Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC364279. Haley J. Fromholz, Judge.
Law Offices of Hall & Lim, Timothy A. Hall and Stephanie R. Ables for Plaintiff and Appellant.
Leopold, Petrich & Smith, Walter R. Sadler and Thomas J. Peistrup for Defendants and Respondents.
ZELON, J.
This appeal arises from Appellant Steven Greenstein’s (“Greenstein”) appearance on a reality-based television program about the life of Gene Simmons (“Simmons”), a well-known musician and member of the rock band, “KISS.” After an episode featuring Greenstein was aired on national television, Greenstein filed suit against the alleged producer and distributor of the program, asserting claims for common law and statutory misappropriation of his persona. In response to Greenstein’s complaint, Respondents The Greif Company and A&E Television Networks (collectively “Respondents”) brought a special motion to strike pursuant to Code of Civil Procedure section 425.16. The trial court granted the motion, finding that the complaint arose from acts in furtherance of Respondents’ right of free speech in connection with a public issue and that Greenstein failed to prove a probability of prevailing on the merits of his claims. For the reasons set forth below, we affirm.
Unless otherwise stated, all further statutory references are to the Code of Civil Procedure.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Greenstein’s Appearance On A Reality Television Program
“Gene Simmons Family Jewels” (“Family Jewels”) is a half-hour reality-based television program that focused on the professional and family life of Simmons. Simmons is a well-known musician and long-time member of the popular rock band, “KISS.” Using a documentary-style approach, the “Family Jewels” film crew followed Simmons as he went about his unscripted daily activities. As described by the show’s producers, the purpose of the program was “not only to satisfy the public’s curiosity about what it is like to be a rock star, but also to let them see that famous people can have problems getting along just like ‘regular people.’” The episode on which Greenstein based his misappropriation action was entitled “Shrinkwrapped,” and it followed Simmons as he attended various functions before fans in Philadelphia, Las Vegas, and New Orleans.
“Family Jewels” was created and produced for A&E Television Networks by “A Day With, Inc.,” a production company headed by Leslie Greif (“Greif”). In or about January 2005, Greif approached Greenstein about the possibility of Simmons serving as the Grand Marshal for an upcoming Mardi Gras Parade in New Orleans. Greenstein was an independent businessman who had managed several companies in the New Orleans area. Greenstein was able to secure a spot for Simmons in the parade, and in exchange, Greif agreed to hire Greenstein’s production company to film the New Orleans segment of the “Shrinkwrapped” episode and to give Greenstein a segment producer credit. Prior to filming in February 2005, Greenstein was responsible for organizing the camera crew that would follow Simmons in New Orleans and for arranging for two models to accompany Simmons during his trip.
Neither Greif nor “A Day With, Inc.” was named as a defendant in the complaint. According to Respondents, The Greif Company, which is a named defendant, is merely the personal loan-out company of Leslie Greif and had no involvement in the creation, production, or distribution of “Family Jewels.” Whether The Greif Company or A&E Television Networks is a proper party to the action is not an issue in this appeal.
According to Greenstein, Greif originally told him that he would not be able to appear on camera while acting as a segment producer. However, once Simmons arrived in New Orleans, Greenstein acted as an escort for Simmons and his entourage as they travelled from appearance to appearance, resulting in numerous interactions between Simmons and Greenstein as the cameras were rolling. Greenstein knew that his interactions with Simmons were being filmed for the reality television show, and Greenstein himself wore a body microphone so that his voice could be recorded. In addition, Greenstein reviewed the raw footage from New Orleans at the end of each day’s filming to ensure the quality of the work performed by the camera crew.
As part of his production duties, Greenstein prepared a sign to be held up at all times during filming. That sign read as follows: “‘Gene Simmons Reality TV Show’ (working title) (‘program’) is being videotaped in this location for possible network broadcast. [¶] If you are in this area, you may be photographed. Your presence in this area shall be deemed consent to photograph you, to record your voice, and to exploit such image, photographs and sound recordings in this program and other programs in all media, worldwide, in perpetuity. [¶] If you do not want to be photographed, please stay behind the cameras. [¶] Thank you. [¶] Signed, A Day With Inc. (‘Producer’).” According to Greenstein, the sign simply was intended to inform the public that filming was taking place in a public area, and despite the presence of the sign, anyone who was subsequently filmed had to sign a release for their appearance on the program.
