Sagan v. Apple Computer, Inc.

• Decision Date: 27 June 1994
• Docket Number: CV 94-2180 LGB (BRx).
• Citation: 874 F. Supp. 1072
• Court: U.S. District Court — Central District of California
• Parties: Carl SAGAN, Plaintiff, v. APPLE COMPUTER, INC., Defendant.

874 F. Supp. 1072

Carl SAGAN, Plaintiff, v. APPLE COMPUTER, INC., Defendant.

CV 94-2180 LGB (BRx).

United States District Court, C.D. California.

June 27, 1994.

COPYRIGHT MATERIAL OMITTED

Peter W. James, Anthony M. Keats, Dennis F. Hernandez, Baker & Hostetler, Los Angeles, CA, for defendant Apple Computer, Inc.

Peter Laird, Ralph C. Loeb, Karen Brodkin, Edelstein & Laird, P.C., Los Angeles, CA, for plaintiff Carl Sagan.

BAIRD, District Judge.

Defendant's motion to dismiss, motion for a more definite statement, and motion to strike came on regularly for hearing before this Court on June 27, 1994. After reviewing the materials submitted by the parties, argument of counsel, and all other matters presented to the Court, it is hereby ORDERED that Defendant's motion to dismiss claims six and seven in Plaintiff's complaint is GRANTED, and that Defendant's motions for a more definite statement and to strike are DENIED.

I. Background

On April 5, 1994, Carl Sagan ("Plaintiff") initiated this action against Apple Computer, Inc. ("Defendant"), asserting the following causes of action:

1. Violation of the Lanham Act § 43(a), 15 U.S.C. § 1125(a);

2. Violation of Cal.Civil Code § 3344;

3. Unfair Competition;

4. Infringement of Right of Publicity;

5. Invasion of Privacy;

6. Libel;

7. Intentional Infliction of Emotional Distress; and

8. For an Accounting.

All of the causes of action arise out of a common nucleus of alleged facts. Plaintiff alleges that Defendant began using the name "Carl Sagan" in connection with a personal computer in 1993. (Complaint, ¶ 8.) After Defendant's use was allegedly publicized in computer periodicals and other publications, Plaintiff's attorneys demanded that Defendant cease use of the name. (Complaint, ¶ 10.) Plaintiff alleges that Defendant informed Plaintiff that it was using Plaintiff's name as a "code name" for a new personal computer, and that Defendant would cease use of the name. (Complaint, ¶ 11.) Plaintiff contends that in January of 1994, Defendant changed the "code name" to "Butt-Head Astronomer," which was published by Defendant and appeared in numerous newspapers and in other media. (Complaint, ¶ 12.)

Currently before the Court are Defendant's motion to dismiss Plaintiff's sixth and seventh claims for failure to state a claim, motion for a more definite statement as to the first, second, third, and fourth claims, and motion to strike the fifth Claim. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

II. Motion to Dismiss

A. Standard

Federal Rule of Civil Procedure ("Rule") 12(b)(6) allows a party to move to dismiss a claim for failure to allege facts upon which relief can be granted. A Rule 12(b)(6) motion must not be granted "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981).

The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980) (finding that the complaint must be read in the light most favorable to the plaintiff). However, the court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969).

Furthermore, unless the Court converts a Rule 12(b)(6) motion into a motion for summary judgment, the court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). Powe v. Chicago, 664 F.2d 639, 642 (7th Cir.1981).

B. Plaintiff's Sixth Claim for Libel

Defendant argues that the statement "Butt-Head Astronomer" cannot be the basis of a libel action because such a statement is an opinion which is nonactionable under the First Amendment. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Defendant also argues that such a statement is nonactionable under California law.

The constitutional defense of privileged opinion is applied before analyzing whether the statement in question is actionable under state law. Ault v. Hustler Magazine, Inc., 860 F.2d 877, 880 (9th Cir.1988).

1. Federal Law

The Supreme Court held in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), that Gertz, supra, did not "create a wholesale defamation exemption for anything that might be labeled `opinion.'" Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705. The Court recognized that expressions of opinion may often imply an assertion of objective fact. Id. Thus, the dispositive question in determining whether a statement of opinion can form the basis of a state libel action is "whether a reasonable factfinder could conclude that the statements imply an assertion of fact." Id. at 21, 110 S.Ct. at 2707.

