Case 2:10-cv-09034-JHN -JC Document 129 Filed 10/13/11 Page 1 of 22 Page ID #:1805

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JEFFREY S. SARVER Plaintiff, vs. THE HURT LOCKER LLC, et al, Defendants. ) ) ) ) ) ) ) ) ) ) )

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Case No. 2:10-cv-09034-JHN -JCx ORDER GRANTING DEFENDANTS MOTIONS TO STRIKE

The matter is before the Court on Defendants Motions to Strike pursuant to Cal. Code Civ. Proc. 425.16. (Docket no. 78, 98.) On August 8, 2011, the Court heard oral argument on the Motions and took the matter under submission. (Docket no. 125.) For the foregoing reasons, the Court GRANTS Defendants Motions and strikes Plaintiffs Complaint in its entirety. I. FACTUAL BACKGROUND Plaintiff Jeffrey Sarver (Plaintiff) filed this lawsuit alleging that Defendants based the movie The Hurt Locker on Plaintiffs personal experiences while serving in the military, without his consent. (Compl. 23.) Plaintiff has been a member of the United States Army since 1991. (Id. 26.) From July 2004 through January 1005, he served in Iraq as an Explosive Ordinance Disposal (EOD) technician with the 788th Ordinance Company. (Id. 33-50.) Plaintiff was one of approximately 150 EOD technicians in Iraq. (Id. 36.)

