rome, and had a flashy agent,
and that these elements are also present in the film as to Dalton
or Booth (or both).
The complaint seeks damages, as well as a permanent
injunction prohibiting defendants from using Jones’s name,
photographs, likeness, images, voice, sound-alike voice,
signature, identity and persona, trademark, and trade dress until
Jones’s influence on the film is credited.
5
The complaint attached a document it describes as a
transcript of that interview. According to this transcript,
Tarantino described Dalton as a “he-man” leading man, stating
he was a bit like a number of actors, including George Maharis,
Edd Byrnes, Tab Hunter, Fabian, Vince Edwards, and Ty Hardin.
He contrasted Dalton with the new leading man of the age, who
was long haired and more androgynous, naming Michael
Sarrazin, Christopher Tabori, Peter Fonda, Michael Douglas,
Christopher Jones, Arlo Guthrie, and Robert Walker Jr. as
examples.
5
C. The Anti-SLAPP Motion
1. The motion
In October 2019, defendants filed a special motion to strike
the complaint under section 425.16 (an anti-SLAPP motion).
Defendants contended the film is a statement made in a public
forum and conduct in furtherance of the exercise of free speech.
They further contended the film concerns issues of public interest
because it concerns the Manson family murders, the culture of
the 1960s, and the movie and television industry. Defendants
further argued plaintiff could not demonstrate a probability of
prevailing on the merits on any of her causes of action.
Defendants submitted declarations in support of their
motion. The declaration of Shannon McIntosh, a producer on the
film, avers: the film is set in the late 1960s, so the characters are
occasionally depicted using consumer products that were popular
at the time; there was one paid product placement arrangement
related to a product depicted in the film, Hennessey cognac, but
none of the uses of Hennessy in the film are connected to any use
of Jones’s name or alleged use of his likeness; the remaining
products used in the film were used because Tarantino wanted to
capture the look and feel of the time period; and the products and
logos were depicted for artistic reasons with no money being paid
to the filmmakers to include them in the film.
Another declaration submitted by defendants cataloged the
three instances in which Jones’s name appeared in
advertisements or promotions for the film: (1) a mock magazine
devoted to the semi-fictional world depicted in the film that
mentions both the fictional characters Dalton and Booth and
various real-life entertainers including Jones, Steve McQueen,
Clint Eastwood, Michael Douglas, and Frank Sinatra, among
6
others; (2) a promotional trailer, which ran in AMC theaters from
July 21 to 26, 2019, describing the transformation of several
blocks of Hollywood Boulevard during filming and briefly
featuring a mock marquee on the Pantages Theater for Jones’s
film 3 in the Attic; and (3) a promotional trailer depicting the
same content that ran on Comedy Central on or about July 26,
2019.6 This declaration also maintained defendants did not sell
any items of merchandise in connection with the film and those
items that had been distributed for free did not make use of
Jones’s name or likeness.
Defendants also submitted more than half a dozen reviews
or articles about the film from publications including the Los
Angeles Times, The New York Times, and The New Yorker. One
review noted “[t]he film revels in the detritus of the
era . . . there’s the cupboards stocked with Velveeta, Hi-C,
Nestle’s Quik and Wonder Bread, oil cans of beer, with copies of
Mad Magazine and TV Guide strewn on everyone’s coffee tables,
and one scene in which the camera lovingly records [Booth]
mixing himself up a box of Kraft Mac and Cheese and eating it
out of the pan with a wooden spoon. (Marchant, Class act of ‘69:
‘Once Upon a Time . . . in Hollywood’ is Tarantino’s homage to his
Southern California youth, Arkansas Democrat Gazette (July 26,
2019) [as of Feb. 7, 2023].) Another review
describes the film as being “set in a stunningly evoked Hollywood
past.” (Ide, Once Upon a Time in Hollywood review – uneven ode
6
A supplemental declaration later explained one of the
featurettes on the home video release included a marquee with
Jones’ name, which appeared for about one second.
7
to a lost era, The Guardian (August 18, 2019)
[as of Feb. 7, 2023].) A third describes Tarantino as
“[f]orging a style from the scraps of a consuming culture” and
notes he “may be on a mission to get everything right about 1969,
down to the sounds and smells . . . .” (Lane, Quentin Tarantino
Tweaks History in “Once Upon a Time . . . in Hollywood,” The
New Yorker (July 26, 2019)
[as
of Feb. 7, 2023].)
2. The opposition
Plaintiff opposed the anti-SLAPP motion and submitted
various exhibits in support of her opposition. Among them was a
copy of an interview with the lead hairstylist on the film who said
Pitt’s look during the film was patterned off of Jones’s
appearance. Plaintiff also submitted a number of declarations
from relatives and friends stating Jones’s likeness is depicted in
the film. Many of the declarations also opined the inclusion of
brand logos either involved payment or linked Jones to those
products. For example, one declaration asserted the film is “all
about” Jones, and stated both Booth and Dalton resembled Jones
at different points in his life.
Plaintiff also submitted other materials with her opposition
including: photographs and photo compilations comparing Jones’s
appearance to the appearance of Pitt and DiCaprio in the movie;
printouts of third-party websites advertising merchandise related
to the film; articles identifying brand endorsement and product
8
placement deals involving other movies; and portions of articles
stating the new owner of the Playboy mansion, where a scene in
the film was shot, was an associate producer on the film.
3. The trial court’s decision
After hearing argument, the trial court granted defendants’
special motion to strike and struck the complaint in its entirety.