In the Ninth Circuit, courts analyze the following conditions set forth in Milkovich:

(1) whether the defendant used figurative or hyperbolic language that would negate the impression that he was seriously maintaining an assertion of fact;

(2) whether the general tenor of the communication negated the assertion of fact; and

(3) whether the assertion is susceptible of being proved true or false.

Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir.1990)

Plaintiff's libel action is based on the allegation that Defendant changed the "code name" on its personal computer from "Carl Sagan" to "Butt-Head Astronomer" after Plaintiff had request that Defendant cease use of Plaintiff's name. (Complaint, ¶¶ 6-12, 45-51.) There can be no question that the use of the figurative term "Butt-Head" negates the impression that Defendant was seriously implying an assertion of fact. It strains reason to conclude that Defendant was attempting to criticize Plaintiff's reputation or competency as an astronomer. One does not seriously attack the expertise of a scientist using the undefined phrase "butt-head." Thus, the figurative language militates against implying an assertion of fact. Unelko, 912 F.2d at 1054.

Furthermore, the tenor of any communication of the information, especially the phrase "Butt-Head Astronomer," would negate the impression that Defendant was implying an assertion of fact. The complaint states that Defendant changed the name of its personal computer from "Carl Sagan" to "Butt-Head Astronomer," and that "this change was published by Apple, and it appeared in numerous newspaper articles and in other media." (Complaint, ¶ 12.) Any reader exposed to such a publication would likely have knowledge of the context in which the language was used. A reader aware of the context would understand that Defendant was clearly attempting to retaliate in a humorous and satirical way against Plaintiff's reaction to Defendant's use of his name. A reasonable reader would further conclude that the use of the term "astronomer" did not imply that Plaintiff was a less than able astronomer, but that the word was a merely a means of identifying Plaintiff. Finally, a reasonable reader would conclude that the phrase "Butt-Head Astronomer" did not imply that Plaintiff was legally wrong in asking Defendant to cease using his name. After all, by ceasing use of Plaintiff's name, Defendant's actions spoke louder than words.¹ Thus, the tenor of the communication militates against implying an assertion of fact. Unelko, 912 F.2d at 1054.

Because a reasonable factfinder could not conclude that "Butt-Head Astronomer" implied that Plaintiff was a less than able astronomer or that Plaintiff was legally wrong in asking Defendant to cease using Plaintiff's name, the only remaining assertion is the bare statement that Plaintiff is a "Butt-Head Astronomer." Clearly this phrase cannot rest on a core of objective evidence. Plaintiff does not suggest any other assertions of objective fact that could be reasonably implied from the phrase.

Based on an analysis of the factors identified in Unelko, the Court has no reason to conclude that the statement made by Defendant implies an assertion of objective fact. Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707. Therefore, the statement is protected under the First Amendment and cannot form the basis of a claim for libel.

2. California law

Defendant's position is further supported by California law. In light of Milkovich, California courts use a "totality of circumstances" test to evaluate the threshold question of law as to whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. Moyer v. Amador Valley J. Union High School Dist., 225 Cal.App.3d 720, 724, 275 Cal.Rptr. 494 (1990); Kahn v. Bower, 232 Cal.App.3d 1599, 284 Cal.Rptr. 244 (1991). In essence, the "totality of circumstances" test and the Unelko test are identical. Moyer, 225 Cal.App.3d at 725, 275 Cal.Rptr. 494 (stating that the "totality of circumstances" test is "a review of the meaning of the language in context and its susceptibility to being proved true or false.); see also Edwards v. Hall, 234 Cal.App.3d 886, 903, n. 14, 285 Cal.Rptr. 810, n. 14 (1991) ("The publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the average reader.") Thus, the Court's analysis supra applies here and is incorporated by reference.

Plaintiff cites Gill v. Hughes, 227 Cal. App.3d 1299, 278 Cal.Rptr. 306 (1991), in support of his position. However, in Gill the following statement was found to...