Developments of Interest

New Cases of Interest - April 4, 2011

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No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018.  This is an interesting new anti-SLAPP decision which is coupled with the digital piracy of a celebrity’s image.  In this case a video game publisher released a game which featured computer-generated images of a rock band’s members.  The game allowed players to simulate performing with the rock band through the use of avatars.  The publisher brought a SLAPP motion claiming that the plaintiff’s complaint for violation of the right of publicity and unfair competition was in fact based entirely on protected First Amendment speech.

The SLAPP motion was denied with the court finding that the publisher had met its initial burden of showing that the claims arose out of a protected activity, but that simply because the avatars were computer generated reproductions of band members did not transform the images into the publisher’s property.  The court found that the use of a celebrity likeness created the possibility of consumer confusion which outweighed the public interest in free expression and allowed the plaintiffs to proceed with their litigation.

Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072.  The plaintiff fell off his motorcycle on a motocross track, wasn’t hurt by the fall, but was subsequently struck by two separate motorcyclists within approximately one minute after falling off of his motorcycle.  The case provides one of the few definitions of “gross negligence” recently developed in an appellate opinion, with the court finding that the defendants were not entitled to summary judgment on the gross negligence claim made by the plaintiff.  The issue arose in the context of a release which the plaintiff signed before being allowed to participate on the motocross course, and the court indicated that ordinary negligence was barred by the release, but claims for gross negligence were not due to public policy issues that were raised by an attempt to bar any gross negligence claims.  The court noted that it was a triable issue as to whether failure to provide a caution flagger was a duty rising to the level of gross negligence which was then violated by the owner, which could be determined by a trier of fact to be gross negligence.

Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242.  Certain realty companies sought to compel arbitration of a complaint for gender discrimination and sexual harassment filed by sales people working under independent contractor agreements.  The independent contractor agreements were on preprinted forms and contained arbitration provisions.  The plaintiffs said that they were required to sign the independent contractor’s agreement as a condition of working for the realty company, that they were given no time for discussion or review of the agreements and that they were not given copies once the agreements had been signed.  The arbitration provision allowed the arbitrator to impose costs on the losing party and provided that any arbitration had to be filed within 180 days of the event creating the claim.  The court found that these arbitration provisions were both procedurally and substantively unconscionable.  Procedural unconscionability was demonstrated by showing that there was no meaningful opportunity to negotiate the terms and that the contract was presented on a take it or leave it basis.  Substantive unconscionability was shown because the arbitration agreement purported to waive statutory rights created by the California Fair Employment and Housing Act including the one year statue of limitations for bringing a claim under that Act. 

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