Judge: Elaine Lu, Case: 20STCV14383, Date: 2023-10-17 Tentative Ruling

Case Number: 20STCV14383    Hearing Date: October 17, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On April 14, 2020, Plaintiff Selena Gomez (“Gomez”) filed her Complaint against defendants Forgame US Corporation, Forgame Holdings Limited, Mutantbox Interactive Limited, GuangZhou Feidong Software Technology Co., Ltd., Guangzhou Feiyin Information Technology Co., Ltd., GuangZhou Jieyou Software Co., Ltd., Dongfeng Wang (“Wang”), Na Liang, Roy Liu, and Does 1 through 50 (collectively “Defendants”).[1]  The Complaint asserts two causes of action for: (1) violation of and conspiracy to violate Cal. Civ. Code § 3344; and (2) violation of and conspiracy to violate Common Law Right of Publicity.  (Complaint.)

On March 28, 2023, Defendant Wang filed the instant motion to bifurcate trial.  On August 18, 2023, Plaintiff filed an opposition.  No reply has been filed.

Although Plaintiff filed a notice of settlement, the parties advised at the initial, September 14, 2023 hearing for the instant motion that the parties did not have a written settlement agreement.  (Minute Order 9/14/23.)  Accordingly, the Court declined to vacate the trial date.  Instead, the Court continued the instant motion to October 17, 2023 and the trial to October 30, 2023.  (Minute Order 9/14/23.)  The Court further indicated that if there is no written signed settlement agreement prior to October 30, 2023, trial will proceed on that date.  (Minute Order 9/14/23.)

There is no indication that the parties have any written signed settlement agreement as of this hearing.  Thus, the Court rules on the merits of the instant motion as follows.

Allegations of the Operative Complaint

            The Complaint alleges that:

            Defendants created a mobile game “Clothes Forever – Styling Game” (the “Game”) on the Apple App Store Website.  Defendants used Gomez’s image and likeness in the Game without informing Gomez or requesting Gomez’s consent or publicity rights in connection with the Game.  (Complaint ¶ 11.)  “Defendants’ use of Gomez’s image in likeness… creates the false impression that she has endorsed the Game or has something to do with the Game, and undoubtedly is intended to attract consumers to make use of the Game.”  (Id. ¶ 30.)  The image used for the Game in the Apple App Store “blatantly rips off a popular image of Gomez taken for the fashion publication Flare.”  (Id. ¶ 31.)  “At all relevant times, Defendants were aware and knew of Gomez’s rights of publicity and the laws prohibiting the use of such rights without her authorization, but nonetheless agreed and conspired with each other to wrongfully use Gomez’s publicity rights without authorization for their own commercial purposes and in order to gain at her expense. In furtherance of this agreement and conspiracy, Defendants undertook to and did, among other things, authorize, approve, ratify, direct, manage, aid, encourage, and otherwise engage or participate in decisions and/or activities providing for the creation, development, advertising, marketing, promotion, sale and/or exploitation of the Game so as to use Gomez’s publicity rights… without authorization from Gomez.”  (Id. ¶ 35.)

            “Defendants’ unauthorized use of Gomez’s rights of publicity… constitute commercial misappropriation in violation of Cal. Civ. Code section 3344.”  (Id. ¶ 40.)  “As a direct and proximate result of Defendants’ unauthorized use… Gomez has suffered and will continue to suffer actual damages.”  (Id. ¶ 41.)  “Defendants have further been unjustly enriched by their ill-gotten gains or profits realized from their misappropriation and conspiracy to violate Gomez’s statutory rights of publicity.”  (Id. ¶ 42.)

Legal Standard

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”  (CCP § 1048(b).)  Whether there shall be a severance and separate trials of issues in a single action is a matter within the trial court’s discretion. (McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 727.)

Where a separate trial is ordered on the issue of liability, the procedure is commonly referred to as “bifurcation.”  The objective of bifurcation is to avoid wasting time and money on the trial of damages issues if the liability issue is resolved against plaintiff.  (Horton v. Jones (1972) 26 Cal.App.3d 952, 954.)  Granting or denying of a motion for bifurcation lies within the trial court’s sound discretion and is subject to reversal on appeal only for clear abuse.  (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 503-504.) 

Discussion

            Defendant Wang seeks to trifurcate trial in the following order: (1) Wang’s statute of limitations defense in a first phase; (2) whether, as an officer/director of some of the corporate defendants, Plaintiff can establish that Wang should be personally liable for their conduct in a second phase; and (3) other remaining issues, including Plaintiff’s alleged damages, in a third phase.  The proposed trifurcation of trial is not warranted.

            The purpose of bifurcating trial “‘is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.’”  (Horton v. Jones (1972) 26 Cal.App.3d 952, 955.)  However, Defendant Wang fails to show how the proposed trifurcation of trial would streamline trial or promote judicial efficiency.

            For example, the evidence regarding statute of limitations will likely overlap with evidence regarding damages.  The statute of limitations for actions for infringement of the right of publicity in California is two years.  (CCP § 339; Long v. Walt Disney Co. (2004) 116 Cal.App.4th 868, 874.)  Moreover, such claims are governed by the Uniform Single Publication Act.  (Long, supra, 116 Cal.App.4th at p.873.)  “The Uniform Single Publication Act (Civ. Code, §§ 3425.1-3425.5)… provides there is only one publication in mass communications of a single article in a newspaper or book or magazine which is distributed to more than one person.”  “Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the ‘first general distribution of the publication to the public.’  [Citations.]… Under this rule, the cause of action accrues and the period of limitation commences, regardless of when the plaintiff secured a copy or became aware of the publication.  [Citations.]”  (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245-1246.) 

However, “[t]he [single-publication] rule does not address the issue of repeated publications of the same libelous [Citation] material over a substantial period of time.  [Citation.]”  (Christoff, 47 Cal. 4th at p.481.)  The Supreme Court has provided guidance on how to address this issue.  In Christoff, a model sued a manufacturer six years after the manufacturer used the model’s image without his consent on millions of coffee jar labels although the model only discovered such use less than a year before he filed the suit.  (Id. at p.469.)  “The court declined to resolve [whether the single-publication rule applies to repeated publications over the same material over a substantial period of time] without the benefit of a sufficient factual record revealing the manner in which the labels were produced and distributed, including when production of the labels began and ceased.”  (Id. at p.470.)  Instead, the Court remanded this matter to the Court of Appeal to address this issue.  (Id. at p.483.)  A concurring opinion in Christoff states, “[t]he trial court should consider whether the production and distribution of labels was predetermined by a single initial decision or whether defendant… made at any relevant time a conscious, deliberate choice to continue, renew or expand the use of labels bearing plaintiff’s misappropriated image.  If any such decisions occurred during the period defined by the statute of limitations, plaintiff should be able to recover damages caused by publication pursuant to those decisions.”  (Id. at p.486.)

With the issue of re-publication, evidence regarding each iteration of the game, the location(s) of where it was published, the use of Plaintiff’s image in each version, etc., will all have to be repeatedly shown for both statute of limitations and for damages.  Similarly, there will likely be evidentiary overlap between the proposed second and third phases of trial, specifically, Wang’s conduct in the supervision, management, and ratification of acts of his subordinates.  Thus, there does not appear to be any efficiency in separating trial into phases.  Moreover, such issues regarding statute of limitations and Wang’s liability as an officer can easily be addressed through jury instructions and specific findings by the jury.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Wang’s motion to bifurcate or trifurcate trial is DENIED.

The trial remains firmly set for October 30, 2023 at 9:30 am.

Moving Party is to give notice and file proof of service of such.

DATED: October ___, 2023                                                  ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court