Greenstein’s responsibilities as a segment producer also included obtaining written releases from all persons who were filmed as part of the New Orleans segment. Greenstein prepared a release form prior to filming and thereafter collected signed releases from everyone who appeared on camera during the filming, except himself. Greif and another producer, Adam Reed (“Reed”), stated that they personally witnessed Greenstein sign a release while in New Orleans and that Greenstein later claimed he lost the release in Hurricane Katrina. Greenstein, on the other hand, asserted that he never signed any release for his appearance on the show. According to Greenstein, he believed that because he did not sign a release, he would have to be compensated if he appeared in the final cut of the New Orleans segment. However, there is no indication that Greenstein had any discussions with the show’s producers either before or during filming about his unwillingness to sign a release unless he received compensation.
In June 2006, over a year after the New Orleans filming was completed, Reed asked Greenstein to provide a signed release for his appearance on the program. Greenstein refused to do so, however, without first receiving payment. Greenstein’s attorney also contacted A&E Television Networks in an effort to negotiate a written release from Greenstein in exchange for compensation, but received no response. The episode entitled “Shrinkwrapped” was subsequently broadcast on the A&E Network, and as described by the parties, Greenstein was featured prominently in the New Orleans segment. Greenstein did not receive any payment for his appearance on the program.
II. Greenstein’s Action For Common Law And Statutory Misappropriation
On January 4, 2007, Greenstein filed suit against Respondents for the allegedly unauthorized use of his persona in the broadcast of “Family Jewels.” Greenstein’s complaint asserted two causes of action for common law misappropriation in violation of his right to privacy and statutory misappropriation in violation of Civil Code section 3344. After answering the complaint, Respondents brought a special motion to strike pursuant to section 425.16. On May 23, 2007, the trial court granted the special motion to strike and dismissed Greenstein’s complaint with prejudice. The court ruled that the action arose from protected activity because “Family Jewels” concerned an issue of public interest, and that Greenstein could not show a probability of succeeding on his claims primarily because he consented to the use of his persona in the program. The court also sustained each of Respondents’ objections to the evidence submitted by Greenstein in his opposition to the special motion to strike. Following the dismissal of his action, Greenstein filed a timely notice of appeal.
DISCUSSION
Greenstein raises two issues in his appeal. First, he argues that the trial court abused its discretion in sustaining all of Respondents’ evidentiary objections. Second, he asserts that the trial court erred in granting the special motion to strike on its merits. We consider each of these contentions in turn.
I. The Trial Court’s Ruling On The Evidentiary Objections
In support of his opposition to the special motion to strike, Greenstein submitted declarations on behalf of himself, his attorney, and the two models who accompanied Simmons during his New Orleans trip. Respondents filed written objections to each declaration, and with few exceptions, objected to every statement set forth in those declarations. Greenstein now challenges the trial court’s evidentiary rulings on both procedural and substantive grounds. We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078; People v. Alvarez (1996) 14 Cal.4th 155, 203.) We will not disturb the trial court’s exercise of discretion absent a showing that it acted in an “‘arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.].” (People v. Brown (2003) 31 Cal.4th 518, 534.)
