Filed 12/21/15 Timed Out, LLC v. Bra Smyth of California, Inc. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

TIMED OUT, LLC,                                                      H039601
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV206350)

         v.

BRA SMYTH OF CALIFORNIA, INC.,

         Defendant and Respondent.


         Between 2001 and 2003, model Kristen Taekman posed for photographs wearing
merchandise sold by respondent Bra Smyth of California, Inc. (Bra Smyth), a retailer of
women’s intimate apparel. In 2011, Taekman discovered that her photographs were still
being used in Bra Smyth’s print catalogue. Believing that she had only consented to use
of her images for a year, Taekman contacted appellant Timed Out, LLC (Timed Out).
Timed Out is a company that assists models who believe their images are being used
without their permission. On behalf of Taekman, Timed Out asked Bra Smyth to cease
using Taekman’s images. Bra Smyth did not comply with this request. Eventually,
Taekman assigned Timed Out her right to sue and recover damages from Bra Smyth’s
alleged misappropriation of her likeness. Subsequently, Timed Out filed a lawsuit
against Bra Smyth, alleging causes of action for statutory and common law
misappropriation of likeness and unjust enrichment.
         On appeal, Timed Out argues the trial court erred when it denied Timed Out’s
pretrial motion in limine to exclude evidence pertaining to an oral agreement between
Taekman’s modeling agency, Next Model Management (Next), and Bra Smyth. Timed
Out claimed that evidence of this oral agreement was irrelevant, because the agreement
violated the statute of frauds (Civ. Code, § 1624). For the reasons set forth below, we
find that the trial court did not err in making this ruling and affirm the judgment.
                       FACTUAL AND PROCEDURAL BACKGROUND
       From 2001 and 2003, Taekman worked as a model in New York and participated
in several photography shoots for Bra Smyth, a clothing company that sells women’s
intimate wear. At the time of the photography shoots, Taekman was represented by Next.
Taekman asserted that Bra Smyth was given the rights to use her images for one year.
Negotiations with Bra Smyth were done through her agency, Next, and Taekman said
that Next had the authority to conduct negotiations on her behalf.
       Bra Smyth produces a catalogue and also has a Web site where it sells its products.
In 2011, Taekman discovered that Bra Smyth was still using her images in its print
catalogue. Taekman contacted Timed Out, a company that specializes in assisting
models who believe their images are being used without their permission. Timed Out
discovered that Bra Smyth was also using images of Taekman on its Web site.
       Taekman assigned Timed Out her rights arising out of claims against Bra Smyth
for misappropriating her likeness. Timed Out contacted Bra Smyth and requested that the
company stop using Taekman’s images. Bra Smyth refused to comply with Timed Out’s
demands.
       On August 1, 2011, Timed Out filed a complaint against Bra Smyth, alleging
causes of action for statutory misappropriation of likeness (Civ. Code, § 3344), common
law misappropriation of likeness, and unjust enrichment.




                                              2
       During discovery, Timed Out deposed Rebecca Simon, one of the principals of
Bra Smyth.1 During her deposition, Rebecca stated that she believed that the company
had unlimited usage of Taekman’s photographs. Rebecca asserted that she had never
personally negotiated with Taekman, and the agreement she had with Next was verbal.
       Subsequently, Timed Out filed a pretrial motion in limine seeking to exclude all
evidence of the oral agreement between Next and Bra Smyth. Timed Out argued that
evidence of the oral agreement would be irrelevant, because the agreement would be
unenforceable under the statute of frauds (Civ. Code, § 1624) since it could not have been
performed within a year of its making. Therefore, Timed Out claimed that the probative
value of the evidence would be greatly outweighed by its prejudicial impact. The court
denied the motion, finding that the evidence would be more probative than prejudicial
under Evidence Code section 352.
       The matter proceeded to trial. Rebecca testified and, in a departure from her
deposition testimony, stated that Bra Smyth did not have unlimited usage rights for
Taekman’s images. Instead, Rebecca claimed that she had agreed with the agent at Next
that Bra Smyth could use Taekman’s images for as long as the company sold the product
being modeled. Diana, the other principal of Bra Smyth, also testified to this effect.
Diana also asserted that Bra Smyth was not privy to the conversations between the model
and the model’s agent. Further, the models work for the agency. Diana said that Bra
Smyth would negotiate with the agency’s booker and settle on a specified rate for a day’s
work. Bra Smyth would pay Next, and Next would pay the model.
       Taekman confirmed that Next negotiated the agreements for modeling jobs on her
behalf. Taekman stated that Next would confirm the details of a potential job with her,