The court found plaintiff’s causes of action arose from protected
conduct under section 425.16, subdivision (e)(3) or (e)(4) because
movies are protected free speech and defendants established
overwhelming public interest in the film.7 The trial court also
found plaintiff failed to establish a probability of prevailing on
the merits on any of her causes of action.
D. Attorney Fee Proceedings
1. The fee motion
In April 2020, defendants filed a motion for attorney fees.
The motion argued defendants were entitled to a mandatory fee
award in the amount of $64,350.50 because they were the
prevailing parties in an action under Civil Code section 3344.1,
7
Section 425.16, subdivision (e) provides in relevant part:
“As used in this section, ‘act in furtherance of a person’s right of
petition or free speech under the United States or California
Constitution in connection with a public issue’ includes . . . (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 issue or an issue of public
interest.”
9
subdivision (a), and because they were the prevailing defendant
on their anti-SLAPP motion.8 The motion was served on plaintiff,
in pro per, the same day it was filed. The hearing on the fee
motion was later rescheduled from August 2020 to December
2020.
Plaintiff opposed the motion arguing it should be denied
because it had not been timely served on her then-attorney of
record9 and because it incorrectly included defendants’ entire
defense fee for the case. Plaintiff objected to the amount of fees
defendants’ counsel incurred in performing certain identified
tasks, including watching the film, watching Jones’s movie 3 in
the Attic, researching Jones, reviewing bonus material included
on the home video release of the film, drafting declarations, and
drafting the anti-SLAPP motion.
The trial court granted the attorney fees motion.10 The
court found the motion was timely served on plaintiff in pro per.
8
The motion represented $48,326.50 was incurred in
connection with the anti-SLAPP motion and $9,427.50 was
incurred in connection with the fee motion.
9
At the time the motion was served, plaintiff was
represented by counsel in connection with her appeal of the order
granting the anti-SLAPP motion. That attorney was not then
representing her in connection with the fee motion, though the
attorney later briefly assumed that role before withdrawing from
the case altogether.
10
The record on appeal does not contain a reporter’s
transcript of the hearing on the fee motion. Plaintiff did,
however, seek and obtain a settled statement regarding the
hearing.
10
It found defendants prevailed on their anti-SLAPP motion and
were entitled to mandatory fees and costs incurred in connection
with the motion under section 425.16, subdivision (c). The court
further found that pursuant to Civil Code section 3344.1,
subdivision (a), defendants were the prevailing party and entitled
to all fees and costs incurred to litigate the action. The court
stated plaintiff did not argue the fees and costs should be
apportioned and, in any event, apportionment would be
impracticable. The court concluded the requested fees, in the
amount of $64,350.50, were reasonable.
Defendants filed and served a notice of entry of the order
granting the attorney fee motion on December 11, 2020.
2. The fee appeal
Plaintiff initiated the filing of a notice of appeal at 11:49
p.m. on February 9, 2021. Her “final portal entry” was at 11:52
p.m. The notice of appeal was file-stamped at 12:00 a.m. on
February 10, 2021. (February 10, 2021, was 61 days after the
notice of the court’s attorney fees ruling was served.) The notice
of appeal, however, did not specify the judgment or order from
which plaintiff was appealing (or the name of the appealing
party), and it was later rejected by the clerk’s office for that
reason. Plaintiff filed an amended notice of appeal at 11:48 a.m.
on February 10, 2021; this one specified she was appealing the
attorney fees ruling.
Plaintiff later filed a motion to correct the notice of appeal,
asserting the midnight file stamp was due to a transmission
failure. She asked this court to deem the first notice of appeal to
have been filed on February 9, 2021, and to apply the initial filing
date to the amended notice of appeal that was filed at 11:48 a.m.
11
on February 10, 2021. Defendants opposed the motion, arguing
in pertinent part that plaintiff’s submission was late not because
of a transmission issue but because she waited until eight
minutes prior to midnight to submit the filing. Defendants also
submitted a declaration asserting the e-filing service plaintiff
used instructs users to submit documents no later than 11:50
p.m. on the day the filing is due.
II. DISCUSSION
We conclude the relevant acts involved in making Once
Upon a Time…in Hollywood, including decisions to include
recognizably branded products, are activity protected by the anti-
SLAPP statute. The film is a creative work that focuses on a
time period of interest and reimagines a widely known historical
event. Defendants submitted evidence establishing the decisions
to include branded products in the film were creative, not
financially motivated. Plaintiff’s allegation to the contrary does
not negate defendants’ showing that the claims arise out of
protected activity.
We also conclude plaintiff did not demonstrate any of her
claims have minimal merit. Her statutory right of publicity claim
concerning a creative audiovisual work is defeated as a matter of
law by defendants’ evidence. Her Lanham Act and UCL claims
fail because defendants’ pertinent filmmaking decisions are
protected by the First Amendment and because she has not
established a protectible trademark or trade dress interest.
Plaintiff’s negligence claim cannot be maintained consistent with
First Amendment protections. And her common law right of
publicity claim has no likelihood of success because such rights
under the common law expire upon the death of the original
12
holder. As a result, we affirm the trial court’s order granting
defendants’ anti-SLAPP motion.
We dismiss plaintiff’s appeal of the attorney fees order as
untimely.
A. The Anti-SLAPP Statute
The anti-SLAPP statute was enacted to curtail lawsuits
“brought primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition . . . .” (§ 425.16, subd.
(a).) “[A] special motion to strike under section 425.16 involves a
two-step process. First, the moving defendant must make a
prima facie showing ‘that the act or acts of which the plaintiff
complains were taken “in furtherance of the [defendant]’s right of
petition or free speech . . . .’” [Citation.]” (City of Montebello v.
