Filed 2/9/17
               CERTIFIED FOR PUBLICATION



       IN THE COURT OF APPEAL OF THE STATE OF
                     CALIFORNIA

               SECOND APPELLATE DISTRICT

                        DIVISION ONE


PIERRE DANIEL,                         B261814
                                       Consolidated with B263950
       Plaintiff and Appellant,
                                       (Los Angeles County
       v.                              Super. Ct. No. BC555610)

MARLON WAYANS,

       Defendant and Respondent.



      APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Rafael A. Ongkeko, Judge.
Affirmed.
      Reisner & King, Adam J. Reisner, Tessa M. King;
Benedon & Serlin, Melinda W. Ebelhar and Douglas G.
Benedon for Plaintiff and Appellant.
      Venable, William J. Briggs II, Celeste M. Brecht and
Eric J. Bakewell for Defendant and Respondent.
      On September 4, 2013, Pierre Daniel (Daniel), an actor,
worked as an extra in a movie entitled, A Haunted House 2
(Open Road Films 2014). Marlon Wayans (Wayans) co-
wrote, produced, and starred in the movie. In August 2014,
Daniel sued Wayans and others, alleging, inter alia, that he
was the victim of racial harassment because during his one
day of work on the movie he was compared to a Black
cartoon character and called “ ‘[n]igga.’ ” In response,
Wayans, pursuant to Code of Civil Procedure1 section
425.16, moved to strike Daniel’s claims against him as a
SLAPP suit (strategic lawsuit against public participation),
arguing that all of Daniel’s claims arose from Wayans’s
constitutional right of free speech because the core injury-
producing conduct arose out of the creation of the movie and
its promotion over the Internet. The trial court agreed with
Wayans and also found that Daniel had failed to establish
the probability that he would prevail on any of his claims
against Wayans. As a result, the trial court entered
judgment in favor of Wayans and awarded him his attorney
fees.
      On appeal, Daniel argues that the trial court erred
with regard to its determination of the threshold issue in
Wayans’s anti-SLAPP motion—that is, the conduct at issue
was not part of the “ ‘creative process’ ” inherent in making
the movie because it occurred when the cameras were not


     1 All further statutory references are to the Code of
Civil Procedure unless otherwise indicated.




                              2
rolling and, as a result, did not involve the right of free
speech or an issue of public interest. In the alternative,
Daniel contends that even if the conduct at issue implicated
Wayans’s right to free speech, he presented sufficient
evidence to the trial court to establish a probability of
prevailing. We find both of Daniel’s arguments to be
unpersuasive. Accordingly, we affirm the judgment.
                       BACKGROUND
I.     Daniel’s complaint
       On August 25, 2014, in an unverified complaint, Daniel
alleged that defendants EFS Entertainment, ICM Partners,
and IM Global employed him as an actor for A Haunted
House 2. He further alleged that Wayans was a manager,
officer, shareholder, director, supervisor, managing agent,
owner, principal, or employee of all of the other defendants.
       The complaint asserted a total of 13 different causes of
action, eight of which were asserted against Wayans: a race-
based harassment claim brought pursuant to Government
Code section 12940 et seq.; a claim alleging a violation of the
Unruh Civil Rights Act (Civ. Code, § 51 et seq.); a claim
brought pursuant to Civil Code section 3344 for the
unauthorized use of another’s photograph for advertising; a
common law misappropriation of likeness claim; a common
law “false light”/invasion of privacy claim; a common law
claim for breach of a quasi-contract; a common law claim for
unjust enrichment; and a common law claim for intentional
infliction of emotional distress.




                              3
       Daniel’s claims against Wayans stem from two
different but related contexts of alleged misconduct. The
first alleged misconduct occurred solely on the movie set (the
on-set comments and conduct). Specifically, Daniel alleged
that Wayans subjected him to “offensive and derogatory
language regarding his race/national origin,” such as
repeatedly referring to him “in a demeaning manner, as
‘Nigga,’ a derogatory term and racial slur used to refer to
African-Americans”; “repeatedly mocking [Daniel]’s ‘afro’ ”;
“repeatedly and negatively referr[ing] to [Daniel] as
‘Cleveland Brown,’ an African American cartoon character in
the adult cartoon comedy series ‘Family Guy’ ”; routinely
leering, staring, and rolling his eyes at Daniel; ridiculing
Daniel in the presence of other crew members; and treating
Daniel “differently, disparately, and negatively because of
his race/national origin, including making demeaning,
abusive, and derogatory comments and gestures.”
       The second arena or context of alleged misconduct
evolved primarily on the Internet (the Internet posting).
Specifically, Daniel alleged that Wayans took Daniel’s
photograph without his consent and then posted it on the
Internet and “Defendants’ websites alongside a photograph
of [a] popular African-American cartoon character,
‘Cleveland Brown’ with the inappropriate caption, ‘Tell me
this nigga don’t look like . . . THIS NIGGA!!! Ol cleveland
Brown ass lookin @ahhmovie 2 @whatthefunny I’m hurtin!’ ”




                              4
II.   Wayans’s anti-SLAPP motion
      On November 5, 2014, Wayans filed a special motion to
strike pursuant to section 425.16. Wayans’s anti-SLAPP
motion challenged all causes of action in which he was
named. Wayans argued that he met his burden under the
anti-SLAPP statute because his creative spark in referring
to Daniel as “Cleveland” resulted in the birth of a character
in the film; his use of the word nigga, a term liberally used
throughout the film, helped advance or assist in the creation
of dialogue for the film; and by promoting Daniel in the
Internet and Twitter post as a Cleveland Brown look-alike,
Wayans helped promote the film. The motion was supported
by three declarations: one by Wayans himself; one by the
movie’s leading actress, Jaime Pressly (Pressly); and one by
Rick Alvarez (Alvarez), “a producer and cowriter” of both A
Haunted House and A Haunted House 2.
      A.    WAYANS’S DECLARATION
      In his declaration, Wayans admitted joking with
Daniel about his resemblance to the Cleveland Brown
cartoon character. Wayans stated he then named the
character portrayed by Daniel “Cleveland” and used that
name as he improvised dialogue for the scene in which
Daniel appeared. Wayans emphasized that on-set
improvisation, including “[j]oking around,” constituted a key
part of the creative process both in A Haunted House 2 and
in his other movies, as the scripts for those movies were
often just an “outline of scenes.” To demonstrate the
improvisational nature of the movie’s creative process,




                              5
Wayans submitted the certified transcript of three different
“takes” of the scene in which Daniel appeared; in each of
those takes the action is the same—Wayans’s character
calling Daniel’s character to help get a heavy safe off of his
dog—but the dialogue is markedly different each time as
Wayans experiments or improvises.
      Wayans also admitted taking Daniel’s photograph, but
declared that Daniel consented and posed for the
photograph. Wayans then “juxtaposed the photo with a
humorously similar photo of Mr. Daniel’s cartoon look-alike,
Cleveland Brown, with the caption” alleged in the complaint
and previously quoted herein. Wayans continued: “My
reference to ‘@ahhmovie2’ was a link to the Twitter and
Instagram pages for A Haunted House 2. My reference to
‘whatthefunny’ is a reference to my website, which posts
humorous videos. I then posted the juxtaposed photos and
caption to my Twitter account, which at that time had over a
million followers.” (Italics omitted.) Wayans stated that
Daniel at no time objected or stated he was uncomfortable
when Wayans joked with him, took the photo, or posted it.
      B.    PRESSLY’S DECLARATION
      In her declaration, Pressly stated that she observed
Wayans and Daniel interacting on the set and declared that
Daniel laughed at Wayans’s joke that Daniel looked like the
Cleveland Brown cartoon character and noted that Wayans
was so struck by the resemblance that he decided to use
Cleveland as the name for Daniel’s character. Pressly
further declared that Daniel not only agreed to be




                              6
photographed by Wayans but posed for the photograph and
later joined in the laughter among the cast and crew on the
set once the photograph and the image of the Cleveland
Brown character were posted to the Internet.
      With regard to the creative process for the movie,
Pressly affirmed that “[m]any of the scenes in A Haunted
House 2 were improvisational in nature,” meaning that “the
actors and actresses spontaneously make up jokes as they go
along.” On a related note, Pressly stated that much of the
comedy in the movie derived from making fun of various
stereotypes, including racial stereotypes. As a result, the
word nigga was used “dozens of times of times throughout
the movie”; in fact, at one point in the movie Wayans’s
character calls Pressly’s character nigga, even though
Pressly is Caucasian. In addition, Pressly noted that
Wayans has called her “ ‘nigga’ in the past, and frequently
uses it as a term of endearment with his friends and family.”
      C.    ALVAREZ’S DECLARATION
      One of Alvarez’s roles with regard to A Haunted
House 2 was to “oversee the entire production of the film.”
Alvarez affirmed that Daniel was hired as a non-speaking
extra for the movie and attached to his declaration a copy of
a standard union voucher signed by Daniel in connection
with his work on the movie (the voucher). The voucher, in
part, states that Daniel agreed to give the movie’s production
company broad rights with regard to the use of his image: “I
hereby grant to the Production Company of The Production,
its successors, assignees, licenses or any other person or




                              7
company who might gain title or rights to the production, the
right to photograph me and record my voice to use, alter,
dub, edit, and or otherwise change such photographs and
recordings, in any manner whatsoever and for any reason in
connection with The Production, such right to be worldwide
and in perpetuity.”
       As with Wayans and Pressly, Alvarez described the
creative process for the movie as improvisational: “A
Haunted House 2 is an R-Rated comedy. To make the film
as funny as possible, much of the dialogue was intended to
be, and was, developed on the set through improvisation.
The actors were encouraged to improvise, ad lib, and have
fun as part of the creative process. Mr. Wayans and the
other actors regularly joked amongst themselves and with
others on the set to develop dialogue and create an
atmosphere that was humorous and conducive to comedy.”
(Italics omitted.)
       Alvarez, like Pressly, noted that the word nigga, and
variants such as nigger and niggie, are used “dozens of
times, throughout the movie as part of the comedy.” Alvarez
goes on to note that the movie “includes a scene that
specifically explores the idea that the use of the terms ‘nigga’
and ‘nigger’ are sometimes considered socially acceptable for
black people to use but not people with other racial
backgrounds.” Like Pressly, Alvarez affirmed that Wayans
uses the term nigga as a term of endearment, noting that
Wayans “has even called [him] ‘nigga’ during the time [they]
spent writing together, and [he is] not black.”