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While Plaintiff was in Iraq, the Department of Defense permitted media representatives to live, work and travel with military units. (Id. 29.) Defendant Mark Boal (Boal) was embedded with Plaintiffs unit in December 2004 as a reporter for Playboy Magazine.1 (Sarver Decl. 11, 14.) Boal took photographs and videos of Plaintiff and his unit, following them while they were on and off duty. (Id. 16.) After Plaintiff returned to the United States in 2005, Boal visited him in Wisconsin and conducted additional interviews. (Boal Decl. 4.) Boal emailed a copy of his article to Plaintiff and members of his unit in August 2005. (Id., Ex. B.) Boals article, published in the August/September 2005 issue of Playboy Magazine, focused entirely on Plaintiffs life and experience in Iraq. (Compl., Ex. A.) An amended version of the article was later published in Readers Digest in 2006. (Sarver Decl. 32.) Boal contends that he interviewed Plaintiff for the express purpose of the article. (Boal Decl. 4.) Plaintiff, on the other hand, alleges that he never consented to the use of his name or likeness. (Sarver Decl. 19, 27.) Plaintiff claims that he objected to the Playboy article prior to its publication, but was told it had already been distributed. (Sarver Decl. 30.) Boal subsequently wrote the screenplay for the motion picture The Hurt Locker. The movie was released on June 26, 2009, at which time Plaintiff was stationed in New Jersey. (Id. 33-34, 40.) Plaintiff alleges that Will James, the main character in the movie, is based on his life and experiences, without his consent to the use of his story. Plaintiff points to characteristics of Will James and events in the movie mirroring his personal story. (Sarver Decl. 41.)
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The parties dispute how long Boal was embedded in Plaintiffs unit. According to Boal, he spent only 14 days with Plaintiffs unit. (Boal Decl. 3.) 27 Plaintiff contends, however, that Boal followed his unit exclusively for 30 days. 28 (Sarver Decl. 1415.) 26
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Although Defendants argue the character was adapted from Boals experience with EOD technicians and other interviews, the actor who played Will James stated in an interview, Where they showed me, definitely a guy, there was one guy they knew was like James, this character I played. (Sarver Decl., Ex. C.) When the movie premiered, Plaintiff claims he attended on his own initiative. (Id. 35-36). Boal contends that he maintained contact with Plaintiff through this period and invited him to the premiere. (Boal Decl. 12.) Plaintiffs lawsuit alleges that he has been harmed, and that the public disclosure of his identity places him at greater risk during military operations. (Id. 46.) He also claims that he has been denied employment within the Joint Special Operations Command after being labeled a counter-intelligence risk for selling his movie rights. (Id. 46c.) II. PROCEDURAL HISTORY On March 2, 2010, Plaintiff filed a complaint in the United States District Court, District of New Jersey against Defendants alleging the following violations: Right of Publicity/Misappropriation of Name and Likeness; False Light Invasion of Privacy; Defamation; Breach of Contract; Intentional Infliction of Emotional Distress; Actual/Intentional Fraud; and Constructive Fraud/Negligent Misrepresentation. (Docket no. 1.) The case was transferred to this Court under 28 U.S.C. 1404(a) on November 18, 2010. (Docket no. 54.) On February 1, 2011, Defendants Nicolas Chartier, Grosvenor Park Media, L.P., Kingsgate Films, Inc., Greg Shapiro, The Hurt Locker, LLC, and Voltage Pictures, LLC, filed a motion to strike Plaintiffs complaint under Cal. Code Civ. Proc. 425.16 (anti-SLAPP). (Hurt Locker Motion; docket no. 78). The Motion was joined by Defendants Mark Boal and Kathryn Bigelow (docket no. 83), and Summit Entertainment, LLC (docket no. 82). On March 2, 2011, Boal and Bigelow filed a separate Motion to Strike. (Boal Motion; docket no. 98.)
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On March 14, 2011, Plaintiff opposed both the Hurt Locker Motion and the Boal Motion in a single opposition, which was filed in two parts. (Docket nos. 103, 104.) Defendants Boal and Bigelow filed a Reply on March 21, 2011. (Docket no. 116.) The Hurt Locker Defendants joined in the Reply. (Docket no. 117.) On August 8, 2011, the Court heard oral argument and took the matter under submission.2 III. CHOICE OF LAW The Court applies the choice of law rules of New Jersey, since this case was transferred from the District Court of New Jersey under 28 U.S.C. 1404(a). See Van Dusen v. Barack, 376 U.S. 612, 642 (1964). New Jerseys choice of laws follows the Restatement Second, Conflict of Laws. P.V. v. Camp Jaycee, 197 N.J. 132, 139-42 (2008). The Second Restatement provides judges with a starting point . . .It is then up to the judge to make it all work. P.V., 197 N.J. at 140. The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties. RESTATEMENT (SECOND) OF CONFLICT OF LAWS 145(1) (1971). Factors that are weighed include: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicil, residence, nationality, place of incorporation and place of business of the parties; and (d) the place where the relationship, if any, between the parties is centered. Id. 145(2). A tort occurs wherever libelous material is spread, and an injured party can bring suit in any
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Plaintiff subsequently filed a Supplemental Brief in Opposition, and Defendants Boal and Bigelow filed a Reply and Objection to same. (Docket nos. 126, 27 127.) The Court did not grant leave to file supplemental briefs and, therefore, the 28 briefs are stricken. 26
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forum with which the defendant has minimal contacts. See Keaton v. Hustler, 465 U.S. 770, 780-81 (1984). Here, a New Jersey court would have applied California law because it has the greatest relationship with the occurrence and parties. To begin, factor (a)the place where the injury occurred, and factor (b)the place where the conduct causing the injury occurred, both favor California law, as the movie was produced in California. Factor (c)the domicil, residence, nationality, place of incorporation and place of business of the partiesalso militates in favor of California law. The majority of defendants reside or are incorporated in California,3 and even though Plaintiff was stationed in New Jersey, he was there subject to orders and was not domiciled there.4 Finally, factor (d)the place where the relationship, if any, between the parties is centeredis neutral. The relationship between the parties was either non-existent or occurred in Iraq or Wisconsin. Accordingly, the occurrence and parties have stronger ties to California than New Jersey, and a New Jersey court would have applied California law. IV. LEGAL STANDARD Californias anti-SLAPP statute was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-

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Of the thirteen defendants, only Boal is domiciled outside of California.