       1
         Rebecca Simon and Diana Simon are the principals of Bra Smyth. Since
Rebecca and Diana share the same surname, we will refer to them by their first names for
clarity.


                                             3
including its usage terms, before she was booked. Taekman said that the usage rights
attached to a standard day rate job was one year. Taekman conceded that Bra Smyth
appropriately used her images by displaying them in the company’s catalogue; however,
she believed the company had exceeded their usage rights.
       Next was not a party to the underlying litigation. No representative or agent from
Next testified during the underlying proceedings.
       Following the trial, the jury found that Bra Smyth had Taekman’s consent to use
her images. Judgment was entered in favor of Bra Smyth on all of Timed Out’s causes of
action, and Timed Out appealed.
                                         DISCUSSION
       On appeal, Timed Out claims that the trial court erred when it denied its pretrial
motion in limine seeking to exclude evidence of the oral agreement between Next and
Bra Smyth regarding the use of Taekman’s images. Timed Out insists that because the
agreement cannot be completed within a year, it violates the statute of frauds. Therefore,
Timed Out believes the evidence is irrelevant and subject to exclusion.
       However, we conclude that the arguments advanced by Timed Out are without
merit. First, we find that even if the statute of frauds is relevant to the causes of action
advanced by Timed Out, it is inapplicable since the agreement could have feasibly been
completed within a year. Second, we conclude that whether or not the oral agreement
violates the statute of frauds is beside the point. The statute of frauds dictates that certain
contracts, if not reduced in written form, are unenforceable. However, Timed Out did not
bring a cause of action seeking to enforce a contract. And, there is no requirement in the
statutory or common law causes of action of misappropriation of likeness that a
plaintiff’s consent must be shown by the existence of a valid, enforceable contract.




                                               4
       Based on the foregoing, the trial court did not err when it denied the motion in
limine. Evidence of the oral agreement was highly probative of whether Taekman
consented to Bra Smyth’s use of her likeness.
   1. The Motion in Limine
       a. Standard of Review
       Before we address the merits of Timed Out’s claims, we first discuss the
appropriate standard of review to apply. Timed Out asserts that we should review de
novo whether the statute of frauds applies to bar enforcement of the oral agreement
between Next and Bra Smyth since there is no factual dispute and the issue is a matter of
law. (See Lombardo v. Santa Monica Young Men’s Christian Assn. (1985) 169
Cal.App.3d 529, 539 (Lombardo).)
       Bra Smyth disagrees, arguing that the evidence underlying the statute of frauds
claim is disputed. Therefore, Bra Smyth insists that the matter should be reviewed for
substantial evidence, because the parties submitted evidence to the jury regarding the
general practice of Next and Bra Smyth’s negotiations regarding the use of a model’s
images.
       We conclude that both parties are correct to a certain extent. Timed Out is correct
that if a pure issue of law is raised and we are evaluating the application of law to
undisputed facts, we would employ a de novo standard of review. Therefore, when
reviewing whether, as a matter of law, the statute of frauds applies to bar enforcement of
a contract, we would review the matter de novo. However, as Bra Smyth rightly deduces,
if there is a disputed fact, the factual finding made by the trial court will be reviewed for
substantial evidence. Therefore, if we are reviewing whether there was sufficient
evidence of Taekman’s consent or lack of consent, we would review the finding for
substantial evidence.