                               8
III. Daniel’s opposition
       Daniel opposed Wayans’s motion, arguing, inter alia,
that the anti-SLAPP statute does not reach claims for racial
harassment and that there was no “public interest” in the
photo of him and the Cleveland Brown character that
Wayans posted to the Internet. In addition, he argued that
there was sufficient evidence to show a probability of
prevailing on each of his claims.
       In support of his opposition Daniel submitted a
declaration of his own in which he, inter alia, elaborated
upon Wayans’s alleged harassment of him on the set. Daniel
stated that Wayans first called him Cleveland while he was
“waiting off camera to receive [his] acting directions,” when
filming was not underway. Wayans also said, “ ‘O’l
Cleveland Brown with your afro and thick mustache, you
need to shed some pounds.’ ” Wayans then called Daniel a
“ ‘black fat ass’ and began laughing at” him. Daniel declared
that throughout the day, while he was on break and cameras
were not rolling, Wayans repeatedly approached him and
called him Cleveland at least 15 more times, looked and
pointed at him while saying nigga at least three to four
times, called Daniel’s hair an “ ‘Afro’ ” while laughing on at
least 10 occasions, called Daniel a “ ‘black fat ass’ in the
presence of others at least twice, and “continuously”
approached Daniel and leered, “sneeringly smile[d],” rolled
his eyes, and watched Daniel. Daniel stated that at no time
did he laugh when Wayans called him Cleveland and that he
found Wayans’s use of nigga when directed at him to be




                              9
“racially offensive and derogatory.” However, Daniel did not
assert that Wayans’s conduct and/or comments on the set
adversely affected his work in any way on the movie.
      As for the photograph of him that was posted to the
Internet, Daniel disputed that he gave his consent and/or
laughed about the posting while on the set. According to
Daniel, he did not learn of the posting until later that night
after he left the set when his brother informed him of the
post. When he finally did view the post, Daniel felt
“extremely offended.” Because other people besides his
brother have called him and approached him to ask if he is
“the ‘Cleveland Brown’ character” from the post, Daniel has
suffered apprehension when going out in public, nightmares,
anxiety, depression, and stress headaches as a result of
Wayans’s alleged misconduct.
      In his declaration, Daniel did not dispute the
improvisational nature of the movie’s creative process, as
described by Wayans, Pressly and Alvarez. Nor did he
dispute that the signature on the voucher is his. Instead, he
objected to the voucher on various evidentiary grounds,
including lack of foundation. Daniel did not submit any
declarations by any experts or any other members of the cast
or crew of A Haunted House 2.
IV. The trial court’s findings
      On December 11, 2014, the trial court heard oral
argument on the motion. On December 31, 2014, the trial
court issued a 17-page ruling, which, inter alia, overruled
Daniel’s objection to the voucher and granted Wayans’s




                             10
motion in its entirety. On January 23, 2015, the trial court
entered a judgment in favor of Wayans. On March 13, 2015,
the trial court, in accord with the anti-SLAPP statute
(§ 425.16, subd. (c)), awarded attorney fees to Wayans in the
amount of $96,040. Daniel filed a timely appeal with regard
to both the judgment and the award of attorney fees.
                         DISCUSSION
I.    Standard of review
      We review an order granting or denying an anti-
SLAPP motion de novo. (Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 820.) We consider the “pleadings, and
supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) We do not “weigh evidence or resolve
conflicting factual claims. [Our] inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment. [We] accept[ ] the plaintiff’s evidence as
true, and evaluate[ ] the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of
law.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.)
II. Anti-SLAPP principles
      “A SLAPP suit—a strategic lawsuit against public
participation—seeks to chill or punish a party’s exercise of
constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The
Legislature enacted . . . section 425.16—known as the anti-
SLAPP statute—to provide a procedural remedy to dispose of




                              11
lawsuits that are brought to chill the valid exercise of
constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1055–1056.)
       To determine whether a lawsuit or cause of action
should be disposed of as a SLAPP suit, section 425.16
establishes a two-part test. “First, the court decides whether
the defendant has made a threshold showing that the
challenged cause of action is one arising from protected
activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this
burden by demonstrating that the act underlying the
plaintiff’s cause [of action] fits one of the categories spelled
out in section 425.16, subdivision (e).’ ” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88.) A cause of action arises from
protected activity if “the defendant’s acts underpinning the
plaintiff’s cause of action involve[s] an exercise of the right of
petition or free speech.” (Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 443.)
       If the defendant makes this showing, the court
proceeds to the second step of the anti-SLAPP analysis.
(Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) In the
second step, the court decides whether the plaintiff has
demonstrated a reasonable probability of prevailing at trial
on the merits of its challenged causes of action. (Ibid.)
Conversely, if the defendant does not meet its burden on the
first step, the court should deny the motion and need not
address the second step. “Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that
arises from protected speech or petitioning and lacks even




                               12
minimal merit—is a SLAPP, subject to being stricken under
the statute.” (Id. at p. 89, italics omitted.)
III. Step one: Wayans met his burden
      Under the two-step process applicable to anti-SLAPP
motions, we must first determine whether Wayans made a
threshold showing that Daniel’s claims arise from a
protected activity.
      A.     WAYANS’S BURDEN
      In assessing whether a cause of action arises from
protected activity, “ ‘we disregard the labeling of the claim
[citation] and instead “examine the principal thrust or
gravamen of a plaintiff’s cause of action . . . .” . . . [Citation.]
We assess the principal thrust by identifying “[t]he allegedly
wrongful and injury-producing conduct . . . that provides the
foundation for the claim.’’ [Citation.] If the core injury-
producing conduct upon which the plaintiff’s claim is
premised does not rest on protected speech or petitioning
activity, collateral or incidental allusions to protected
activity will not trigger application of the anti-SLAPP
statute.’ ” (Tuszynska v. Cunningham (2011) 199
Cal.App.4th 257, 267.) “[T]he critical point is whether the
plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free
speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69,
78.) “In other words, ‘the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech.’ ”




                                13
(Peregrine Funding, Inc. v. Sheppard Mullin Richter &
Hampton LLP (2005) 133 Cal.App.4th 658, 670.)
       When evaluating whether the defendant has carried its
burden under the first prong of the anti-SLAPP statute,
“courts must be careful to distinguish allegations of conduct
on which liability is to be based from allegations of motives
for such conduct. ‘[C]auses of action do not arise from
motives; they arise from acts.’ ” (People ex rel. Fire Ins.
Exchange v. Anapol (2012) 211 Cal.App.4th 809, 823.) “ ‘The
court reviews the parties’ pleadings, declarations and other
supporting documents to determine what conduct is actually
being challenged, not to determine whether the conduct is
actionable.’ ” (Id. at p. 822.)
       A defendant need only make a prima facie showing
that the plaintiff’s claims arise from protected activity.
(Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408; People ex
rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th at
p. 822.) “The Legislature did not intend that in order to
invoke the special motion to strike the defendant must first
establish her actions are constitutionally protected under the
First Amendment as a matter of law.” (Fox Searchlight
Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.)
“Instead, under the statutory scheme, a court must generally
presume the validity of the claimed constitutional right in the
first step of the anti-SLAPP analysis, and then permit the
parties to address the issue in the second step of the
analysis, if necessary. [Citation.] Otherwise, the second
step would become superfluous in almost every case,




                              14
resulting in an improper shifting of the burdens.” (Chavez v.
Mendoza (2001) 94 Cal.App.4th 1083, 1089, italics added;
City of Los Angeles v. Animal Defense League (2006) 135
Cal.App.4th 606, 621.)
      Daniel argues that Wayans’s conduct necessarily falls
outside the protections of the anti-SLAPP statute because
the gravamen of his complaint is race-based harassment and
such conduct is not a protected activity. We are
unpersuaded by Daniel’s argument because the exercise of
free speech here was central, not incidental, to his alleged
injuries. (See Nam v. Regents of University of California
(2016) 1 Cal.App.5th 1176, 1190 (Nam) [“protected activity
that is incidental to a cause of action [does not] justify an
anti-SLAPP dismissal”]; see also Hunter v. CBS
Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1521, 1525.)
      The distinction between communicative conduct that is
central versus that which is incidental to the exercise of the
right to petition or the right of free speech is illustrated by
the two cases upon which Daniel relies: Department of Fair
Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal.App.4th 1273 (DFEH);
Martin v. Inland Empire Utilities Agency (2011) 198
Cal.App.4th 611 (Martin). In both DFEH and Martin, the
alleged injury-producing conduct were acts of discrimination
largely, if not completely, untethered to the exercise of the
defendant’s free speech/petitioning rights.
      In DFEH, supra, 154 Cal.App.4th 1273, the trial court
denied the defendant’s anti-SLAPP motion and the Court of




                              15
Appeal affirmed because, although the complaint discussed
in detail a number of communications, those
communications were not the source of the alleged injury.
Rather, “the allegations of wrongdoing in DFEH’s complaint
arose from [the landlord]’s alleged acts of failing to
accommodate [the tenant]’s disability.” (Id. at p. 1284.)
      In Martin, supra, 198 Cal.App.4th 611, the court found
the employee’s claims for discrimination and retaliation
against his former employer were not based on protected
activity, because although the complaint contained some
references to protected activity—namely, poor performance
reviews and a discussion of plaintiff’s performance during a
board meeting—those references were “mentioned only
minimally in plaintiff's pleading.” (Id. at p. 625.) Instead,
the focus of plaintiff's claims was the harassing and
retaliatory acts by plaintiff’s supervisor (e.g., “he hired
plaintiff’s employees without his input, restructured
plaintiff’s division, and announced the latter decision in a
manner allegedly meant to disgrace him”), none of which
were based on the rights of petition or free speech. (Id. at
p. 624.)
      Similarly, in the more recent decision in Nam, supra, 1
Cal.App.5th 1176, the core conduct at issue did not implicate
defendant’s petition or free speech rights. In Nam, while
there was some allegedly protected activity (the defendant’s
disciplinary process and related communications), the
gravamen of plaintiff’s complaint focused on defendant’s acts
of “retaliation for her public challenge of department policies




                              16
and her rejection of [a supervisor’s] inappropriate overtures.”
(Id. at p. 1192.) Accordingly, the Court of Appeal affirmed
the denial of defendant’s anti-SLAPP motion because “the
basis of [plaintiff’s] claim, as in [DFEH, supra, 154
Cal.App.4th 1273] and Martin[, supra, 198 Cal.App.4th 611]
was defendant’s retaliation,” not defendant’s exercise of its
petition or free speech rights. (Nam, at p. 1193.)
      Here, in contrast (and as discussed in more detail
below), the gravamen of Daniel’s complaint stems not from
any conduct incidental to Wayans’s free speech rights;
rather, all of the alleged misconduct is based squarely on
Wayans’s exercise of free speech—the creation and
promotion of a full-length motion picture, including the off-
camera creative process. As such, Daniel’s complaint is
subject to an anti-SLAPP motion.
      B.     THE ACTS AT ISSUE AROSE OUT OF PROTECTED
ACTIVITY
      Section 425.16, subdivision (e) sets forth four
categories of protected activity. Wayans contends that the
conduct underlying Daniel’s claims falls within
section 425.16, subdivisions (e)(3) and (4), which define
protected activity to include the following: “ ‘(3) any written
or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public
interest, or (4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public