A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. Banter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001); Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). Service personnel are presumed not to acquire a new domicile when they are stationed in a place pursuant to orders; they retain the domicile they had at the time of entry into the services. 13E Charles Alan Wright et al., Federal Practice and Procedure 3617, 607 (3d ed. 2009); see also Melendez-Garcia v. Sanchez, 629 F.3d 25, 41 (1st Cir. 2010).
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consuming litigation. Metabolife Intl v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). The statute should be construed broadly. Cal. Code Civ. Proc. 425.16(a). California courts evaluate a defendants anti-SLAPP motion in two steps. Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010). First, the defendant must make a threshold showing that the act or acts of which the plaintiff complains were in furtherance of the right of petition or free speech, and in connection with a public issue. Id. Second, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. Navellier v. Sletten, 29 Cal. 4th 82, 89 (2002) (quoting Wilson v. Parker, Covert, & Chidester, 28 Cal.4th 811, 821 (2002)); New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1098 (2004). This burden is much like that used in determining a motion for nonsuit or directed verdict, which mandates dismissal when no reasonable jury could find for the plaintiff. Metabolife, 264 F.3d at 840 (quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 824 (1994)). V. EVIDENTIARY OBJECTIONS Defendants object to portions of the Declaration of Sergeant Jeffrey S. Sarver (Sarver Decl.). (Evidentiary Objections to Sarver Decl.; docket no. 112.) The Court sustains the hearsay objection to Sarvers statement that Sergeant Major James Clifford advised him and others in his unit that they were to accommodate Boal and that Boal was only reporting on EOD operations in general. (Sarver Decl. 12.) The Court also sustains Defendants objection to Exhibit A, the embedded media Ground Rules, as lacking in foundation. The Court need not rule on Defendants remaining objections because the Court does not rely on those portions of the Sarver Declaration.
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The Court also need not address Defendants objections to the Declaration of Sergeant Paul Wilcock, and to Exhibit A attached to the Declaration of Todd J. Weglarz, because the Courts ruling does not rely on these documents. The Court addresses Plaintiffs evidentiary objections to the Declaration of Mark Boal as needed in the Order. VI. DISCUSSION Defendants argue that all of Plaintiffs claims must be stricken because Defendants were engaged in protected speech, and Plaintiff cannot establish a probability of success on his claims. Plaintiff counters that even if Defendants were engaged in protected speech, he has made a prima facie showing of a probability of prevailing on his claims.5 A. Defendants Were Engaged in the Exercise of Free Speech in Connection to a Public Issue In order to bring an anti-SLAPP motion, Defendants must show that the challenged activity is both in furtherance of free speech and in connection to a public issue. Cal. Code Civ. Proc. 425.16(b)(1); Hilton, 599 F.3d at 902; Cal. Code Civ. Proc. 425.16(e)(4); see also Navellier, 39 Cal. 4th at 94. The California Supreme Court has not drawn the outer limits of activity that furthers the exercise of free speech rights. Hilton, 599 F. 3d at 903. The As an initial matter, Plaintiff argues that Defendants Motions were not timely filed. (Oppn at 1.) Anti-SLAPP motions may be filed within 60 days of the commencement of an action. Cal. Code Civ. Proc. 425.16(f). It is within the discretion of the Court to accept or deny Anti-SLAPP motions after 60 days provided the purposes of anti-SLAPP are not undermined. See New.Net, Inc., 356 F.Supp. 2d at 1100 (finding the motion could be considered because the case had not proceeded in any material respect); see also Cal. Code Civ. Proc. 425.16(f); Kunysz v. Sandler, 146 Cal. App. 4th 1540, 1543 (Ct. App. 2007); Morin v. Rosenthal, 122 Cal. App. 4th 673, 678-79 (Ct. App. 2004). Here, the Court exercises its discretion to review the Motions, as the case has not proceeded in any material respect.
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courts of California have interpreted this piece of the defendants showing rather loosely. Id. at 904. Motion pictures are a significant medium for the communication of ideas. Burstyn v. Wilson, 343 U.S. 495, 501 (1952). Thus, expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. Id. at 502. Here, Defendants have easily met the first prong of showing that they were engaged in protected speech, since The Hurt Locker was a commercial film. Indeed, Plaintiff does not attempt to argue otherwise. Next, Defendants must show that the challenged activity was connected to a matter of public interest. California courts have held that an issue of public interest . . . is any issue in which the public is interested. In other words, the issue need not be significant to be protected by the anti-SLAPP statuteit is enough that it is one in which the public takes an interest. Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 144 (2011) (citation omitted.) So long as the conduct at issue is connected to the public interest in some way, anti-SLAPP protection applies. See Tamkin, 193 Cal. App. 4th at 144 (We believe the statutory language compels us to focus on the conduct of the defendants and to inquire whether that conduct furthered such defendants exercise of their free speech rights concerning a matter of public interest. We find no requirement that the plaintiffs persona be a matter of public interest.) Here, the alleged portrayal of Plaintiff in the movie is connected to an issue of public interest, given Plaintiffs service in the Iraq war, the importance of EOD technicians in the war effort, the high-level danger of Plaintiffs duties, and Plaintiffs claims that he disarmed more IEDs than any single team since operations began in Iraq. Furthermore, Defendants conduct, when viewed in a broader context the investigative journalism that contributed to the writing of the Playboy article as
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well as the The Hurt Locker screenplayis unquestionably connected to the public interest. The heart of Plaintiffs Complaint centers on the allegation that while Boal was embedded as a journalist in Plaintiffs unit, he learned information from Plaintiff that he later used without Plaintiffs permission. Moreover, both the article and the movie directly address the problem of improvised explosive devices and the men who defused theman issue of paramount importance in the Iraq war. Therefore, the Court finds that Defendants have also met their burden of demonstrating the second prong that their conduct is connected to a public issue. B. Plaintiff Has Not Shown a Probability of Prevailing on His Claims To demonstrate a probability of prevailing on the merits, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor. The plaintiff's showing of facts must consist of evidence that would be admissible at trial. The court cannot weigh the evidence, but must determine whether the evidence is sufficient to support a judgment in the plaintiff's favor as a matter of law, as on a motion for summary judgment. Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 679 (2010) (citing Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1346 (2007) (citations omitted).) For the reasons stated below, the Court finds that Plaintiff has failed to establish a prima facie showing of facts that, if accepted by the trier of fact, would support judgment in his favor as a matter of law. 1. The Right of Publicity / Misappropriation Claim