                                              5
       However, Timed Out does not raise arguments concerning the sufficiency of the
evidence that Taekman lacked consent. Rather, Timed Out challenges the trial court’s
discretionary decision not to exclude evidence that it believed was more probative than it
was prejudicial under Evidence Code section 352. It is well-settled that we review a trial
court’s ruling on the admissibility of evidence for abuse of discretion. (People ex rel.
Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619.) Therefore, we employ
an abuse of discretion standard of review when evaluating the trial court’s evidentiary
ruling. To the extent this decision rests on whether the statute of frauds applies, we apply
a de novo standard of review since the argument concerns a matter of law.
       b. The Statute of Frauds is Inapplicable
       First, we find that Timed Out’s claims fail because the statute of frauds does not
apply to the oral agreement at issue here.
       Civil Code section 1624 codifies the statute of frauds and provides in pertinent
part: “(a) The following contracts are invalid, unless they, or some note or memorandum
thereof, are in writing and subscribed by the party to be charged or by the party’s agent:
[¶] (1) An agreement that by its terms is not to be performed within a year from the
making thereof.” In short, the statute of frauds renders certain contracts invalid and
unenforceable unless they are memorialized in writing. Pertinent here, Timed Out argues
that the statute of frauds applies to bar enforcement of the oral agreement between Next
and Bra Smyth regarding the use of Taekman’s images.
       In part, Timed Out relies on Aero Bolt & Screw Co. v. Iaia (1960) 180 Cal.App.2d
728. In Aero Bolt, the court noted that “ ‘if the terms of the license are not susceptible of
performance within one year after the license is granted,’ ” the license is susceptible to
the statute of frauds. (Id. at p. 740.) Timed Out claims that the terms of the license—
unlimited use, as asserted by Rebecca during her deposition, or use for as long as the



                                              6
company sold the product, as asserted by Rebecca and Diana during trial—cannot be
performed within a year.
       Timed Out also relies on Tostevin v. Douglas (1958) 160 Cal.App.2d 321
(Tostevin). In Tostevin, the plaintiff filed an action for declaratory relief and accounting,
alleging that he had entered into an oral agreement with the defendants to work on a
travel television show for a salary of $50 a week that the defendants had repudiated and
refused to abide by. (Id. at p. 324.) After the plaintiff filed a third amended complaint,
the trial court granted the defendant’s motion to strike and entered a judgment of
dismissal. (Ibid.)
       Tostevin concluded that the plaintiff had failed to state a cause of action, because
the agreement at issue was invalid under the statute of frauds. (Tostevin, supra, 160
Cal.App.2d at p. 328.) The agreement was for services in connection with the travel
television series to be produced and contained no definite time period for the plaintiff’s
performance. The court concluded that “[s]ince it [was] clear from the pleadings that
payment was to continue so long as the program was broadcast throughout the world, the
parties must have contemplated that the continued performance of the contract was to last
more than one year from the date of making, as indeed it did.” (Ibid.)
       In coming to this conclusion, Tostevin relied on an early California Supreme Court
case, Swift v. Swift (1873) 46 Cal. 266, 268, for the rule that a contract is invalid under
the statute of frauds if “it is evident from the subject matter of the contract that the parties
had in contemplation a longer period than one year as the time for its performance.”
However, a review of case law suggests that this earlier rule, as articulated in Swift and
relied on in Tostevin, may no longer be well-founded.
       Contrary to the conclusion set forth in Tostevin, the language of Civil Code
section 1624, subdivision (a)(1) indicates that it is the express terms of the alleged
agreement that renders it within the statute of frauds, not the party’s subjective intentions

