Judge: Serena R. Murillo, Case: 23STCV04603, Date: 2023-09-11 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 23STCV04603    Hearing Date: September 11, 2023    Dept: 31

TENTATIVE

Defendant’s demurrer is SUSTAINED with 30 days leave to amend.

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer 

The demurrer is accompanied by the declaration of Jason Scupine which satisfies the meet and confer requirement. (Code Civ. Proc. § 430.41.)  

Discussion

As an initial matter, Plaintiff has filed an improper sur-reply, to which Defendant has objected to, and the Court therefore disregards the sur-reply.

I.                 First Cause of Action for Appropriation

a.     Does “any person” under Civil Code section 3344 apply to public entities?

First, Defendant contends that Plaintiff’s claim for appropriation should be dismissed because The Regents is a state entity, and is not a “person” subject to statutes of general application like Civil Code Section 3344.

Civil Code section 3344 states: “Any person who knowingly uses another’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 such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.” (Civ. Code, § 3344.)

In Wells v. One2One Learning Foundation (2006) 39 Cal. 4th 1164, 1192, the Court stated, “absent express words to the contrary, governmental agencies are not included within the general words of a statute.” However, the Court there held that public school districts were not "persons" subject to suit under the False Claims Act because the enumerated list of covered "persons" under the statute does not include any words associated with public entities. The Court noted that the FCA defines covered "persons" to "include any natural person, corporation, firm, association, organization, partnership, limited liability company, business, or trust." (Gov. Code, § 12650, subd. (b)(5).) And that the only words and phrases it uses are those most commonly associated with private individuals and entities. While, in the broadest sense, a school district might be considered an "association" or an "organization," the statutory list of "persons" contains no words or phrases most commonly used to signify public school districts, or, for that matter, any other public entities or governmental agencies. In addition, the Court of Appeal noted, “Yet the statute makes very specific reference to governmental entities in other contexts. Thus, it provides that any ‘person’ who presents a false claim to the ‘state or [a] political subdivision’ is liable to such entity for two or three times the damage thereby sustained.” (Gov. Code, § 12651, subds. (a), (b).)

The Court also reviewed the legislative history and found there was no intent to include school districts and other public and governmental agencies. (Wells v. One2One Learning Foundation, supra, 39 Cal. 4^th at 1192.)

Thus, the Court of Appeal held, the language, structure, and history of that particular statute— the FCA — strongly suggest that public entities, including public school districts, are not "persons" subject to suit under the law's provisions. (Id., at 1193.)

Here, Defendant has not offered any analysis on the structure or history of the statute at issue. Nor do they point the Court to any enumerated list of covered “persons” under section 3344, and it appears there is no enumerated list.

Moreover, Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289 is instructive on this issue. The Court of Appeal in Sheppard found that while the traditional rule of statutory construction provides that governmental agencies are not included within the general words of a statute absent express words to the contrary, the Supreme Court has “pointed out an exception to this principle that ‘government agencies are excluded from the operation of general statutory provisions only if their inclusion would result in an infringement upon sovereign governmental powers . . . . Pursuant to this principle, governmental agencies have been held subject to legislation which, by its terms, applies simply to any ‘person.’’” (Sheppard, supra, 191 Cal.App.4th at 299-300 (quoting Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192).) 

As a result, the Court cannot sustain the demurrer on this basis.

b.     Insufficient facts to constitute cause of action for appropriation

Defendant argues that even assuming arguendo that The Regents was subject to Section 3344, Plaintiff has not alleged a prohibited use.

“A common law misappropriation claim is pleaded by “alleging: ‘(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97.)

Civil Code Section 3344(a) proscribes the “knowing[] use [of] another’s ... 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 such person’s prior consent.” In addition to the common law elements, section 3344 requires “a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.”  (Local TV, LLC v. Superior Court (2016) 3 Cal.App.5th 1, 13.)

Here, the complaint alleges that on May 28, 2015, Plaintiff was approached by a photographer at UCLA to take images of her. Plaintiff agreed and the photographer, Elena Zhukova, took a few images and asked for Plaintiff to sign a release. The release authorized uses of the images so long as they were not defamatory. (Compl., ¶ 5.)

It further alleges that on March 20, 2020, Plaintiff learned that her image “was being used for a campaign to raise money for the Covid Vaccine. On the photo there were words that read, ‘UCLA is responding to COVID 19, See how you can help,’ and a click more button directed users to a funding campaign operating by an organization named, UCLA Giving.” (Id., ¶ 6.)

Next, the complaint alleges that on March 25, 2020, Plaintiff sent Jennifer Wheelock, Associate Director of Development Marketing at the UCLA External Affairs office an email stating that she would like her images deleted and the release form terminated due to the fact that she was being bullied online and the use of the images exceeded the scope of Plaintiff’s agreement. (Id., ¶ 12.) On March 25, 2020, Jennifer Wheelock replied that Plaintiff’s images were deleted and removed from the website and that her contract was terminated. (Id., ¶ 13.)

