Case Number: BC610429 Hearing Date: August 31, 2018 Dept: 40

Plaintiff’s Motion

MOVING PARTY: Plaintiff and Cross-Defendant Shane Mosley, Sr.

OPPOSITION: Defendant and Cross-Complainant Swarm Entertainment, LLC

Defendant’s Motion

MOVING PARTY: Defendant and Cross-Complainant Swarm Entertainment, LLC

OPPOSITION: Plaintiff and Cross-Defendant Shane Mosley, Sr.

Background: Plaintiff / cross-defendant Shane Mosley, Sr. (hereinafter plaintiff) sues defendant / cross complainant Swarm Entertainment, LLC (hereinafter defendant) for damages and injunctive relief based on allegations that defendant misappropriated plaintiff’s name, photograph, and likeness in promoting a mixed martial arts fight.

Plaintiff alleges that in September 2014, defendant entered into a Joint Venture Agreement (JVA) with Mosley Showdown Promotions to promote a live pay-per-view mixed martial arts event on January 30, 215, called the “Super Brawl,” to be held in Phoenix, Arizona. Complaint ¶ 8. Plaintiff, however, has never had an ownership interest in Mosley Showdown Promotions, and was not a party to the JVA. Id. at ¶ 12. Rather, Mosley Showdown Promotions is owned and controlled by plaintiff’s sister, Cerena Mosley. Id. at ¶ 13. Plaintiff never gave authorization to defendant to use his name, image, or likeness to advertise the Super Brawl. Id. at ¶ 19.

On or about January 25, 2015, plaintiff issued cease and desist demand letters to defendant and Mosley Showdown Promotions demanding that they not use his name, image, or likeness in connection with the event. Id. at ¶ 22. (Although not alleged in the complaint, in his moving papers to his motion for summary adjudication, plaintiff states that “[i]n response to the cease and desist, on January 25, 2015, Swarm took all reference to Mr. Mosley down from its website and Swarm ceased to use Mr. Mosley’s name, image and likeness to promote the Event.” MOT (Plaintiff’s MSA) 12:13-15.)

On or about January 30, 2015 (the date of the Super Brawl), plaintiff issued cease and desist demand letters to “all media outlets it could find, including, but not limited to, DishNetwork LLC, DirectTV Holdings, and In Demand LLC” putting them on notice that defendant was not authorized to use plaintiff’s name, image, or likeness in connection with advertising the event. Complaint ¶ 23.

On February 16, 2016, plaintiff filed a complaint for:

(1) misappropriation of common law right of publicity;

(2) violation of common law right of privacy;

(3) trademark infringement / false association in violation of the Lanham Act;

(4) trade dress infringement in violation of the Lanham Act;

(5) slogan infringement in violation of the Lanham Act; and

(6) negligence.

On May 6, 2016, defendant filed a cross-complaint against plaintiff and Mosley Showdown Promotions, Inc. (Mosley Showdown Productions) for:

(1) breach of contract;

(2) intentional misrepresentation;

(3) negligent misrepresentation;

(4) express contractual indemnity;

(5) intentional interference with contract;

(6) inducing breach of contract;

(7) inducing breach of contract (pay per view contracts); and

(8) intentional interference with contract (pay per view contracts).

On June 15, 2018, plaintiff and defendant filed these opposed cross-motions for summary judgment or adjudication.

Defendant’s motion goes toward all of plaintiff’s causes of action in the complaint. According to his separate statement, plaintiff’s motion goes toward the first and second causes of action in the complaint and the fifth, sixth, seventh, and eighth causes of action in the cross-complaint.

The Court admonishes plaintiff for failing to adhere to California Rules of Court, rule 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”) (emphasis added.)

Request for Judicial Notice: Plaintiff’s request for judicial notice of documents filed in this case is DENIED as superfluous.

Evidentiary Objections: The Court’s rulings on evidentiary objections are contained in proposed orders if submitted. If a compliant proposed order was not submitted, the Court declines to rule. CRC, rule 3.1354(c).

Summary Judgment or Adjudication Standard: The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.

Parties opposing motions for summary judgment cannot rely upon “assertions that are ‘conclusionary, argumentative or based on conjecture and speculation,’” but instead must “‘make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact ….’” Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1404. “[O]pposing evidence that is merely equivocal will not suffice to raise a triable fact issue.” Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1589. Opposing declarations must include evidentiary facts and more than ultimate facts repeating allegations, or conclusions. Snider v. Snider (1962) 200 Cal.App.2d 741, 751.

Defendant’s MSJ: GRANTED.

