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~~
S u p e r i o r
Court
o f
C a l i f o r n i a
County
o f
Los
Angeles
S h e r r i
R.
a r t e r
Exe
M i r e
Q
i c e r / C l e r k
By----
Deputy
~,. Y (Janno
SUPERIOR
COURT
OF
THE STATE
OF
CALIFORNIA
COUNTY OF
LOS
ANGELES
DANIEL,
Plaintiff,
vs.
ICM, etc.,
et al.,
Defendants
Case No.:
BC555610
RULING
RE
SUBMITTED
MATTER
Hearing
date:
1
2/
1
1/14
Counsel
for
defendant/moving
party
Marlon
Wayans:
William
Briggs;
Celeste
Brecht
(Venable)
Counsel for
plaintiff/opposing
party:
Adam
Reimer;
Tessa
King;
Alisa
Khousadian
Reimer,
etc.)
Defendant
Wayans
special
motion
to
strike
complaint
(CCP
~
425.16),
filed
11/5/14;
hearing
date 12
/
1
1/14.
Defendant
Wayans
seeks
an order
striking
the
eight
causes
of
action (1S t
and
4 t h
through 10t h
)
alleged
against
him.
73
ONGKEKO,
P R E S I D I N G
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Having
read and considered
the moving
and
opposing
papers,
heard
argument,
and having taken the
matter
under
submission,
the
court
now
rules as follows:
Evidentiary
rulings:
Plaintiff's objections to
defendant's
evidence:
#14,
25.
Overrule all
others.
Defendant's
objections to
plaintiff's
evidence:
Sustained
as
to
Sustained.
Defendant
Wayans' motion
to strike
is
GRANTED
as
to
each
challenged
cause
of
action
against
Wayans,
namely,
the
l
st
and
4t n
through
10t hcauses of action.
There
being
no
other
surviving
causes
of action
against Wayans,
the
complaint
against
Wayans
is
(DISMISSED.
DISCUSSION
Timeliness
Plaintiff's
amended objection
(filed 12/
2/
14)
is
based
on
a
hearing scheduled
beyond
the
30
-day
period
under
CCP
425.16(f).
This
objection is
overruled.
Motion
date
availability
in
Dept.
73
is
given by
court staff
as soon
as
practicable.
Given
the
court's
caseload
and heavily
congested
motion
calendar,
despite
daily
law
a n d
motion settings,
the
very
slight
delay
here
of
six
days
is
not
an issue
for
the court and
certainly
not a
sufficient
ground
to
deny
a
hearing on
the motion.
2
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Continuance
request
By
his
ex
parte
application
filed
on
11/21/14,
plaintiff
sought
a
order
continuing
the motion
and
authorizing
limited
discovery
to
conduct three depositions,
including
inquiries
into
the
standard
union voucher defendant
submitted (Ex.
A
to
Alvarez'
declaration
and
Wayans'
alleged
nondisclosure
agreement.
The
court
denied
th
requests without
prejudice. Given
the
rulings
below,
there
is
no
good cause to reconsider
the ruling
denying
these
requests.
The
voucher
applies
in
Wayans'
favor
given
his
various
roles
in
the
production
of the
film
and any
nondisclosure
agreement
he
might
have would not change the
result
as
against
this
plaintiff.
(Merits
CCP ~
425.16
`requires
that
a
court
engage
in
a
two-step
process
when
determining
whether
a
defendant's
anti-SLAPP
motion
should
b
granted.' (Citation
omitted.)
`First
the
court
decides
whether
the defendant has made
a
threshold showing that the challenged
cause of
action
is one arising
from
protected
activity.
[Citation.]
A
defendant
meets
this
burden
by
demonstrating
that
the act
underlying
the
plaintiff's
cause
[of
actions
fits
one
of
the
categories
spelled out
in
section
425.16,
subdivision
(e)
[citation] '
[Citation.
[ y [ ]
If
the
defendant
makes
this
showing, the court proceeds
to
the
second
step
of
the
anti-SLAPP
analysis.
[Citation.]
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
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action.
[Citations.]
[~]
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.
[Citation.]
(Citation
omitted.)