With respect to his procedural challenge, Greenstein contends that Respondents waived all of their evidentiary objections because they did not comply with the formatting requirements of California Rules of Court, rule 3.1354, and did not secure a ruling from the trial court on each individual objection. We disagree. On its face, rule 3.1354 applies only to evidentiary objections filed in connection with a motion for summary judgment or summary adjudication, rather than a special motion to strike under section 425.16. Even if rule 3.1354 did apply to Respondents’ motion, their evidentiary objections substantially complied with the rule’s formatting requirements by identifying each objectionable piece of evidence by document title and paragraph number, quoting the objectionable material verbatim, and stating the grounds for each objection to that material. Greenstein does not explain how he was prejudiced by the particular format of Respondents’ objections, nor does he cite any authority to support his argument that a trial court lacks any discretion to rule on evidentiary objections that contain minor formatting errors. Furthermore, contrary to Greenstein’s claim, Respondents did submit a proposed order with their written objections, and the trial court did rule on each objection by succinctly stating in its May 23, 2007 order that “Defendants’ evidentiary objections are sustained.” There is nothing in the California Rules of Court that requires a trial court to adhere to specific formatting requirements in ruling on objections to evidence.
With respect to his substantive challenge, Greenstein claims that the trial court abused its discretion in sustaining Respondents’ evidentiary objections on grounds of relevance, hearsay, lack of foundation, and the secondary evidence rule. The objections to the declarations of Greenstein’s attorney and the two models who accompanied Simmons in New Orleans are well-founded, particularly on relevance grounds. The models’ declarations recount their participation in the New Orleans segment and their signing of releases provided by Greenstein and another producer. The fact that the models signed releases, however, is irrelevant to whether Greenstein himself signed a release or otherwise consented to his appearance on the show. The attorney declaration describes the post-production efforts of Greenstein’s counsel to negotiate a written release in exchange for compensation for his client. But Greenstein’s belated efforts to secure payment for his appearance after the fact is not probative of whether he consented to appear on the show prior to or during the New Orleans filming. The trial court therefore did not abuse its discretion in excluding the third party declarations.
As for Greenstein’s 22-page declaration, we have reviewed each of the statements set forth in that declaration and each of Respondents’ evidentiary objections to those statements. We note that while Respondents objected to the vast majority of the material in the declaration, they did not object to a narrow category of testimony concerning Greenstein’s alleged refusal to sign a written release or to otherwise consent to appearing on the show. Those specific statements accordingly were admitted into evidence. In general, however, Greenstein’s declaration is replete with irrelevant and immaterial assertions, including superfluous stories about Greenstein’s prior contacts with celebrities and his conflicts with Greif over such matters as the models’ sleeping arrangements, fire safety on the parade float, and reimbursement of production-related expenses. The declaration also contains several hearsay statements about Greenstein’s communications with third parties (Evid. Code, § 1200), statements of opinion on matters that were not within Greenstein’s personal knowledge (Evid. Code, § 800), and secondary evidence on the contents of the New Orleans film crew’s footage (Evid. Code, §§ 1521, 1523). The trial court acted well within its discretion in sustaining Respondents’ objections to these and other similar statements.
Although the majority of Greenstein’s declaration is clearly immaterial or otherwise inadmissible, there are a few statements to which Respondents objected that are arguably relevant to the issue of Greenstein’s consent. Those statements include Greif’s alleged assertion that Greenstein could not appear on camera while acting as a segment producer, Greenstein’s statements about the purported purpose of the consent sign and the alleged requirement that anyone who was filmed had to sign a release, and Greenstein’s claim that he collected releases from everyone else who appeared on camera whether or not they were compensated. While such statements may have some marginal relevance to showing Greenstein’s then-existing state of mind, they are not directly probative of whether Greenstein himself signed a release or consented by his conduct to appearing on the program. Greenstein also failed to lay an adequate foundation for some of these statements, as he did not explain the basis for his belief that each person who was filmed had to sign a release and that the sign itself was sufficient consent. In fact, other than asserting that Greenstein was given a standard release form by the show’s producers and was responsible for gathering signed releases from the public, the declaration does not describe any discussions with the producers about the consent sign or the release form and their intended purpose. Thus, while the trial court could have admitted some of the statements in Greenstein’s declaration, it did not abuse its discretion in sustaining Respondents’ objections to them.