                                               7
at the time they enter into the contract. Civil Code section 1624, subdivision (a)(1), states
that the statute of frauds bars enforcement of an agreement “that by its terms is not to be
performed within a year from the making thereof.” (Italics added.) The focus is thus not
on the minds of the contracting parties. Rather, the focus is on the terms of the
agreement itself. And, if there is any possibility that the agreement can be completed
within a year, the agreement does not fall within the statute of frauds.
       In more recent cases our Supreme Court has employed a narrower interpretation of
the statute of frauds, interpreting the statute of frauds as only invalidating those
agreements that cannot feasibly be performed within a year. Decided almost a decade
after Tostevin, our Supreme Court reached its decision in White Lighting Co. v. Wolfson
(1968) 68 Cal.2d 336 (White Lighting). In White Lighting, the plaintiff alleged that it had
entered into an oral agreement with the defendant to employ the defendant for an
indefinite period. (Id. at p. 341.) White Lighting concluded that since the alleged oral
agreement could be terminated at will by either party, it could, by its own terms, be
performed within one year. (Id. at p. 344.)
       The rationale set forth in White Lighting was followed again by our Supreme
Court in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 (Foley). In Foley, the
plaintiff alleged that over the course of his seven-year employment with the defendant,
the company’s conduct and policies gave rise to an oral contract not to terminate his
employment without good cause. (Id. at p. 671.) In a footnote, Foley noted that the
subjective intent of the parties could be relevant to whether the statute of frauds applies to
a given contract. (Id. at p. 675, fn. 18.) However, in reaching its decision, the Foley
court concentrated not on the intent of the parties but on the terms of the contract itself.
The Foley court held that “[b]ecause the employee can quit or the employer can discharge
for cause, even an agreement that strictly defines appropriate grounds for discharge can



                                               8
be completely performed within one year—or within one day for that matter.” (Id. at
p. 673.)
       Foley further asserted: “The Legislature, which in 1872 enacted Civil Code
section 1624, was aware of precedent limiting the reach of the one-year provision of the
statute of frauds. The Code Commissioners’ notes specifically advised that ‘in a similar
statute in New York these words have been construed as applying only to contracts which
cannot possibly be executed within a year, under any contingency. . . . To bring a
contract within the statute relating to parol agreements, not to be performed within one
year, it must appear to be necessarily incapable of performance within that time.’ (Italics
in original.) When the Legislature enacts language that has received definitive judicial
construction, we presume that the Legislature was aware of the relevant judicial decisions
and intended to adopt that construction. [Citation.] This presumption gains further
strength when, as in this case, it is clear that the Legislature was explicitly informed of
the prior construction.” (Foley, supra, 47 Cal.3d at pp. 674-675, fn. omitted.)
       Timed Out argues that our Supreme Court aligned itself with Tostevin when it
decided San Francisco Brewing Corp. v. Bowman (1959) 52 Cal.2d 607 (San Francisco
Brewing). In San Francisco Brewing, the defendant entered into an agreement with the
plaintiff for exclusive rights to distribute and sell the plaintiff’s products for as long as
the defendant’s “ ‘took care of the territory.’ ” (Id. at p. 611.) Later, the plaintiff sued
the defendant over an open balance, and the defendant cross-complained alleging breach
of the distribution agreement. (Ibid.) On appeal, one of the issues involved the jury
instructions given by the court. The court only instructed on a part of the requested
instructions on the statute of frauds, informing the jury that if it found that the parties
agreed that the plaintiff would allow the defendant to be its distributor for a “ ‘reasonable
time,’ ” then the jury must determine “ ‘what period would constitute such a reasonable
time.’ ” (Id. at p. 615, italics omitted.) The San Francisco Brewing court found that the