Vasquez (2016) 1 Cal.5th 409, 420 (Montebello).) If the defendant
carries this burden, the plaintiff must then demonstrate its
claims have at least “‘minimal merit.’” (Baral v. Schnitt (2016) 1
Cal.5th 376, 384-385 (Baral).) “The procedure is meant to
prevent abusive SLAPP suits, while allowing ‘claims with the
requisite minimal merit [to] proceed.’ [Citation.]” (Montebello,
supra, at 420.)
We review an order granting or denying an anti-SLAPP
motion de novo. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067 (Park).) We consider the
parties’ pleadings and affidavits describing the facts on which
liability or defenses are predicated. (§ 425.16, subd. (b)(2); see
also San Diegans for Open Government v. San Diego State
University Research Foundation (2017) 13 Cal.App.5th 76, 94.)
13
B. The Complaint Arises from Protected Activity
A party filing an anti-SLAPP motion satisfies the first
analytical step if the party makes a prima facie showing the
plaintiff’s cause of action “aris[es] from” an act the defendant
performed in furtherance of the defendant’s right of petition or
free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78;
accord, Park, supra, 2 Cal.5th at 1062 [“A claim arises from
protected activity when that activity underlies or forms the basis
for the claim”].) “[I]n ruling on an anti-SLAPP motion, courts
should consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently
form the basis for liability.” (Park, supra, at 1063; accord, Bonni
v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010, 1015
[anti-SLAPP analysis begins with a consideration of the elements
of each claim, “the actions alleged to establish those elements,
and whether those actions are protected”].) Whether a claim is
based on protected activity turns on “whether the ‘“core injury-
producing conduct”’ warranting relief under the cause of action is
protected activity.” (Mission Beverage Co. v. Pabst Brewing Co.,
LLC (2017) 15 Cal.App.5th 686, 698.)
There are four categories of protected activity under the
anti-SLAPP statute. The categories defendants invoke in this
case are the subdivision (e)(3) and (e)(4) categories we earlier
quoted in the margin: statements in a public forum in connection
with an issue of public interest and conduct in furtherance of the
exercise of the constitutional right of free speech in connection
with a public issue or an issue of public interest. (§ 425.16, subd.
(e)(3), (4).) “In articulating what constitutes a matter of public
interest, courts look to certain specific considerations, such as
whether the subject of the speech or activity ‘was a person or
14
entity in the public eye’ or ‘could affect large numbers of people
beyond the direct participants’ [citation] and whether the activity
‘occur[red] in the context of an ongoing controversy, dispute or
discussion’ [citation], or ‘affect[ed] a community in a manner
similar to that of a governmental entity’ [citation].” (FilmOn.com
Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146.)
Here, the acts from which the counts alleged in the
complaint arise include mentioning Jones’s name in the film,
depicting a marquee with Jones’s name on it in the background of
a shot, mentioning Jones’s name in a fake magazine promoting
the film, using Jones as an inspiration for the characters Booth
and/or Dalton, and portraying Booth and/or Dalton in proximity
to various commercial products like Kraft macaroni and cheese
and the Champion logo. In other words, all of the pertinent acts
and statements were included in the film and advertisements
promoting the film.
The creation of a movie is an exercise of free speech. (E.g.,
Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th
802, 816 (Musero); Dyer v. Childress (2007) 147 Cal.App.4th 1273,
1280; see also Olivia N. v. National Broadcasting Co. (1981) 126
Cal.App.3d 488, 493 (Olivia N.) [“[m]otion pictures are accorded
First Amendment protections”].) “Steps taken to advance such
constitutionally protected expression are properly considered
‘conduct in furtherance of’ the exercise of the right of free speech
within the meaning of section 425.16, subdivision (e)(4).”
(Musero, supra, at 816.) Additionally, insofar as plaintiff’s claims
relate to the alleged use of Jones’s name or likeness in the
promotional trailers for the film, our review of the trailers reveals
they constitute advertisements for the film, not any other
product. We conclude they are “merely . . . adjunct[s] to the
15
exhibition of the film” (Guglielmi v. Spelling-Goldberg
Productions (1979) 25 Cal.3d 860, 872 (Guglielmi)) and as such
constitute noncommercial speech that falls within the scope of
anti-SLAPP protection.
The acts and speech at issue also involve issues of public
interest. The film concerns the culture of the late 1960s in
Hollywood and the Manson family murder of Tate. These are
matters of public interest about which discussions are still
ongoing. (See, e.g., Brodeur v. Atlas Entertainment, Inc. (2016)
248 Cal.App.4th 665, 675; Dyer, 147 Cal.App.4th at 1284.) The
uses of Jones’s name, the portrayal of Booth and/or Dalton in
proximity to branded products, and the portrayal of Booth
wearing shirts with brand logos on them are details that add to
the depiction of the culture in Hollywood in the late 1960s. The
public interest in these topics is demonstrated by the numerous
articles and reviews discussing the film that defendants
submitted in support of the motion, some of which specifically
reference Tarantino’s inclusion of era-appropriate products, as
well as the many-months-long run the film had in theaters (late
July to early October 2019).
Plaintiff advances a number of arguments to the contrary,
most of which relate back to her contention that the activity on
which her complaint is based is simply “false brand endorsement”
or, in other words, the recreation of Jones’s likeness and
portrayal of that likeness in connection with commercial brands,
without consent or credit. The film, she claims, is incidental to
this false endorsement for profit issue and she asserts there is no
public interest in the brand endorsement or in her private
dispute with defendants over their alleged use of Jones’s likeness.