                              17
issue or an issue of public interest.’ ” As discussed below, we
agree with Wayans.
      As noted above, the acts at issue fall into two basic
categories: the on-set comments and conduct; and the
Internet posting. We discuss each in turn.
             1.   The on-set conduct and comments
      The allegedly harassing and offensive conduct and
comments by Wayans on the set of A Haunted House 2 were
made in furtherance of his constitutional right of free speech
in connection with an issue of public interest. (§ 425.16,
subd. (e)(4).)
                  a.    Free speech
      Movies and films generally are considered “expressive
works” subject to First Amendment protections. (Guglielmi
v. Spelling–Goldberg Productions (1979) 25 Cal.3d 860, 872.)
Movies are a “significant medium for the communication of
ideas. They may affect public attitudes and behavior in a
variety of ways, ranging from direct espousal of a political or
social doctrine to the subtle shaping of thought which
characterizes all artistic expression. The importance of
motion pictures as an organ of public opinion is not lessened
by the fact that they are designed to entertain as well as to
inform.” (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495,
501, fn. omitted.) Whether exhibited in theaters or on
television, a film is a medium which is protected by the
constitutional guarantees of free expression. (U.S. Const.,
1st & 14th Amends.; Cal. Const., art. I, § 2; Joseph Burstyn,
Inc., at pp. 501–502; Red Lion Broadcasting Co. v. FCC




                              18
(1969) 395 U.S. 367, 386–390.) Nor do films and movies lose
their constitutional protection because they are undertaken
to generate a profit. (Guglielmi v. Spelling–Goldberg
Productions, at pp. 867–868.) In short, “it is beyond dispute
that movies involve free speech.” (Dyer v. Childress (2007)
147 Cal.App.4th 1273, 1280.) Because a film is an
expressive work, its creation is also an exercise of free
speech. (See Tamkin v. CBS Broadcasting, Inc. (2011) 193
Cal.App.4th 133, 143 [creating, casting and broadcasting
T.V. episode is exercise of free speech].)
       Although it is undisputed that the conduct and
comments at issue were made on the set of A Haunted
House 2, Daniel argues that they were not made in
furtherance of Wayans’s free speech rights because they
occurred “during breaks, while no cameras were rolling.”
Daniel’s argument is unavailing for several reasons.
       First, Daniel’s argument that the movie’s creative
process occurred only when the cameras were rolling rests
on an unreasonably narrow or constrained view of the
creative process generally. “As stated in a different context,
‘[t]he creative process [for a raunchy comedy] must be
unfettered, especially because it can often take strange
turns, as many bizarre and potentially offensive ideas are
suggested, tried, and, in the end, either discarded or
used . . . . [¶] . . . We must not permit juries to dissect the
creative process in order to determine what was necessary to
achieve the final product and what was not, and to impose
liability . . . for that portion deemed unnecessary. Creativity




                              19
is, by its nature, creative. It is unpredictable. Much that is
not obvious can be necessary to the creative process.’ ”
(Tamkin v. CBS Broadcasting, Inc., supra, 193 Cal.App.4th
at pp. 144–145, quoting Lyle v. Warner Brothers Television
Productions (2006) 38 Cal.4th 264, 298 (conc. opn. of
Chin, J.) [addressing workplace sexual harassment claim];2


     2  Lyle, supra, 38 Cal.4th 264 itself is not directly
applicable to this case either procedurally (it involved a
motion for summary judgment, not a special motion to
strike) or substantively (it concerned alleged sexual
harassment, not racial harassment, which occurred over the
course of four months, not during the course of a single day).
Nonetheless, the majority opinion, as well as the concurring
opinion of Justice Chin, provides a number of illuminating
insights about the creative process for developing a
somewhat raunchy comedy. Lyle involved a claim by a
female employee of a television production company that the
use of sexual language in the workplace by the male writers
of the television show Friends gave rise to a hostile work
environment. (Id. at p. 271.) The Supreme Court “granted
review to address whether the use of sexually coarse and
vulgar language in the workplace can constitute harassment
based on sex within the meaning of the [Fair Employment
and Housing Act] . . . .” (Id. at p. 272.) It concluded: “Based
on the totality of the undisputed circumstances, particularly
the fact that the Friends production was a creative
workplace focused on generating scripts for an adult-
oriented comedy show featuring sexual themes, we find no
reasonable trier of fact could conclude such language
constituted harassment directed at plaintiff because of her
sex within the meaning of the FEHA.” (Ibid.) The Lyle



                              20
Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th
665, 677 [declining “ ‘ “to dissect the creative process” ’ ” and
affirming granting anti-SLAPP].)
      Second, Daniel’s argument about the boundaries of the
creative process for A Haunted House 2—it only occurs on-
set when the camera is rolling—is flatly contradicted by the
undisputed testimony offered by Wayans, Pressly and
Alvarez, who affirmed that the creative process for A
Haunted House 2 was highly improvisational in nature and


majority went on to state: “That the writers commonly
engaged in discussions of personal sexual experiences and
preferences and used physical gesturing while brainstorming
and generating script ideas for this particular show was
neither surprising nor unreasonable from a creative
standpoint.” (Id. at p. 287.)
      Based on the testimony of Wayans, Pressly and
Alvarez about the improvisational creative process used for
the making of A Haunted House 2—an adult-oriented, R-
rated feature-length comedy featuring race-based humor—it
is not surprising or unreasonable that terms such as nigga,
nigger and niggie, which were used dozens of times in the
final version of the movie, were also used by the cast and
writers as they brainstormed ideas for the script while on-set
but in-between the filming of scenes (i.e., “during breaks,
while no cameras were rolling”).
     In short, the creative process should not be confined, as
Daniel argues, to a fixed place or point in time (i.e., only
when the cameras are rolling). To borrow from Ernest
Hemingway, the creative process, depending on the
circumstances, may well be a movable feast.




                               21
occurred when the camera was rolling and when it was not.
As Wayans explained, “[j]oking around on set is part of my
creative process for making a comedy film.” According to
Pressly, it is “important” on the set of any comedy to have a
“light, funny atmosphere,” and on the set of A Haunted
House 2 “[e]veryone . . . joked around with each other as part
of the creative process.”
      The improvisational nature of the creative process for
the movie is amply demonstrated in the widely varying
dialogue that was used in the three out-takes and in the
final version of the scene in which Daniel appears. In fact,
Daniel’s contention that Wayans’s comments and conduct
when the camera was rolling was completely divorced from
his comments and conduct when the cameras were not
rolling is flatly belied by those outtakes. For example,
Daniel contends that during breaks when the cameras were
not rolling Wayans made disparaging comments about
Daniel’s hair—“Throughout the day, at least ten times,
Wayans called my hair an ‘Afro’ and would start laughing.”
However, in one of the outtakes, Wayans’s character
commented repeatedly on the hair of Daniel’s character,
promising to get Daniel’s character a “perm . . . a nice moist
[Jheri] curl”3 if he will help Wayans’s character move the


     3   “A Jheri curl is created by a chemical process that
gives black people’s hair a glossy, loosely curled
look. . . . The most famous person to wear a Jheri curl likely
was the late Michael Jackson during the mid-1980s.”
(Onwuach-Willig, Another Hair Piece: Exploring New



                              22
safe off his dog. In addition, the name given to Daniel’s
character, Cleveland was also born from the creative process
that occurred when the cameras were not rolling—Wayans
noticing and commenting on Daniel’s resemblance to the
cartoon character. In other words, the evidence shows a
direct linkage between the allegedly injury-producing off-
camera comments and the film’s creative process.
      Third, Daniel’s argument is bereft of any supporting
evidence. Daniel does not offer any testimony or documents
rebutting the testimony by Wayans, Pressly, and Alvarez
about the creative process for A Haunted House 2. There is,
in other words, no evidence showing or even suggesting that
the creative process for A Haunted House 2 ceased when the
cameras stopped rolling.
      In short, an act is in furtherance of the right of free
speech if the act helps to advance that right or assists in the
exercise of that right. (See Lieberman v. KCOP Television,
Inc. (2003) 110 Cal.App.4th 156, 166 [“Furtherance means
helping to advance, assisting.”]) Here, the testimony and
documentary evidence submitted by Wayans regarding the
movie’s creative process—which was uncontradicted by
Daniel—established that the on-set comments and conduct



Strands of Analysis under Title VII (2006) 98 Geo. L.J. 1079,
1129, fn. 252; see People v. Fudge (1994) 7 Cal.4th 1075,
1089, 1092 [witness identification based on man’s “ ‘jheri-
curls’ ”]; People v. Harrison (2005) 35 Cal.4th 208, 231
[same].)




                              23
were done to assist Wayans in the exercise of his right to
free speech—that is, to make A Haunted House 2.
                  b.    Issue of public interest
      The term “issue of public interest” is construed broadly
in the anti-SLAPP context. (Hecimovich v. Encinal School
Parent Teacher Organization (2012) 203 Cal.App.4th 450,
464.) An issue of public interest is “any issue in which the
public is interested.” (Nygard, Inc. v. Uusi–Kerttula (2008)
159 Cal.App.4th 1027, 1042, italics omitted.) The issue does
not need to be “ ‘significant’ ” to be covered by the anti-
SLAPP statute. (Ibid.) For example, in Hecimovich, a
California appellate court determined that a dispute
between a fourth grade basketball coach and members of a
parent teacher organization regarding parental complaints
about the plaintiff’s abrasive coaching style constituted an
issue of public interest because “the safety of children in
sports” is an issue of public interest, the “suitability of [the
plaintiff’s] coaching style was a matter of public interest
among the parents,” and “problem coaches/problem parents
in youth sports” is an issue of public interest. (Hecimovich,
at pp. 467–468.) With regard to entertainment, California
courts have found that there is a public interest within the
meaning of the anti-SLAPP statute “in the writing, casting
and broadcasting” of an episode of a popular television
program. (Tamkin v. CBS Broadcasting, Inc., supra, 193
Cal.App.4th at p. 144.)
      Here, Wayans submitted evidence that the making of
A Haunted House 2 was an issue of public interest. Wayans




                               24
is a popular and prolific entertainer—since 1988, Wayans
has acted in 21 films; since 1991, he has acted in 13 different
television shows, specials, or movies; since 1992, he has
written or co-written 16 different films and/or television
movies or shows; and since 1996, he has produced or served
as an executive producer of 13 different films and/or
television movies or shows. The longevity and breadth of
Wayans’s career demonstrate continuing public interest in
his work. In addition, many of Wayans’s projects “involve
making fun of pop culture, racial stereotypes, [and] current
events,” adding to the public’s interest in his work. In light
of Wayans’s extensive body of work and the subject matter of
that work, A Haunted House 2 falls easily within the anti-
SLAPP statute’s definition of an “issue of public interest.”4
      In sum, Wayans met his burden of making a prima
facie showing that the on-set comments and conduct fell
within the definition of protected activity set forth in
section 425.16, subdivision (e)(4).
      The dissenting opinion describes a parade of horribles
that the majority opinion would unleash. But these horrible
are not before us. And in any case, we agree that the
examples described by the dissent would not be in
furtherance of the right of free speech. Here, we only hold
that Wayans’s conduct, including calling Daniel nigga,

     4  Although A Haunted House 2 was a major theatrical
production, we do not intend to suggest that smaller
productions would not qualify for protection as being in the
public interest.



