Judge: Teresa A. Beaudet, Case: 23STCV23361, Date: 2024-07-03 Tentative Ruling
Case Number: 23STCV23361 Hearing Date: July 3, 2024 Dept: 50
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TIA SHIPMAN, Plaintiff, vs. TAMARA MELLON BRAND, INC., et al., Defendants. |
Case No.: |
23STCV23361 |
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Hearing Date: |
July 3, 2024 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: MOTION FOR LEAVE
TO FILE FIRST AMENDED COMPLAINT |
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Background
On September 26, 2023, Plaintiff Tia Shipman (“Plaintiff”) filed this
action against Defendant Tamara Mellon Brand, Inc. (“Defendant” or “TMB”). The
Complaint alleges one cause of action for common law misappropriation of
likeness.
In the Complaint, Plaintiff alleges that she “is a successful model
whose image is featured in marketing campaigns worldwide.” (Compl., ¶ 8.)
Defendant “is a company that sells footwear…” (Compl., ¶ 9.) Plaintiff alleges
that “TMB hired Plaintiff to model for numerous photoshoots wherein Plaintiff’s
image would be, and was used to promote, market, and advertise TMB’s products.
For each photoshoot, TMB procured the right to commercially exploit Plaintiff’s
image for one year worldwide on its website and social media. However, TMB exceeded
the scope of permitted use by continuing to exploit Plaintiff’s image long
after the expiration of the initial term.” (Compl., ¶ 10.)
Plaintiff alleges that “TMB has used, re-used, published, and
re-published Plaintiff’s respective images to promote, market, and sell its
merchandise without Plaintiff’s consent and for its own commercial gain.
Plaintiff has discovered many unlawful uses of her image, including approximately
nine uses still on TMB’s website and social media pages promoting various TMB products.”
(Compl., ¶ 12.) “On or about April 25, 2023, Plaintiff informed TMB of its
misuse of her image, given TMB’s lack of a license or consent from Plaintiff.
Notwithstanding its being put on notice, TMB has continued to use Plaintiff’s
images in violation of her rights.” (Compl., ¶ 13.)
Plaintiff now moves for leave to file a first amended complaint.
Defendant opposes.
Discussion
Pursuant to
A motion to amend a
pleading before trial must include a copy of the proposed amendment or amended
pleading, which must be serially numbered to differentiate it from previous
pleadings or amendments. (Cal. Rules of Court,
rule 3.1324, subdivision (a).) The motion must also state what
allegations are proposed to be deleted or added, by page, paragraph, and line
number. (Ibid.) Finally, “[a] separate declaration must accompany the motion and must
specify: (1) The effect of the amendment; (2)
Why the amendment is necessary and proper; (3) When the facts giving rise to
the amended allegations were discovered; and (4) The reasons why the request for
amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324, subd.
(b).)
Plaintiff’s
counsel’s declaration in support of the motion attaches a “redlined” version of
the proposed First Amended Complaint (“FAC”). (Miles Decl., ¶ 4,
Ex. B.) The proposed FAC adds a second cause of action for violation of Civil Code section 3344 (statutory misappropriation of
likeness). (Ibid.) The proposed FAC
also adds additional factual allegations. (Ibid.)
In his supporting declaration, Plaintiff’s counsel states that “[o]n
May 15, 2024, I discovered additional images and campaigns using Shipman’s
likeness, which gave rise to the inclusion of same in the Amended Complaint.
These included SHIPMAN00001, a fashion campaign photo with the Tamara Mellon
brand logo in the lower left-hand corner of the image, showing the full
head-to-toe frontal likeness of my client.” (Miles Decl., ¶ 3.) Plaintiff’s
counsel also states that “I discovered additional unauthorized campaigns
through counsel’s own investigations using advanced internet search tools like
the Internet Time Machine and similar tools—to find images and campaigns that
were not previously provided to Plaintiff and/or images otherwise
surreptitiously used without Plaintiff’s consent or a license—including the
images embedded in the Amended Complaint that feature full frontal images of
Plaintiff that make use of her entire likeness from head to toe—SHIPMAN00001.”
(Miles Decl., ¶ 6.)
Plaintiff states that “[t]he
proposed FAC adds new allegations at paragraphs 13-19, allegations regarding
significant additional images of Shipman and additional campaigns centered on
Shipman that were not previously disclosed to Shipman in any of TMB’s responsive
discovery or its initial responsive production; along with some representative
images from certain campaigns not previously disclosed in discovery by TMB,
including SHIPMAN00001.” (Notice of Motion at p. 2:13-17.) Plaintiff also
states that “[t]he proposed FAC adds a second statutory right of publicity
cause of action pursuant to Cal. Civ. Code § 3344,
with elements and additional allegations in paragraphs 29-36, and adds a
request for attorneys fees and costs pursuant to Cal.
Civ. Code § 3344 at paragraph 36.” (Notice of Mot. at p. 2:18-21.)
