Skinner v. Tuscan Inc.
| Decision Date | 07 October 2020 |
| Docket Number | No. CV-18-00319-TUC-RCC,CV-18-00319-TUC-RCC |
| Parties | Cora Skinner, et al., Plaintiffs, v. Tuscan Incorporated, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
This matter is one of several similar cases in this district.1 Here, Plaintiffs' claims arise from Defendant Tuscan Incorporated's d/b/a Ten's ("Ten's" or "Defendant") unauthorized use of risqué photos of Plaintiffs to advertise Defendant's strip club, Ten's. Plaintiffs Cora Skinner, Jamie Edmondson Longoria, Jessica Rockwell, Lina Posada, Lucy Pinder, Nikki Leigh, and Ursula Mayes ("Plaintiffs") raise state law claims of rightof publicity/misappropriation of likeness and false light/invasion of privacy. In addition, Plaintiffs raise a two-part claim under the Lanham Act for false advertising and false association/endorsement.2 Both parties have filed motions for summary judgment.3 This matter has been extensively briefed, and oral arguments were held on September 1, 2020. (Docs. 39-42, 46-47, 50-52, 55, 59.) The Court now rules.
Plaintiffs filed their Motion for Summary Judgment approximately one month after the dispositive motion deadline. Plaintiffs' counsel asserts that the lapse should be excused because it was a simple mis-calendaring of deadlines, and courts favor decisions on the merits.
A court may grant an extension of time "on motion made after the time has expired if the party failed to act because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). Excusable neglect can occur when a party has mis-calendared a deadline. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th Cir. 2010).
Plaintiffs have many similar cases being briefed in close proximity, and the failure to file a timely motion does not appear to be in bad faith. Further, Plaintiffs' arguments are identical to those included in their Response to Defendant's Motion for Summary Judgment, and so Defendant is not prejudiced by permitting the untimely request. The Court finds Plaintiffs' error constituted excusable neglect and therefore it will consider the motion.
A court may grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment asa matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). An issue is "genuine" when the disputed facts "could reasonably be resolved in favor of either party." Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). But a disputed fact is only material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party establishes that there is no genuine issue of material fact, then the non-movant must come forth with evidence that there is a genuine disputed factual issue that may change the outcome of the lawsuit in the non-movant's favor. Id. at 248, 250. This showing does not have to be unquestionable; however, the non-movant "may not rest upon the mere allegations or denials of [her pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 248; Fed. R. Civ. P. 56(e).
In general, a court must consider the evidence while making all inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. However, with dueling summary judgment motions, the court "review[s] each motion . . . separately, giving the non[-]moving party for each motion the benefit of all reasonable inferences." Brunozzi v. Cable Commc'ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017). "Where the parties file cross-motions for summary judgment, the court must consider each party's evidence, regardless under which motion the evidence is offered." Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). Meaning, evidence from one party is not limited to that party's motion for summary judgment; a court may consider evidence from defendant's motion to determine plaintiff's motion and vice versa. See Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir. 2001).
However, the necessary showing for each party to obtain summary judgment depends upon that party's burden of proof. And so, "a moving party with the burden of persuasion must establish beyond controversy every essential element of [its claim]." Pub. Storage v. Sprint Corp., No. CV 14-2594-GW (PLAx), 2015 WL 1057923, at *4 (C.D. Cal. Mar. 9, 2015) (quoting S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003)). The party without such burden need only (1) provide "evidencenegating an essential element" of a claim or (2) demonstrate that the non-moving party "does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
The parties agree that Plaintiffs' false light claims are governed by a one-year statute of limitations under Arizona Revised Statute § 12-541. See Watkins v. Arpaio, 367 P.3d 72, 77 (Ariz. Ct. App. 2016). However, the parties disagree when these claims accrued. Defendant posits that the clock begins on the date of publishing. Plaintiffs counter that the continuing wrong doctrine applies, and the clock does not start until the photos were removed.
Plaintiffs lean heavily on Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) to show that the continuing wrong doctrine applies to their false light claims. The Court is baffled as to Plaintiffs' interpretation of this case. Flowers addressed the continuing tort doctrine as it related to alleged defamation in a defendant's memoirs. Id. The Ninth Circuit explained that the continuing wrong doctrine applies when there is no way to determine a singular moment that caused harm. Id. However, it noted that there is no such incertitude surrounding the publication of a book; the defamation occurs at the moment of publication. Id. Moreover, there were no further actions by defendant obscuring the accrual date. Id. In fact, the Ninth Circuit commented, "The only thing 'continuing' about this tort was [the plaintiff's] protracted failure to bring a lawsuit when she had the chance." Id. The court affirmed the dismissal of all tort claims related to the book publication—including the false light claim. Id. at 1133. Like Flowers, the dates Defendant published its advertisements on social media are identifiable dates of harm that preclude the continuing wrong doctrine. Even though the posting exists for viewing after the publication, this does not constitute a continuing injury.
Plaintiffs also cite Cruz v. City of Tucson, 401 P.3d 1018 (Ariz. Ct. App. 2017). This case is inapposite. Similar to Flowers, in Cruz the court explained that under thecontinuing wrong doctrine, there must be a continuous series of wrongful actions for the accrual date to begin at termination. Id. at 1023. In this case, just as in Cruz, there are no continuous actions. Instead, there is one discrete posting of a Plaintiff's image per claim against Defendant. As such, the continuing wrong doctrine does not apply and cannot prolong Plaintiffs' time for filing.
Moreover, the Arizona appellate court has declined to utilize the continuing wrong doctrine in the context of false light claims. Watkins, 367 P.3d at 77. Instead, Arizona evaluates the statute of limitations for false light in the same manner as defamation, recognizing that accrual occurs on the date of publication. See Kimm v. Brannan, No. CV-14-1966 JWS, 2017 WL 3535015, at *7 (D. Ariz. Aug. 17, 2017), aff'd, 779 F. App'x 439 (9th Cir. 2019); Larue v. Brown, 333 P.3d 767, 772 (Ariz. Ct. App. 2014) (); Lim v. Sup. Ct. in and for Pima Cty., 616 P.2d 941, 942 (Ariz. Ct. App. 1980) (); cf. Uniform Single Publication Act, Ariz. Rev. Stat. Ann. § 12-651(A) ().
So, in this case any photo forming the basis of a false light claim must have been posted within one year of the filing of the Complaint on May 21, 2018. There is no factual dispute as to publication dates. Therefore, the Court grants summary judgment to Defendant as to the false light claims for all photos published prior to May 21, 2017.
For the photos published within the statutory limits, genuine issues of material fact remain precluding summary judgment.
To state a claim of false light, a plaintiff must demonstrate "(1) the defendant, with knowledge of falsity or reckless disregard for the truth, gave publicity to information placing the plaintiff in a false light, and (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person in the plaintiff's position." Doe v. Oesterblad, No. CV-13-01300-PHX-SRB, 2015 WL 12940181, at *5 (D. Ariz. June 9, 2015) (quoting Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 450 (Ariz.Ct. App. 2015)); see Restatement (Second) of Torts ("Rstmt. 2d Torts") § 652E (Am. Law Inst. 1977). Actions shedding a false light on another need not be plainly stated; implication can be sufficient. Godbehere v. Phx. Newspapers, Inc., 783 P.2d 781, 787 n.2 (Ariz. 1989).
Defendant first argues that the claim fails because the advertisements made no false statements about Plaintiffs. Moreover, Plaintiffs' photos were risqué, so using the unadulterated photo did not misrepresent the nature of the photos. However, "[a] false light cause of action may arise when . ....
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