The problem with plaintiff’s argument, however, is that the
16
broader creative acts of including the aforementioned aspects in
the film and the alleged use of Jones’s likeness are inextricably
linked. For example, in the context of the film, any alleged
commercial reason for dressing Booth in a t-shirt with the
Champion logo on it cannot be isolated from the creative impetus
for the same action. Furthermore, defendants submitted a
declaration representing the brands depicted (other than
Hennessey) were included for artistic reasons and were used to
“capture the look and feel of the time period,” and to “accurately
portray the late 60s.”11
Plaintiff also relies upon a handful of cases for the
proposition that advertisements for an artistic work are not
necessarily noncommercial speech. (E.g., Serova v. Sony Music
Entertainment (2022) 13 Cal.5th 859, 867; Rezec v. Sony Pictures
Entertainment, Inc. (2004) 116 Cal.App.4th 135 (Rezec).) To the
extent plaintiff relies on these cases to argue the advertisements
for the film should not be eligible for anti-SLAPP protection, the
authority is inapposite. Unlike the advertisements at issue in
11
Insofar as plaintiff argues the product placement can be
considered separately because the film could have been made
without the insertion of those products and brands, the
contention lacks merit. “As stated in a different context, ‘[t]he
creative process must be unfettered, especially because it can
often take strange turns . . . . [¶] . . . 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 is, by its nature, creative. It is unpredictable. Much
that is not obvious can be necessary to the creative process.’
[Citations.]” (Tamkin v. CBS Broadcasting, Inc. (2011) 193
Cal.App.4th 133, 144-145.)
17
the cases plaintiff cites, the advertisements for the film are not
alleged to include any false statements and are merely adjuncts
of the film.12 To the extent plaintiff contends these cases
transform the portions of the film with product placement into
commercial speech, that is also incorrect. Both of plaintiff’s cases
addressed separate advertisements for creative works, not
allegedly integrated advertising within the works themselves.
C. Plaintiff’s Claims Lack Minimal Merit
“‘In order to establish a probability of prevailing on the
claim . . . a plaintiff responding to an anti-SLAPP motion must
“‘state[ ] and substantiate [ ] a legally sufficient claim.’”
[Citation.] Put another way, 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.] In deciding the question of potential merit, the trial
court considers the pleadings and evidentiary submissions of both
the plaintiff and the defendant . . . ; though 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.
[Citation.]’” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19-
20.) “[A] plaintiff cannot simply rely on his or her pleadings, even
12
Indeed, Rezec notes that where advertisements for a movie
are mere “adjuncts” to exhibition, including advertisements that
reflect characters or portions of the film, they are noncommercial
speech. (Rezec, supra, 116 Cal.App.4th at 142-143.)
18
if verified. Rather, the plaintiff must adduce competent,
admissible evidence.” (Grenier v. Taylor (2015) 234 Cal.App.4th
471, 480.)
1. Statutory right of publicity
Civil Code section 3344.1, subdivision (a)(1) provides in
pertinent part: “Any person who uses a deceased personality’s
name, voice, signature, photograph, or likeness, in any manner,
on or in products, merchandise, or goods, or for purposes of
advertising or selling, or soliciting purchases of, products,
merchandise, goods, or services, without prior consent from the
person or persons specified in subdivision (c), shall be liable for
any damages sustained by the person or persons injured as a
result thereof.”
Subdivision (a)(2), however, exempts from subdivision (a)(1)
a “play, book, magazine, newspaper, musical composition,
audiovisual work, radio or television program, single and original
work of art, work of political or newsworthy value, or an
advertisement or commercial announcement for any of these
works . . . if it is fictional or nonfictional entertainment, or a
dramatic, literary, or musical work.” (Civ. Code, § 3344.1, subd.
(a)(2).) But there is also an exception to the exemption. Under
Civil Code section 3344.1, subdivision (a)(3), “If a work that is
protected under paragraph (2) includes within it a use in
connection with a product, article of merchandise, good, or
service, this use shall not be exempt under this subdivision,
notwithstanding the unprotected use’s inclusion in a work
otherwise exempt under this subdivision, if the claimant proves
that this use is so directly connected with a product, article of
merchandise, good, or service as to constitute an act of
19
advertising, selling, or soliciting purchases of that product, article
of merchandise, good, or service by the deceased personality
without prior consent from the person or persons specified in
subdivision (c).” (§ 3344.1, subd. (a)(3), italics added.)
Subdivision (k) of the statute provides that “[t]he use of a
name, voice, signature, photograph, or likeness in a commercial
medium shall not constitute a use for which consent is required
under subdivision (a) solely because the material containing the
use is commercially sponsored or contains paid advertising.
Rather, it shall be a question of fact whether or not the use of the
deceased personality’s name, voice, signature, photograph, or
likeness was so directly connected with the commercial
sponsorship or with the paid advertising as to constitute a use for
which consent is required under subdivision (a).” (Civ.
Code, § 3344.1, subd. (k).)
The film unquestionably falls into the exemption under
Civil Code section 3344.1 subdivision (a)(2), as it is an
audiovisual work of fictional entertainment.13 In order to
demonstrate minimal merit under subdivision (a)(3), then,
plaintiff must have made a prima facie case that the film
“includes within it a use [of a deceased personality’s name, voice,
signature, photograph, or likeness] . . . [that] is so directly
connected with a product, article of merchandise, good, or service
13
By its plain terms, Civil Code section 3344.1, subdivision
(a)(2) does not require a work to be transformative in order to
qualify for its exemption. Accordingly, and contrary to plaintiff’s
contentions, application of the Comedy III Productions, Inc. v.