Hunter
v.
CBS
Broadcasting (2013)
221
Cal.App.4t
1510,
1519
(italics
added).
~~Only a
cause
of
action
that
satisfies
both
prongs of
the
anti-SLAPP statutei.e.,
that
arises
from
protected
speech or
petitioning
and lacks
even
minimal
meritis
a
SLAPP,
subject
to
being
stricken
under the
statute.
Navellier v.
Sletten
(2002) 29
Cal.4th
82,
89
(Italics
omitted).
//
//
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ONGKEKO
PRESIDING
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First
Prong
Protected
Activity
Defendant
Marlon
Wayans' motion
to
strike
contends,
at
6:26-
7:1,
that plaintiff's claims
against
him
are
based
on
activity
that
qualifies
for
protection
under
the
anti-SLAPP
statute's
public
forum
-public
interest
statement,
i.e.,
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.
(CCP 425.16(e)(3)
).
In
his reply
(filed
1
2/
4
/14),
Wayans
relies
on
(e)(4)
as
well,
i.e.,
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
issue or
an
issue of
public
interest.
The
motion contends
that
the
protected
conduct
involves
Wayans' Internet
(via
Twitter)
post
to
social
networking
sites
humorously
comparing Daniel
to
the
popular
cartoon
character
Cleveland Brown. (7:1-2, footnote omitted.) However, plaintiff
further
contends
that
other
acts
and
conduct
(e.g.,
racial
harassment
in
the
FEHA
1
St
ause of
action)
are
involved.
Although defendant
acknowledges
that
plaintiff
describes
other
conduct
by
Wayans that
may
not be
protected,
defendant
relies
on
the
protections extended
to
such
conduct
if
the
gravamen
or
principal thrust of
the claim
is
protected
activity
(7:26
-
28,
fn.1, citations omitted).
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ONGKEKO
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73
ONGKEKO,
PRESIDING
Having
considered the
admissible
evidence
from
both
sides,
including the
transcripts
and
the
viewing
of
actual
film
footage,
the
court finds
that
the
entirety
of
the
claimed
conduct
meets
th.
first
prong of
the
anti-SLAPP
analysis,
fulfilling
defendant
Wayans'
burden
to show
all
of
his
statements
and
conduct
are
protected activity
under
paragraphs 3
and
4
of
subdivision
(e)
of
the
anti-SLAPP
statute.
In determining
the
applicability of
CCP
425.16
to
the
myriad .
of factual
situations
presented in
anti-SLAPP
cases,
courts
shoul
look
at
the principal
thrust or
gravamen
of a
plaintiff's
claims.
Dyer v.
Childress (2007)
147
Cal.App.4t
1273,
1279.
Notwithstanding his 43
-page
complaint
and
declarations
in
opposition,
plaintiff's
claims
ignore
the
holdings
in
recent
case
which
make it clear
that
even
where
FEHA
violations
are
alleged,
so
long
as the protected
activity
was
not
incidental
to
the
FEH
claims, the discrimination claims which constitute the
very
conduct
on which
such
claims
are
based,
are
still
subject
to
anti-SLAPP
protections.
Hunter,
supra,
at
1522-1525,
citing
Tuszynska
v.
Cunningham
(2011)
199
Cal.App.4t
257.
Just
as
in
Hunter, where all of
the
allegations
underlying
Hunter's
discrimination
claims
relate to
the
allegedly
unlawful
manner
in
which CBS selected its
weather
anchors
(Hunter,
supra,
at
1521),
'here,
all
of
plaintiff's
claims
relate
to
conduct
and
decisions
made
in
connection with
his
one
-day
participation
in
the
filming
of the movie,
ultimately
distilled to
his
five
seconds
of
film
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3
ONGKEKO
PRESIDING
time.
Wayans' actions
and
conduct,
particularly
the
decision
to
compare
plaintiff
to,
and
eventually
name
him
as,
the
Cleveland
cartoon
character,
were
not
simply
incidental
to
plaintiff's
claims, but
comprise
the
very
conduct
upon
which
plaintiff's
claims are
based.
Hunter,
supra, at
1525.
