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).