Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV00209, Date: 2024-01-31 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV00209, Date: 2024-01-31 Tentative Ruling

Defendants Yuan Shi aka Henry Shi, AI List Capital GP 1, LLC, and AI List Capital 1, LP (“Defendants”) move for summary judgment or adjudication as to Plaintiff David Carter (“Plaintiff”)’s claims for misappropriation in Plaintiff’s First Amended Complaint (“FAC”) on the ground that Plaintiff’s claims are barred by the statute of limitations.

Defendants request judicial notice of seven court records filed in this action. While the Court need not take judicial notice of its own case file, Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

The Court has not considered Defendants’ “Response to Plaintiff’s Separate Statement of Undisputed Material Facts in Opposition to Motion for Summary Judgment or, in the Alternative, Summary Adjudication,” as this document is a reply separate statement not authorized by statute, and Defendants failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].)

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Right of publicity claims, including those for misappropriation of likeness as alleged here, are subject to a two-year statute of limitations. (Code Civ. Proc., § 339, subd. (1).) Defendants move for summary judgment or adjudication as to Plaintiff’s claims on the grounds that Plaintiff had access to Defendant Shi’s email account and associated Google Workspace with the AI List presentation decks containing Carter’s image from 2017, when the decks were created and published, until this action was filed in February 2022, such that Plaintiff was or should have been aware of the existence of the alleged misappropriation since before February 2020.

Defendants contend that the single-publication rule bars Plaintiff’s claims here. “[T]he single-publication rule directly prevents a multiplicity of suits by declaring that there can be only one cause of action for defamation based upon a single publication, and indirectly limits the extension of the statute of limitations through the judicial interpretation that this single cause of action accrues upon the first general distribution of the work to the public.” (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883, 892 (Hebrew Academy).) The single publication rule also governs claims for appropriation of a likeness, as alleged here. (Long v. Walt Disney Co. (2004) 116 Cal.App.4th 868, 874.) Defendants provide evidence that the first publication of the AI List decks occurred in late 2017 (Defs.’ UMF No. 4), and they argue that the limitations period thus expired in late 2019, but the action was not filed until February 2022.

Plaintiff contends that the single-publication rule does not apply to private email distributions of confidential presentation decks. Plaintiff cites cases stating that a claim accrues after the first general distribution to the public, but Defendants argue that Hebrew Academy, supra, 42 Cal.4th at page 890, states that “the single-publication rule applies not only to books and newspapers that are published with general circulation . . . , but also to publications . . . that are given only limited circulation and, thus, are not generally distributed to the public.” The “limited circulation” in Hebrew Academy was the distribution of an interview, which was part of an oral history project, and fewer than 10 copies of the transcripts of the interview were published. (Id. at p. 888.) The interview was “never distributed to the general public” and was “available only in a few locations.” (Id. at p. 889.)

While the single-publication rule is said to apply even where the publication at issue was given only limited circulation, the Court cannot conclude that the rule applies here where the publication at issue was only privately distributed. While the distribution in Hebrew Academy, supra, 42 Cal.4th at page 891, was limited, it was circulated as a mass communication, and the single-publication rule arose out of “the advent of mass publication of books and newspapers.” Defendants’ own evidence indicates that the presentation deck was distributed to investors by email, (Defs.’ UMF No. 4.) It follows that the distribution of the presentation deck is more akin to sending letters to potential investors, i.e., a small number of private individuals, not publishing the deck in a newspaper or online in a way that could be analogized to a mass communication like a book or newspaper. Given that Defendants fail to cite a case indicating that the single-publication rule is intended to apply to private distribution, the Court is not inclined to extend the rule to the communications at issue here, which cannot be considered to be mass communication.

Further, even if the single-publication rule applied to private email distribution of a presentation deck, Defendants fail to provide sufficient evidence that the publications were a “single integrated publication,” i.e., Plaintiff provides evidence that he was in several versions of the AI List presentation decks, and AI List raised money in 2018, 2019, and 2020, such that Plaintiff’s likeness may have been republished in the decks over several years, in several instances, without Plaintiff’s knowledge, in a manner other than email distribution, and this repeated publication of the deck may preclude application of the single-publication rule because Plaintiff’s conduct may be considered a continuing wrong. (See Pl.’s UMF Nos. 10, 12; Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 481-482.) Without evidence as to the manner of distribution of the presentation deck, including when the distribution of the deck started and ended, the Court cannot conclude that the single-publication rule applies.