Wayans has
shown
that
plaintiff's
role
was
limited
as
an
extra
to
one day's work
as
a
non
-speaking
furniture
mover
in
an
rated comedy that lived up (or
down)
to
its
rating,
complete
with.
trashy,
raunchy,
racist,
and
offensive
humor.
Wayans,
who
has
a
body
of work that
deals with
racial
humor,
among
others,
has
also
shown
that the comedy
depended on
the
artists'
creativity
based
o
improvisation that
is
encouraged and
occurs
spontaneously
on
the
set.
The creative process
was ongoing
and
continued
even
when
the
cameras were not
rolling.
The
evolution
of
the
scene
involving
plaintiff as
shown
in
the
outtakes
and
final
version
is
a
prime
example of the improvisational ad lib process. The Cleveland
(character
was born precisely
from
that
process,
using
a
name
and
(character
at first
unbeknownst to
plaintiff
until
Wayans
called
(him
by
that
name
sometime that
day
before
the
cameras
began
to
roll.
The
name was not
chosen
accidentally,
but
was
based
on
Wayans'
noticing
plaintiff's
physical
similarities
with
the
cartoon
character.
It
is
undisputed
that
plaintiff
was
called
by
the names
of
Cleveland and
Cleveland
Brown
both
on
and
off
camera.
It is undisputed that plaintiff
willingly
answered
to
Cleveland
and
Cleveland
Brown and took
direction
from
those
in
a
position
to
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3
ONGKEKO,
R E S I I N G
(give
directions (including
Wayans)
while
so
addressed.
It is
undisputed
that
plaintiff's
brief
role
and
purpose
in
the
film
wa
limited
to his
character,
which
developed
eventually
as
the
comical Cleveland Brown
character.
The
Cleveland
Brown
character
like
plaintiff, obviously
black,
heavy
(plaintiff's
role
cast
him
as
a
heavy-set
furniture
mover
strong
enough
to
move
and
lift
the
safe
that flattened
the
dog),
with
curly
Afro
hair
(hence,
the
perm
and Jheri curl jokes), were
all
incorporated
humorously
into
the
filming of the scene
involving
Wayans,
his
dog,
and
plaintiff
Indeed,
plaintiff
fulfilled
his
role
as
an
extra.
The
transcript
and
film
clips
show
that
plaintiff's
concerns
regarding
Wayans'
statements and conduct were part of
the
improvisational
humor
tha
was
important
to the
creative
process
and
should
have
come
as
no
surprise to
plaintiff
as a
participant in
that
process.
Apart
from
the photograph consent
issue
(discussed
below
in
connection
with
the
5
th
and
6
t h causes
of
action),
Wayans'
single
Twitter
post
~of
plaintiff's photo alongside the Cleveland Brown cartoon
(character
with a caption using
racially
based
humor
with
social
media
links to
the
film
itself
( ahhmovie2 )
and
even
a
separate
reference
to
Wayans'
own
website
whatthefunny
(CCP
425.17(d)(2j)
falls well
within
the
ambit
of
the
humor
emanating
from
plaintiff's
role in the
film
and
its
promotion.
Despite the
above
circumstances,
plaintiff
claims
the
case
is
about a
FEHA violation
premised upon
Wayans'
race
harassment,
including posting a picture of
Daniel
that
refers
to
him
as
a
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3
ONGKEKO
R E S I D I N G
`nigga.'
(Open. 4:19-21).
Although
not
mentioned
in
his
complaint,
it
cannot be
disputed
that
Wayans,
like
plaintiff,
is
African
-American.
Plaintiff's
declaration
also
refers to
Wayans'
calling him a
black
fat ass,
nigga
at
least
three
to
four
times,
and referring to his hair
as
an
Afro,
all
the
while
evoking
laughter from
other
individuals.
(Daniels
decl.
9 [ g I 7
9,
0, 1, 2)
Even
construing
plaintiff's
evidence
liberally,
it is
inescapable that
the
principal
thrust
or
gravamen
of
his
claims
fall
within activity
protected by
Wayans'
rights
of
free
speech
in the context
of
the
production
of
this
type
of
film.