Gary Saderup, Inc. (2001) 25 Cal.4th 387 (Comedy III
Productions), transformative test is unnecessary.
20
as to constitute an act of advertising, selling, or soliciting
purchases of that product, article of merchandise, good or
services . . . .” (Civ. Code, § 3344.1, subd. (a)(3).)
There is no contention that Jones’s voice, signature, or
photograph was used in the film. Jones’s name is mentioned
twice during advertisements for his movie 3 in the Attic (played
within the film), and his name appears fleetingly as characters
drive past a marquee promoting the same movie. Plaintiff has
not provided any evidence demonstrating these brief references to
Jones, which narratively serve to identify Jones as a
contemporary of Dalton and Booth, are “so directly connected” to
any products, merchandise, good, or service that they constitute
advertisements. The same is true of the appearance of Jones’s
name in promotional trailers for the film and the fake magazine
promoting the film.
The true heart of plaintiff’s claim is that Booth, and to a
lesser extent Dalton, were based on and styled after Jones.
Plaintiff identifies aspects of both characters that she contends
make up a whole constituting a likeness of Jones. Some of these
aspects are physical—like Booth’s hairstyle and aviator
sunglasses—while others are biographical—like the scene in
which Dalton is comforted by a child. While we are doubtful that
plaintiff has demonstrated a probability of success in alleging
Jones’s likeness was used in the film,14 we need not reach that
14
The biographical similarities, at a minimum, cannot be
considered part of Jones’s alleged likeness. Similarities between
a real person’s life experiences and those of a fictional character
do not support a claim for misappropriation of that person’s
“likeness.” (Polydoros v. Twentieth Century Fox Film Corp.
(1997) 67 Cal.App.4th 318, 322-323 (Polydoros); see also Kirby v.
21
issue to decide plaintiff has not demonstrated a probability of
prevailing on her Civil Code section 3344.1 cause of action.
The film depicts Booth and Dalton, though primarily Booth,
using a slew of household products and otherwise appearing in
scenes that feature brand logos. It also depicts Booth wearing
one or more t-shirts with a brand logo on it. In response to
plaintiff’s allegation, defendants submitted the declaration of
producer McIntosh that asserts the only product placement in the
film was for Hennessy cognac, a product not used by either Booth
or Dalton and thus not associated with Jones’s alleged likeness.
The declaration further asserts the other products depicted in the
film were used solely for creative, not financial, reasons and the
filmmakers were not paid to include them. As the film was, in
fact, not compensated for the inclusion of the products and was
not advertising them through any sort of product placement,
Booth and Dalton’s proximity to the products was not so directly
Sega of America, Inc. (2006) 144 Cal.App.4th 47, 55 (Kirby) [“[t]he
misappropriation of one’s “likeness” refers to a person’s visual
image”].)
Additionally, there is a logical inconsistency to some of
plaintiff’s arguments. On the one hand, plaintiff argues
defendants have improperly linked Jones’s character with brand
name products without giving her, as the holder of his surviving
publicity rights, a slice of the hypothetical endorsement pie. Yet
on the other hand, plaintiff argues defendants have
misrepresented the characters of Booth and Dalton by stating
other actors, not Jones, served as the inspiration for them and
unfairly declined to credit Jones. If, as plaintiff claims,
defendants were capitalizing on Jones’s identity and celebrity, it
would seem counterproductive to proclaim actors other than
Jones served as the inspiration for Dalton and Booth.
22
connected to any of the products that their presence constituted
advertisement or sale.
Thus, even accepting as true plaintiff’s evidence on the
matter, defendants’ evidence “defeats [her] claim as a matter of
law.” (Baral, supra, 1 Cal.5th at 385; see also J-M Manufacturing
Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 96
[“the court 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”’”].)
Plaintiff’s evidence in support of her claim consists of articles
discussing the practice of celebrity endorsements and/or product
placement, articles stating the current owner of the Playboy
Mansion (at which a scene in the film was shot) is credited as a
producer on the film, and declarations from friends and family
members asserting their personal opinions about the inclusion of
brand name products in the film. None of these are sufficient to
overcome defendants’ evidence.
2. Lanham Act
“Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),
forbids the use of false designations of origin and false
descriptions or representations in the advertising and sale of
goods and services. [Citation.]” (Smith v. Montoro (9th Cir.
1981) 648 F.2d 602, 603.) Plaintiff argues the trial court erred in
finding her Lanham Act claims for false endorsement and
trademark infringement did not have minimal merit.15
15
Plaintiff’s complaint also makes reference to a claim for
“reverse passing off.” As plaintiff does not advance any
arguments in support of the claim on appeal, we deem it
abandoned.
23
a. false endorsement
“Courts recognize false endorsement claims ‘brought by
plaintiffs, including celebrities, for the unauthorized imitation of
their distinctive attributes, where those attributes amount to an
unregistered commercial “trademark.”’ [Citation.] The Lanham
Act ‘prohibits only false endorsement, not mere use of an image
or name.’ [Citations.] In other words, not all uses of a celebrity’s
image or likeness are actionable under § 1125(a)—only those
which ‘suggest sponsorship or approval are prohibited.’
[Citation.] The key inquiry for a false endorsement claim is
whether the unauthorized use of the plaintiff’s distinctive
attributes is ‘likely to confuse consumers as to the plaintiff’s
sponsorship or approval of the product.’ [Citation.] This means
‘show[ing] more than simply a possibility of confusion.’
[Citation.]” (Miller v. Easy Day Studios Pty. Ltd. (S.D. Cal., Sept.