Plaintiff alleges that the writing, filming, production and distribution of The Hurt Locker amounted to an appropriation of plaintiffs name and/or likeness for the Defendants own use and benefit. (Compl. 71.) To state a common law right of publicity/misappropriation of name or likeness claim, a plaintiff must allege: (1) the defendants use of the plaintiffs
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identity; (2) the appropriation of plaintiffs name or likeness to defendants advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983). The Ninth Circuit has expanded the common law right of publicity to include protecting celebrities interest in their identity as well as name and likeness.6 White v. Samsung Electronics America, Inc., 1992 U.S. App. LEXIS 19253 (9th Cir. 1992). The right of publicity, like copyright, protects a form of intellectual property that society deems to have some social utility. Often considerable money, time and energy are needed to develop one's prominence in a particular field. Years of labor may be required before one's skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return through some medium of commercial promotion. For some, the investment may eventually create considerable commercial value in one's identity. Comedy III Productions, Inc. v. Gary Saderup, Inc. (Comedy III), 25 Cal. 4th 387, 399 (2001) (citing Lugosi v. Universal Pictures, 25 Cal. 3d 813,834-835 (1979) (dis. opn. of Bird, C. J.))(internal citations omitted in original). The rationale for protecting the right of publicity is to prevent unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576 ( 1977). What the right of publicity holder possesses is not a right of censorship, In his dissenting opinion, however, Chief Judge Kozinski warned that expanding the right of publicity to include appropriation of identity, even in the commercial context, cannot be squared with the First Amendment. White, 989 F.2d at 1521 (dissent)(In the name of avoiding the "evisceration" of a celebrity's rights in her image, the majority diminishes the rights of copyright holders and the public at large. In the name of fostering creativity, the majority suppresses it. . . . I cannot agree.)
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but a right to prevent others from misappropriating the economic value generated by the celebrity's fame through the merchandising of the name, voice, signature, photograph, or likeness of the celebrity. Comedy III, 25 Cal. 4th at 403. Although the theory behind the right would seem to exclude those who can not claim celebrity status, California courts have analyzed misappropriation claims brought by individuals who do not claim celebrity status. See, e.g., Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 322 (1997). a. The First Amendment Transformative Use Defense

