Terry v. Fox Television Studios
Filed 10/2/13 Terry v. Fox Television Studios CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
>
MICHAEL TERRY, Plaintiff and Appellant, v. FOX TELEVISION STUDIOS, INC. et al., Defendants and Respondents. | B243249 (Los Angeles County Super. Ct. No. BC478450) |
APPEAL from an order of the Superior Court of
County.
Holly
E. Kendig, Judge. Affirmed.
Michael Terry, in pro. per., for
Plaintiff and Appellant.
Fox Rothschild and Lawrence C. Hinkle II. for
Defendants and Respondents.
_____________________________________
We affirm an order granting a
special motion to strike a complaint
pursuant to the Anti-SLAPP statute. (See
Code Civ. Proc., § 425.16.)
name="_ftnref1" title="">[1]
FACTS
This appeal
stems from a dispute about a television series, Burn Notice, created by Matt Nix and produced by Fox Television
Studios, Inc. Burn Notice premiered in June 2007.
In the idiom of the series, a “burn notice†is issued by an intelligence
agency to a spy who becomes unreliable in the eyes of the agency. When an agency “burns†a spy, the agency
terminates his or her relationship with the organization, leaving the person
with no established identity, prior work history, money or support. One of the main characters in
former CIA contractor who has been “burned†and must live off his own wits
while he searches to find answers about who burned him and why.
In early
2012, Plaintiff and appellant Michael Terry, representing himself, sued Fox and
Nix concerning Burn Notice. Terry filed his operative second amended
complaint (SAC). Terry’s SAC alleges
these three causes of action, listed respectively: misappropriation of his
“likeness†in violation of his statutory right of publicity protected under
Civil Code section 3344; misappropriation of his “likeness†as protected by the
common law right of publicity; and injunctive relief. Terry prayed for more than $500 million in
damages, and court orders commanding the defendants to recognize his connection
and contribution to Burn Notice. All three causes of action are based on
allegations that certain experiences of the Michael Westen character in
experiences in Terry’s life, demonstrating that Nix and Fox misappropriated
Terry’s “likeness†in making the series.
Terry alleges he wrote a “memoir†entitled “The Setup: Memoir of an NSA Black Operation,†and
that Fox and Nix used stories from his book in making Burn Notice.
Terry’s SAC openly alleges that he
suffers from schizophrenia, and that events in “The Setup†largely came from
“voices†in his head. He further alleges
he cannot be sure whether events in “The Setup†actually happened, but they
“seem to be the truth†to him.
Fox and Nix
filed an Anti-SLAPP motion to strike Terry’s SAC. On May
16, 2012, the parties argued the matter to the trial court. At the end of the hearing, the court signed
and entered a written order granting the motion. On May
18, 2012, Fox served notice of entry of the order by overnight
delivery.
On May 31, 2012, Terry filed a
8, 2012, the court entered judgment in favor of Fox and
Nix. On June 28, 2012, Fox and Nix filed a motion for attorney’s
fees. On August 9, 2012, Terry filed a notice of appeal from the
order granting Fox and Nix’s anti-SLAPP motion, which identified June 8, 2012 as the date the order was
entered. Terry later withdrew his motion
for reconsideration. On August 15, 2012, the court granted
Fox and Nix’s motion for attorney’s fees.
DISCUSSION
I. Timeliness of the Appeal
Fox and Nix
(collectively Fox except as otherwise noted) have filed a motion to dismiss
Terry’s appeal on the ground it is untimely.
The motion is denied.
The trial
court signed and entered the order granting Fox’s Anti-SLAPP motion on May 16, 2012. Fox served notice of entry the order on May 18, 2012. The service of notice of entry of the order
started the running of the usual time for filing a notice of appeal. California Rules of Court, rule 8.104(a)
provides that an appellant must file a notice of appeal on or before the 60th
day after the appellant was served with a notice of entry of judgment or order
being appealed. “The time for appealing
a judgment is jurisdictional; once the deadline expires, the appellate court
has no power to entertain the appeal.†(
Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51,
56.) If rule 8.104(a) applies, then
Terry filed his notice of appeal too late because August 9, 2012 (the day Terry filed his notice of appeal
from the order granting Fox’s Anti-SLAPP motion) is more than 60 days after May 18, 2012 (the day Fox served
notice of entry of the order granting its Anti-SLAPP motion).