It
is
undisputed that the
statements and
actions
were
made
in
furtherance
of
the constitutional
right of
free
speech
under
(e)(4).
Just
as
the
creation
of
a
television
show
is
an
exercise
of
free
speech
and
where the
defendants'
acts
helped
to
advance
or
assist in the
creation,
casting,
and
broadcasting
(Tamkin v.
CBS
(2011) 193
Ca1.App.4th
33, 143),
the
creation
of
the
Cleveland character through plaintiff, and all positive or
negative
statements
and
conduct
that
may
arguably
come
with
it,
was part
of the
improvisational
humor,
both
on
and
off
camera
that
advanced
or
assisted
the
exercise of
free
speech.
Cf.
Hunter,
supra,
at
1521, citing
Tamkin,
supra,
at
143.
Thus,
plaintiff's
complaints
about
conduct occurring
during
breaks
and
throughout
the
filming day implicate
Wayans'
free
speech
rights
under
(e)(4)
which
qualify
as a
form
of
protected
activity
as
the
statute
should
be
broadly
construed.
CCP
425.16(a)
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Wayans'
posting
of the photo occurred via
social
media
over
the
Internet,
a
public
forum under
(e)(3).
The
remaining issue
concerns
the
public
issue
or
public
interest
requirement,
as
they appear
in
(e)(3)
and
(4).
Section
425.16
does
not define
`public
interest'
or
`public
issue.'
Those
terms
are
inherently amorphous and thus
do not
lend
themselves to
a
precise,
all
-encompassing
definition.
Cross v.
Cooper
(2011)
197
Cal.
App.
4th
357, 371. In the
court's
view
these
are
easily
met
by
Wayans'
linking plaintiff's
specific
role
in
the
film
to
the
Cleveland
Brown character (an
existing
cartoon
character
in
whom
there
was
already
an
existing
public
interest-
e.g.,
I
hope
the
Cleveland
Brown
show gets
another
season )
and
to
the
public's
interest
in
Wayans' work, the movie sequel,
and
issues
relating
to
race,
stereotypes,
and
the
like. That
plaintiff,
as
an
extra,
became
the focus
of
certain
statements
and
conduct
is
unfortunate,
but well within the protections intended by the anti-SLAPP
statute.
Defendant
Wayans
has
met his burden
under
the
protected
activity
prong
of the
anti-SLAPP
statute.
Second
Prong
Probability of
Success
on
the
Merits
Once
a
defendant has
established
that the
anti-SLAPP
statute
applies,
the
burden
shifts to the
plaintiff
to
demonstrate a
probability
of
success on the
merits. CCP ~
425.16(b);
Equilon
10
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Enterprises
LLC
v.
Consumer
Cause,
Inc.
(2002)
29
Cal.4th
53,
67.
[T]he
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.
Matson
v.
Dvorak
(1995)
40
Cal.App.4th
539,
548
(internal
quotations
omitted).
The
evidentiary
showing by the
plaintiff
must
be
made
by
competent
and
admissible
evidence.
Morrow
v.
Los
Angeles
Unified
School
District
(2007) 149
Ca1.App.4th
1424,
1444.
We
decide
the
second
step
of
the
anti-SLAPP
analysis
on
consideration of
`the
pleadings
and
supporting and
opposing
affidavits
stating
the
facts
upon
,which
the
liability
or
defense
is
based.' (
425.16,
subd.
(b)).
,Looking
at
those
affidavits,
`[w]e do not
weigh
credibility,
nor
do
we
evaluate the
weight of the
evidence.
Instead,
we
accept
as
true
all
evidence
favorable to the
plaintiff
and
assess
the
defendant's
evidence
only
to
determine if
it
defeats
the
plaintiff's submission
as a
matter of law.' [Citation.]
[~]
That
is
the
setting
in
which
we determine
whether
plaintiff
has
met
the
required
showing,
a showing
that is
`not
high.'
[Citation.]
Grewal
v.
Jammu (2011) 191
Cal.App.4th
977,
989.
1
ause
of
action-
Race/national
origin
harassment
in
employment.
(Govt.