                              25
during the creative process of molding a theatrical work is
protected by free speech.
            2.    The Internet posting
       The allegedly harassing and offensive Internet posting
was a writing made in a place open to the public or a public
forum and it was made in connection with an issue of public
interest. (§ 425.16, subd. (e)(3).)
                  a.    Statement made in a public forum
       “[O]ur Supreme Court has held that public access, not
the right to public comment, is the hallmark of a public
forum: ‘Web sites accessible to the public . . . are “public
forums ” for purposes of the anti-SLAPP statute.’ ” (Nygard,
Inc. v. Uusi–Kerttula, supra, 159 Cal.App.4th at p. 1039,
italics added.)
       Here, both Daniel’s and Wayans’s declarations state
that the juxtaposed pictures of Daniel and the Cleveland
Brown cartoon figure and the accompanying caption were
posted to Wayans’s Twitter account, which had over a
million followers. The Twitter account constitutes a publicly
accessible social media forum. Indeed, according to Daniel’s
declaration, both he and his brother saw the Twitter post
online. Accordingly, the Internet posting was a statement
made in a public forum.
                  b.    Issue of public interest
       Although “not every Web site post involves a public
issue” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226), the
bar for an anti-SLAPP defendant to overcome is not a
particularly demanding one. In Kronemyer v. Internet Movie




                             26
Database Inc. (2007) 150 Cal.App.4th 941, the mere listing of
producer credits for a movie on defendant’s website was
found to be “an act in furtherance of the right of free speech
protected under the anti-SLAPP statute.” (Id. at p. 947.)
      Here, the posting at issue references a Twitter account
that had more than one million followers (and, per Wayans’s
declaration, an Instagram account) for the movie A Haunted
House 2, as well as Wayans’s Whatthefunny Web site. As
noted above, Wayans is a popular actor, writer, and producer
with many films and television shows to his credit.
Moreover, A Haunted House 2 was a sequel to A Haunted
House (IM Global Octane 2013), which apparently was
sufficiently popular and profitable to lead to financing and
production of a sequel. According to Wayans’s declaration,
when A Haunted House 2 was released, it played in 2,310
theaters and grossed $8.8 million in its first week.
      Accordingly, advance information from Wayans about
the making of A Haunted House 2, including a photo of
someone acting in the film, constitutes a topic of public
interest, even though Daniel himself may not have been
known to the public.5 The post both referred to a topic of



     5 It should be noted that although Daniel may not have
been widely known prior to his appearance in A Haunted
House 2, he actively sought to increase his standing before
the public when he agreed to act in the movie. By agreeing
to appear in the movie, Daniel “voluntarily subjected
[him]self to inevitable scrutiny and potential ridicule by the



                             27
widespread public interest (the film) and contributed to the
public “debate” or discussion regarding the film by giving
fans and those interested a glimpse of someone in the film.
We therefore conclude that the Internet posting constituted
protected activity as provided in section 425.16,
subdivision (e)(3).
IV. Step two: Daniel did not meet his burden
      In the second step of an anti-SLAPP analysis, we
determine whether plaintiff has produced evidence
demonstrating a probability of prevailing on his claims.
      To show a probability of prevailing on his claims, “ ‘the
plaintiff “must demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.”
[Citations.] . . . [T]hough the court does not weigh the
credibility or comparative probative strength of competing
evidence, it should grant the motion if, as a matter of law,
the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the
claim.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 713–714.)
“ ‘The plaintiff may not rely solely on its complaint, even if
verified; instead, its proof must be made upon competent
admissible evidence.’ ” (Paiva v. Nichols (2008) 168
Cal.App.4th 1007, 1017.)


public and the media.” (Seelig v. Infinity Broadcasting Corp.
(2002) 97 Cal.App.4th 798, 808.)




                              28
      Here, we conclude that Daniel did not meet his burden
with respect to any of his claims against Wayans.6
      A.    RACIAL HARASSMENT
      Daniel’s racial harassment claim against Wayans (first
cause of action) is brought pursuant to the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12940
et seq.). Although federal court rulings are not binding on
the Court of Appeal, California courts “frequently turn to
federal authorities interpreting Title VII of the Civil Rights
Act of 1964 . . . for assistance in interpreting the FEHA . . . .”
(Miller v. Department of Corrections (2005) 36 Cal.4th 446,
463; Mitchell v. State Dept. of Public Health (2016) 1
Cal.App.5th 1000, 1009, fn. 4.)
      In his complaint, Daniel alleges that while on the set of
A Haunted House 2 he was subjected to a racially hostile
work environment. “To establish a prima facie case of a
racially hostile work environment, [a plaintiff] [is] required
to show that (1) he was a member of a protected class; (2) he
was subjected to unwelcome racial harassment; (3) the
harassment was based on race; (4) the harassment


      6 Both Wayans’s special motion to strike and Daniel’s
opposition thereto addressed the fourth cause of action,
which alleges a violation of the Unruh Civil Rights Act. On
appeal, however, Daniel provides no argument with respect
to that cause of action. We necessarily conclude that he has
either conceded the propriety of granting the anti-SLAPP
motion as to that cause of action or has forfeited any
contention regarding it.




                               29
unreasonably interfered with his work performance by
creating an intimidating, hostile, or offensive work
environment; and (5) the [defendant] is liable for the
harassment.” (Thompson v. City of Monrovia (2010) 186
Cal.App.4th 860, 876.)
      To establish the fourth element—that the harassment
created a hostile work environment—a plaintiff “ ‘must
prove that the defendant’s conduct would have interfered
with a reasonable employee’s work performance and would
have seriously affected the psychological well-being of a
reasonable employee . . . .’ ” (Aguilar v. Avis Rent A Car
System, Inc. (1999) 21 Cal.4th 121, 130–131.) Harassment,
which may be verbal, physical, or visual and “communicates
an offensive message to the harassed employee” (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706), “ ‘cannot be
occasional, isolated, sporadic, or trivial[;] rather the plaintiff
must show a concerted pattern of harassment of a repeated,
routine or a generalized nature.’ ” (Aguilar, at p. 131.)
Whether the harassment is sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create
an abusive environment “must be assessed from the
‘perspective of a reasonable person belonging to the racial or
ethnic group of the plaintiff.’ ” (Nazir v. United Airlines, Inc.
(2009) 178 Cal.App.4th 243, 263–264.) In addition,
determining whether an environment is hostile requires
looking at the totality of the circumstances, including “the
frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a




                               30
mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” (Harris v.
Forklift Systems, Inc. (1993) 510 U.S. 17, 23.)
       Daniel relies upon Dee v. Vintage Petroleum, Inc.
(2003) 106 Cal.App.4th 30, for his assertion that “a single
racial slur by a supervisor may also create a hostile work
environment.” (Id. at p. 36.) Dee involved much more than a
single racial slur. The plaintiff’s supervisor “called her a
‘bitch’ and ‘constantly’ used the word ‘asshole.’ He berated
her, ‘harassed’ her, ordered her to lie and blamed her for
tasks he ordered her to perform.” (Id. at p. 37.) After the
plaintiff complained to her supervisor about being asked to
lie, the supervisor told the plaintiff that “ ‘it is your Filipino
understanding versus mine.’ ” This comment was, as the
Court of Appeal stated, “an ethnic slur, both abusive and
hostile.” (Ibid.) The court concluded that the evidence
supported a reasonable inference that “the racial slur was
not an isolated event” and that the supervisor “wished to
intimidate [the plaintiff] so that she would not complain to
higher management about his conduct.” (Ibid.) The court
did not hold, as Daniel asserts, that “a single racial slur by a
supervisor may also create a hostile work environment.”
Although the Dee court made this statement, it preceded it
with the phrase, “[i]n other jurisdictions.” (Id. at p. 36,
italics added, citing Rodgers v. Western–Southern Life
Insurance Co. (7th Cir. 1993) 12 F.3d 668, 675 (Rodgers).)
Dee cannot be read as Daniel urges.




                               31
      Daniel argues on appeal that “ ‘It is beyond question
that the use of the word “nigger” is highly offensive and
demeaning, evoking a history of racial violence, brutality,
and subordination. This word is “perhaps the most offensive
and inflammatory racial slur in English, . . . a word
expressive of racial hatred and bigotry.” ’ ” We agree with
our Supreme Court that although “ ‘nigger’ may once have
been in common usage,” it is now considered to be
“particularly abusive and insulting . . . as it pertains to the
American Negro.” (Alcorn v. Anbro Engineering, Inc. (1970)
2 Cal.3d 493, 498, fn. 4.)
      Nigger, however, is not the term at issue here. Rather,
the term at issue is nigga. As Daniel makes clear in his
declaration opposing the motion, he was not called nigger by
Wayans, but nigga. Nigga is not an unambiguous racial
epithet in today’s world, especially when used intra-racially,
as it was here. In fact, one noted legal scholar, Harvard Law
professor, Randall Kennedy has observed that “ ‘[today,]
when African Americans are speaking to each other,
“nigger,” and especially its more genial cousin, “nigga” can
be an affectionate greeting, a compliment, or a term of
respect.’ ” (Perdu and Parks, The Nth Degree: Examining
Intraracial use of the N-word in Employment Discrimination
Cases (2014) 64 DePaul L.Rev. 65, 67; see Kennedy, Nigger:
The Strange Career of a Troublesome Word (2002) p. 5
[“Currently, some people insist upon distinguishing nigger—
which they see as exclusively an insult—from nigga, which




                              32
they view as a term capable of signaling a friendly
salutation.”].7)


     7  See Parks and Jones, “Nigger”: A Critical Race
Realist Analysis of the N-Word within Hate Crimes Law”
(2008) 98 J.Crim. L. & Criminology 1305, 1306 (“the N-word
has a different connotation when used intra-racially among
Blacks than when directed at Blacks by Whites”). It should
be noted, however, that others see little difference between
nigger and nigga: “whether it ends in -a or -er, the first
thing that comes to mind is a negative image of a black
person.” (Frost, What is the Difference Between “Nigga” and
“Nigger” (Feb. 27, 2014), The Pioneer
<http://thepioneeronline.com/20399/opinions/what-is-the-
difference-between-nigga-and-nigger> [as of December 12,
2016].)
      The key fact for our purposes here is that in
contemporary usage nigga is not an unambiguous racial
epithet, but a term which can have a number of different
meanings when used by different people in different
contexts. The highly ambiguous/context-specific nature of
the term nigga is captured by Dictionary.com: “Nigga is
used mainly among African Americans, but also among other
minorities and ethnicities, in a neutral or familiar way and
as a friendly term of address. It is also common in rap
music. However, nigga is taken to be extremely offensive
when used by outsiders. Many people consider this word to
be equally as offensive as nigger.”
(<http://www.dictionary.com/browse/nigga?s=t>).
      To borrow from and paraphrase Professor Kennedy,
“[m]ore vividly than most words, then [nigga] illustrates
Justice Oliver Wendell Holmes’s observation, that ‘a word is