Defendant lists eight issues in its notice of motion. The first seven, however, all address whether “on the undisputed evidence[] Plaintiff consented to Defendant’s use of Plaintiff’s name and likeness for the purpose of advertising the promoting Defendant’s event, ‘Super Brawl Showdown.’” The eighth issue addresses whether defendant owes plaintiff a duty of care in connection with the sixth cause of action for negligence. Because the first (or first seven) issues are dispositive, the Court need not reach the eighth issue.

No Triable Issues of Material Fact Exist as to Whether Plaintiff Consented to Defendant’s Use of His Name, Image, and Likeness

Defendant’s arguments in this regard do not focus on the circumstances surrounding defendant entering into the JVA with Mosley Showdown Productions. Rather, defendant’s arguments are based on the following assertions:

In early January 2015, roughly three weeks before “Super Brawl Showdown,” Plaintiff appeared in a promotional video produced and directed by Ron Sperling on Defendant’s behalf for the purpose of advertising and promoting Defendant’s MMA event. [Separate Statement.] At no time either before or during the shooting of the video did Plaintiff place any conditions or restrictions on (1) Defendant’s right to use the video to promote “Super Brawl Showdown,” or (2) Defendant’s right to use Plaintiff’s name and likeness to promote the event. [Separate Statement.] Wayne Mogel, Swarm’s representative, reasonably concluded from Plaintiff’s unconditional participation in the promotional video that Plaintiff was consenting to Defendant’s use of his name and likeness to advertise and promote “Super Brawl Showdown.” [Separate Statement.]

MOT 4:18-27.

Whether or not defendant could reasonably believe it had plaintiff’s consent to use his name, image, or likeness in September 2014, when the JVA was entered into, plaintiff’s deposition testimony surrounding the January 2015 video shoot establishes defendant’s reasonable belief that plaintiff gave his apparent consent. See Restatement (Second) of Torts (1979) § 892 cmt. c (“Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them.”); CACI 1302 (“A plaintiff may express consent by words of acts that are reasonably understood by another person as consent.”)

Plaintiff argues that a material issue of fact exists as to the purpose of the video shot in January 2015. See, e.g., Plaintiff’s Compendium of Evidence, Exh. A (Plaintiff Deposition), 115:7-10 (“The video was supposed to be showed, in my understanding, at the fight, at their fight, stating that I won’t be there on the screen so they wouldn’t feel whatever, for their benefit.”) Plaintiff argues that the video was only intended to be shown at the fight itself. See OPP 4:20-21 (“Plaintiff Mosley states explicitly that he made the video to be played at the Super Brawl itself.”)

In his deposition, however, plaintiff conceded that he stated the line: “In the great family tradition, come join us at Superbrawl” (emphasis added.) The pertinent portion of plaintiff’s deposition testimony is as follows:

Q So what was your understanding of the purpose of your saying the lines “In the great family tradition, come join us at Superbrawl”?

A My purpose for coming there –

Q No, sir, I didn’t ask you for your purpose in coming there. I said what was your purpose in uttering that line?

A Okay. I’ll finish my line of question – or my answer.

Q Okay.

A My purpose – and I’m going to say what you want to hear.

Q Okay.

A Okay?

Q Well, if you don’t answer the question, we’ll just go back and redo it. So go ahead.

A I’m answering the question. I’m going to answer that question.

Q Okay. Go ahead.

A But we’re going to get some context with it too, no?

Q All I want to know, sir, is you uttered a line promoting the Superbrawl event during that video. You also state that you said other things about your non-availability that don’t appear on the video; correct?

A Yes.

Q What was your understanding of the purpose in your stating the line promoting the Superbrawl event?

A The purpose for that was the support of my family, the Mosley family, and to support my father and my sister in their endeavors of whatever they were trying to do. That was my purpose. That was my thought. That was my train of thought when I said that. It was for them. It was for them. And as you noticed, my father had most of the talking about it, about whatever it is. I don’t even know what it is – MMA show.

But the purpose for that, to say anything, was for my family, was for my father and my sister. It wasn’t for me to be involved in any way, shape, or form. Maybe that was the video people’s way of manipulating the people to think that, “Oh, maybe he’s going to do this.” Maybe that was their trick photography or camera work that they wanted to show so they could make some money, but I had no part with that.

Q So it was your understanding that that portion of the video that you stated promoting the Superbrawl event would, in fact, be used to promote the event?

A I don’t know.

Q You didn’t know what they were going to use it for?

A I didn’t know what they were going to use it for because it was only for the sake of supporting my family. That was it.