16, 2021, No. 20-CV-02187-LAB-DEB) 2021 U.S. Dist. Lexis
176582).)
“‘Generally, to assess whether a defendant has infringed on
a plaintiff’s trademark, we apply a “likelihood of confusion” test
that asks whether use of the plaintiff’s trademark by the
defendant is “likely to cause confusion or to cause mistake, or to
deceive as to the affiliation, connection, or association’ of the two
products. [Citation.]” [Citations.]” (No Doubt v. Activision
Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1037.) However,
“[t]he test does not apply in a case such as this, in which there is
a colorable defense that the use of the celebrity’s likeness or
identity is entitled to First Amendment protection.” (Kirby,
supra, 144 Cal.App.4th at 57, fn. 4.) Under these circumstances,
we must consider “the intersection of trademark law and the
First Amendment.” (E.S.S. Entm’t 2000, Inc. v. Rock Star Videos,
24
Inc. (9th Cir. 2008) 547 F.3d 1095, 1099 (E.S.S.).) In doing so, we
apply the test articulated in Rogers v. Grimaldi (2d Cir. 1989)
875 F.2d 994 (Rogers). (E.g., Mattel, Inc. v. MCA Records (9th
Cir. 2002) 296 F.3d 894, 902 [adopting Rogers test]; E.S.S., supra,
at 1099 [extending applicability of Rogers from titles of artistic
works to use of trademark in the body of the work]; see also
Winchester Mystery House, LLC v. Global Asylum, Inc. (2012) 210
Cal.App.4th 579, 590 (Winchester) [applying Rogers test to
Lanham Act claim].)
For the Rogers test to apply, defendants must “‘make a
threshold legal showing that [their] allegedly infringing use is
part of an expressive work protected by the first amendment.’”
(Dickinson v. Ryan Seacrest Enterprises Inc. (9th Cir. 2020) 839
F. App’x 110, 111.) There can be no serious contention that the
film is not an expressive work, including the scenes featuring
Jones’s alleged likeness in proximity to branded products and
featuring, however briefly, Jones’s name.
Rogers accordingly requires plaintiff to “show that the
defendant[s’] use of the mark is either: (1) ‘not artistically
relevant to the underlying work[,]’ or (2) ‘explicitly misleads
consumers as to the source or content of the work.’ [Citation.]”
(VIP Prods. LLC v. Jack Daniel’s Props., Inc. (9th Cir. 2020) 953
F.3d 1170, 1174.) “The first prong of the Rogers test requires
only that the title pass ‘the appropriately low threshold of
minimal artistic relevance’ to the content of the film.”
(Winchester, supra, 210 Cal.App.4th at 590; see also E.S.S.,
supra, 547 F.3d 1100 [“the level of relevance merely must be
above zero”].) Here, all of the referenced uses of Jones’s name
and alleged likeness are artistically relevant to the film, as they
add to the depiction of the culture and times of the late 1960s.
25
(See Twentieth Century Fox Television v. Empire Distribution,
Inc. (9th Cir. 2017) 875 F.3d 1192, 1199 [defendant’s use of
trademark had “artistic relevance by supporting the themes and
geographic setting of the work”].)
The second prong of the Rogers test requires a showing that
the use of Jones’s likeness “explicitly misleads” consumers as to
the source or content of the work. (Winchester, supra, 210
Cal.App.4th at 592; Rogers, supra, 875 F.2d at 999.) The relevant
inquiry is whether people watching the film would be misled into
thinking Jones endorsed or sponsored the film. (E.S.S., supra,
547 F.3d at 1100.) “[T]he mere use of a trademark alone cannot
suffice to make such use explicitly misleading.” (Ibid.) Assuming
for the sake of argument that Jones’s likeness is used in the film,
the film does not indicate or suggest that Jones either endorsed
or sponsored the film. The uses of Jones’s name itself are brief
background moments linked to Jones’s film 3 in the Attic that
serve to situate Jones as a contemporary of Dalton and Booth.
They do not suggest either endorsement or sponsorship. Though
the question of customer confusion is a factual one, it is simply
not plausible that a reasonable viewer watching the film would
be misled. Accordingly, “[t]he Rogers test tells us that, in this
case, the public interest in free expression outweighs the public
interest in avoiding consumer confusion.” (Brown v. Electronic
Arts, Inc. (9th Cir. 2013) 724 F.3d 1235, 1248 (Brown).)
Plaintiff’s attempt to rely on survey evidence to
demonstrate consumer confusion is unpersuasive. Survey
evidence does not establish that the use of the likeness is
explicitly misleading to consumers. (Brown, supra, 724 F.3d at
1245-1246.) “To be relevant, evidence must relate to the nature
of the behavior . . . not the impact of the use.” (Id. at 1246.) The
26
declarations plaintiff refers to as survey evidence thus do not
support the claim that the alleged use was explicitly misleading.
b. trademark infringement
“A trademark may be protected under . . . the Lanham Act
if it is either inherently distinctive or has acquired
distinctiveness.” (Franklin Mint Co. v. Manatt, Phelps &
Phillips, LLP (2010) 184 Cal.App.4th 313, 336 (Franklin Mint).)
Plaintiff contends she has viable claims for trademark
infringement based on Jones’s name and likeness, and based on
trade dress. None of these three theories is viable.
First, personal names are generally descriptive, not
inherently distinctive, and require proof of secondary meaning for
protection. (Id. at 337.) A mark has acquired secondary meaning
“if the public comes to associate [it] with a specific source.”
