Judge: Lynne M. Hobbs, Case: 25STCV03650, Date: 2025-05-15 Tentative Ruling

Case Number: 25STCV03650    Hearing Date: May 15, 2025    Dept: 61

JOHN FRANKLIN, III, et al. vs NETFLIX INC., et al.

Tentative

Defendants Netflix Inc., Condé Nast Entertainment, LLC, and Greg Whiteley’s Special Motion to Strike the Complaint (Anti-SLAPP) is GRANTED.

Moving party to provide notice.

Analysis:

I. SPECIAL MOTIONS TO STRIKE

In 1992 the Legislature enacted Code of Civil Procedure section 425.16 as a remedy for the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., §425.16, subd. (a); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 817.) The lawsuits are commonly referred to as “SLAPP” lawsuits, an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) A defendant opposing a SLAPP claim may bring an “anti-SLAPP” special motion to strike any cause of action “arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).) An anti-SLAPP motion may be addressed to individual causes of action and need not be directed to the complaint as a whole. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.app.4th 141, 150.)

In ruling on an anti-SLAPP motion, a trial court uses a “summary-judgment-like procedure at any early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendants must show that the acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States of California Constitution in connection with a public issue.” (Code Civ. Proc., §425.16 subd. (b)(1).) Next, if the defendant carries that burden, the burden shift to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16 subd. (b)(3).) In making both determinations the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); Equilon Enterprises, supra, 29 Cal.4th at p. 67.)

A. PROTECTED ACTIVITY

The anti-SLAPP statute defines protected activities as:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (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.

(Code Civ. Proc., § 425.16, subd. (e), emphasis added.)

Defendants Netflix Inc., Conde Nast Entertainment, LLC, and Greg Whiteley (Defendants) seek the protection of the anti-SLAPP statute on the grounds that the allegations in the Complaint directed to their misappropriation of the names, images, and likenesses of Plaintifffs John Franklin III, Ronald Ollie, Cary Sidney Reavis II, Deandre Johnson, Tim Bonner, and Isaiah Wright (Plaintiffs) fall within subdivisions (e)(3) and (e)(4) of the above statute. (Motion at pp. 12–14.) They reason that the show from which the allegations arise — a documentary series called Last Chance U, which appeared on the internet streaming platform Netflix — constituted an exercise of the right of free speech in connection with an issue of public interest. (Ibid.) Plaintiffs, who appeared as subjects and stars of the documentary series, bring claims based on the use of their names, images, and likenesses in the series, and in some cases based on allegedly false portrayals of their conduct in the series.

The airing of a documentary indeed constitutes an exercise of the right of free speech. (See Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1040 [holding that hiring of a cinematographer, maintaining an online journal of refugee stories, and soliciting investor funds for production of a documentary constituted conduct in furtherance of the right of free speech under the anti-SLAPP statute]; see also Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [“The creation of a television show is an exercise of free speech.”].)

This leaves the question of whether the documentary concerned a topic of public interest, i.e. “any issue in which the public is interested.” Tamkin, supra, 193 Cal.App.4th at p. 143.) Here, Plaintiffs’ allegations establish that the documentary series concerned an issue of public interest, because the public was interested in the documentary. (Complaint ¶ 37.) Much as “the creation and broadcasting of CSI episode 913 is an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode,” so too was the public interested in the Last Chance U documentary. (Tankin, supra, 193 Cal.App.4th at p. 143.)

Additionally, per the declaration of Whiteley, the series’ director, the series owes its creation partly to the publication of an article in GQ concerning the junior college football program where the series takes place. (Whiteley Decl. ¶ 5.) Defendants present a critic’s analysis of the show, published in New York Magazine, which describes the show as “inevitably uncover[ring] a whole host of broader ideas. It raises larger questions about injury, about trauma, about poverty, and most especially about race.” (Glasser Decl. Exh. 28.) Plaintiff’s argument that the athletes and athletic program covered in the series were not widely known prior to its airing does not obviate the public interest in the documentary. (See Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808 [holding that radio discussion of a bit player on a reality TV show constituted a matter of public interest].)

Accordingly, Defendants have demonstrated that the gravamen of Plaintiffs’ allegations against them arises from protected activity.

B. LIKELIHOOD OF PREVAILING

After a defendant meets their burden of showing that the gravamen of the complaint involves protected activity, the plaintiff must then “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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) A defendant can meet its burden if it can establish that the plaintiff cannot overcome an affirmative defense. (Birkner v. Lam (2007) 156 Cal.App.4th 275 at 285.) “[A] plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480.)

Here, Plaintiffs have failed to show any likelihood of prevailing on their claims against Defendants, because their opposition consists entirely of argument, with no accompanying offer of evidence sufficient to support a favorable judgment. 

Additionally, as Defendants argue in their motion, each of Plaintiffs’ claims is barred by the applicable statute of limitations. The longest statute of limitations on Plaintiffs’ claims is four years, applicable to their claim under California’s Unfair Competition Law (UCL). (Bus. & Prof. Code § 17208.) All episodes of the first season were released in July 2016, while all episodes of the second season were released in July 2017. (Del Deo Decl. ¶¶ 3–4.) Far more than four years have elapsed between the last accrual of the claims in July 2017 and the filing of the present Complaint in February 2025.

Plaintiffs in opposition argue for delayed discovery, equitable tolling, and the continuing violation doctrine. (Opposition at pp. 11–13.) None of these arguments has merit. Plaintiffs’ claims for equitable tolling and delayed discovery rest upon the contention that they had no notion of the legal possibility of possessing rights in the names, images, and likenesses until 2020 litigation was commenced in the case In re College Athlete NIL Litigation, Case No. 4:20-cv-03919 (N.D. Cal.). (Motion at p. 12.) But this argument — unsupported by evidence or allegation in the pleadings — admits that Plaintiffs were apprised at all times of the facts supporting their claims, and what was delayed was not the uncovering of evidence but the legal significance thereof. “[I]t is the discovery of facts, not their legal significance, that starts the statute.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1113.)

The continuing violation doctrine also has no application here. Rather, Plaintiffs’ allegations are covered by the single publication rule, which states:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.

(Civ. Code § 3425.3.) This rule has been held to apply to publications on the internet, (Canatella v. Van De Kamp (9th Cir. 2007) 486 F.3d 1128, 1133.) The authority that Plaintiffs cite for the proposition that an internet posting constitutes a continuing violation stands for precisely the opposite point: the continuing violation doctrine “applies where there is ‘no single incident’ that can “fairly or realistically be identified as the cause of significant harm,” and a “cause of action for defamation accrues immediately upon the occurrence of the tortious act and thus, is not appropriate for the continuing violation exception.” (Flowers v. Carville (9th Cir. 2002) 310 F.3d 1118, 1126.)

The motion to strike is therefore GRANTED.