Even assuming that the trial court did err in excluding this narrow category of testimony, any such error was harmless. “[A] trial court’s error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a ‘miscarriage of justice’ – that is, that a different result would have been probable if the error had not occurred. [Citations.]” (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1480; see also Evid. Code, § 354 [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court . . . is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .”].) As discussed below, we conclude that the trial court properly granted Respondents’ special motion to strike and that no different result would have been reached even if the arguably relevant statements in Greenstein’s declaration had been admitted. Greenstein therefore cannot establish that he was prejudiced by the trial court’s exclusion of his proffered evidence.
II. The Trial Court’s Ruling On The Special Motion To Strike
Greenstein also argues that the trial court erred in granting Respondents’ special motion to strike. Section 425.16 provides, in pertinent part, that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) The purpose of the statute is to encourage participation in matters of public significance and to ensure that such participation is not chilled through an abuse of the judicial process. (§ 425.16, subd. (a).) The provisions of section 425.16 must be “construed broadly” to effectuate the statute’s purpose. (§ 425.16, subd. (a).)
Resolution of a special motion to strike under section 425.16 requires a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the defendant must make a threshold showing that the challenged cause of action arises from constitutionally protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant satisfies this prong, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of the action. (Rusheen v. Cohen, supra, at p. 1056; Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67.) We review a trial court’s ruling on a special motion to strike de novo, conducting an independent review of the entire record. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
A. Greenstein’s Action Arose From Constitutionally Protected Activity
A cause of action arises from protected activity within the meaning of section 425.16 if the conduct of the defendant on which the cause of action is based was an act in furtherance of the defendant’s right of petition or free speech in connection with a public issue. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Section 425.16, subdivision (e) describes four categories of conduct that constitute protected activity under the statute. The two categories that are potentially applicable to the present action are “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” (§ 425.16, subd. (e)(3)), and “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” (§ 425.16, subd. (e)(4)). In general, a “statement or other conduct is ‘in connection with an issue of public interest’ [citation] if the statement or conduct concerns a topic of widespread public interest and contributes in some manner to a public discussion of the topic.” (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347 (Hall).)
The two other categories involve statements or writings made before, or in connection with, a “legislative, executive, or judicial body, or any other official proceeding. . . .” (§ 425.16, subd. (e)(1), (2).)
In this case, the conduct on which Greenstein is basing both his common law and statutory misappropriation claims is Respondents’ broadcast of “Family Jewels,” a reality-based television program that documented the professional and domestic life of Simmons. As the most visible performer in the popular rock band, “KISS,” Simmons clearly is a public figure. The program’s portrayal of his celebrity lifestyle thus constitutes an issue of public interest. The fact that “Family Jewels” is a reality television show rather than a traditional news program does not preclude it from receiving constitutional protection. As our Supreme Court has recognized, “celebrities take on personal meaning,” and the creative use of their images “can be an important avenue of individual expression.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 397. Moreover, “there is a public interest which attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities. Certainly, the accomplishments and way of life of those who have achieved a marked reputation or notoriety by appearing before the public . . . may legitimately be mentioned and discussed in print or on radio or television.” (Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 746-747.)
Greenstein asserts that Respondents cannot show a sufficient public interest in the use of his image because Greenstein was not in the public eye prior to the broadcast of the “Shrinkwrapped” episode. However, the issue here is not whether Greenstein himself is a public figure, but whether, by choice or circumstance, Greenstein became involved in a matter of public interest. In Hall, for instance, our colleagues in Division Three held that a television interview with Marlon Brando’s former housekeeper who had been named as a beneficiary in the late actor’s will constituted protected activity under section 425.16. (Hall, supra, 153 Cal.App.4th at p. 1347.) While acknowledging that the plaintiff was not a public figure, the Court of Appeal reasoned that “[t]he public’s fascination with Brando and widespread public interest in his personal life made Brando’s decisions concerning the distribution of his assets a public issue or an issue of public interest. Although Hall was a private person and may not have voluntarily sought publicity or to comment publicly on Brando’s will, she nevertheless became involved in an issue of public interest by virtue of being named in Brando’s will.” (Ibid.)
