Solano v. Playgirl, Inc.

• Citation: 292 F.3d 1078
• Decision Date: 13 June 2002
• Docket Number: No. 01-55443.,01-55443.
• Parties: Jose SOLANO, Jr., Plaintiff-Appellant, v. PLAYGIRL, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

292 F.3d 1078

Jose SOLANO, Jr., Plaintiff-Appellant, v. PLAYGIRL, INC., Defendant-Appellee.

No. 01-55443.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2002.

Filed June 13, 2002.

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Jonathan H. Anschell, White O'Connor Curry Gatti & Avanzado, Los Angeles, CA, for plaintiff-appellant.

Kent R. Raygor, Sheppard, Mullin, Richter & Hampton, Los Angeles, CA, for defendant-appellee.

Appeal from the United States District Court Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-00-01242-DT.

Before: PREGERSON, FISHER and TALLMAN, Circuit Judges.

FISHER, Circuit Judge.

The January 1999 issue of Playgirl magazine featured a cover photograph of actor Jose Solano, Jr., best known for his role as "Manny Gutierrez" on the syndicated television program "Baywatch" from 1996 to 1999. Solano was shown shirtless and wearing his red lifeguard trunks, the uniform of his "Baywatch" character, under a heading reading: "TV Guys. PRIME-TIME'S SEXY YOUNG STARS EXPOSED." Playgirl, ostensibly focused on a female readership, typically contains nude photographs of men in various poses emphasizing their genitalia, including some showing them engaged in simulated sex acts. The magazine also contains written editorial features. Although Solano — who did not pose for or give an interview to Playgirl — did not in fact appear nude in the magazine, he sued Playgirl alleging it deliberately created the false impression that he did so, making it appear he was willing to degrade himself and endorse such a magazine.

The district court granted Playgirl summary judgment, finding Solano had failed to establish that Playgirl created a false impression about what readers would actually see of Solano inside the magazine or in any event that it had acted knowingly or recklessly in doing so. We disagree and reverse for a trial. At this stage of the proceedings, viewing the evidence most favorably to Solano as we must on summary judgment, we hold that he provided sufficient evidence to create triable issues of fact for the jury on the elements of each of his causes of action.

FACTS AND PROCEDURAL HISTORY

Because this case concerns the magazine cover, we describe it in some detail and append a copy of it to this opinion. (Addendum A.) As indicated above, Solano appeared bare-chested wearing his red trunks, dominating the cover. In the upper left corner was a red circle containing the words, "TV Guys," followed by the headline, "Primetime's Sexy Young Stars Exposed," which ran across the top of Solano's head. Immediately to the left of Solano's picture, the magazine proclaimed, "12 Sizzling Centerfolds Ready to Score With You." The "s" in "Centerfolds" was superimposed on Solano's right shoulder. Also placed to the left of Solano, running down the left margin, the cover touted "Countdown to Climax: Naughty Ways to Ring in the New Year," "Toyz in the Hood: The Best in Erotic Home Shopping" and "Bottoms Up!: Hot Celebrity Buns." In the cover's lower right hand corner was the headline, "Baywatch's Best Body, Jose Solano."

Solano's sole appearance inside the magazine was on page 21, in a quarter-page, head-and-shoulders photograph — showing him fully dressed in a tee shirt and sweater — alongside a brief, quarter-page profile of the actor. Solano's profile included information about his "Baywatch" character, facts about his life before he began acting and a quote in which he says that with two younger brothers he strives to be a positive role model and hopes to encourage others to pursue their dreams. Solano's photograph and profile were part of a five-page feature entitled "TV Guys," consisting of photographs and short profiles of 10 popular television actors. Neither Solano nor any of the other actors was shown nude. Significantly, Playgirl issues are displayed on newsstands packaged in plastic wrap to prevent potential customers from flipping through the pages to view the magazine's contents.

This action began when Solano filed suit against the magazine's publisher, Playgirl, Inc., in California Superior Court, alleging Playgirl invaded his privacy by portraying him in a false light and by misappropriating his likeness in violation of California Civil Code § 3344 and common law. He claimed he was humiliated and embarrassed when he learned of the use of his photograph on the cover of Playgirl and that he suffered a decline in job offers, invitations to charity events and social contacts with others in the entertainment industry following the publication of the January 1999 issue.¹ After Playgirl removed the case to federal court, the district court granted Playgirl's motion for summary judgment. The court found that the use of Solano's photograph in Playgirl did not create a false impression and, in any event, as a public figure he could not show actual malice; that the public affairs exception defeated his § 3344 claim; and that the public interest exception defeated his common law misappropriation of likeness claim. The court also awarded attorney's fees and costs to Playgirl. Solano timely appealed.