                             33
      Wayans introduced evidence that nigga as used by
him—generally and on the set of A Haunted House 2—and
as received by others working on the movie was not a racial
slur, but a term of endearment. In rebuttal, Daniel stated
that, regardless of how others found Wayans’s use of the
term, he found the term personally offensive when directed
at him. But Daniel limited his rebuttal to only his subjective
perspective. In other words, Daniel did not introduce any
evidence showing that an objectively reasonable Black actor
in his situation would also find the term offensive such that
its usage would unreasonably interfere with his work
performance. Under the law that is not a sufficient showing.
(See Hope v. California Youth Authority (2005) 134
Cal.App.4th 577, 588 [“harassment must satisfy an objective
and a subjective standard”] italics added.)
      Moreover, the evidence introduced below suggests the
contrary to Daniel’s claim—that is, a reasonable Black actor
who voluntarily agreed to participate in a movie addressing
racial stereotypes that was written, produced and starred
Wayans—an artist known for his frequent use of both nigger
and nigga in his work8—would be on notice that potentially


not a crystal, transparent and unchanged, . . . [it is] the skin
of a living thought [and] may vary greatly in color and
content according to the circumstances and the time in
which it is used.’ ” (Kennedy, Nigger: The Strange Career of
a Troublesome Word, supra, at p. 55.)
     8 In the original Haunted House, the word nigga was
used “numerous times” and in another prior movie in which



                              34
racially charged language would be used in the film, and,
given the improvisational nature of the production, that such
language might be used among the actors and production
staff when the cameras were not rolling to help develop
storylines and dialogue. Consequently, under the facts of
this case the use of the term nigga did not create a “ ‘hostile
or abusive work environment.’ ” (Aguilar v. Avis Rent A Car
System, Inc., supra, 21 Cal.4th at p. 130.)
       The doubts about Daniel’s ability to prevail on his
racial harassment claim are raised to a fatal level when he
fails to mention, let alone discuss, how the use of the
allegedly offensive language adversely affected him in his
work for the movie and would have affected a reasonable
Black actor’s performance. Although Daniel states that
Wayans’s alleged harassment made him feel “self-conscious,
insecure,” “humiliated,” and “embarrassed” while he was on
the set, his declaration is completely and tellingly silent with
regard to how Wayans’s on-set comments and conduct
adversely affected his work performance that day. None of
the other declarants who were on the set that day—Wayans,
Pressly, and Alvarez—observed Daniel having any trouble in
performing his duties. None of the declarants, including
Daniel himself, states, for example, that his scene had to be
reshot and/or delayed in being shot because Daniel was
plainly troubled by something that occurred when the


Wayans starred, authored, and produced, the word nigger
was used 55 times in the final, released version of the film.




                              35
cameras were not rolling and, as a result, he was unable to
get into character and/or perform his role in an efficient and
effective manner. The only reasonable conclusion that can
be drawn from such silence is that the alleged racial
harassment had no adverse effect on Daniel’s work
performance.9


     9  One of the cases upon which Daniel relies, Rodgers,
supra, 12 F.3d 668, illustrates how big of a gap there is
between Daniel’s allegations of a hostile work environment
and what courts have actually found to be a hostile work
environment. In Rodgers, the plaintiff’s supervisor, a White
man, who also hired the plaintiff, a Black man, used
profanity and personal insults to motivate the plaintiff and
other subordinates. The insults included unambiguous
racial remarks—including the use of the word nigger—as
well as many race-neutral epithets over the course of 12
years. (Id. at p. 671.) In addition to verbal abuse, the
plaintiff’s supervisor on one occasion dumped out the
contents of the plaintiff’s desk. (Ibid.) As a result of the
“harsh treatment and racist language,” plaintiff suffered a
number of physical problems for which he sought medical
treatment. (Ibid.) Despite the job-related stress resulting
from the harsh treatment and racial insults, the plaintiff
continued to work for the defendant. (Ibid.) However, the
stress became so severe that the plaintiff repeatedly asked
for a demotion and when the last of those requests were
refused, he resigned. (Id. at p. 672.) Here, in contrast to the
plaintiff in Rodgers, Daniel was exposed to a handful of
arguably racist comments and some arguably offensive but
race-neutral comments over the course of a single work day,
comments which apparently did not interfere with his work



                              36
      In sum, looking, as we must, at the totality of the
circumstances, the alleged acts of racial harassment here did
not alter the conditions of Daniel’s employment and create
an abusive environment. Even when we credit Daniel’s
evidence, that evidence is insufficient as a matter of law to
sustain a judgment favorable to him. Accordingly, we hold
that the trial court properly struck Daniel’s racial
harassment claim against Wayans.
      B.    MISAPPROPRIATION
      Daniel’s claims for statutory and common law
misappropriation of name and likeness (fifth and sixth
causes of action) are based solely on the Internet posting.
Daniel failed to meet his burden of showing a probability of
prevailing with respect to these claims for two reasons: first,
Daniel failed to overcome evidence that he waived his claims
when he signed the voucher, which contained a broad release
consenting to the use of his image in connection with the
movie; second, even if Daniel did not release his claims or
the voucher was inadmissible, Wayans’s transformative use
of Daniel’s photograph established a complete defense.
            1.    The voucher
      An essential element for either a common law or
statutory misappropriation claim is the unauthorized use of

performance at all or force him to seek reduced
responsibilities or any other on-the-job relief from the
alleged misconduct. Nor does the record reflect that the
alleged harassment has caused Daniel to seek any
subsequent medical treatment.




                              37
plaintiff’s image. (See Kirby v. Sega of American, Inc. (2006)
144 Cal.App.4th 47, 55 [common law misappropriation
claim]; Montana v. San Jose Mercury News, Inc. (1995) 34
Cal.App.4th 790, 793 [statutory misappropriation claim].)
As discussed above, the voucher contains a broad release
regarding the use of Daniel’s image “in any manner
whatsoever and for any reason in connection with The
Production.” (Italics added.)
      On appeal, Daniel makes two related arguments:
(a) the trial court improperly overruled his objection to the
voucher on authentication grounds; and (b) the voucher does
not establish that the release runs in favor of Wayans. We
do not find either argument to have merit.
                   a.   The trial court did not err by
overruling Daniel’s authentication objection to the voucher
      “Evidentiary challenges [on a anti-SLAPP motion] are
reviewed only for abuse of discretion. [Citation.] As such,
we will not overturn an evidentiary ruling on appeal unless
‘the trial court exceeded the bounds of reason, all of the
circumstances before it being considered.’ ” (Public
Employees’ Retirement System v. Moody's Investors Service,
Inc. (2014) 226 Cal.App.4th 643, 683.)
      “[W]hile all writings must be authenticated before they
are received into evidence ([Evid. Code,] § 1401), the
proponent’s burden of producing evidence to show
authenticity ([Evid. Code,] § 1400) is met ‘when sufficient
evidence has been produced to sustain a finding that the
document is what it purports to be. [Citation.]’ [Citation.]




                              38
The author’s testimony is not required to authenticate a
document ([Evid. Code,] § 1411); instead, its authenticity
may be established by the contents of the writing ([Evid.
Code,] § 1421) or by other means ([Evid. Code,] § 1410 [no
restriction on ‘the means by which a writing may be
authenticated’]). ‘As long as the evidence would support a
finding of authenticity, the writing is admissible. The fact
conflicting inferences can be drawn regarding authenticity
goes to the document’s weight as evidence, not its
admissibility. [Citations.]’ [Citation.] ‘ “[L]ike any other
material fact, the authenticity of a [document] may be
established by circumstantial evidence . . . .” ’ ” (People v.
Valdez (2011) 201 Cal.App.4th 1429, 1435.)
      Here, Wayans presented sufficient circumstantial
evidence for the trial court to find that the document had
been authenticated. As discussed above, the voucher was
attached as an exhibit to Alvarez’s declaration. The voucher
indicates that the production or project name is “Dumb Ass
Prod.,” not A Haunted House 2. However, Alvarez stated in
his declaration that the “production company for A Haunted
House 2 was Dumb Ass Productions, which is why that
company is listed on the [voucher].” (Italics omitted.) In
addition, Alvarez indicated in his declaration that he was in
a position to have personal knowledge of the corporate
entities involved in the making of the movie, as well as the
vouchers used with extras, such as Daniel, and Daniel’s
execution of the voucher. Alvarez states that as the
coproducer of the movie he was responsible for “oversee[ing]




                              39
the entire production.” (Italics added.) In addition, Alvarez
states he was “on the set the one day that Mr. Daniel was on
the set and was present during the shooting of the scene in
which Mr. Daniel appeared.”
       From the facts in Alvarez’s declaration, it can be
readily inferred that the voucher was a true and accurate
copy of the document that Daniel signed allowing him to be
present on the set of A Haunted House 2 and to work as an
extra on that movie on September 4, 2013. (Daniel does not
dispute that he signed the voucher or that the voucher
contains his address, phone number and redacted social
security number.) Accordingly, the trial court, considering
all of the facts before it, did not exceed the bounds of reason
by overruling Daniel’s objection.
                   b.    The voucher’s release extends to
Wayans
       Daniel asserts that there is “nothing in this record to
demonstrate that Wayans was entitled to the benefit of the
contract between Daniel and Dumb Ass Productions.”
Daniel’s assertion is incorrect. As discussed above, Alvarez
states in his declaration that Dumb Ass Productions is the
production company responsible for making A Haunted
House 2. Both Alvarez and Wayans identify Wayans as one
of the movie’s coproducers. Those two undisputed facts are
sufficient for purposes of an anti-SLAPP motion to show that
the voucher’s broad release includes Wayans.




