WARNER v. MONK

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Court of Appeal, Second District, Division 4, California.

Dwayne WARNER, Plaintiff and Appellant, v. Noel MONK and Noel Monk Management Services, Inc., Defendants and Respondents.

No. B 063740.

Decided: February 17, 1994

David B. Shapiro and Levy & Weiner, for appellant. Donovan Leisure Newton & Irvine, Stephen G. Contopulos, and Marianna Huryn, Los Angeles, for respondents.

Plaintiff Dwayne Warner appeals from an order of dismissal, entered October 23, 1991, in his action against respondents Noel Monk and Noel Monk Management Services, Inc., after the sustaining of a demurrer, without leave to amend, to the original complaint.   We reverse.

Two other named defendants, Jimmy Guterman and William Morrow & Company, Inc., are not parties to this appeal.

The complaint, filed February 25, 1991, advanced claims for libel, invasion of privacy, and intentional infliction of severe emotional distress, resulting from the publication in October 1991 of a book entitled 12 Days on the Road, which chronicled the American tour of the late Sid Vicious's band, the Sex Pistols.   The complaint did not allege who wrote the book.  (In the demurrer Monk confessed co-authorship.)   The book was at least 216 pages long.   Attached to the complaint, and thus incorporated in it, were photocopies of 36 pages of the book.   The book referred to plaintiff by name and described him as “a biker and bouncer ․ hired to do security” and as one of Vicious's bodyguards.

The complaint alleged that portions of the book were libelous;  that portions invaded plaintiff's privacy by publicly portraying him in a false light offensive to persons of ordinary sensibilities;  and that the book invaded plaintiff's privacy by commercially exploiting his name and likeness without his consent.   It alleged the book “contained false statements and inaccuracies which incorrectly portrayed Plaintiff as being a heavy-drinking brawler who assaulted and battered an employer,” and that as a result “Plaintiff has suffered injury to his business in that ․ plaintiff can no longer secure employment as a personal security specialist for entertainment personalities.”

On page 66 of the book was recounted what may have been plaintiff's first meeting with his protégé, at a dinner party.   This momentous drama was set in a restroom.   Vicious was skinny and “shaky drunk.”   Plaintiff was big and brawny and “hung out with bikers for the better part of a decade.”   Vicious challenged plaintiff to fight.   Undesirous of fighting the person he was employed to protect, plaintiff let Vicious hit him, thinking a wiry drunk's punches could not hurt much.   But Vicious packed a wallop and inflicted real pain on plaintiff.   Plaintiff announced, “That was your turn, you [expletive] limey.   Now it's my turn.”   Plaintiff grabbed Vicious by the hair and banged Vicious's head hard against the sink half a dozen times.   Vicious slumped to the floor, saying “OK, OK, enough.   You're good enough.   I like you.   Now we can be friends.”   Plaintiff exited, leaving Vicious crumpled on the floor.   Soon Vicious staggered out of the restroom and challenged Camel, another security man, to fight.   Camel refused to fight and pushed Vicious aside.   Later that night, after plaintiff reported these events to defendant Monk, Monk approached Vicious, who was suffering from serious heroin withdrawal.   Vicious told Monk, “I like D.W.   He's a good man.   He can fight.   That's the kind of guy I want around me.”

Plaintiff confesses that by including 33 pages of the book's text in his complaint (the other three pages are photographs), he has tortured the rule that a libel complaint must plead the exact words alleged to be actionable.   In the preceding paragraph we have synopsized the one passage specifically identified in plaintiff's brief as actionable.

Plaintiff contends the trial court abused its discretion in striking his untimely opposition papers.   The point is moot.   Whether the complaint stated a cause of action is not a discretionary question, but rather a legal question, which we consider de novo.