Similarly, in M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629 (M.G.), the Fourth District concluded that free speech rights under section 425.16 were “unquestionably implicated” in the publication of a photograph of a Little League baseball team whose manager had been convicted of child molestation. The Court of Appeal noted that while “plaintiffs try to characterize the ‘public issue’ involved as being limited to the narrow question of the identity of the molestation victims, that definition is too restrictive. The broad topic of the article and the program was not whether a particular child was molested but rather the general topic of child molestation in youth sports, an issue which . . . is significant and of public interest.” (Ibid., fn. omitted.)
The same reasoning applies here. Although Greenstein is not a public figure, he became involved in an issue of public interest when he was filmed interacting with Simmons and his entourage for an episode of “Family Jewels.” Furthermore, unlike the plaintiffs in Hall and M.G. whose connection with a public interest matter was not of their own making, Greenstein knowingly and freely appeared in public with Simmons as Simmons was being filmed for his reality television show. Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 (Seelig), is instructive on this issue. In Seelig, the First District held that section 425.16 applied to disparaging comments made by radio talk show hosts about a contestant on another reality television show, Who Wants to Marry a Millionaire. (Id. at p. 808.) In concluding that the on-air comments concerned a matter of public interest, the Court of Appeal observed that the television show was “of significant interest to the public and the media” and that “[b]y having chosen to participate as a contestant in the [s]how, plaintiff voluntarily subjected herself to inevitable scrutiny . . . by the public and the media.” (Id. at pp. 807-808.)
Greenstein’s claim that his appearance on “Family Jewels” lacked any connection to an issue of public interest is therefore unpersuasive. The purpose of the television program was to show the audience what happened when a film crew followed a celebrity as he went about his unscripted daily activities, including interacting with his fans at public appearances. Greenstein became a part of the broadcast when he agreed to serve as an escort for Simmons and his entourage as they were filmed attending various public events for the show’s New Orleans segment. By voluntarily interacting with Simmons as the cameras were rolling, Greenstein interjected himself into an issue of public interest. Respondents accordingly met their burden of proving that Greenstein’s claims arose from constitutionally protected activity within the meaning of section 425.16.
Greenstein contends that the trial court impermissibly shifted the burden to him to show that Respondents’ use of his image was not connected to an issue of public interest. He points to select language in the trial court’s order in which it stated that Greenstein “has provided no argument in opposition to the first prong.” However, Greenstein’s failure to present any argument on the issue of protected activity does not mean that the trial court failed to apply the proper burden-shifting analysis. To the contrary, in addressing the first prong, the trial court cited to Respondents’ evidence about the purpose of, and public interest in, “Family Jewels,” and specifically found that “the subject matter, as described by Defendants, involves an issue of sufficient public interest to overcome the first prong of the anti-SLAPP analysis” [emphasis added]. The trial court properly applied section 425.16’s burden of proof.
B. Greenstein Failed To Prove A Probability Of Prevailing On His Claims
Once Respondents made a prima facie showing that Greenstein’s action arose from protected activity, the burden shifted to Greenstein to prove a reasonable probability of success on his claims. To demonstrate a probability of prevailing on the merits of a challenged cause of action, “the plaintiff must ‘state[ ] and substantiate[ ] a legally sufficient claim.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th. 728, 741.) The plaintiff must make a prima facie showing of facts that would, if proven, support a judgment in his or her favor. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) For purposes of this inquiry, “the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation].” (Ibid.) However, “‘the court does not weigh the evidence or make credibility determinations. [Citations.]’” (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) The court must accept as true the evidence favorable to the plaintiff and consider the defendant’s opposing evidence only to determine if it defeats the plaintiff’s showing as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) Although “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. [Citation.]” (Wilson v. Parker, Covert & Chidester, supra, at p. 821.)