Defendants argue that even if Plaintiff can show a probability of prevailing on the elements of a misappropriation claim, the First Amendment bars Plaintiffs claim. (Boal Motion at 10; Hurt Locker Motion at 1314.) The California Supreme Court has adopted the transformative use defense to right of publicity claims. Comedy III, 25 Cal. 4th 387 (2001). In Comedy III, after discussing the challenges of devising a test that will unerringly distinguish between forms of artistic expression protected by the First Amendment and those that must give way to the right of publicity, the Court borrowed from the first fair use factorthe purpose and character of the usein the fair use defense employed in copyright law. Id. at 404. This inquiry into whether a work is transformative appears to us to be necessarily at the heart of any judicial attempt to square the right of publicity with the First Amendment. Id. The Court explained that both the First Amendment and copyright law have a common goal of encouragement of free expression and creativity, the former by protecting such expression from government interference, the latter by protecting the creative fruits of intellectual and artistic labor. Id. at 40405. The transformative use test strikes a balance between the individuals right of publicity and the First Amendment right to free expression. In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as [an] affirmative defense that the work is protected by the First
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Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame. Id. at 407. The test simply requires the court to examine and compare the allegedly expressive work with the images of the plaintiff to discern if the defendant's work contributes significantly distinctive and expressive content; i.e., is transformative. If distinctions exist, the First Amendment bars claims based on appropriation of the plaintiff's identity or likeness; if not, the claims are not barred. Kirby, 144 Cal. App. 4th at 61 (citing Winter v. DC Comics, 30 Cal. 4th 881, 889891 (2003)). Further, the Court in Comedy III suggested broad application of the transformative use test: the transformative elements or creative contributions that require First Amendment protection . . . can take many forms, from factual reporting to fictionalized portrayal, from heavy-handed lampooning to subtle social criticism. Comedy III, 25 Cal. 4th at 406 (citations omitted) The Court recognizes that the application of the defense [is] a question of fact. Hilton, 599 F.3d at 909. Therefore, Defendants can prevail on their motions to strike only if the Court finds that they are entitled to the defense as a matter of lawthat is, no reasonable trier of fact could conclude that The Hurt Locker was not a transformative work. Hilton, 599 F.3d at 910; see also Polydoros, 67 Cal. App. 4th at 32323 (Even if the plaintiff could show that his likeness was appropriated for the main character in the motion picture, The Sandlot, the film is constitutionally protected.); Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 865 (1979) (Bird, J. concurring). Here, the Court concludes that, even if the Will James character was based on Plaintiff, no reasonable trier of fact could conclude that the work was not transformative. Defendants unquestionably contributed significant distinctive and

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expressive content to the character of Will James.7 Even assuming that Plaintiff and Will James share similar physical characteristics and idiosyncracies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie. To illustrate the expressive content contributed, Defendants cite 29 differences between Plaintiffs real life experience and the portrayal of Will James. (See Declaration of Mark Boal 8.)8 For example, Defendants argue that, unlike Plaintiff, the character of Will James served in Afghanistan prior to serving in Iraq, had an African-American teammate on his EOD team, accidentally shot an American soldier while attempting to rescue him, and was redeployed to Iraq after returning home (whereas Plaintiff went to work for the Army at a facility in New Jersey). (Id.) Finally, Plaintiff cannot and he does not dispute that the dialogue between characters, the other fictional characters with whom Will James

As the court in Polydoros discussed, characters in fictional works are often based on real people: It is generally understood that novels are written out of the background and experiences of the novelist. The characters portrayed are fictional, but very often they grow out of real persons the author has met or observed. This is so also with respect to the places which are the setting of the novel. The end result may be so fictional as to seem wholly imaginary, but the acorn of fact is usually the progenitor of the oak, which when fully grown no longer has any resemblance to the acorn. In order to disguise the acorn and to preserve the fiction, the novelist disguises the names of the actual persons who inspired the characters in his book. Polydoros, 67 Cal. App. 4th at 323 (citing People v. Charles Scribners Sons, 130 N.Y.S. 2d 514, 51718 (1954)).
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Although Plaintiff objects to the entirety of Mark Boals Declaration on the basis that the his declaration is based upon materials Plaintiff has requested but not 28 received, the Court overrules this overly broad objection. (Docket no. 121.)
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interacted, and the direction of the actor all added significant and distinctive expressive content. Thus, the character of Will James, even if modeled after Plaintiff, is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness. Comedy III, 25 Cal. 4th at 406.9 Further, the Court also employs a secondary inquiry suggested by the California Supreme Court in Comedy III that focuses on whether the value of the work is mainly derived from the fame of the plaintiff. The Court explained: Furthermore, in determining whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry, particularly in close cases: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity--from the creativity, skill, and reputation of the artist--it may be presumed that sufficient transformative elements are present to warrant First Amendment protection. Comedy III, 25 Cal. 4th at 407. Here, the value of The Hurt Locker unquestionably derived from the creativity and skill of the writers, directors, and producers who conceived, wrote, directed, edited, and produced it. Whatever recognition or fame Plaintiff may have achieved, it had little to do with the success of the movie. Thus, Plaintiffs

Plaintiff relies on a recent Northern District of California case, Keller v. 21 Electronic Arts, Inc., No. 091967, 2010 U.S. Dist. LEXIS 10719 (N.D. Cal. Feb. 8, 22 2010). In Keller, the court found that the transformative use defense did not provide First Amendment protection when a video game developer used the likeness of a 23 college football quarterback in a football video game. Id. at *16. Keller is 24 distinguishable because, unlike Defendants here, the defendants in Keller added little distinctive and expressive content. Id. The plaintiff was depicted as the same height 25 and weight, wearing his college football uniform, wearing the jersey number that he 26 wore in college, and playing football. Id. Moreover, while the Court finds the Keller case to be distinguishable, the Court also notes that the case is not controlling here. 27 For these reasons, the Court finds that the transformative use defense bars Plaintiffs 28 right of publicity claim.
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claim is barred by the First Amendment as a matter of law.10 Accordingly, the misappropriation claim is stricken. 2. The Defamation Claim

