Metropolitan News-Enterprise


Friday, February 10, 2017


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Court of Appeal Affirms Order Tossing Suit Against Actor Marlon Wayans as SLAPP

Divided Panel Says Alleged Harassment of Black Actor on Set of ‘Haunted House 2’ Not Pervasive




The Court of Appeal for this district yesterday affirmed a Los Angeles Superior Court judge’s order striking a lawsuit against actor/director/producer Marlon Wayans under the anti-SLAPP statute.

In a 2-1 decisionDiv. One said Pierre Daniel’s racial harassment suit arose from “the creative process” and was thus rooted in protected activity. Justice Jeffrey Johnson wrote for the majority and Justice Elwood Lui dissented in part.

The majority—Johnson and Presiding Justice Frances Rothschild—also concluded that Daniel failed to show that the alleged harassment was sufficiently pervasive to support a hostile work environment claim, or that he was likely to prevail on his other causes of action.

Lui, however, agreed with the plaintiff that the suit did not target free speech on a matter of public interest, because much of the conduct occurred off-camera. He also argued that Daniel showed he was likely to prevail on his claim for intentional infliction of emotional distress.

Daniel sued Wayans and his various companies, alleging causes of action that included racial harassment, violation of the Unruh Civil Rights Act, misappropriation of likeness, false light invasion of privacy, breach of quasi-contract, as well as the emotional distress claim.

Daniel claimed Wayans created a hostile working environment on the set of “A Haunted House 2”—a 2014 film Wayans starred in, wrote, and produced and in which Daniel worked one day as an extra. He said Wayans repeatedly demeaned him on the set by, among other things, referring to him as, and comparing him to, the cartoon character Cleveland Brown of “Family Guy,” and calling him “Nigga,” and by posting side-by-side pictures of Daniel and the Cleveland Brown character on the Internet, along with a caption reading “Tell me this nigga don’t look like…THIS NIGGA.” (Ellipsis and capitalization in original.)

Wayans acknowledged referring to Daniel by the name of the cartoon character, saying it led him to use Cleveland as the name of a character in the film. He noted that the word “nigga” was commonly used on the set and throughout the film, and said that by promoting Daniel online as a lookalike for the character, he was promoting the film.

Daniel and Wayans are both African-American, and Wayans said the word is commonly used by African Americans as a term of endearment. He provided a declaration by co-star Jaime Pressly, who said the film was largely improvisational, and even included a scene where Wayans’s character called hers “nigga,” even though she’s white.

Wayans himself has used the word to describe her in the past, Pressly said.

Daniel responded that Wayans harassed him off-camera, referring derogatorily to his hairstyle and weight and repeatedly calling him Cleveland and nigga. He said he did not laugh at the term and found it to be “racially offensive and derogatory.”

Los Angeles Superior Court Judge Rafael Ongkeko granted the motion as to all causes of action and awarded Wayans more than $96,000 in attorney fees.

Johnson, writing for the Court of Appeal, agreed that the defendant’s admitted and alleged comments about the plaintiff were part of the process of making and promoting the film, and thus protected speech in connection with a matter of public interest. That was true, he said, even as to comments made off-camera.

The plaintiff’s contrary argument, he said, “rests on an unreasonably narrow or constrained view of the creative process generally.” He also found the declarations of Pressly and producer/cowriter Rick Alvarez to be unrebutted and compelling in showing that the improvisational, creative process continued off the set.

Johnson concluded that Daniel did not show a sufficient likelihood of prevailing to overcome the defendant’s showing on the “protected activity” prong of the analysis. Johnson—the only African-American member of the panel—said there was a difference between the “highly offensive and demeaning” term “nigger” and “its more genial cousin,” as Harvard law professor Randall Kennedy has described it, , “especially when used inter-racially.”

While the plaintiff may have found the word offensive when directed at him, Johnson wrote, he did not show “that an objectively reasonable Black actor in his situation would also find the term offensive such that its usage would unreasonably interfere with his work performance.”

Attorneys on appeal in Daniel v. Wayans, 17 S.O.S. 628, were Adam J. Reisner and Tessa M. King of Reisner & King, and Melinda W. Ebelhar and Douglas G. Benedon of Benedon & Serlin, for the plaintiff, and Venable’s William J. Briggs II, Celeste M. Brecht and Eric J. Bakewell for the defendant.


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