                              40
            2.    Wayans’s use of Daniel’s image was
transformative
      The freedom of expression protected by the First
Amendment exists to preserve an uninhibited marketplace
of ideas and to further individual rights of self expression.
(Winter v. DC Comics (2003) 30 Cal.4th 881, 887 (Winter).)
The protections may extend to all forms of expression,
including written and spoken words (fact or fiction), music,
films, paintings, and entertainment, whether or not sold for
a profit. (Comedy III Productions, Inc. v. Gary Saderup, Inc.
(2001) 25 Cal.4th 387, 406 (Comedy III).)
      In Comedy III, supra, 25 Cal.4th 387 and again in
Winter, supra, 30 Cal.4th 881, our Supreme Court addressed
the balance between an individual’s right to control the
commercial exploitation of his or her likeness or identity and
the First Amendment right of free expression. (See
Comedy III, at p. 400; Winter, at pp. 887–888.) In
Comedy III, the court held a defendant may raise the First
Amendment as an affirmative defense to an allegation of
appropriation if the defendant’s work “ ‘adds something new,
with a further purpose or different character, altering the
first with new expression, meaning, or message . . . .’ ” (Id.
at p. 404.) In other words, the new work must contain
significant “transformative elements.” (Id. at pp. 406–407.)
      The transformative test is straightforward: The
“inquiry is whether the celebrity likeness is one of the ‘raw
materials' from which an original work is synthesized, or
whether the depiction or imitation of the celebrity is the very




                              41
sum and substance of the work in question.” (Comedy III,
supra, 25 Cal.4th at p. 406.) If the “product containing the
celebrity’s likeness is so transformed that it has become
primarily the defendant’s own expression” of what he or she
is trying to create or portray, rather than the celebrity's
likeness, it is protected. (Id. at pp. 406–407.) In developing
the test, the Comedy III court made two important
observations. First, the right to control one’s image “cannot,
consistent with the First Amendment, be a right to control
the . . . image by censoring disagreeable
portrayals. . . . [T]he First Amendment dictates that the
right to comment on, parody, lampoon, and make other
expressive uses of the celebrity image must be given broad
scope.” (Id. at p. 403.) Second, “in determining whether the
work is transformative, courts are not to be concerned with
the quality of the artistic contribution—vulgar forms of
expression fully qualify for First Amendment protection.”
(Id. at p. 407.) In short, all that is necessary is that the
defendant’s work add “ ‘something new, with a further
purpose or different character, altering the first with new
expression, meaning, or message.’ ” (Id. at p. 404.) A work
is transformative if it adds “ ‘new expression.’ ” That
expression alone is sufficient; it need not convey any
“ ‘meaning or message.’ ” (Ibid.)
       Applying this test in Comedy III, supra, 25 Cal.4th 387,
which involved drawings depicting The Three Stooges, and
T-shirts made from those drawings, the court concluded the
drawings and T-shirts were not entitled to First Amendment




                              42
protection. The artist who created them, while highly
skilled, contributed nothing other than a trivial variation
that transformed the drawings from literal likenesses of the
three actors. (Id. at pp. 408–409.)
      The Supreme Court applied the transformative test
again two years later in Winter, supra, 30 Cal.4th 881. In
that case, the defendant published a series of comics
featuring two half-worm, half-human characters based on
singers Edgar and Johnny Winter. Both characters had long
white hair and albino features similar to the Winter
brothers, while one wore a hat similar to one often worn by
Johnny Winter. (Id. at p. 886.) The Winter brothers sued
for statutory appropriation and lost on summary judgment.
The Court of Appeal affirmed in part, reversed in part, and
remanded. The Supreme Court, however, granted review.
Applying the transformative test, the court found for the
defendants, holding that the comic depictions contained
significant expressive content beyond the Winters’ mere
likenesses and were “entitled to First Amendment
protection.” (Id. at pp. 890, 892.) As the Supreme Court
explained, the Winters were merely part of the raw material
from which the comics’ plot and characters were fashioned.
In addition, the characters were distorted pictures of the
Winters for the purpose of lampoon, parody or caricature. In
short, and in stark contrast to the near literal depictions of
the Three Stooges in Comedy III, supra, 25 Cal.4th 387, the
comic book characters depicted were “fanciful, creative




                             43
characters, not pictures of the Winter brothers.” (Winter, at
p. 892.)
      Here, although Wayans used two unaltered images—
one of Daniel and one of the Cleveland Brown character—his
use of those images was nonetheless transformative.
Wayans’s use was transformative in the combination of the
juxtaposed images with his commentary. That combination
of images and arguably humorous commentary provided the
Internet posting with an element of caricature, lampoon, or
parody. It is this element that puts the Internet posting
within the protection of the First Amendment. In other
words, Wayans’s juxtaposition of Daniel’s image with the
image of the Cleveland Brown character and his caption
added “ ‘something new’ ” to Daniel’s image, altering it with
a “ ‘new expression, meaning, or message.’ ” (Comedy III,
supra, 25 Cal.4th at p. 404.)
      In sum, because the voucher was authenticated and
because its release is not only broad but can reasonably be
read to extend to Wayans, Daniel failed to show a probability
of prevailing. Alternatively, even if the voucher had not
been authenticated, or the evidence was insufficient to show
that its release extended to Wayans, the Internet posting
was a transformative use of Daniel’s image and, as a result,
Wayans has an affirmative defense to Daniel’s
misappropriation claims. In light of the voucher’s release
and the Internet posting’s transformative use, the trial court
properly struck the misappropriation claims.




                             44
      C.     FALSE LIGHT
      “ ‘One who gives publicity to a matter concerning
another that places the other before the public in a false
light is subject to liability to the other for invasion of his
privacy, if (a) the false light in which the other was placed
would be highly offensive to a reasonable person, and (b) the
actor had knowledge of or acted in reckless disregard as to
the falsity of the publicized matter and the false light in
which the other would be placed.’ ” (5 Witkin, Summary of
Cal. Law (10th ed. 2005) Torts, § 673, p. 988.) A “false light”
cause of action is a variety of defamation and is subject to
the same requirements. (Aisenson v. American Broadcasting
Co. (1990) 220 Cal.App.3d 146, 161.)
      “In determining whether a statement is libelous we
look to what is explicitly stated as well as what insinuation
and implication can be reasonably drawn from the
communication.” (Forsher v. Bugliosi (1980) 26 Cal.3d 792,
803.) “ ‘ “[I]f the defendant juxtaposes [a] series of facts so as
to imply a defamatory connection between them, or
[otherwise] creates a defamatory implication . . . he may be
held responsible for the defamatory implication, . . . even
though the particular facts are correct.” ’ ” (Weller v.
American Broadcasting Companies, Inc. (1991) 232
Cal.App.3d 991, 1003, fn. 10.) A court examines the totality
of the circumstances, including the context in which the
statement was made. (Baker v. Los Angeles Herald
Examiner (1986) 42 Cal.3d 254, 260–261.) Opinions are
constitutionally protected and cannot form the basis of a




                               45
defamation-type claim. (Id. at p. 260.) Whether a statement
constitutes a statement of fact or opinion is a question of
law. (Ibid.) “In making such a determination, the court
must place itself in the position of the hearer or reader, and
determine the sense or meaning of the statement according
to its natural and popular construction.” (Ibid.) Based on
the language used and the totality of the surrounding
circumstances, the court determines whether the average
reader or hearer “could have reasonably understood the
alleged defamatory statement to be one of fact.” (Id. at
p. 261.) “Photographs are not actionable if they are fair and
accurate depictions of the person and scene in question, even
if they place the person in a less than flattering light, so long
as the photographs do not surpass the limits of decency by
being highly offensive to persons of ordinary sensibilities.”
(Aisenson v. American Broadcasting Co., supra, 220
Cal.App.3d at p. 161.)
       Here, the Internet posting referred only to Daniel’s
physical resemblance to the Cleveland Brown cartoon
character. It twice expressly referred to how Daniel looked.
It did not insinuate or imply that Daniel shared any
personality characteristics or, as Daniel argues, “suggest[ ]
that Daniel is a real-life incarnation of the cartoon figure.”
Moreover, it was a combination of an expression of an
opinion by Wayans that Daniel looked like Cleveland Brown
and an accurate photographic comparison. Accordingly,
Daniel did not show a probability of prevailing on his false
light claim, and the trial court properly struck it.




                               46
      D.     QUASI-CONTRACT
      Daniel’s quasi-contract claim (eighth cause of action) is
based solely on the Internet posting. According to the
complaint, Wayans obtained an improper “benefit” from
using Daniel’s likeness in the Internet posting. The Internet
posting, according to the complaint, was improper because
the photograph of Daniel used in that posting was taken
“without [his] consent.”
      “[I]t is well settled that an action based on an implied-
in-fact or quasi-contract cannot lie where there exists
between the parties a valid express contract covering the
same subject matter.” (Lance Camper Manufacturing Corp.
v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203;
Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223
Cal.App.4th 221, 231.)
      Here, there was a valid express contract covering the
use of Daniel’s photograph in connection with A Haunted
House 2, the voucher. By signing the voucher, Daniel not
only gave Wayans the right to use his photograph “in any
manner whatsoever and for any reason” in connection with
the movie, but also acknowledged that the wages he received
for his work on the movie were “payment in full”—that is, he
is not entitled to any other payment, including payment for
the use of his photograph. Because Daniel did not show a
probability of prevailing on his quasi-contract claim, the trial
court properly struck it.




                              47
      E.      UNJUST ENRICHMENT
      Like his quasi-contract claim, Daniel’s claim for unjust
enrichment is based solely on the Internet posting.
Technically, “[u]njust enrichment is not a cause of
action, . . . or even a remedy”; it is instead a principle or
state “describing ‘ “the result of a failure to make
restitution.” ’ ” (McBride v. Boughton (2004) 123
Cal.App.4th 379, 387.) However, because this appeal
concerns an anti-SLAPP motion, we disregard how a
plaintiff may have styled or labeled a particular cause of
action and focus instead on the claim’s merits. (Hylton v.
Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264,
1272.)
      Daniel’s claim for unjust enrichment suffers from two
related problems. First, a party to an express contract can
assert a claim for restitution based on unjust enrichment by
only “ ‘alleg[ing in that cause of action] that the express
contract is void or was rescinded.’ ” (Rutherford Holdings,
LLC v. Plaza Del Rey, supra, 223 Cal.App.4th at p. 231.)
Here, Daniel does not allege in his complaint and has not
demonstrated in his declaration opposing Wayans’s motion
that the voucher was void or rescinded.
      Second, and more substantively, Daniel’s unjust
enrichment claim suffers from many of the same problems
that bedevil his quasi-contract claim: Daniel: (1) was hired
as a non-speaking extra in a one day role; (2) was paid in full
for his services; (3) acknowledged in writing that he received
“payment in full”; and (4) released any right to any use of his




                              48
image in connection with the promotion of A Haunted
House 2. Consequently, Daniel failed to show a probability
of prevailing on his quasi-contract claim, and the trial court
properly struck it.
        F.    INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
        Daniel’s claim for the intentional infliction of emotional
distress is based on both the on-set comments and conduct
and the Internet posting.
        The elements of a prima facie case for the tort of
intentional infliction of emotional distress are:
“ ‘ “ ‘(1) extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff's
suffering severe or extreme emotional distress; and
(3) actual and proximate causation of the emotional distress
by the defendant's outrageous conduct. . . .’ ” ’ ” (Potter v.
Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001;
Hughes v. Pair (2009) 46 Cal.4th 1035,1050.) “ ‘ “Conduct to
be outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” ’ ” (Potter,
at p. 1001.) However, “liability ‘does not extend to mere
insults, indignities, threats, annoyances, petty oppressions,
or other trivialities,’ but only to conduct so extreme and
outrageous ‘as to go beyond all possible bonds of
decency . . . .’ ” (Alcorn v. Anbro Engineering, Inc. (1970) 2
Cal.3d 493, 499, fn. 5; Hughes, at p. 1051.)
        Here, the allegedly outrageous conduct consisted of a
number of boorish and/or juvenile comments about Daniel’s




                               49
physical appearance, the use of the term nigga, which in
contemporary usage may or may not be a term of
endearment among African Americans depending on the
circumstances, and an arguably comic juxtaposition of
photographs on the Internet. Although Daniel may have
found such conduct hurtful, under all the circumstances
Wayans’s conduct was not so extreme as to exceed all bounds
of that usually tolerated in a civilized community. Rather,
the alleged misconduct falls more in the category of insults,
indignities, annoyances, and petty oppressions. Accordingly,
the trial court properly struck this claim.
V.    Attorney fees award
      The trial court, pursuant to section 425.16,
subdivision (c), awarded Wayans his attorney fees as the
prevailing party. Daniel does not challenge the amount of
those fees. Instead, his challenge to those fees is a global
one—that is, Wayans was not entitled to those fees because
his anti-SLAPP motion should not have been granted.
Because we hold that the trial court properly granted
Wayans’s anti-SLAPP motion, we further hold that the
award of attorney fees was proper.