If the account of the restroom incident was false, it is capable of a defamatory meaning, and therefore actionable in libel.   It does not require extended proofs to establish that publication of an account of an employee's brutal attack on his employer would have a tendency to injure that employee in his occupation.  (See Civ.Code, § 45.)   If that occupation is bodyguard to the employer, the libel is worse.   We reject respondent's argument that the restroom beating episode was incapable of bearing a defamatory meaning because it concluded with the employer praising the employee's job qualifications.

In addition, if the statements about plaintiff were not false but only misleadingly derogatory by shading or omission, i.e. if they portrayed plaintiff in a false and offensive light in the public eye, then they are actionable in invasion of privacy.  (See Kapellas v. Kofman (1969) 1 Cal.3d 20, 35 & fn. 16;  Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273 [accurate Ladies' Home Journal photograph of happily married Los Angeles Farmers' Market concessionaires, accompanied by a caption “Love at first sight is a bad risk” and an article opining that love at first sight is founded only on sexual attraction].)

Defendants contend the false-light claim is made superfluous by the libel claim.  (See Kapellas v. Kofman, supra, 1 Cal.3d at p. 35 fn. 16.)   This argument is premature, because it assumes plaintiff will succeed in his libel claim.   If plaintiff cannot prove falsity, his false-light claim is not superfluous.

The two causes of action claiming invasion of privacy by commercial appropriation, however, cannot lie.1  This tort, which most commonly involves advertising uses, has not been expanded to afford relief to every person named or photographically depicted in a book.  (See Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880 [reprint, in college English textbook, of two-year-old national magazine article about plaintiff's returning a full Brink's sack he found in the street].)   The cases cited by plaintiff further illustrate the point.  (Kerby v. Hal Roach Studios (1942) 53 Cal.App.2d 207 [plaintiff's name was used without her consent as author of a letter promoting defendants' motion picture and mailed to 1000 householders];  Fairfield v. American Photocopy etc. Co. (1955) 138 Cal.App.2d 82 [defendant, a manufacturer of photocopy machines, circulated an advertisement falsely naming plaintiff as a satisfied user of its product];  see also Williams v. Weisser (1969) 273 Cal.App.2d 726, 741-742 [defendant took notes during plaintiff's anthropology class lectures at UCLA, then published and sold them, using plaintiff's name to promote sales].)

The closest case to sustaining plaintiff's position is Eastwood v. Superior Court, supra, 149 Cal.App.3d 409 [National Enquirer cover photograph and story titled “Clint Eastwood in Love Triangle With Tanya Tucker”].   There it was ruled that the deliberately fictionalized account of a well-known motion picture actor's intimate life would constitute actionable commercial exploitation if the publisher, acting with reckless disregard for its falsity, presented it to the readers as true.

It is unnecessary to rule whether 12 Days on the Road is more akin to a National Enquirer article or an English textbook.   This is not the crucial distinction in the case before us.   Rather, in terms of commercial exploitability of the plaintiff's personality, this case is much closer to the Johnson case than to the Eastwood case.   The book does not appear to be a commercial exploitation of the public's interest in reading about plaintiff's personal life.   We conclude that plaintiff's two causes of action for invasion of privacy by unauthorized appropriation of name and likeness cannot stand, and cannot be repleaded on remand.

Of course, we imply no view on whether the publication of defendants' book caused compensable harm to plaintiff.   On appeal from the grant of a demurrer, all factual averments of the complaint are deemed true.  (Argonaut Ins. Co. v. Superior Court (1985) 164 Cal.App.3d 320, 323.)

The order of dismissal is reversed, with directions to permit appellant to file a first amended complaint alleging libel and false-light invasion of privacy.   Costs to appellant.

FOOTNOTES

FOOTNOTE.  

1.   Plaintiff pleaded both a statutory claim under Civil Code section 3344 and a common law claim.  (See Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 416-417.)

KLEIN, Judge.* FN* Judge of the Municipal Court for the Los Angeles Judicial District, sitting under assignment by the Chairperson of the Judicial Council.

EPSTEIN, Acting P.J., and HASTINGS, J., concur.

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