Brophy v. Almanzar

Brophy v. Almanzar

Opinion

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS [Dkt. 86], DENYING DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION ON PLAINTIFF'S THIRD CLAIM [Dkt. 85], GRANTING DEFENDANTS' MOTION TO EXCLUDE EXPERT TESTIMONY OF DOUGLAS BANIA [Dkt. 107] AND DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE EXPERT OPINIONS OF MICHAEL EINHORN [Dkt. 84]

I. INTRODUCTION

In this case, Plaintiff Kevin Michael Brophy, Jr. alleges that Defendants Belcalis Almanzar (also known as Cardi B), KSR Group LLC, and Washpoppin, Inc. misappropriated his likeness by placing an image on the cover of one of Cardi B's albums that "explicitly misrepresents [P]laintiff having sex with Cardi B." (Dkt. 1 [Complaint, hereinafter [*2]  "Compl."] ¶ 21.) Plaintiff asserts claims for (1) misappropriation of likeness or identity, (2) violation of the right to publicity under California Civil Code § 3344, and (3) invasion of privacy (false light). (Id. ¶¶ 32-55.)

Now before the Court are four motions: (1) Defendants' motion for summary judgment on all claims based on a transformative use defense (Dkt. 86); (2) Defendants' motion for summary adjudication on Plaintiff's third claim based on the statute of limitations (Dkt. 85); (3) Defendants' motion to exclude the expert testimony of Douglas Bania (Dkt. 107); and (4) Plaintiff's motion to strike opinions of Defendants' rebuttal expert Michael Einhorn (Dkt. 84). For the following reasons, the first and second motions are DENIED, the third motion is GRANTED, and the fourth motion is DENIED AS MOOT.¹

II. BACKGROUND

Plaintiff is a 42-year old California resident who works for a "surfing and lifestyle company." (Dkt. 97 [Plaintiff's Statement of Genuine Disputes] ¶ 1.) He has many tattoos, but the one at the center of this case looks like this:

(Dkt. 87, Ex. 5.)

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