                             50
                     DISPOSITION
      The judgment and order granting the anti-SLAPP
motion and dismissing the complaint are affirmed. The
order granting Marlon Wayans’s attorney fees is also
affirmed. Marlon Wayans is awarded his costs on appeal.
      CERTIFIED FOR PUBLICATION.



                                 JOHNSON, J.

I concur:



            ROTHSCHILD, P. J.




                            51
LUI, J., Concurring and Dissenting.

       Although I agree with the majority on some of its
analysis, I disagree with the majority’s conclusions
concerning both the scope of the creative process and the
scope of the release that appellant Pierre Daniel (Daniel)
signed. I also believe that Daniel demonstrated a reasonable
probability that he would prevail on his cause of action for
intentional infliction of emotional distress. Accordingly, I
would reverse the trial court’s ruling in part and permit
Daniel’s action to proceed on claims relating to both the
alleged on-set conduct of respondent Marlon Wayans
(Wayans) and to his Internet posting.
       Because this is an appeal from an order granting an
anti-SLAPP motion, we must accept the “plaintiff’s evidence
as true.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 385 (Baral).)
We evaluate the defendant’s showing “only to determine if it
defeats the plaintiff’s claim as a matter of law.” (Ibid.)
Under that standard, we are faced with the following facts.
       Daniel was hired for one day as an extra on a movie,
A Haunted House 2. While on the set, when no filming was
occurring, the producer, cowriter and star of the movie,
Wayans, repeatedly called Daniel “ ‘nigga’ ” and a “ ‘black fat
ass,’ ” mocked him for his “ ‘Afro’ ” hairstyle, approached
Daniel while sneering, leering and rolling his eyes, compared
Daniel to an unflattering character (Cleveland Brown) in the
animated series Family Guy, and generally treated him in a
demeaning and abusive manner. Daniel had no prior
relationship with Wayans and did not participate in this
insulting conduct that Wayans characterized as “joking.”
Indeed, he testified that he walked away.
      The insulting conduct was not limited to the set.
Without Daniel’s permission, Wayans took Daniel’s picture
on Wayans’s cell phone. Wayans posted the picture on his
personal Twitter account next to a picture of the Cleveland
Brown animated character with a caption comparing “ ‘this
nigga’ ” (Daniel) to “ ‘THIS NIGGA’ ” (Cleveland Brown).
Many people saw the pictures, resulting in repeated
embarrassing questions as to whether Daniel is the
“ ‘Cleveland Brown’ ” character from Wayans’s post.
1.    Wayans’s on-set conduct, as alleged, was not in
      furtherance of his constitutional right to free
      speech
      The majority concludes that Wayans’s alleged on-set
conduct was protected under the anti-SLAPP statute
because it was part of the creative process of making the
movie. (Code Civ. Proc., § 425.16, subd. (e)(4).)1 The
majority observes that Daniel did not rebut Wayans’s
evidence that creation of the movie involved a great deal of
on-set improvisation both before and during filming, along
with a “ ‘light, funny atmosphere’ ” in which “ ‘[e]veryone . . .
joked around with each other as part of the creative
process.’ ” (Maj. opn. ante, at p. 22.)


     1Subsequent undesignated statutory references are to
the Code of Civil Procedure.




                                2
      The problem with this analysis is that Daniel did not
willingly participate in this creative process. Under Daniel’s
version of events—which we must accept on this appeal—he
was not a collaborator in a crass but collegial brainstorming
session. He did not know Wayans. He was not hired to be a
writer or creative consultant. He was an extra hired for one
day to be a “non-descriptive furniture mover who would be
assisting in moving boxes in and out of a house.” He was the
target of, not a participant in, others’ demeaning and
offensive humor.
      The humor was racially charged. We have no reason to
question Wayans’s claim that he commonly uses the term
“ ‘nigga’ ” as a term of endearment with friends of all races.
But it hardly stretches credibility when Daniel claims that
the use of such an historically fraught term offended and
insulted him.2 Most important, it is not our role to decide


     2  The majority engages in a scholarly discussion of the
evolution of, and differences between, the terms “nigger” and
“nigga” and the current offensive and inoffensive usages of
the terms. But the key component of that analysis is that
the meaning of the terms depends upon the circumstances.
As the majority explains, the term “ ‘nigga’ ” “can have a
number of different meanings when used by different people
in different contexts.” (Maj. opn. ante, at p. 33, fn. 7.) No
one can seriously question that either term can be highly
offensive when used in an offensive manner. Indeed, in
recognition of the term’s connotations, in 2007 the NAACP
held a mock funeral for the “N” word, complete with a horse
drawn carriage carrying “a wooden coffin that adorned black



                              3
credibility. We accept Daniel’s testimony that he was
offended and evaluate the circumstances in which the
offensive conduct occurred.
      Daniel’s claim that the conduct at issue here was
specifically directed at him creates a critical difference
between the facts of this case and the facts in Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264 (Lyle),
which the majority suggests provides “insights about the
creative process for developing a somewhat raunchy
comedy.” (Maj. opn. ante, at p. 20, fn. 2.) In Lyle, a former
comedy assistant on the television show Friends brought a
claim for sexual harassment based upon sexually explicit
language that the male writers used. In affirming summary
judgment, our Supreme Court was careful to note that the
record showed that the sexual antics and discussions at
issue “did not involve and were not aimed at plaintiff or any
other female employee.” (Lyle, at p. 287.) Here, the conduct
at issue was allegedly aimed at Daniel.
      In his concurring opinion in Lyle, Justice Chin
explained that protection of the creative process is
particularly important in lawsuits that are “directed at
restricting the creative process in a workplace whose very


roses and a ribbon with the word ‘nigga’ displayed.”
(<http://www.naacp.org/latest/the-n-word-is-laid-to-rest-by-
the-naacp> [as of Feb. 8, 2017].) The context that Daniel
describes in this case is use of the term “ ‘nigga’ ” by one
person (Wayans) to refer to another person (Daniel) who
found the term “racially offensive and derogatory.”




                              4
business is speech related.” (Lyle, supra, 38 Cal.4th at p. 297
(conc. opn. of Chin, J.).) But he also concluded that, “[j]ust
as criminal threats are not protected, just as no one has the
right to falsely shout ‘fire’ in a crowded theater, limits exist
as to what may occur in the writers’ room.” (Id. at p. 299.)
Even in that context, “speech that is directed, or ‘aimed at a
particular employee because of her race, sex, religion, or
national origin,’ is not protected.” (Ibid., quoting Volokh,
Freedom of Speech and Workplace Harassment (1992) 39
UCLA L.Rev. 1791, 1846.) I would draw that same line here.
      The record in this case supports such a limit. Wayans
did not claim that offensive conduct targeting a particular
person is part of his creative process. Rather, he testified
that Daniel was “laughing and joking” along with the rest of
the cast and claimed that Daniel never objected or suggested
that “he was uncomfortable in any way with the joke.”3 His
costar, Jaime Pressly, went even further in explaining the
nature of the creative process that Wayans employed on the
set. She testified that ‘[t]he practice on set is that if anyone
is uncomfortable with anything that is said, we take it back
and agree not to use it. As part of his practice, Mr. Wayans
makes sure that the subject of the joke is okay with the
joke.” Thus, Wayans himself apparently does not believe

     3 Parents might recognize a common defense to jokes
that bring their child to tears: “We’re not laughing at you,
we’re laughing with you.” The child’s typical response, “But
I’m not laughing,” is equally appropriate here. According to
Daniel, he was not laughing.




                               5
that the creative process must extend to conduct that
directly offends a cast member.
      There are no discernible limits to the conduct that
would be protected under the majority’s interpretation of the
creative process. What if, for example, a
producer/writer/actor claimed that he needed to inspire his
creative muse by repeatedly using racial epithets toward and
mocking the appearance of a caterer who happened to be
near the set? Or what if he engaged in unwanted sexual
conduct with a female extra during a lunch break as a way
to try out a new joke? Or parodied a disabled production
assistant? Under the majority’s analysis, it seems that a
writer or actor has free rein to insult and degrade others so
long as he or she claims that it somehow helps him or her to
make movies.
      True, victims of such conduct might get past an anti-
SLAPP motion if they manage to convince a court that they
will probably succeed on their claims. But requiring them to
make such a showing before they have even had an
opportunity for discovery is an unwarranted extension of the
prelitigation screening authorized by the anti-SLAPP statute
and stretches the definition of conduct that is “in
furtherance of” the constitutional right of free speech beyond
any reasonable bound. (§ 425.16, subd. (e)(4).)
      I recognize, of course, that the anti-SLAPP statute is to
be broadly construed and that to prevail on an anti-SLAPP
motion a defendant need not prove that the plaintiff’s motive
in bringing the lawsuit was actually to chill the exercise of




                              6
the defendant’s constitutional rights or that the action has
actually had a chilling effect on the exercise of such rights.
(§ 425.16, subd. (a); Navellier v. Sletten (2002) 29 Cal.4th 82,
88.) The scope of the anti-SLAPP statute therefore can
extend beyond the “quintessential” SLAPP, which is “filed by
an economic powerhouse to dissuade its opponent from
exercising its constitutional right to free speech or to
petition.” (Nam v. Regents of University of California (2016)
1 Cal.App.5th 1176, 1193 (Nam).)
      However, in considering how far to extend the
definition of the creative process for purposes of anti-SLAPP
protection, it is appropriate to consider the stated legislative
purpose of the anti-SLAPP statute, which is to address
“lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a); Nam, supra, 1
Cal.App.5th at pp. 1189, 1193.) The record of this case does
not suggest that permitting a lawsuit by an extra for racially
offensive conduct directed toward him on the set would have
any effect on the content of movies or the creative process for
making them. While improvisation and racially tinged
bantering might be a part of Wayans’s creative process,
there is no reason to believe that this process must include
conduct amounting to racial harassment of a subordinate
employee. To the contrary: As discussed above, Wayans’s
evidence showed that his typical creative process was
intended to be collaborative and to make sure that no one is
made to feel uncomfortable.