Plaintiff alleges that The Hurt Locker contained several false and defamatory statements concerning the Plaintiff. (Compl. 79.) Specifically, Plaintiff alleges that he was falsely portrayed as a bad father, a man who had no respect or compassion for human life and who was fascinated with the thrill of war and death, and a soldier who violated military rules and regulations. (Id.) Plaintiff does not allege defamation claims based on the Playboy article. Defamation is effected by either of the following: (a) Libel. (b) Slander. Cal Civ. Code 44. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. Cal Civ. Code 45. As an initial matter, Defendants contend that Plaintiffs defamation claim should be stricken because no reasonable person would believe that the film was about Plaintiff. (Hurt Locker Motion at 15.) The test is whether a reasonable person, viewing the motion picture, would understand the character . . . was, in actual fact, [the plaintiff] conducting herself as described. Aguilar v. Universal City Studios, Inc., 174 Cal. App. 3d 384, 387 (1985) (citing Bindrim v. Mitchell, 92 Cal.App.3d 61, 78 (1979)). Fictional works have no obligation to the truth. During oral argument, Defendants urge the Court to apply a malice standard to Plaintiffs right of publicity claim. See Stewart v. Rolling Stone, 181 Cal. App. 4th 664, 682 (2010) ( We conclude defendant publisher may assert that the actual malice standard applies to claims for commercial misappropriation, whether the claims are brought under the common law or under Civil Code section 3344.) The Court need not address this argument because the Court finds that Plaintiffs claim is barred under the transformative use test.
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See, e.g., Guglielmi, 25 Cal. 3d at 871 (Bird, J. concurring) ([I]n defamation cases, the concern is with defamatory lies masquerading as truth. In contrast, the author who denotes his work as fiction proclaims his literary license and indifference to the facts. There is no pretense. All fiction, by definition, eschews an obligation to be faithful to historical truth.) The Court agrees with Defendants that the movie is sufficiently transformative such that Plaintiffs defamation claim is barred. Further, Will James is not Plaintiffs name, and the beginning of the film contains a specific disclaimer that the film is a work of fiction. (Hurt Locker Motion at 15.) However, even assuming, arguendo, that a reasonable viewer would believe the movie is about Plaintiff, he has nevertheless failed to present sufficient evidence to establish a prima facie case that the depictions of him are false. To state a defamation claim that survives a First Amendment challenge, . . . a plaintiff must present evidence of a statement of fact that is provably false.11 Nygard, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1048-1049 (2008) (citing Seelig v. Infinity Broadcasting Corp, 97 Cal.App.4th 798, 809 (2002)). To ascertain whether the statements in question are provably false factual assertions, courts consider the totality of the circumstances. Id. (citing Seelig, 97

Typically, the plaintiffs burden of proof on a defamation claim depends on whether they are public figure, or private individual. Public figures must prove actual malice as they can respond through the media and influence public opinion. See New York Times v. Sullivan, 376 U.S. 254, 281 (1964); Gertz, 418 U.S. at 327-28. Private figures must only show negligence to recover actual damages. Khawar v. Globe International, Inc., 19 Cal. 4th 254, 274 (1998) (citing Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711, 742 (1989)). Here, the Court need not determine whether Plaintiff is a public or private figure because even if Plaintiff is a private figure and only has to show negligence, his defamation claim nevertheless fails.
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Cal.App.4th at 809). Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. Id. Plaintiff has not established a prima facie case that the alleged depictions of him are provably false. For example, Plaintiff alleges that he is defamed because Will James is portrayed as a bad father who does not love his son. However, the Court does not agree with Plaintiffs characterization of Will James as a man who does not love his son. In The Hurt Locker, Will James keeps photos of his son with him in Iraq and is shown visiting his wife and child while on leave from duty. The Court also finds no support in the movie for Plaintiffs allegation that he is portrayed as a man who had no respect or compassion for human life. To the contrary, The Hurt Locker depicts Will James as having compassion for the Iraqi citizens whose lives are affected by the war. For example, in one scene, he befriends a young Iraqi boy with whom he plays soccer. Later in the film, he attempts to save a man who has been locked inside a suicide bomb vest. Thus, the Court finds Plaintiffs defamation claim to be unsupported. Plaintiff also alleges he was defamed because he was portrayed as a man who is fascinated with war and death. First, the Court finds no basis for the claim that Will James is fascinated with death. However, even if the character exhibits a fascination with his job and the war, given Plaintiffs statements printed in the Playboy article, the Court does not find that this depiction is provably false. For example, Plaintiff is quoted in the Playboy article, describing his fascination with his job: Where else can I spend the morning taking apart an IED and in the afternoon drive down the road with 200 pounds of explosives in my truck, blowing up car bombs and trucks? I love all that stuff. Anything that goes boom. Its addictive. The thump, the boomI love it. Its like the moth to the bright white light for me.

