Daniel v. Wayans

Daniel v. Wayans (CA2/1 B261814 & B263950 2/9/17) Actor Racial Harassment/First Amendment Creative Process



On September 4, 2013, Pierre Daniel (Daniel), an actor, worked as an extra in a movie entitled, A Haunted House 2 (Open Road Films 2014).  Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie.  In August 2014, Daniel sued Wayans and others, alleging, inter alia, that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ”  In response, Wayans, pursuant to Code of Civil Procedure  section 425.16, moved to strike Daniel’s claims against him as a SLAPP suit (strategic lawsuit against public participation), arguing that all of Daniel’s claims arose from Wayans’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans.  As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees.



On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans’s anti-SLAPP motion—that is, the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest.  In the alternative, Daniel contends that even if the conduct at issue implicated Wayans’s right to free speech, he presented sufficient evidence to the trial court to establish a probability of prevailing.  We find both of Daniel’s arguments to be unpersuasive.  Accordingly, we affirm the judgment.

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