                                               9
entire instruction on the statute of frauds was appropriate, and that the jury was entitled to
consider whether there was an implied agreement if the contract would endure for longer
than a year, and that if so, the jury should have been instructed that the statute of frauds
applies and the contract could not be enforced. (Id. at p. 619.)
       San Francisco Brewing does not stand for the proposition that courts must
consider whether an implied agreement regarding the duration of a contract exists when
evaluating if the contract falls within the purview of the statute of frauds. In San
Francisco Brewing, the reasonable duration of the contract was an issue of fact that was
submitted to the jury. That is not the case here.
       Timed Out asserts, however, that it presented sufficient evidence that an implied
term of the agreement was that Next gave Bra Smyth unfettered use of Taekman’s
images. During her deposition, Rebecca initially claimed that the agreement with Next
granted Bra Smyth the unlimited use of Taekman’s images. Timed Out further insists
that the indefinite duration of the contract is also apparent even if we were to accept
Rebecca’s testimony at trial that Bra Smyth had use of Taekman’s images for as long as
Bra Smyth sold the product. Timed Out opines that Bra Smyth could cease selling a
product at one point then later resume sales of the product. Therefore, the contract could
not conceivably be performed within a year and the supposed limitation on Bra Smyth’s
use of Taekman’s images is merely illusory. We disagree.
       Following the rationale set forth by our high court in White Lighting and Foley,
either iteration of the oral agreement between Next and Bra Smyth would not come
within the purview of the statute of frauds. An agreement to use Taekman’s images for
an indefinite duration is analogous to a contract for permanent employment that has an
indefinite duration. And, courts have consistently construed permanent employment
contracts as outside the statute of frauds, because they can be performed in less than a



                                              10
year even if the job extends past a year. (Hejmadi v. AMFAC, Inc. (1988) 202
Cal.App.3d 525, 541; White Lighting, supra, 68 Cal.2d at pp. 344-346.)
       Lastly, Timed Out attempts to distinguish the rule set forth in White Lighting by
arguing that the agreement contemplated there was not subject to the statute of frauds
because it was terminable at will by either party. Timed Out claims that because the
agreement contemplated here was not terminable at will by all parties to the agreement,
the agreement is subject to the statute of frauds. We disagree. The indefinite contracts
contemplated in cases like White Lighting were found to be outside the statute of frauds
because it was conceivable they could be performed within a year, not because either
party to the contract has the power to terminate the agreement. Like a contract for
permanent employment, the usage agreement here could, conceivably, be completed
within a year. For example, Bra Smyth could cease using Taekman’s images within a
year under the agreement. Therefore, the statute of frauds is inapplicable.

       c. The Statute of Frauds Does Not Necessarily Bar Admission of
          Evidence of the Oral Agreement
       Further, Timed Out’s claims also fail for the separate and independent reason that
whether the statute of frauds bars enforcement of the agreement is beside the point.
Timed Out is not seeking to invalidate or enforce the agreement between Bra Smyth and
Next. Neither is Bra Smyth. Timed Out’s complaint alleged three causes of action:
statutory misappropriation of likeness, common law misappropriation of likeness, and
unjust enrichment.
       As previously discussed, Civil Code section 1624 provides in pertinent part:
“(a) The following contracts are invalid, unless they, or some note or memorandum
thereof, are in writing and subscribed by the party to be charged or by the party’s agent:
[¶] (1) An agreement that by its terms is not to be performed within a year from the
making thereof.”


                                            11
         Generally, the rule regarding the admissibility of relevant evidence is broad. The
Evidence Code provides that “[e]xcept as otherwise provided by statute, all relevant
evidence is admissible.” (Evid. Code, § 351.) Further, relevant evidence is widely
defined as any evidence that has the tendency to prove or disprove a disputed fact. (Id.,
§ 210.) There is no statute prohibiting the admission of evidence pertaining to an oral
agreement, even if it does violate the statute of frauds, if evidence of the agreement is not
introduced to enforce the invalid agreement. Thus, the issue is whether the oral
agreement was relevant, that is, had any tendency to prove or disprove a disputed fact at
trial.
         Timed Out claims in its supplemental letter brief that the evidence of the oral
agreement is relevant only to “the existence of the purported consent agreement which
can be proven solely by a writing as required by the statute of frauds.” Therefore, Timed
Out argues that evidence of the oral agreement was irrelevant and should have been
excluded under Evidence Code section 352.
         We disagree. Here, Timed Out alleged causes of action for statutory and common
law misappropriation of likeness and for unjust enrichment. In order to prevail on a
claim of common law misappropriation, Timed Out must prove: “(1) the defendant’s use
of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to
defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting
injury.” (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417, superseded by
statute on other grounds as stated in KNB Enterprises v. Matthews (2000) 78 Cal.App.4th
362, 367, fn. 5.) Additionally, in order to prevail on a claim of statutory misappropriation
under Civil Code section 3344, Timed Out must prove all the elements of the common
law cause of action and must also prove that the use of the plaintiff’s name or likeness
was made knowingly. (Eastwood v. Superior Court, supra, at p. 417.)