We review a grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether any genuine issues of material fact exist and whether the district court applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

DISCUSSION

I. The False Light Claim

Solano argues that Playgirl's use of his photograph along with suggestive headlines on the cover conveyed the false message that Solano voluntarily posed nude for the magazine and, in doing so, implicitly endorsed the magazine and its sexually explicit content. To prevail on this false light claim, Solano must show that: (1) Playgirl disclosed to one or more persons information about or concerning Solano that was presented as factual but that was actually false or created a false impression about him; (2) the information was understood by one or more persons to whom it was disclosed as stating or implying something highly offensive that would have a tendency to injure Solano's reputation; (3) by clear and convincing evidence, Playgirl acted with constitutional malice; and (4) Solano was damaged by the disclosure. See Fellows v. Nat'l Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 721 P.2d 97, 99-101 (1986); Aisenson v. Am. Broad. Co., Inc., 220 Cal.App.3d 146, 269 Cal.Rptr. 379, 387 (1990); see also Restatement (Second) of Torts § 652E (1976) (discussing elements of false light claim).

A. False Impression and Injury to Reputation

Solano contends that when the photograph and headlines on the cover are viewed in context — that of a magazine that features sexually suggestive nude pictures of men-there is a triable issue of fact regarding the falsity of the message conveyed by Playgirl. We agree. We addressed a publication's creating an implied false message in Eastwood v. Nat'l Enquirer, Inc., 123 F.3d 1249 (9th Cir.1997), and Kaelin v. Globe Communications Corp., 162 F.3d 1036 (9th Cir.1998). In Eastwood the tabloid magazine National Enquirer's cover page headline advertised an "Exclusive Interview" with actor/director Clint Eastwood. The magazine contained an article with quotes allegedly attributable to Eastwood, cast as if Eastwood had been speaking directly to the bylined Enquirer editor. See Eastwood, 123 F.3d at 1250. Eastwood in fact had never given any interview to the Enquirer — exclusive or otherwise. Although the magazine never expressly stated that Eastwood actually had given it the interview, this court nevertheless reasoned that the Enquirer had "signal[ed], through text and graphics, that he had willingly talked to the Enquirer." Id. at 1255. Kaelin involved a defamation action brought by Kato Kaelin, the hapless houseguest of O.J. Simpson, against the Globe tabloid for publishing a front-page headline announcing, "COPS THINK KATO DID IT ... he fears they want him for perjury, say pals." Kaelin argued the "IT" implied the two brutal murders for which Simpson was tried and acquitted; the magazine claimed the word referred only to perjury, because the article inside the magazine explained that the police suspected Kaelin of having committed perjury. We were unpersuaded by the Globe's argument: "Even assuming that such a [perjury] reading is reasonably possible, it is not the only reading that is reasonably possible as a matter of law. So long as the publication is reasonably susceptible of a defamatory meaning, a factual question for the jury exists." Kaelin, 162 F.3d at 1040.²

Playgirl's reliance on Brewer v. Hustler Magazine, Inc., 749 F.2d 527 (9th Cir.1984), is misplaced. In Brewer, the plaintiff brought suit when Hustler magazine reproduced a portion of a previously published postcard depicting Brewer shooting himself in the head. Brewer himself had created the postcard and contracted to sell it commercially. We rejected Brewer's argument that his right to privacy was violated by publication of the photograph in a sexually explicit magazine, holding that "[t]his argument is without merit because Brewer had no right to choose the forum in which his photograph was displayed." Id. at 530. Similarly, Solano cannot prevail on his false light claim simply by arguing that Playgirl put him on the cover of a magazine that contains explicit content. Indeed, that was the basis of Brewer's claim — that a reproduction of a portion of his nonsexual postcard appeared inside a sexually explicit magazine.

Unlike Brewer, Solano's claim goes much deeper. Solano contends that his bare-chested, three-quarter-length photograph alongside the suggestive headlines on the Playgirl cover created the false impression that readers could expect to find more photographs of him inside the magazine, nude — "exposed" — in Playgirl's typical sexually...