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(Compl., Ex. A.) Because Plaintiff has stated that he is fascinated with his jobdisarming bombs in various warsPlaintiff does not show how this alleged defamatory portrayal is provably false. Finally, Defendant argues that he is portrayed as a soldier who violated military rules and regulations. However, in illustration of this assertion, Plaintiff points to the fictional scene where Will James responds to a burning car bomb with a fire extinguisher. (Sarver Decl. 45(a).) The Court does not find this depiction to be a factual assertion that could result in contempt or ridicule or which causes Plaintiff to be shunned or avoided. Nor does the Court find that this scene would tend to injure Plaintiff in his occupation. Although Plaintiff declares that this depiction causes leadership and junior soldiers to doubt his judgment, Plaintiff presents no evidence to show that this portrayal has the tendency to injure him in his occupation. Moreover, the fact that Plaintiff admits other soldiers ask him if this event really happened is evidence that the fictional presumption of the film undercuts Plaintiffs claims of defamation. Because Plaintiff does not present evidence to support his claims of defamation, this claim is stricken. 3. The False Light/ Invasion of Privacy Claim

Plaintiff alleges that The Hurt Locker portrayed him in a false light because the Will James character is a major misrepresentation of his character and highly offensive to a reasonable person. (Compl. 76.) To succeed on a false light claim, the portrayal must be both false and highly offensive to a reasonable person. Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 238 (1986); see also M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (2001) (stating a false light claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.). Fair but unflattering depictions are not actionable. See Aisenson v. Am. Broad. Co., 220 Cal. App. 3d 146, 161 (1990).
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[N]o person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance. Id. at 630 (quoting Cal. Civ. Code 3425.3); Selleck v. Globe Intl, 166 Cal. App. 3d 1123, 1135 (1988). Courts have interpreted the single-publication rule to mean that a plaintiff may have only one cause of action for one publication. M.G., 89 Cal. App. 4th at 630. Here, Plaintiffs false light claim and his defamation claims are redundant because they are based on the same publication or utterance. Accordingly, the Court may strike the false light claim on this ground alone. However, even if this claim were considered, the portrayal of Plaintiff was not highly offensive to a reasonable person. If the character of Will James was in fact modeled on Plaintiff, then Plaintiff was portrayed as a war hero, struggling with presumably the same conflicts experienced by many modern military soldiers, deployed in a foreign country. For these reasons, the false light claim fails. 4. The Breach of Contract Claim

Plaintiff alleges that he was a third party beneficiary to a contract between Boal and the United States Department of Defense which restricted Boals reporting to military operations in general. (Compl. 87.) Boal allegedly breached the contract by reporting about Plaintiffs personal life. (Id. 90, 91.) A third party beneficiary must show the contract was made expressly for his or her benefit. Sofias v. Bank of America, 172 Cal. App. 3d 583, 587 (1985). The third party must be benefitted in direct and unmistakable language. Id. Here, Plaintiff cannot prove a probability of success on this claim because he provides no evidence of any contract between Boal and the Department of Defense. While Plaintiff has attached a Public Affairs Guidance Cable to which embedded reporters in Iraq were required to adhere (Pl.s Ex. A 4), the Court has deemed this evidence inadmissible due to lack of foundation.

