Daniel v. Wayans

Anti-SLAPP motion to strike plaintiff actor’s complaint was properly granted in favor of defendant actor-director with respect to racial discrimination claims alleging defendant had called plaintiff the N-word on set.  In this 2-1 decision, the court affirms the grant of an Anti-SLAPP motion to strike a complaint by a black actor against the black actor-director of a movie claiming racial discrimination and other wrongs in connection with calling plaintiff the N-word on the movie set and using his image in internet advertising for the film.  The conduct giving rise to this suit was only speech, not non-verbal conduct.  That it occurred, in part, on set while cameras were not rolling did not matter since the movie creative process extends beyond the actual filming of the movie, particularly in this highly improvisational movie.  The movie was of public interest since the defendant was a well known actor.  Plaintiff could not show a probability of success.  The “N-word,” at least when said by one black person about another can be an affectionate term, not a racial slur.  Defendant claimed he used it that way, and plaintiff had no contrary proof.  Evidence on the Anti-SLAPP motion also showed that plaintiff had signed a consent form to use of his image in connection with the film, thus nixing his claim for misappropriation of his likeness in the internet ads for the movie.

California Court of Appeal, Second District, Division 1 (Johnson, J.; Lui, J., concurring & dissenting); February 9, 2017; 2017 WL 526494

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