Southern District court denies summary judgments for both parties in misappropriation suit

By Charmaine Little | Nov 8, 2018

SAN DIEGO – On Oct. 11, the U.S. District Court for the Southern District of California denied both a group of plaintiffs and defendants’ motions for summary judgment in a case of misappropriation of likeness.

Plaintiffs Youngevity International, et al. sued Total Nutrition Team (TNT) and Blake Graham over allegations of misappropriation of likeness, which is a violation of California Civil Code section 3344. The plaintiffs sought monetary damages and a permanent injunction that would block the defendants’ commercial use of Dr. Joel Wallach’s name and likeness.

In December 2016, Southern District Judge James Lorenz granted the plaintiffs a preliminary injunction that banned the defendants from making commercial use of the assets, including the phone number 1-800-WALLACH and websites and 

While the defendants were once allowed to use Wallach’s likeness, the plaintiffs revoked their consent on March 21, 2016, after the plaintiffs and defendants ended their working relationship. Still, the defendants allegedly continued to use Wallach’s likeness through the court’s preliminary injunction in December 2016. The plaintiffs then filed this lawsuit.

The defendant sought summary judgment regarding the misappropriation claim with the argument that the plaintiffs' claims fail as a matter of law. The court denied the motion.

The defendants first reiterated their argument that the plaintiffs’ lawsuit concerning likeness is blocked by the state’s single publication rule that “limits tort claims premised on mass communications to a single cause of action that accrues upon the first publication of the communication, thereby sparing the courts from litigation of stale claims when an offending book or magazine is resold years later,” according to the ruling.

The court agreed with Lorenz that this argument isn’t persuasive. It pointed out the lawsuit didn’t spark until March 2016, when the plaintiffs took away their consent for the defendants to use Wallach’s likeness.

The court then looked at the misappropriation of the 1-800-WALLACH phone number. While the defendants said they stopped referring to the number as 1-800-WALLACH and only advertised the digits, the court wasn’t compelled. The motion states the defendants have been using the phone number for roughly 17 years to build its network, so the court disagreed with the defendants on this claim.

Concerning damages, the defendants said the plaintiffs couldn’t establish an injury because of the alleged misappropriation of Wallach’s name and likeness. The court disagreed. 

The plaintiffs' motion for summary judgment sought to permanently enjoin the defendant from using Wallach's name or likeness in commerce. The court denied the motion, stating that the issues should be left to a jury. 

Chief Judge Barry Ted Moskowitz authored the opinion.

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