In a recent 50-page published opinion, the California Court of Appeal determined that offensive and derogatory language on a movie set was protected activity under the anti-Strategic Lawsuit Against Public Participation (or anti-SLAPP) statute because the conduct was part of the behind-the-scenes process for making a movie.

The case pitted Marlon Wayans – an actor who wrote and starred in the comedy A Haunted House 2 – against an extra on the film named Pierre Daniel. Daniel brought a harassment suit against Wayans and others involved in the production, alleging that he was subjected to offensive and racially charged language on the set and in a tweet that compared Daniel to the cartoon character of Cleveland Brown (originally from the television program Family Guy).

A majority panel of the Court of Appeal of the State of California, Second Appellate District, affirmed the lower court’s dismissal of Daniel’s lawsuit and struck down claims of racial harassment, misappropriation of likeness, false light, and intentional infliction of emotional distress under California’s anti-SLAPP statute.

The California Appellate Court Concluded That The Anti-SLAPP Statute Applied To The Plaintiff’s Claims

Wayans brought the motion to strike under Section 425.16 of the California Code of Civil Procedure, arguing that the plaintiff’s claims were based on activity protected by the anti-SLAPP statute. Section 425.16 delineates the categories of “protected activity” under the anti-SLAPP statute, including “conduct in furtherance of the exercise of the … constitutional right of free speech in connection with a public issue or an issue of public interest.” Cal. Civ. Proc. Code § 425.16(e)(4).

Prior California precedent served as a guide for the Court’s reasoning. In Tamkin v. CBS Broad. Inc., 193 Cal. App. 4th 133, 142-43 (2011), the Court held that the defendants’ acts, which allegedly included using the plaintiffs’ actual names in a draft of an episode of the television show CSI, and dissemination of synopses based on this draft to casting agencies, were acts in furtherance of the defendants’ right of free speech. The Court reasoned that, because the acts “helped to advance” the creation of a television show – itself an exercise of free speech – defendants’ acts were “protected activity.” Id. Here, Wayans contended that the alleged comments and activity played a role in the movie’s creative process. For example, he claimed that some of the alleged racially charged language assisted in adding to the film’s improvisational comedy and dialogue. Thus, Wayans asserted that the acts helped to advance the movie’s development – and therefore implicated his constitutional free speech rights.

The Court found that all of the alleged misconduct was based “squarely” on Wayans’ exercise of free speech – the creation and promotion of a full-length film, including the off-camera development process. This was true even for comments made off-camera that did not involve the plot of the movie itself, the Court reasoned.

In determining that the complaint was subject to an anti-SLAPP motion, the Court found that the public interest requirement was satisfied as well – i.e., that the speech-related conduct was “in connection with … an issue of public interest.” An “issue of public interest” under the anti-SLAPP statute is simply “any issue in which the public is interested.” Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008); Tamkin, 193 Cal. App. 4th at 143. The issue does not need to be “significant” to be protected by the anti-SLAPP statute; it is enough that it is one in which the public takes interest. Tamkin, 193 Cal. App. 4th at 143. Citing the “longevity and breadth” of Wayans’ acting career and calling him a “popular and prolific entertainer,” the Court reasoned that the very making of A Haunted House 2 was “an issue of public interest.”

As such, the Court found that prong one of the anti-SLAPP statute was easily satisfied.

Plaintiff Failed to Meet Prong 2 of the Anti-SLAPP Statute

After determining that the alleged misconduct was a protected activity under the anti-SLAPP statute, the Court then reasoned that Daniel failed to satisfy prong 2 – he had failed to meet his burden to show a reasonable probability of success on his claims. Specifically, the Court found that Daniel failed to demonstrate that the alleged acts of harassment created an abusive environment under the California Fair Employment and Housing Act.

As for the other claims, the Court affirmed the lower court’s decision on the misappropriation of Daniel’s name and likeliness, finding that he waived that claim by signing a broad release that permitted the use of his image in connection with promoting the movie.

The Court also found that Daniel could not prevail on his false light and intentional infliction of emotional distress causes of action. The Court’s reasoning with respect to those claims can be found here.