On May 31, 2012, Terry filed a motion
for reconsideration. California Rules of
Court, rule 8.108(e) provides: “If any
party serves and files a valid motion to reconsider an appealable order under
Code of Civil Procedure section 1008, subdivision (a), the time to appeal from
that order is extended for all parties until . . . 90 days
after the first motion to reconsider is filed . . . .†Thus, if Terry filed a valid motion to
reconsider the trial court’s order granting Fox’s Anti-SLAPP motion, then Terry
filed a timely notice of appeal because the 90th day after May 31, 2012 (the
day Terry filed his motion for reconsideration) fell after August 9, 2012 (the
day Terry filed his notice of appeal from the order granting Fox’s Anti-SLAPP
motion). A “valid†motion for
reconsideration under rule 8.108(e) means a motion that was timely, and
accompanied by a declaration showing the grounds for reconsideration; it does
not mean a motion that had substantive merit.
We are satisfied Terry filed a valid motion for reconsideration within
the meaning of rule 8.108(e). Thus, we
find he filed a timely notice of appeal.
II. The Order Granting Fox’s Anti-SLAPP
Motion
Terry
contends the trial court’s order granting Fox’s Anti-SLAPP motion must be
reversed because Fox “did not deserve to win.â€
We will not reverse the order because Terry has not met his burden on
appeal to show the trial court wrongly entered the order under the law and or
facts. As stated in Denham v. Superior Court (1970) 2 Cal.3d 557, 564: “‘A judgment or order of the lower court is presumed
correct . . . and
error must be affirmatively shown [by the appellant]. This is not only a general principle of
appellate practice but an ingredient of the constitutional doctrine of
reversible error.’â€
The Anti-SLAPP
Statute
The
Anti-SLAPP
statute is intended to address a problem
with meritless lawsuits filed to “chill†the exercise of the constitutional right of free speech. (§ 425.16, subd. (a).) To this end, the Anti-SLAPP statute
authorizes a two-step procedure for striking a cause of action at the earlier
stages of litigation. In the first step, the court determines whether the moving defendant has
shown that a cause of action “arises from protected activity,†that is, “from
any act of that person in furtherance of the person’s right
of . . . free speech under the
States Constitution or California Constitution in connection with a public
issue . . . .†(See
§ 425.16, subd. (b)(1); and see, e.g., Martinez
v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [it is the
gravamen of the plaintiff’s cause of action that determines whether the
Anti-SLAPP statute applies in the first instance].) In the second step, the court looks at the
evidence to determine whether a plaintiff has a probability of winning his or
her on the merits. (See § 425.16,
subd. (b)(1); and see, e.g. Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
On appeal, we review an order granting an Anti-SLAPP
motion under the de novo standard of review, meaning we undertake the same
two-step procedure as the trial court.
(See Mendoza
Screening & Selection Services, Inc.
(2010) 182 Cal.App.4th 1644, 1651-1652.)
Analysis
Terry’s
opening brief on appeal does not appear to challenge the trial court’s order
granting the Anti-SLAPP motion at the first step of the Anti-SLAPP procedure –
namely, “protected activity.†Though
Terry raised this issue in the trial court, it must be reiterated on appeal to
be considered here. Assuming Terry has
intended to assert such an argument, we reject it. (See Tamkin
v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [the creation of
a television show is an act in the furtherance of a person’s exercise of the
right of free speech within the meaning of the Anti-SLAPP statute].)
Turning to
the second step, we find the record discloses no evidence showing Terry has a
probability of prevailing against Fox on the merits of his “misappropriation of
likeness†claims. Fox’s evidence showed
that Burn Notice creator Matt Nix
never met Terry, and never heard of Terry or his memoir “The Setup†prior to
Terry’s lawsuit. Further, that Nix never
read “The Setup.†Nix created
the characters in Burn Notice are
purely fictional. Nix “pitchedâ€
character, to Fox in August 2005.