(Kendall-Jackson Winery v. E. & J. Gallo Winery (9th Cir.1998)
150 F.3d 1042, 1047; Franklin Mint, supra, 184 Cal.App.4th at
338 [“secondary meaning ‘occurs when, “in the minds of the
public, the primary significance of a [mark] is to identify the
source of the product rather than the product itself”’”].) “‘Factors
considered in determining whether a secondary meaning has
been achieved include: (1) whether actual purchase[r]s of the
product bearing the claimed trademark associate the trademark
with the producer, (2) the degree and manner of advertising
under the claimed trademark, (3) the length and manner of use of
the claimed trademark and, (4) whether use of the claimed
trademark has been exclusive.’” (Levi Strauss & Co. v. Blue Bell,
Inc. (9th Cir. 1985) 778 F.2d 1352, 1358.) Jones’s name is not
inherently distinctive, and plaintiff did not present evidence
indicating his name had acquired a secondary meaning.
27
Accordingly, plaintiff did not demonstrate her trademark
infringement claim based on Jones’s name had minimal merit.
Second, “as a general rule, a person’s image or likeness
cannot function as a trademark” because it does not “perform the
trademark function of designation.” (ETW Corp. v. Jireh
Publishing, Inc. (6th Cir. 2003) 332 F.3d 915, 922.) “Under some
circumstances, a photograph of a person may be a valid
trademark—if, for example, a particular photograph was
consistently used on specific goods.” (Pirone v. MacMillan, Inc.
(2d Cir. 1990) 894 F.2d 579, 583.) Here, plaintiff did not present
evidence of any such consistent use of a photograph or likeness of
Jones, or any evidence that Jones’s likeness otherwise performs
the “trademark function of designation.” Instead, she broadly
claims rights to images and portrayals that she believes resemble
Jones’s likeness. That is insufficient.
Finally, plaintiff argues she had a viable Lanham Act claim
based on infringement of Jones’s trade dress. “Trade dress refers
generally to the total image, design, and appearance of a product
and ‘may include features such as size, shape, color, color
combinations, texture or graphics.’” (Clicks Billiards, Inc. v.
Sixshooters, Inc. (9th Cir. 2001) 251 F.3d 1252, 1257.) Common
trade dress claims involve the appearance of restaurants and
similar establishments, or the appearance of products such as
wine bottles. (E.g., ibid.; Nova Wines, Inc. v. Adler Fels Winery
LLC (N.D. Cal. 2006) 467 F.Supp.2d 965, 977.) Plaintiff has not
cited, and we have not found, any authority suggesting that an
individual’s appearance, manner of dress, or details regarding an
individual’s life can constitute protectable trade dress. Nor do we
believe such a claim would be viable, at least under the
circumstances here. (See Davis v. Adler (S.D. Cal., Sept. 13,
28
2017, No. 17-CV-387-AJB-JLB) 2017 WL 4050352, at *3
[contention that plaintiff’s “likeness [wa]s being commercialized
[wa]s not an appropriate trade dress claim under the law”].)
Accordingly, plaintiff’s trade dress theory lacks minimal merit
too.
3. Unfair Competition Law
The complaint alleges a cause of action under the unfair
prong of California’s Unfair Competition Law (Bus. & Prof.
Code, § 17200.) “[A]ctions pursuant to [ . . . section] 17200 are
‘substantially congruent’ to claims made under the Lanham Act.”
(Cleary v. News Corp. (9th Cir. 1994) 30 F.3d 1255, 1263. “This
means that if claims relying on the exact same factual conduct
are validly dismissed under the Lanham Act, they should also be
dismissed under California Unfair Competition law.” (Dr. Seuss
Enters., L.P. v. ComicMix LLC (S.D.Cal. 2017) 256 F. Supp. 3d
1099, 1113; see also E.S.S., supra, 547 F.3d at 1101 [summary
judgment proper on both Lanham Act and UCL claims because
“First Amendment defense [under Rogers] applies equally to
ESS’s state law claims as to its Lanham Act claim”]; Twentieth
Century Fox TV v. Empire Distrib. (C.D.Cal. 2016) 161 F. Supp.
3d 902, 910 [conclusion that First Amendment barred Lanham
Act claim also barred UCL claim].) Plaintiff’s UCL claim is based
on the same facts as her Lanham Act claim.16 Because the latter
is not viable, so is the former.
16
To the extent plaintiff contends she also alleges a UCL
claim based on her statutory right of publicity claim, she failed to
make a prima facie showing on that claim for the reasons we
have already given in connection with our discussion of Civil
Code section 3344.1.
29
4. Negligence
Plaintiff’s negligence cause of action alleges defendants
owed plaintiff a duty not to use Jones’s publicity rights and
breached that duty by using those rights, thereby injuring
plaintiff. Even assuming defendants had some duty not to use
Jones’s name or alleged likeness in the film, plaintiff has not
made a showing of probability of success on the merits because
she has not made a prima facie case that any such duty was
breached.
“Motion pictures are accorded First Amendment
protections.” (Olivia N., supra, 126 Cal.App.3d at 493 [noting
imposition of negligence liability for creative decisions would
have an undesirable chilling effect].) “The commercial nature of
an enterprise does not introduce a nonspeech element or relax
the scrutiny required by the First Amendment.” (Ibid.) “Because
respondents’ artistic effort is constitutionally guaranteed, it was
not negligent.”17 (Polydoros, supra, 67 Cal.App.4th at 326.) Here,
as in Polydoros, defendants’ creation of the film, an artistic
endeavor, is protected by the First Amendment. As a result,
plaintiff did not demonstrate that her negligence claim had
minimal merit.