                                              12
       Both of these causes of action require that Timed Out prove that Bra Smyth lacked
Taekman’s consent to use her images. Neither the common law cause of action nor the
statutory cause of action require that consent be in writing. In fact, consent can be
implied from conduct that can be reasonably interpreted as manifesting the plaintiff’s
consent. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26.) Therefore,
Timed Out’s argument on this point contains a fundamental misconception. As opined
by Bra Smyth, there is no requirement in either causes of action for misappropriation of
likeness that consent be proven by the existence of a valid contract.
       Timed Out asserts that evidence of an oral agreement that violates the statute of
frauds cannot prove the existence of consent. However, Timed Out misconstrues the
evidentiary effect of the statute of frauds. A contract that violates the statute of frauds is
not automatically rendered inadmissible. “Where no attempt is made to enforce the terms
of an oral contract within the statute, evidence of it may be introduced.” (1 Witkin,
Summary of Cal. Law (10th ed. 2005) Contracts, § 346, p. 392.) The Restatement of
Contracts reiterates this point, providing that “[t]he Statute of Frauds does not make an
unenforceable contract inadmissible in evidence for any purpose other than its
enforcement in violation of the Statute.” (Rest.2d Contracts, § 143.)
       For example, in Walter H. Leimert Co. v. Woodson (1954) 125 Cal.App.2d 186, an
oral contract regarding the sale of real estate that was unenforceable under the statute of
frauds was nonetheless admissible as evidence of the parties’ relationship and the
fiduciary duties that arose between them. (Id. at p. 190.) In George v. Double-D Foods
(1984) 155 Cal.App.3d 36, certain oral promises were deemed admissible because they
were relevant evidence of the reasonable value of services rendered by the plaintiff in an
action in quantum meruit. (Id. at p. 42.) Additionally, courts have held that evidence of
an oral agreement violating the statute of frauds is also admissible when a party raises a
claim of estoppel. (San Francisco Brewing, supra, 52 Cal.2d at p. 619.)

                                              13
       Timed Out cites to several court cases that it argues shows that invalid agreements
under the statute of frauds are inadmissible. In Lombardo, supra, 169 Cal.App.3d at page
539, the appellate court stated that “ ‘the statute of frauds excludes proof of certain types
of agreements which are not sufficiently evidenced by a writing,’ ” quoting our Supreme
Court’s decision in Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 509
(Riley). We do not agree with Timed Out’s assertion that the phrase “excludes proof” as
used in the aforementioned cases necessarily means that the invalid contract is
inadmissible for all purposes.
       Certainly, in a cause of action seeking to enforce a contract, evidence of an oral
agreement violating the statute of frauds could be excluded as irrelevant, because a
contract violating the statute of frauds cannot be enforced. For example, in Lombardo,
the plaintiff sought to enforce an oral agreement devising certain property. (Lombardo,
supra, 169 Cal.App.3d at pp. 536-537.) Similarly, the discussion by our Supreme Court
in Riley did not concern the admissibility of evidence of an invalid contract under the
statute of frauds. Riley discussed the principles of the admission of parol evidence and
the statute of frauds with respect to extrinsic evidence sought to be admitted regarding an
agreement entered by the plaintiffs and the defendants. (Riley, supra, 17 Cal.3d 500.) In
contrast, here neither Timed Out nor Bra Smyth seek enforcement of the oral agreement.
       The other cases relied on by Timed Out are also inapposite. For example, Timed
Out cites to Anderson v. Stansbury (1952) 38 Cal.2d 707. There, the plaintiffs filed an
action for a declaration of their rights under an agreement they had made with the
defendants that they would retain a one-fourth interest in a property. (Id. at pp. 711-712.)
However, the court concluded that since the alleged agreement was not in writing, it
concluded that such an agreement, “if it existed,” would therefore be barred by the statute
of frauds and therefore objections to testimony regarding the agreement were properly
sustained. (Id. at p. 715.) Unlike the situation contemplated in Anderson, there is no