Misappropriation of a person’s name or likeness is a species of the tort of invasion of privacy. (Comedy III Productions, Inc. v. Gary Saderup, Inc., supra, 25 Cal.4th at p. 391l; Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819.) To prevail on a common law claim for misappropriation, the plaintiff must plead and prove the following: “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. [Citations.]” (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417, superseded by statute on other grounds as stated in KNB Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 367, fn. 5.) In addition to the common law cause of action, California also has a statutory cause of action for misappropriation under Civil Code section 3344. To state a statutory misappropriation claim, the plaintiff must prove all of the elements of the common law claim and must also establish that the use of the plaintiff’s name or likeness was knowing. (Eastwood v. Superior Court, supra, at p. 417; Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318, 322, fn. 1.) The statutory remedy complements rather than codifies the common law. (Lugosi v. Universal Pictures, supra, 25 Cal.3d at p. 819, fn. 6; Montana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 793.)
Civil Code section 3344, subdivision (a) provides, in relevant part, that “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.” (Civ. Code, § 3344, subd. (a).)
In addressing whether Greenstein has stated an actionable claim for common law or statutory misappropriation, the parties primarily focus on the element of consent and whether Greenstein set forth sufficient facts to establish that he did not consent to the use of his name or likeness in the episode of “Family Jewels.” Greenstein contends that he has made a prima facie showing of the lack of consent because there is at least a disputed factual issue as to whether he signed an appearance release. Specifically, while Respondents assert that the program’s producers, Greif and Reed, personally witnessed Greenstein sign a release which he later claimed he lost, Greenstein maintains that he never signed or agreed to sign any release. Greenstein is thus correct that there is conflicting evidence over the existence of a signed release for his appearance on the show, which precludes the granting of Respondents’ motion on the grounds of a written release. (See, e.g., Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821 [trial court does not weigh the credibility or comparative probative strength of competing evidence in ruling on a section 425.16 special motion to strike].)
That does not, however, end our analysis on the element of consent because neither the statutory nor common law cause of action for misappropriation requires that consent be in writing. Rather, in the context of an alleged invasion of privacy, consent may be implied from conduct that can reasonably be interpreted as manifesting consent. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26; Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 230.) As our Supreme Court has observed, “the plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant.” (Hill v. National Collegiate Athletic Assn., supra, at p. 26; see also Gill v. Hearst Publishing Co., supra, at p. 230 [plaintiffs waived any right to privacy in a published photograph of plaintiffs “in a pose voluntarily assumed in a public market place”]; Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 162-163 [plaintiff cannot prove an actionable invasion of privacy where he “voluntarily entered into the public sphere” and “was photographed only while in public view”].) Consent by conduct must be considered in a privacy action because the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant. (Hill v. National Collegiate Athletic Assn., supra, at p. 26; see also Rest.2d Torts, § 892 [“If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.”].)
In Newton v. Thomason (9th Cir. 1994) 22 F.3d 1455, the Ninth Circuit addressed the issue of consent by conduct in an action for common law and statutory misappropriation under California law. Wood Newton (“Newton”), a country music songwriter and performer, sued the producers of a television program for allegedly misappropriating his name for a character on the show. (Id. at p. 1458.) The producers presented evidence that Newton was aware of the intended use of his name prior to the show’s broadcast and had expressed in a letter to the producers that he was flattered by the use. (Ibid.) It was not until Newton learned that the producers had decided not to purchase a theme song he had written that he first objected to the show using his name. (Ibid.) As evidence that the producers never believed they had received consent, Newton presented correspondence in which the producers requested a written release from him after the show was broadcast, which Newton refused to sign. (Id. at p. 1459.) Applying California law to the producers’ motion for summary judgment, the Ninth Circuit held that Newton could not state a claim for misappropriation because he had consented by his words and conduct to the use of his name in the show. (Id. at p. 1461.) The court noted that Newton was aware of the intended use of his name prior to the show’s broadcast and did not object to such use until the producers rejected his proposed theme song. (Ibid.) On that basis, the court concluded that “[a]lthough Newton never uttered the words ‘I consent,’ it [was] obvious that he did consent” to the show’s use of his name. (Ibid.)