5. Common law right of publicity
The right of publicity in California is both a common law
right and a statutory right (codified at the aforementioned Civil
17
The First Amendment is, of course, not absolute. But the
complaint does not allege defendants engaged in any unprotected
speech.
30
Code section 3344.1). (Comedy III Productions, supra, 25 Cal.4th
at 391.) The common law “cause of action [does] not survive the
death of the person whose identity was exploited and [is] not
descendible to his or her heirs or assignees.” (Ibid.; see also
Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819-821
(Lugosi); Guglielmi, supra, 25 Cal.3d at 861.) Because Jones is
deceased, plaintiff cannot demonstrate a probability of success on
the merits of her common law claim.
Plaintiff argues in response that Jones’s publicity rights
were assigned in 2011, while he was still living, not upon his
death in 2014. Her principal authority for that is the dissenting
opinion in Lugosi, which we are not bound to follow and do not
follow. Plaintiff also relies upon Estate of Fuller v. Maxfield &
Oberton Holdings, LLC (N.D.Cal. 2012) 906 F.Supp.2d 997, 1008.
The court in that case, however, similarly recognized that “the
common law cause of action for misappropriation does not apply
to deceased persons” and dismissed the common law claims on
that basis.18 (Ibid.)
18
Plaintiff’s opening brief also includes a list of procedural
requests that were denied, such as requests to file a first
amended complaint, and to conduct limited discovery. Plaintiff
provides no argument or authority indicating those denials were
erroneous. To the extent plaintiff intended to appeal them, she
has waived the issue. (Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852 [“When an appellant fails to raise a
point, or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived”].)
31
D. Attorney Fees
A notice of appeal must be filed the earlier of 60 days after
the superior court clerk or a party serves notice of entry of
judgment or 180 days after entry of judgment. (Cal. Rules of
Court, rule 8.104(a)(1)(A)-(C).) “‘[T]he timely filing of an
appropriate notice of appeal or its legal equivalent is an absolute
prerequisite to the exercise of appellate jurisdiction.’” (K.J. v. Los
Angeles Unified School Dist. (2020) 8 Cal.5th 875, 881; see Cal.
Rules of Court, rule 8.104(b) [“If a notice of appeal is filed late,
the reviewing court must dismiss the appeal”].)
Defendants served the notice of entry of the fee order on
December 11, 2020. Plaintiff’s deadline to file a notice of appeal
was thus February 9, 2021. Plaintiff’s initial notice of appeal was
file-stamped at 12:00 a.m. on February 10, 2021. California Rule
of Court Rule 8.77(c) provides that “[a] document that is received
electronically by the court after 11:59 p.m. is deemed to have
been received on the next court day.” The notice of appeal is thus
facially untimely. (See, e.g., Hollister Convalescent Hosp., Inc. v.
Rico (1975) 15 Cal.3d 660, 666-674 (Hollister) [dismissing appeal
where notice was filed one day late]; Nu-Way Associates, Inc. v.
Keefe (1971) 15 Cal.App.3d 926, 927-928 [same].)
Plaintiff argues California Rule of Court Rule 8.77(d)
should save her appeal. Rule 8.77(d) provides that “[i]f a filer
fails to meet a filing deadline imposed by court order, rule, or
statute because of a failure at any point in the electronic
transmission and receipt of a document the filer may file the
document on paper or electronically as soon thereafter as
practicable and accompany the filing with a motion to accept the
document as timely filed. For good cause shown, the court may
enter an order permitting the document to be filed nunc pro tunc
32
to the date the filer originally sought to transmit the document
electronically.”
Plaintiff submitted a declaration establishing she visited
the “File Now” page of Nationwide Legal, the service she used to
file the notice of appeal, at 11:49 p.m. on February 9, 2021. Her
declaration also asserts she visited or logged in to the Nationwide
Legal website at 11:52 p.m. Plaintiff then asserts a “slow
connection” caused a delay in her transmission, resulting in the
12:00 a.m. timestamp on her notice of appeal. Though she
implies she actually submitted the notice of appeal between 11:49
and 11:52 p.m., plaintiff’s declaration does not directly identify
the time at which the document was submitted.
In any event, we do not believe a “slow connection”
resulting in a delay of a few minutes between the submission of
an electronically-filed document and its receipt by the court is a
“failure . . . in the electronic transmission” as contemplated by
Rule 8.77(d). If relatively short delays in last-minute filings were
meant to be excused, Rule 8.77(c) would provide that any
document submitted after 11:59 p.m., rather than received by the
court after that time, is deemed filed the next court day. Reading
the two portions of Rule 8.77 together, we conclude that because
plaintiff’s original notice of appeal was received by the court and
file-stamped at 12:00 a.m. on February 10, 2021, it was untimely.
Just as important, however, is the fact that the notice of
appeal that plaintiff filed one minute late was still insufficient to
invoke this court’s jurisdiction because it did not specify the order
or judgment from which plaintiff was appealing. While a court
might find reason to excuse a one-minute delay for a properly
prepared notice of appeal, that is not what we have here. We
instead confront an appeal that was properly noticed hours late
33
on the 61st day. Dismissal in that circumstance is appropriate.
(E.g., Estate of Hanley (1943) 23 Cal.2d 120, 122 [timely filing of
a notice of appeal is an essential jurisdictional requirement]; In
re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 116;
see also Hollister, supra, 15 Cal.3d at 674.)
DISPOSITION
The appeal in case number B310814 is dismissed. The
judgment in case number B304256 is affirmed. Defendants are
awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
34