                                             14
action for declaratory relief regarding the terms of the oral agreement between Next and
Bra Smyth.2
       Timed Out argues that the statute of frauds was enacted in order to prevent
fraudulent contracts and perjury. Therefore, “[t]he whole object of the statute would be
frustrated if any substantive portion of the agreement could be established by parol
evidence.” (Craig v. Zelian (1902) 137 Cal. 105, 106.) We agree with Timed Out’s
sentiments on this point. However, the purpose of the statute of frauds is not frustrated
when an oral agreement is admitted for purposes other than enforcement of the
agreement itself. As we discussed ante, courts have also routinely held that such
agreements are nonetheless admissible if their admission is sought for other purposes.
       Again, we reiterate that Timed Out does not seek to enforce the terms of the oral
agreement between Next and Bra Smyth.3 Rather, Timed Out alleged causes of action for
misappropriation of likeness for using Taekman’s images. The key issue is thus whether
evidence of the agreement between Next and Bra Smyth is relevant to the contested issue
of whether Taekman consented to use of her images. Accordingly, even if the oral
agreement did violate the statute of frauds, the trial court would not have erred in
admitting the evidence if it was relevant to prove or disprove consent and was not more
prejudicial than probative.

       2
          The other cases cited to by Timed Out are distinguishable on similar grounds,
because they involve situations where the excluded evidence was sought to be introduced
in order to enforce the terms of the invalid agreement. Empire Investment Co. v. Mort
(1915) 169 Cal. 732 was an action for breach of contract where the parties sought to
introduce evidence of a purported oral agreement entered at the same time a written
contract was executed. Our Supreme Court concluded that evidence of this oral
agreement was properly excluded, because the oral agreement would have violated the
statute of frauds. In Osborne v. Endicott (1856) 6 Cal. 149 our Supreme Court concluded
that oral testimony was inadmissible because there was no written proof that the trust
sought to be enforced was in writing. (Id. at pp. 152-153.)
        3
          As we previously noted, Next is not a party to the underlying litigation.


                                             15
       d. The Trial Court Did Not Abuse Its Discretion
       Based on the foregoing, we conclude that the trial court did not abuse its discretion
when it denied the pretrial motion in limine.
       First, the statute of frauds is inapplicable to this case, because the oral agreement
is not one in which it could not have feasibly been completed within a year.
       Second, even if the oral agreement was within the statute of frauds, the evidence
was not admitted to enforce the agreement and was relevant to the contested issue of
consent. Under California law, the element of consent or lack thereof in causes of action
for statutory and common law misappropriation of likeness need not be shown by a
written agreement. Consent can be proven by oral statements or by the plaintiff’s
conduct. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 26.) At trial,
Bra Smyth argued that Taekman consented to use of her images based on her testimony
that Next negotiated on her behalf as her agent and that she was informed of the usage
rights attached to each modeling project prior to photography shoots. Taekman also
confirmed that she did not know the exact contents of the discussion that Next had with
Bra Smyth. Evidence of the agreement between Next and Bra Smyth was relevant to
whether Taekman consented when she accepted the modeling job and participated in the
photo shoot.
       Accordingly, the trial court did not err when it denied Timed Out’s motion in
limine. Evidence of the oral agreement was relevant to disputed issues at trial, and its
admission was not more prejudicial than it was probative. (Evid. Code, §§ 210, 352.)
   2. Standing
       In its respondent’s brief, Bra Smyth claims that Timed Out lacks standing to
pursue this action. Bra Smyth argues that the only portion of her rights that Taekman has
assigned to Timed Out is the right to recover damages for the tort of invasion of privacy,
which is a personal right that is not assignable. Therefore, Bra Smyth maintains that the