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Further, even if this document were considered, Plaintiffs claim still fails. Plaintiff argues that Defendant Boal breached paragraph 4.F.14 which precluded the media from releasing service members names and home towns without consent. Paragraph 4.A. states all interviews with service members will be on the record. By his own admission, Plaintiff voluntarily discussed his background and experiences with Boal, thereby implicitly consenting to the publication of that information. Thus, the language in the alleged contract undermines Plaintiffs argument that the contract was breached. Moreover, there is no indication that Plaintiff was a third party beneficiary, assuming that a contract existed between Boal and the Department of Defense. For these reasons, Plaintiffs breach of contract claim is stricken. 5. The Intentional Infliction of Emotional Distress Claim

Plaintiff alleges that Defendants appropriated his likeness without his consent and depicted him in embarrassing and unflattering ways which proximately caused him severe emotional distress. (Compl. 9396.) To sustain a claim for the intentional infliction of emotional distress, a plaintiff must prove: (1) defendants conduct was extreme and outrageous; (2) plaintiff suffered severe or extreme emotional distress; and (3) defendants conduct proximately caused the injury. Cervantez v. J.C. Penney Co., Inc., 24 Cal. 3d 579, 593 (1979). The first prong is evaluated from the standpoint of a reasonable person, excluding those who are overly sensitive or callous. Miller v. Natl Broad. Co., 187 Cal. App. 3d 1463, 1487 (1986). In this case, Plaintiff has failed to establish a probability of success on his intentional infliction of emotional distress claim. First, because Plaintiffs claim of misappropriation fails, the claim of intentional infliction of emotional distress based on the misappropriation claim must also necessarily fail. Second, the infliction of emotional distress claim fails because Defendants behavior was neither extreme nor outrageous. Boal was embedded in Plaintiffs unit to report
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on the efforts of Plaintiffs bomb disposal unit in the Iraq war. The fact that his report led to a screenplay which became a movie is not outrageous. Rather it is commonplace that movies are based on real events. Further, Plaintiff voluntarily submitted to interviews with Boal both in Iraq as well as after returning home to Wisconsin. (Sarver Decl. 20, 22.) Finally, even if the lead character was based on Plaintiff, Defendants used a fictional name for the character, which falls short of extreme and outrageous conduct. Accordingly, the claim of intentional infliction of emotional distress is stricken. 6. The Fraud and Negligent Misrepresentation Claims

Plaintiff asserts claims of fraud, constructive fraud, and negligent misrepresentation based on the allegations that Boal misrepresented to Plaintiff that he embedded in Plaintiffs military unit to report on military operations in general. Plaintiff alleges that he relied on the misrepresentation to his detriment. (Id. 98, 103107.) To state a cause of action for fraud, a plaintiff must allege: (a) misrepresentation; (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Neilson v. Union Bank of Cal., 290 F. Supp. 2d. 1101, 1140-41 (C.D. Cal. 2003). The tort of constructive fraud requires a plaintiff allege: (1) a fiduciary or contractual relationship; (2) an act, omission, or concealment involving breach; (3) reliance; (4) damage. Id. at 1142. The elements of a cause of action for negligent misrepresentation are the same as those of a claim for fraud, with the exception that the defendant need not actually know the representation is false. Id. at 1141. Here, Plaintiff has not presented facts that, if credited, would establish actual or constructive fraud. First, Plaintiff does not submit any admissible evidence that Boal misrepresented that his only intent was to report on EOD technicians in general. Nor does Plaintiff present any admissible evidence that
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Boal obfuscated the fact that he was writing a screenplay based on the Playboy article. For this same reason, Plaintiffs negligent misrepresentation claim also fails. Second, Plaintiff has failed to provide any evidence of a fiduciary or contractual relationship between himself and Boal, which is required for a claim of constructive fraud.12 Accordingly, these claims are stricken. C. Defendants are Entitled to Attorneys Fees A prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs. Cal. Code Civ. Proc. 425.16(c)(1). Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001); see also ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1018 (2001). Defendants in this case, as the prevailing party on a special motion to strike, are entitled to attorneys fees. Accordingly, the Court awards attorneys fees to Defendants. VII. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants Motions (docket nos. 78, 98). Plaintiffs Complaint is stricken in its entirety. IT IS SO ORDERED. Dated: October 13, 2011 Hon. Jacqueline H. Nguyen UNITED STATES DISTRICT COURT

Defendants also argue that Plaintiffs claim of fraud against Boal for the Playboy article should be stricken as the statute of limitations has passed. There is a three-year statute of limitations for fraud under California law, starting when the fraud is discovered. Cal. Code Civ. Proc. 338(d). The Court agrees. The Playboy article was published in August/September 2005 and Plaintiff received a copy in August 2005, but failed to file this action for more than five years. As such, the fraud claim against Defendant Boal for the Playboy article is also stricken on this basis.
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