Code
12940, et
sea):
Plaintiff
has not
shown that
the
various
statements
and
actions
attributed
to Wayans
unreasonably
interfered with
his
work
performance by
creating
an intimidating,
hostile,
or
offensive
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work
environment.
Thompson
v.
City
of
Monrovia
(2010)
186
Cal.App.4
t h
860,
876. The
alleged
harassment
was
not
sufficiently
severe or
pervasive
to alter
the
conditions
of
[plaintiff's]
employment and
create
an
abusive
working
environment.
Kelly-Zurian v.
Wohl
Shoe
Co.
(1994)
22
Cal.App,4
397,
409.
Plaintiff has not
shown
a
probability
of
success
on
this
cause
of
action.
t
cause
of action
-Unruh Act
violation
(Civil
Code
51,
et
seq.):
Plaintiff
alleges the
same
conduct
relied
on
in
the
1
t
cause
of
action. (~78)
He
alleges
defendants
denied
;
discriminated,
and/o
made a
distinction that
denied
full
and
equal
accommodations,
advantages, facilities, privileges,
and/or
services
to
Plaintiff.
(~75)
The
Unruh Act applies where
businesses
exclude
individuals,
and
where treatment is unequal,
based upon
race,
color,
and
ancestry,
among other
protected
classifications.
Cohn
v.
Corinthian Colleges,
Inc. (2008)
169 Cal.App.4th
523,
527.)
The
Unruh Act does not
apply
to
employment.
Rojo
v.
Kliger
(1990)
52
Cal. 3d
65. The cases
cited
by
Plaintiff
are
inapposite.
Plaintiff
would not
succeed on
these
allegations.
The
allegations
concern, not the denial, but the
rendition
of
services
in
connection
with
his
employment
(arguably
the
entire
employment
period
of
one
day)
which
themselves are
alleged
to
constitute
the
tortious acts. The
Unruh Act
should
not
be
turned
on
its
head
in
this
manner.
Even
assuming
the
statute
does
apply,
in
arguing
that he
can
demonstrate
a
likelihood
of
success
on
this
cause
of
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appropriating plaintiff's name,
voice,
likeness,
et.
cetera;
and
(4)
resulting
injury. Kirby v.
Sega of
America,
Inc.
(2006)
144
Cal.
App.
4th 47, 55.
Here,
Plaintiff
maintains he
never
gave
permission
for
his
photograph to
be
taken or
used on
the
Internet.
(Daniel
decl.
~~14-24, Ex. A.) The parties
dispute
the
scope
of
the
application of a waiver
signed
by
plaintiff.
The
Standard
Union
Voucher that plaintiff
signed
provides,
in
relevant
part:
By
signing
this voucher;
I
acknowledge
and
agree
to
the
following:
(2) That
I
hereby
grant to
the
Production
Company
of
The
Production,
its
successors,
assignees,
licensees
or
any
othe
person
or
company
who
might gain
title
or
rights
to
the
production, the right to photograph me and record
my
voice t
use,
alter, dub,
and or
otherwise
change
such
photographs
an
recordings,
in
any
manner
whatsoever
and
for
any
reason
in
connection
with
Production,
such
right
to
be
worldwide
and
in
perpetuity.
(Alvarez Decl.
Ex.
A.)
Despite plaintiff's
argument
to
the
contrary,
the
above
language
is
broad
enough
to
include the
right
of
defendant
Wayans,
a
co-
producer,
to
photograph
plaintiff,
and
certainly
broad
enough
to
include the
use of plaintiff's
photograph
in
the
tweet,
which,
per
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the
Voucher
was
in
connection with
the
film
notwithstanding
an
additional
link
to
Wayans'
separate
website.
Defendant's
transformative
use
defense
is
a
secondary
ground
preventing
plaintiff
from
prevailing, as argued in
the moving
papers.
7t
cause
of
action-
invasion of
privacy of
false
light:
Plaintiff
alleges
the
character
of
Cleveland
Brown is
known
primarily
for being
~~slow and
having
physical
and
emotional
problems
and
that by
drawing
comparisons
between
plaintiff
and
that
fictional character,
the
comparison
drew
inferences
that
plaintiff
possessed
the
same
traits as
Cleveland
Brown
thereby
showing
plaintiff
in a false light.