Filming of the Burn Notice
pilot was completed in December 2006. In
his SAC, Terry alleged that he distributed drafts of “The Setup†to various
unnamed literary agents “in search of a book deal†in January to March
2007. Against Fox’s evidence, the trial
court found that Terry had failed to submit any admissible evidence tending to
establish the elements of his claims.
Terry’s opening brief on appeal does not address the trial court’s
ruling.
Apart from
the state of the evidence, Terry cannot prevail on his theory that Fox and Nix
misappropriated Terry’s “likeness.†The
allegation is that they misappropriated his personal life experiences. Terry’s theory is that his protected
“likeness,†under both statutory and common law, gives him a viable cause of
action because a character in a television show is like him. The law does not protect such a
wide-encompassing concept of “likeness.â€
Similarities between a real person’s personal life experiences and those
of a fictional character do not support a claim for misappropriation of the
former’s “likeness.†(See
(1997) 67 Cal.App.4th 318, 322-323 (Polydoros);
and see Mathews v. Wozencraft (5th
Cir. 1994) 15 F.3d 432, 438 [a person’s “likeness†under Texas misappropriation
tort law includes his or her picture or voice, not “general incidents from a
person’s life, especially when fictionalizedâ€].) If the law of “likeness†afforded protection
as broadly as Terry’s argument seems to propose, then every person who sees some
similarity between their personal life experiences and a character on a
television show or movie could assert a misappropriation claim.
instructive. In Polydoros, Division Two of our court affirmed a summary judgment in
an action for misappropriation of identity, invasion of privacy, negligence,
and defamation. The action was filed
against the writer and director of the movie The Sandlot; the plaintiff was a
childhood schoolmate of the writer and director. One of the film’s characters was a 10-year-old
boy named Michael Palledorous. The
plaintiff alleged his likeness was misappropriated in that the Michael
Palledorous character shared a number of similarities to the plaintiff,
including a name that was similar, growing up in a similar setting, wearing
eyeglasses, swimming in the community pool, and being “somewhat
obstreperous.†(Id. at pp. 320-321.) In
affirming summary judgment, Division Two ruled there was no misappropriation of
the plaintiff’s “likeness†because no one viewing The Sandlot would confuse the
Michael Palledorous character for the plaintiff. (Id.
at p. 323.) As Division Two stated: “[T]he rudimentary similarities in locale and
boyhood activities do not make The Sandlot a film about [the plaintiff]’s life. This is a universal theme and a concededly
fictional film. The faint outlines [the
plaintiff] has seized upon do not transform the fiction into fact.†(Ibid.)
We have the
same sentiments in Terry’s current case.
Stories about a spy, alone and fending for himself or herself, are a
universal theme. Absent an evidentiary
showing by Terry that the Michael Westen character in Burn Notice is modeled on or designed to be viewed by the public as
being Terry, there is no evidence of misappropriation of his “likeness.†We are not persuaded to reverse the trial
court’s order granting Fox’s Anti-SLAPP motion.
DISPOSITION
The order
granting Fox’s Anti-SLAPP motion is affirmed.
Respondents are awarded costs on appeal.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES, J.
further statutory codes are to the Code of Civil Procedure unless otherwise
specified.
Anti-SLAPP motion on May 18, 2012, by overnight service. This means that Terry had 10 days from May
18, 2012 to file his motion to reconsider.
(§ 1008, subd. (a).) Ten
days from May 18, 2012 is May 28, 2012, which happened to be Memorial Day, a
court holiday, and, thus, Terry had until the next day, May 29, 2012, to file
his reconsideration motion. (§ 12a,
subd. (a).) The time for Terry to act
was then extended two court days.
(§ 1013, subd. (c).) Two
court days after May 29, 2012 is May 31, 2012, the day Terry filed his motion
to reconsider. Fox also argues that
Terry withdrew his motion to reconsider, rendering it moot, and of no
consequence for purpose of determining the time to file an appeal. Because Terry’s motion to reconsider was
valid on the date it was filed, we are satisfied that California Rules of
Court, rule 8.108(e) applies.