In this case, the undisputed evidence establishes that Greenstein consented by his conduct to appearing in the episode of “Family Jewels.” Although Greenstein focuses on his alleged failure to provide a written release, he admits that he prepared a sign which was displayed at all times during the New Orleans filming. That sign stated that a reality show was “being videotaped in this location for possible network broadcast” and that “[y]our presence in this area shall be deemed consent to photograph you, to record your voice, and to exploit such image, photographs and sound recordings in this program and other programs in all media, worldwide, in perpetuity.” Greenstein has stated that the purpose of the sign was simply to inform the public that filming was taking place and that it was not intended to be a substitute for a written release. Apart from this assertion, however, Greenstein does not offer any evidence to establish what Respondents’ intent was in having him display the sign, nor does he explain the basis for his belief that the sign could not constitute consent. Moreover, contrary to Greenstein’s claim, the plain wording of the sign purported to do more than merely notify the public that a television show was being taped, as it specifically stated that a person’s presence in the area “shall be deemed consent . . . to exploit such image[s], photographs and sound recordings” that were filmed. We accordingly agree with the trial court that Greenstein’s conduct in displaying the sign during filming supports the conclusion that he consented to his appearance on the show.
Even in the absence of the consent sign, Greenstein engaged in other conduct that evidenced his consent. To begin with, it is undisputed that Greenstein was aware that he was being filmed as part of the production of “Family Jewels.” He arranged for the film crew that followed Simmons for the New Orleans segment and he agreed to escort Simmons and his entourage from appearance to appearance as the cameras were rolling. Greenstein thus knew that his own voice and image were being captured on film in the course of interacting with Simmons. In fact, Greenstein wore a body microphone at all times during the filming so that his voice could be recorded. He also reviewed the raw footage from New Orleans at the end of each day’s filming to ensure the quality of the work performed by the camera crew. Therefore, even accepting that Greif originally told Greenstein that he would not appear on camera as a segment producer, Greenstein clearly was aware that his interactions with Simmons were being recorded as part of the reality television program. There is no evidence that Greenstein expressed any objection to appearing on camera at any time during the filming.
Greenstein argues that consent to being filmed is distinct from consent to being broadcast without payment. He claims that he did not object to being filmed for the show because he assumed that he would be compensated if any of the footage in which he appeared was included in the final cut of the New Orleans segment. However, Greenstein does not allege that, at any time prior to or during filming, he ever discussed this assumption with the show’s producers or otherwise advised them that he expected to be paid for his appearance. Instead, Greenstein suggests that the producers should have known that his consent was conditioned on payment because he never signed a release. But it was Greenstein who was responsible for collecting signed releases from anyone who appeared on camera in New Orleans. Notably, while Greenstein repeatedly asserts in his declaration that he did not sign a release, he does not allege that he told the producers at any time before or during filming that he would not sign one or would only do so if he received payment. Indeed, there is no evidence that Greenstein had any communications with the producers about his alleged refusal to sign a release or his request for compensation until more than a year after the filming was completed.
In support of his argument that consent to being filmed is different from consent to being broadcast without compensation, Greenstein cites to the Ninth Circuit’s decision in Solano v. Playgirl, Inc. (9th Cir. 2002) 292 F.3d 1078 (Solano), in which an actor filed a misappropriation lawsuit against Playgirl magazine for featuring his photograph on its cover without his consent. However, the consent issue in Solano was whether the actor’s agreement to be photographed by an outside photographer not in any way affiliated with Playgirl constituted consent to having the photograph later published in that particular magazine. (Id. at p. 1089.) Solano is inapposite because there is no allegation in this case that Greenstein consented to the use of his image in one medium but not another. Greenstein was aware at all times that the filming was being done solely for “Family Jewels.”
In sum, the evidence presented by both parties establishes that Greenstein consented by his conduct during the course of the New Orleans filming to appearing in the broadcast of “Family Jewels.” Because Greenstein has failed to set forth sufficient facts to demonstrate his lack of consent, he cannot prove a probability of prevailing on the merits of his common law or statutory misappropriation claims. The trial court accordingly did not err in granting Respondents’ special motion to strike.
In light of our conclusion that Greenstein failed to establish the prima facie element of the lack of consent, we need not address the parties’ arguments regarding the applicability of any First Amendment or statutory defenses to Greenstein’s misappropriation claims.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.