Daniel v. Wayans, 2017 WL 526494 (Cal. Ct. App. 2017)

Pierre Daniel worked as an extra on a movie entitled “A Haunted House 2,” which Marlon Wayans wrote, produced and starred in. Daniel sued Wayans and others, alleging that during his one day of work on the movie he was compared to a “Black cartoon character” and was called “nigga.”  Wayans moved to strike Daniel’s lawsuit as a SLAPP (strategic lawsuit against public participation) pursuant to Cal. Code Civ. Proc. § 426.16, arguing that all of Daniel’s claims arose from Wayans’ constitutional right of free speech because the core injury-producing conduct occurred as part of the creation of the movie and its promotion over the Internet. The trial court granted Wayans’ anti-SLAPP motion, dismissed Daniel’s lawsuit and awarded Wayans his attorney’s fees. The Court of Appeal affirmed the trial court’s judgment, rejecting Daniel’s assertion that the creative process occurs only when the cameras are rolling and holding that Daniel failed to produce evidence demonstrating a probability of prevailing on his claims. Specifically, the Court held that the word “nigga” as used by Wayans in this context “is not an unambiguous racial epithet in today’s world, especially when used intra-racially, as it was here.”  The Court also held that Daniel’s claim for intentional infliction of emotional distress was properly dismissed because the alleged misconduct “falls more in the category of insults, indignities, annoyances and petty oppressions” rather than extreme, outrageous conduct. See also Melamed v. Cedars-Sinai Med. Ctr., 2017 WL 750493 (Cal. Ct. App. 2017) (Anti-SLAPP motion properly granted in connection with hospital’s actions taken against physician during peer-review process); Safari Club Int’l v. Rudolph, 845 F.3d 1250 (9th Cir. 2017) (Anti-SLAPP motion properly denied where plaintiffs could show reasonable probability of prevailing on their claims for invasion of privacy, among other things, based upon defendant’s surreptitious audio recording of a conversation).

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.