Plaintiff Deposition, 116:16-118:20. Whatever plaintiff’s subjective intention may have been, the fact that he stated “come join us at” the Super Brawl would lead a reasonable trier of fact to only one conclusion—that defendant reasonably believed plaintiff consented to using his name, image, and likeness to promote the Super Brawl. See Jones v. Corbis Corp. (C.D. Cal. 2011) 815 F.Supp.2d 1108, 1114, aff’d (9th Cir. 2012) 489 Fed.Appx. 155 (“Plaintiff’s subjective beliefs as to her consent are not determinative; consent is measured from Plaintiff’s manifested action or inaction.”) (citing Restatement (Second) Torts § 892 and CACI 1302.) It is simply implausible for plaintiff to have believed that his statement to “come join us” at the Super Brawl would only have been played at the Super Brawl itself.

Ron Sperling, who was responsible for producing and directing the video, clarifies and represents that in the video, plaintiff states “In a family tradition of world class combat sports,” which is followed by Jack Mosley (plaintiff’s father) stating “Join us at the Phoenix Zoo for Super Brawl Showdown.” Sperling Decl. ¶ 8. Whether or not plaintiff himself uttered the invitation, a reasonable person in defendant’s shoes would have concluded that plaintiff authorized the use of his name, image, and likeness for the promotional video and, accordingly, other promotional materials as well.

Plaintiff suggests that even if he consented in January 2015 when the video was shot, such participation could not “constitute consent to the use of Plaintiff’s name and likeness in prior months.” OPP 2:14-15. Because plaintiff offers no evidence that his name, image, or likeness was used prior to January 2015, however, the Court does not credit the assertion. Put another way, defendant (as the moving party) as successfully negated the opponent’s claims, and plaintiff has failed to demonstrate the existence of a triable, material factual issue. Hinesley, supra, 135 Cal.App.4th at 294.

Further, although not dispositive here, the Court observes that plaintiff at times characterizes the January 2015 shoot as one for a promotional video. See, e.g., Answer to Cross-Complaint ¶ 7.

Defendant asserts, and plaintiff does not dispute, that each of plaintiff’s causes of action require that plaintiff show a lack of consent. Because “consent is measured from Plaintiff’s manifested action or inaction,” Jones, supra, 815 F.Supp.2d at 1114, and plaintiff concedes that he stated “come join us at Superbrawl” in recording the video, defendant establishes consent.

Accordingly, defendant’s motion for summary judgment is GRANTED.

Plaintiff’s MSA

Because defendant’s motion for summary judgment is granted, plaintiff’s motion is denied as moot to the extent it is directed toward the complaint. As discussed above, defendant is not liable for violating plaintiff’s name, image, or likeness because his actions during the January 2015 video shoot manifested consent.

Plaintiff’s remaining issues go toward the fifth, sixth, seventh, and eighth causes of action on the cross-complaint, which comprise two counts of inducing breach of contract (one based on the JVA and one based on pay-per-view contracts) and two counts of intentional interference with contract (again based on the JVA and pay-per-view contracts.) “[W]hile the tort of inducing breach of contract requires proof of a breach, the cause of action for interference with contractual relations is distinct and requires only proof of interference. [Citations.]” Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.

Plaintiff first argues that these causes of action fail because the alleged misconduct is protected by the litigation privilege pursuant to Civil Code section 47, subdivision (b).

As defendant observes, however, regardless of the merits, summary adjudication cannot be granted on this basis because it is not plead as an affirmative defense in plaintiff’s answer. Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119 (“[I]t is error to grant summary judgment on the basis of an issue not raised by the pleadings. [Citation.]”)

Plaintiff next argues that his cease and desist letters to the pay-per-view providers were justified to protect his right to privacy. Justification is an affirmative defense to interference with an existing contractual relationship. Sade Shoe Co. v. Oschin & Snyder (1984) 162 Cal.App.3d 1174, 1180. However, as plaintiff himself states, “[w]hether [a party’s] conduct of interfering with existing contracts with third persons was justified under the circumstances and thus privileged, comprises a factual issue which should properly be placed before the trier of fact. It involves the application of a test which balances the social and private importance of the objective advanced by the interference against the importance of the interest interfered with, considering all the circumstances including the nature of the actor’s conduct and the relationship between the parties.” MOT 22:5-14 (citing H & M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, 409.)

Plaintiff makes no attempt to argue why his right to privacy so outweighs the importance of the interests interfered with such that the trier of fact can only come to one reasonable conclusion. Rather, plaintiff cites cases pertaining to the justification defense and concludes that the motion should be granted. Because, as H & M Associates states, the issue of justification is a factual issue properly placed before the trier of fact, plaintiff fails to satisfy his initial burden here.

Accordingly, plaintiff’s motion for summary adjudication is DENIED as to all issues.

Conclusion: Defendant’s motion for summary judgment is GRANTED. Summary adjudication is DENIED. If defendant has not already done so, it is ORDERED to submit a proposed order and judgment of dismissal within 10 days. The Court may impose a monetary sanction for failing to do so.

Defendant to give notice.