                                             16
assignment in question is not authorized under Civil Code section 3344.1, which allows
for assignment of a deceased individual’s right to his or her likeness.
       “A lack of standing is a jurisdictional defect to an action that mandates a
dismissal.” (Cummings v. Stanley (2009) 177 Cal.App.4th 493, 501.) Therefore, “lack of
standing to sue can be raised at any time, even for the first time on appeal.” (Color-Vue,
Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) However, Bra Smyth’s claims
regarding standing have no merit.
       First, Bra Smyth’s reliance on Civil Code section 3344.1 is misplaced. Civil Code
section 3344.1 discusses assignments of a deceased personality’s name, voice, signature,
photograph, or likeness. It does not discuss a living individual’s assignment of rights. It
is therefore inapplicable here.
       Furthermore, our colleagues at the Second District recently addressed the issue of
whether an individual’s right to publicity can be assigned in Timed Out, LLC v.
Youabian, Inc. (2014) 229 Cal.App.4th 1001 (Timed Out). In Timed Out, two models
assigned the plaintiff their rights to sue for misappropriation of their images after
discovering that their images were being used in advertisements for the defendant’s
cosmetic medical services. Thereafter, the plaintiff filed a complaint against the
defendants alleging causes of action for common law and statutory misappropriation of
likeness. The defendants moved for judgment on the pleadings, arguing that the plaintiff
did not have standing to sue on behalf of the models because the models’ privacy rights
were personal and could not be assigned. (Id. at pp. 1004-1005.) The defendants also
argued that the plaintiff was only assigned the right to bring a lawsuit for
misappropriation of the models’ images and had no other duties along with the
assignment and was therefore unable to bring its claims. The trial court agreed with the
defendants, and granted the defendants’ motion and entered judgment in favor of the
defendants. The plaintiff appealed. (Id. at p. 1005.)

                                             17
       On appeal, the Second District concluded that a cause of action for
misappropriation of likeness was assignable. (Timed Out, supra, 229 Cal.App.4th at
pp. 1009-1010.) Civil Code section 954 provides that “[a] thing in action, arising out of
the violation of a right of property, or out of an obligation, may be transferred by the
owner.” Since the plaintiff only sought to recover pecuniary damages from the
defendants’ alleged commercial misappropriation of the models’ likeness, Civil Code
section 954 applied and the right could be transferred. (Timed Out, supra, at
pp. 1010-1011.) The appellate court also rejected the defendants’ alternative argument
that the plaintiff could not bring its lawsuit because it only possessed a right to sue for
particular violations and was not assigned an exclusive license to assert its claims. (Id. at
p. 1011.)
       Like the models in Timed Out, Taekman assigned Timed Out all of her rights, title,
and interest in her images that may have been illegally infringed on, including the right to
sue, counterclaim, and recover for damages from past, present, and future infringement.
We agree with the rationale set forth in Timed Out and conclude that these rights are
assignable. (Timed Out, supra, 229 Cal.App.4th at pp. 1005-1008.)
       Accordingly, Timed Out had standing to bring a cause of action for
misappropriation of likeness. However, as we explained above, Timed Out’s arguments
on appeal have no merit. We therefore affirm the judgment.
                                        DISPOSITION
       The judgment is affirmed. Bra Smyth of California is entitled to its costs on
appeal.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