Further, the complaint alleges that on March 12, 2022, two years after this remedy, Plaintiff received an Instagram message from Paige Macmilan that her image was on a large-scale printed banner on the Arthur Ashe Building for student health. The photo was used for a “Welcome New Students'' campaign for incoming students. The image was being used to have students sign up for medical and health appointments at the UCLA student health center. (Id., ¶ 15.)

As alleged, Plaintiff’s image used in 2020 was to raise funds for UCLA’s Covid response, including development of a vaccine. This use of Plaintiff’s image does not constitute, “advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”

Second, the statute requires that the use of the image be “without such person’s prior consent.” As alleged in paragraph 5 of the complaint, Plaintiff consented to the use of her images “so long as they were not defamatory.” Plaintiff has failed to allege that the image was defamatory.

Moreover, although Plaintiff alleges at paragraphs 12 and 13 of the complaint that on March 25, 2020, she requested that the release be terminated and that she was told that her contract was terminated and that the photos would not be used again, Plaintiff has not pled any facts demonstrating that the release was unilaterally terminable at the request of Plaintiff.

For all of these reasons, the demurrer to the first cause of action for appropriation is SUSTAINED with leave to amend. 

c.      Statute of Limitations

Defendant argues that Plaintiff’s March 2020 claim for appropriation is time-barred by the two-year Statute of Limitations.

A claim for misappropriation of likeness is subject to a two-year statute of limitations period. (See Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 474; Youngevity International, Corp. v. Smith (S.D. Cal. 2016) 224 F.Supp.3d 1022, 1027, modified on reconsideration).

For this assertion, Defendant argues that courts have treated a cause of action premised on multiple incidents as multiple causes of action. For example, in Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App.4th 1848, the court recognized that where a plaintiff seeks to recover damages for two “separate and distinct obligations” set forth within a single cause of action, a court could grant summary adjudication on one of the two claims. (Id., 1854.)

Assuming without deciding at this juncture that this assertion is true, this is not a motion for summary adjudication. A motion for summary adjudication applies to claims, but a demurrer tests whether the pleadings state a cause of action. And, a demurrer does not lie only as to a portion of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167; See also Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (stating that the sustaining of a demurrer may only be upheld if the complaint fails to state a cause of action under any possible legal theory).) Thus, because the cause of action for appropriation also relies on the claim that occurred in 2022, the demurrer is overruled on statute of limitations grounds.

II.               Second Cause of Action for Breach of Contract

“The elements of a cause of action for breach of contract are: “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.’” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391).

The complaint alleges that “there exists a model release executed by Plaintiff…” (Compl., ¶ 36.) Defendant used Plaintiff’s image in a manner that portrayed her in bad light as the “poster girl” for Covid-19 as described by others. (Compl., ¶ 37.) The use of Plaintiff’s image during the welcoming campaign in 2022 was contrary to the model release which was terminated in 2020, and a breach of the model release. (Id., ¶ 39.)

However, as stated above, there are no allegations showing that the use of Plaintiff’s images were defamatory, in order to show Defendant breached the contract. While it appears the complaint alleges that Defendant’s use of the 2020 image constituted false light, that cause of action is not interchangeable with defamation. As such, Plaintiff has not alleged sufficient facts to constitute a cause of action for breach of contract.

III.             Third Cause of Action for Negligent Infliction of Emotional Distress

Lastly, Defendant contends that Plaintiff’s common law claim for negligent infliction of emotional distress is barred by the Government Claims Act.

“The California Tort Claims Act provides that ‘a public entity is not liable for an injury,’ ‘except as otherwise provided by statute.’  (Gov. Code, § 815, subd. (a).)  As that language indicates, the intent of the Tort Claims Act is to confine potential governmental liability, not expand it.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179.)  Public entities cannot be liable for common law theories of general negligence.  (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].)  Therefore, liability against a public entity must be authorized by statute.  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].)   “Since the duty of a government agency can only be created by statute . . ., the statute . . . claimed to establish the duty must at the very least be identified.”  (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.)   

Government Code § 811.2 broadly defines the term “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.”  

Based on a review of the complaint, Plaintiff cites no statutory basis for her negligent infliction of emotional distress claim. As such, the demurrer is sustained on this basis.

In addition, Defendant also argues that the complaint does not allege the existence of some duty arising from the parties’ relationship that was negligently breached.

Negligent Infliction of Emotional Distress is “not an independent tort but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.’” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729).

The complaint alleges that Plaintiff suffered mental anguish and emotional distress from the use of her image on Covid-19 campaign materials. That portrayed her as a Covid-19 “poster girl” which led to Plaintiff being suspected of having Covid-19 by the people who saw the materials. Plaintiff was even bullied, and had to see a therapist to help her stabilize her mental health. (Compl., 43.)

The Court agrees on this point as well. Plaintiff has not alleged any duty in the complaint. As such, Defendant’s demurrer to the cause of action for NIED is SUSTAINED with leave to amend. 

Conclusion

Based on the foregoing, Defendant’s demurrer is SUSTAINED with 30 days leave to amend.

Moving party is ordered to give notice.