(Complaint
~~136-37.)
To
prove
a
claim
for
false
light,
one
must
demonstrate
(1)
false;
(2
unprivileged; (3)
publication
by
writing,
printing,
or
other
fixe
representation;
(4) exposes a person to
hatred,
contempt,
ridicule,
or
obloquy,
or
which
causes
person
to
be
shunned
or avoided, or which has
a
tendency to injure person
in
his
occupation;
and (5)
malice
as to
public
figures.
Briscoe
v.
Reader's
Digest
Association,
Inc.
(1971)
4
Ca1.3d
529,.543,
overruled
on
other grounds by Gates v.
Discovery
Communications,
Inc.
(2004)
34
Cal.4th 679, 697.
Plaintiff
argues
the
character
of
Cleveland
Brown is associated with
negative
stereotypes of
African
Americans,
exposing
him
to
such
assumptions
based
on
the
physical
comparison.
(Daniel Decl:
9124.
Plaintiff
provides
that
he
has
received questions about whether
he
is the
person
in
the
photograph
on
the
twitter post.
(Daniel
Decl.
9[27.
Plaintiff
has
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failed
to
indicate that
he has
suffered any
suffered
any
public
ridicule
or
lost
work.
However,
defendant's
argument
that
the
tweet
did
not
contain any statements
of
facts
has
merit.
Plaintiff's
claim
relies
on
inferences
he
assumes
one
would
make
based
on
the
juxtaposition
of
photographs.
Plaintiff
has
not
shown a
probability
of
prevailing on
this
cause of
action.
St
cause
of action
for
breach
of
quasi
contract;
9t
cause
of
action
for
unjust
enrichment:
Plaintiff
alleges defendant obtained
a
benefit
from
plaintiff
by
fraud,
duress,
conversion,
or
similar
conduct
when
plaintiff's
photo
was
taken and
used
for
unjust gain
on
the
Internet.
(Complaint
~~154-156,
171-172.)
Here,
it is
unclear
how
the
alleged quasi
contract
arose or what
benefit
was
allegedly
derived
by
defendant. Lance
Camper
Mfg.
Corp. v.
Republic
Indem.
Co.
of
Am.
(1996)
44 Cal.
App.
4th
194, 203
( [A]n
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. ); Falkowski
v.
Imation
Corp.
(2005)
132
Cal.
App.
4th 499, 518 ( implied
contract
cannot
override
the
terms
of
an
express
agreement.... );
Gorlach
v.
Sports
Club
Co.
(2012)
209
Cal.App.4th 1497, 1507
(implied
-in-fact
contract
may
be
inferred
from
the conduct, situation or
parties
relationship,
provided
that
there
is an
intent
to
promise);
Davis
v.
Consolidated
Freightways
(1994)
29
Cal.App.4th
354,
366
(existence of
implied
-in
-fact
contracts
normally
is determined by
triers of
fact,
except
where
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the
facts
are
undisputed,
and
support only
one
conclusion,
in
which
case
summary judgment may
be
entered).)
The
same
is
the
case
regarding
unjust
enrichment
as
it
is
unclear
what
benefit
defendant is
alleged to have received.
Peterson
v.
Cellco
Partnership (2008)
164
Cal.App.4th
1583,
1593.)
Alvarez'
declaration establishes that plaintiff
was
paid
for
his
services.
(Alvarez
Decl.
y [ 4
Ex.
A.)
In
any
event,
the
terms
of
the
vouche
in (1)
provide
that
his
wages will
be
payment
in
full
for
all
services
rendered by me.
Plaintiff
has
not
demonstrated
a
probability
of success
on
the
merits on
these
causes
of
action.
t
cause
of
action for IIED:
Because no
cause
of
action
survives
against
Wayans,
particularly
his
FEHA
claim,
this
claim
fails
as well.
Defendant Wayans' motion
is
granted in
its
entirety.
IIT IS
SO
ORDERED.
DATED: December 31,
2014
~''
~AFAEL
A.
ONGKEKO
J
~E OF
THE
SUPERIOR
COURT
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