                               7
      On the other hand, extending the definition of the
creative process to encompass such conduct does threaten to
chill meritorious lawsuits with the prospect of losing an anti-
SLAPP motion. Individuals such as Daniel—who is hardly
an “economic powerhouse” in the hierarchy of Hollywood—
are far more likely to be intimidated by the possibility of a
substantial attorney fee award than they are to file suit for
the purpose of intimidation. (See Nam, supra, 1 Cal.App.5th
at pp. 1188–1189 [anti-SLAPP law “was designed to ferret
out meritless lawsuits intended to quell the free exercise of
First Amendment rights, not to burden victims of
discrimination and retaliation with an earlier and heavier
burden of proof than other civil litigants and dissuade the
exercise of their right to petition for fear of an onerous
attorney fee award”].)
      In concluding that the conduct at issue here—alleged
racially offensive and degrading comments specifically aimed
at Daniel—should not be considered in furtherance of
constitutionally protected free speech, I do not suggest that
the trial court should have evaluated the merits of Daniel’s
racial harassment claim as part of the first step in the
SLAPP analysis. The relevant distinction here is not
between conduct that would or would not support a
harassment claim. Rather, the important distinction for
purposes of defining the contours of the creative process is
between creative collaboration, even if it includes offensive
topics, and demeaning conduct that is directed at a specific
person. The latter is outside the bounds of constitutionally




                              8
protected free speech. (Lyle, supra, 38 Cal.4th at pp. 299–
300 (conc. opn. of Chin, J.).)
       Therefore, I would hold that, with respect to Wayans’s
alleged on-set conduct, Wayans failed to prove the first step
of his anti-SLAPP motion. The alleged conduct was not in
furtherance of his constitutional right of free speech, and the
trial court should have permitted Daniel’s claim for racial
harassment to proceed with respect to such conduct. For the
same reason, the trial court should have permitted Daniel’s
10th cause of action for intentional infliction of emotional
distress to proceed with respect to Wayans’s alleged on-set
conduct.
2.     Wayans failed to provide evidence sufficient to
       show that the scope of Daniel’s release extended
       to Wayans’s Internet posting
       I agree with the majority that the “allegedly harassing
and offensive Internet posting was a writing made in a place
open to the public or a public forum and it was made in
connection with an issue of public interest.” (Maj. opn. ante,
at p. 26; § 425.16, subd. (e)(3).) The trial court therefore
properly concluded that Wayans met his burden with respect
to the first step of the SLAPP analysis with respect to the
Internet posting.
       However, I disagree with the majority’s analysis of the
second step of the anti-SLAPP inquiry concerning the merits
of Daniel’s claims. The majority accepts Wayans’s argument
that Daniel executed a broad union voucher that precludes
his claims for statutory and common law misappropriation of




                              9
likeness (Daniel’s fifth and sixth causes of action) and for
implied contract and unjust enrichment (Daniel’s eighth and
ninth causes of action). In my view, Wayans did not meet
his burden to show that the scope of the consent that Daniel
provided in the voucher extended to Wayans’s Internet
posting.
      Wayans’s only evidence concerning the scope of the
union voucher was the voucher itself and two sentences in a
declaration submitted by a producer and cowriter of A
Haunted House 2, Rick Alvarez. The Alvarez declaration
purports to identify the voucher as a “Standard Union
Voucher” that Daniel signed, and states that “Dumb Ass
Productions” was a production company for A Haunted
House 2, “which is why that company is listed on the
Standard Union Voucher.”
      The voucher, which bears the signature “Pierre
Daniel,” grants to the “Production Company of The
Production, its successors, assignees, licensees or any other
person or company who might gain title or rights to the
production, the right to photograph me and record my voice
to use, alter, dub, edit and or otherwise change such
photographs and recordings, in any manner whatsoever and
for any reason in connection with The Production, such right
to be worldwide and in perpetuity.” The only identification
of “The Production” appears in a field for “PRODUCTION &
PROJECT NAME,” which lists “Dumb Ass Prod.” The
voucher does not mention Wayans or A Haunted House 2.




                             10
      I do not believe that this evidence is sufficient as a
matter of law to overcome Daniel’s testimony that Wayans
did not have his consent to take his picture and to post it on
the Internet. (Baral, supra, 1 Cal.5th at p. 385 [defendant’s
showing must “defeat[ ] the plaintiff’s claim as a matter of
law”].) The record does not establish that the consent in the
voucher (1) applied to Wayans or (2) applied to the use that
Wayans made of it.
      The majority concludes that Wayans was entitled to
the benefit of the release because there was evidence that
Dumb Ass Productions was a production company for A
Haunted House 2 and Wayans was a coproducer of the
movie. (Maj. opn. ante, at p. 40.) But there was no evidence
of any connection between Wayans and Dumb Ass
Productions, which is the only entity identified on the
voucher. Thus, there is insufficient evidence to show that
Wayans either was acting on behalf of Dumb Ass
Productions in making the Internet post or was one of the
“successors, assignees, licensees” of Dumb Ass Productions
or a person with rights to the production.
      There was also insufficient evidence to establish that
Wayans was acting “in connection with The Production” in
making that post. Wayans made the post to his own Twitter
account. The only connection to A Haunted House 2 was a
link to the movie’s Twitter and Instagram pages, which
Wayans included along with a link to his own Web site.
Wayans’s declaration does not address why he made the
post. According to Daniel, Wayans took Daniel’s picture on




                              11
Wayans’s cell phone without Daniel’s knowledge or
permission during a break. There is a difference between
photography done for the purpose of filming and
photography allegedly done during a break on a personal
device for the purpose of posting on a personal Twitter
account. Without more evidence to show that Wayans’s
particular use of Daniel’s picture was “in connection with
The Production” as contemplated by the standard release in
the union voucher, I would not preclude Daniel’s claim as a
matter of law.
      I am also not persuaded that Wayans’s Internet post
was a “transformative use” of Daniel’s likeness as a matter
of law. The Internet post in issue in this case contained no
significant transformative elements. Wayans used Daniel’s
photo not as raw material for an original work, but as a
literal depiction of Daniel’s appearance and a literal
depiction of the appearance of cartoon character Cleveland
Brown. Wayans simply repackaged the two images together
and added a caption remarking upon the resemblance of the
two. This was not a transformation that was primarily
Wayans’s own expression. Thus, the facts here are closer to
the use of the literal likeness of The Three Stooges in
Comedy III Production, Inc. v. Gary Saderup, Inc. (2001) 25
Cal.4th 387, 408, than to the comic book illustrations of
“fanciful, creative characters” in Winter v. DC Comics (2003)
30 Cal.4th 881, 892.




                             12
3.    Daniel demonstrated a reasonable probability
      that he would succeed on his claim for
      intentional infliction of emotional distress
      Because I conclude that Wayans’s Internet posting was
protected free speech under the anti-SLAPP statute, it is
necessary to consider whether Daniel showed that he had a
reasonable probability of prevailing on his claim that the
Internet post referring to him as “nigga” and comparing his
picture to the picture of Cleveland Brown amounted to
intentional infliction of emotional distress.4 I conclude that
he did.
      The majority finds that Wayans’s alleged conduct,
including the Internet post, “was not so extreme as to exceed
all bounds of that usually tolerated in a civilized
community,” but was “more in the category of insults,
indignities, annoyances, and petty oppressions.” (Maj. opn.
ante, at p. 50.) For the reasons discussed earlier, I disagree
that Wayans’s use of the term “nigga” in his post to refer to
Daniel was not extreme as a matter of law. Again, context is
important. Daniel saw the post after a day in which he
claims Wayans subjected him to in-person racial harassment
and demeaning treatment. If, as he claims, he was the

     4  As mentioned, I believe that Wayans’s alleged on-set
conduct was not protected free speech activity, and it is
therefore unnecessary to reach the question whether
Daniel’s evidence was sufficient to support a claim for
intentional infliction of emotional distress on that aspect of
his claim.




                              13
target of racial insults by Wayans previously, it was
reasonable to expect that he would react to the term “nigga”
in the Internet post as more of the same. It was also highly
foreseeable that Wayans’s comparison of Daniel to an
unflattering African-American animated character on
Wayans’s personal Twitter account—which he testified had
over a million followers—could cause extreme distress.
Daniel testified that it did, claiming that he lost sleep and
was apprehensive about going out in public. Wayans’s post
has been reposted and could easily be viewable for years.
       California courts have repeatedly held that the use of
racial epithets can support a cause of action for intentional
infliction of emotional distress. (Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493 [African-American
plaintiff stated a cause of action for intentional infliction of
emotional distress based upon allegations that his
supervisor referred to him using the term “niggers” in a
demeaning manner]; Agarwal v. Johnson (1979) 25 Cal.3d
932 [affirming jury verdict on the plaintiff’s claim for
intentional infliction of emotional distress based on conduct
that included the use of racial epithets by the plaintiff’s
supervisor to humiliate him], disapproved on another point
in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4;
Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d
1108 [supervisor insulted plaintiff and his race in an
employment setting].) A jury could reasonably find that
Wayans’s alleged conduct was outrageous, and I would




                               14
therefore permit Daniel’s intentional infliction claim to
proceed.5
4.    Conclusion
      Accordingly, I would reverse the judgment and the
order granting the anti-SLAPP motion and dismissing the
complaint and direct the trial court to enter a new order
partially granting the anti-SLAPP motion and striking the
false light and Unruh Civil Rights Act causes of action in
their entirety and paragraph 9(h) of the racial harassment
claim.

                                      LUI, J.




     5 On the other hand, I do not believe that Daniel
demonstrated a reasonable probability of succeeding on the
portion of his racial harassment claim concerning the
Internet post. Because Daniel did not even know about
Wayans’s Internet post until he got home and checked the
Internet after his single day of employment on A Haunted
House 2 had ended, the Internet post could not have created
a hostile environment so severe as to interfere with his
(already completed) work performance. (Thompson v. City of
Monrovia (2010) 186 Cal.App.4th 860, 876.) Therefore,
paragraph 9(h) of the complaint, which alleges the Internet
posting, should have been stricken from Daniel’s racial
harassment claim.




                             15