In the opposition, Defendant asserts
that “Ms. Shipman’s proposed amendment does not, and cannot, state a viable
cause of action under Civil Code §3344 because Ms.
Shipman does not—and cannot—plead TMB published either of the two photographs
that purportedly give rise to the Statutory Claim.” (Opp’n at p. 4:21-23.) Defendant
also asserts that “[t]he bulk of Ms. Shipman’s proposed amendments are the
addition of paragraphs 13 through 19. However, these proposed paragraphs are
entirely irrelevant to a Civil Code §3344 claim and
do nothing to support such a cause of action because they simply describe meet
and confer efforts between counsel.” (Opp’n at p. 7:9-12.) However, as
noted by Plaintiff, the asserted legal deficiency of a
proposed amendment does not warrant denial of leave to amend. (¿See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“the preferable practice would be to
permit the amendment and allow the parties to test its legal sufficiency by
demurrer, motion for judgment on the pleadings or other appropriate
proceedings”]¿.)
Defendant also notes that “unwarranted delay in seeking leave to amend may be
considered by the trial court when ruling on a motion for leave to amend, and
appellate courts are less likely to find an abuse of discretion where, for
example, the proposed amendment is offered after long unexplained delay…or
where there is a lack of diligence.” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 [internal
quotations and citations omitted].)
Defendant
asserts that “Plaintiff bases her request for leave to amend on
SHIPMAN00001 – a photographs [sic] she knew existed since 2020, three years
before filing her complaint on September 26, 2023. Ms. Shipman cannot explain
her unreasonable delay before seeking to amend her complaint, no more than
explain why she did not include it in her original pleading.” (Opp’n at p.
8:11-15.) Defendant asserts Ms. Shipman’s make-up artist Kimberly Bragalone
posted the photograph SHIPMAN00001 to her personal Instagram account on
September 15, 2020. (Mot. at p. 5:7-9.) Defendant asserts that “Plaintiff
undoubtedly knows this picture originates from Ms. Bragalone’s Instagram
posting because she commented on it. Ms. Bragalone also ‘tagged’ Ms. Shipman
when she made the post, and Ms. Shipman contemporaneously responded, over three
and a half years ago, with three heart emojis and commented ‘Miss you!!’”
(Opp’n at p. 6:3-7; Deam Decl., ¶ 3, Ex. B.)
In the reply, Plaintiff contends
that “[h]ere, there has been no improper delay. To the contrary, the delay was
entirely caused by TMB. Defendant TMB should have produced the at-issue
photographs in response to Plaintiff’s request for production, served on
December 1, 2023.” (Reply at p. 5:9-11.) In his declaration in support of the
motion, Plaintiff’s counsel asserts that “[s]ince filing the initial Complaint,
Plaintiff’s counsel learned that Plaintiff was not aware of certain additional
unauthorized campaigns that were omitted by counsel from the initial pleading,
including images/campaigns not provided by TMB in responsive discovery despite
Requests calling for all use of Shipman’s likeness.” (Miles Decl., ¶ 5.)
In addition, Plaintiff asserts that
“[t]o deny amendment, it must be demonstrated that (a) Shipman improperly
delayed in bringing her motion; and (b) the delay in seeking leave to amend will
cause prejudice to TMB.” (Reply at p. 5:2-4.) Plaintiff cites to Kittredge Sports Co. v. Superior Court, supra, 213
Cal.App.3d at page 1048, where the Court of Appeal noted that “Marker contends Kittredge
unreasonably delayed moving to amend. Even if this were so, it is an abuse of
discretion to deny leave to amend where the opposing party was not misled or
prejudiced by the amendment. Here, the record does not support Marker’s claim
it has been harmed by the delay.” (Internal citation omitted.)
In her declaration in support of the opposition, Defendant’s counsel
states that “[s]ince the inception of this lawsuit, TMB has propounded Form
Interrogatories, Special Interrogatories, and Requests for Production based on
the allegations in the operative complaint. TMB has also issued a subpoena and
obtained documents from Ms. Shipman’s modeling agency.” (Deam Decl., ¶ 6.)
Defendant asserts that “Ms. Shipman’s lack of diligence will now force TMB to
begin discovery anew based on allegations Ms. Shipman knew about well before
she filed her complaint. This would further prejudice TMB, especially in light
of the remedies available in connection with the Statutory Claim.” (Opp’n at p.
8:17-20.) However, as noted by Plaintiff, trial in this matter is currently set
for March 5, 2025. Thus, the Court agrees with Plaintiff that there is time to
conduct discovery regarding the amended allegations.
In light of the foregoing, the Court finds that Plaintiff
has demonstrated good cause to file the proposed FAC.
Conclusion
Based on the
foregoing, Plaintiff’s motion for leave to file a first amended
complaint is
granted. The Court orders Plaintiff to file and serve the FAC within 3 days of
the date of this Order.
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Plaintiff is
ordered to give notice of this Order.
DATED:
Hon. Teresa A.
Beaudet
Judge, Los
Angeles Superior Court