Filed 2/15/23 McKenna v. Sony Pictures Entertainment CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

PAULE McKENNA,

Plaintiff and Appellant, 

v.

SONY PICTURES 

ENTERTAINMENT, INC. et al,

Defendants and Respondents.

 B304256, B310814

 (Los Angeles County

 Super. Ct. No. 

 19SMCV01329)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Harry Jay Ford, III, Judge. Affirmed in part 

and dismissed in part. 

Paule McKenna, in pro. per., for Plaintiff and Appellant.

Ballard Spahr, Louis P. Petrich, and Elizabeth L. Schilken

for Defendants and Respondents.
2

Plaintiff and appellant Paule McKenna (plaintiff), the 

executor of the estate of Christopher Jones, sued defendants and 

respondents Sony Pictures Entertainment, Inc., Boss Film 

Productions, Inc., and Visiona Romantica, Inc. (collectively 

defendants) for allegedly misusing Jones’s name and likeness 

(posthumously) in the film Once Upon a Time . . . in Hollywood. 

Defendants filed a special motion to strike the complaint 

pursuant to the anti-SLAPP statute (Code Civ. Proc.,

1

§ 425.16). 

The trial court granted the motion in its entirety and, in later 

proceedings, granted defendants’ motion for attorney fees.2 We 

are asked to decide whether the challenged causes of action arise 

from protected activity and, if so, whether plaintiff satisfied her 

burden to show a probability of success on the merits of her 

claims. We also consider whether plaintiff timely appealed the 

order awarding defendants attorney fees.

I. BACKGROUND

A. Jones and the Film3

Christopher Jones was a popular actor in the 1960s. He 

starred in the television series The Legend of Jesse James and a 

1 Undesignated statutory references that follow are to the 

Code of Civil Procedure.

2 On May 21, 2021, plaintiff’s separate appeals (B304256 and 

B310814) were consolidated for briefing, argument, and decision.

3 The summary that follows is derived from the allegations in 

the operative pleadings and, to some degree, the parties’ evidence 

submitted in connection with the special motion to strike 

(§ 425.16, subd. (b)(2)), including the copy of the film lodged with 

the court.
3

number of movies including 3 in the Attic and Wild in the Streets. 

Jones quit Hollywood in 1969. He died in 2014. 

Once Upon a Time . . . in Hollywood (the film), is a film 

written and directed by Quentin Tarantino. It was produced by 

Boss Film Productions and released by Sony Pictures 

Entertainment in 2019. The film stars Leonardo DiCaprio as 

fictional actor Rick Dalton, Brad Pitt as his fictional stunt-double 

Cliff Booth, and Margot Robbie as real-life actor Sharon Tate. It 

depicts a few days in the lives of the three main characters in 

February and August 1969, and imagines (or reimagines, in 

Tate’s case), how their lives intersect with the Charles Manson 

family.4

A variety of products with recognizable name brands 

appear throughout the course of the film. For example, there is a 

scene in which Pitt’s character Booth cooks a box of Kraft 

macaroni and cheese. A box of Wheaties cereal is on his counter 

while he does so, and a copy of TV Guide is seen elsewhere in his 

home. The same scene includes brief glimpses of Booth’s 

television, which at one point plays an advertisement for Jones’s 

movie 3 in the Attic and identifies Jones as one of its stars. In 

various other scenes, Booth wears a t-shirt with a logo for 

Champion spark plugs on it. Characters also at one point drive 

down Hollywood Boulevard and pass the Pantages Theatre, 

which was displaying a marquee for 3 in the Attic featuring

Jones’s name. 

4 While the film provides her with a happier ending, in 

reality Sharon Tate was murdered by members of the Manson 

family.
4

B. The Complaint

In July 2019, plaintiff filed a complaint alleging five causes 

of action against defendants: (1) commercial misappropriation of 

publicity rights in violation of Civil Code section 3344.1, 

subdivision (a); (2) commercial misappropriation based on 

common law publicity rights; (3) trademark infringement in 

violation of the federal Lanham Act; (4) unfair business practices 

under Business and Professions Code section 17200 (the UCL); 

and (5) negligence. 

Though the complaint is not a model of clarity, it can be 

read to allege the Dalton and Booth characters were modeled and 

styled after Jones and, taken together, constitute an 

unauthorized use of Jones’s likeness that was used to endorse 

brand name products depicted in the film. It also alleges 

defendants used Jones’s likeness, identity, persona, publicity 

rights, trademark, trade dress, photograph, name, and film clip 

for commercial use in advertisements to market and promote the 

film. The complaint further asserts defendants’ use of Jones’s 

likeness in connection with brand endorsements could mislead 

consumers into thinking the products shown in the film were 

endorsed by Jones (or his estate) because the likeness is so 

carefully and unnecessarily crafted to take advantage of the 

popularity and authenticity of Jones. The complaint specifically

alleges Jones’s likeness was used to endorse brands including 

Tabasco, Twinkies, Wheaties, Carnation, Champion, and Lion. 

Factually, the complaint alleges Jones’s name is mentioned 

twice during the film and a marquee with his name is depicted in 

the background of a set. It emphasizes that Tarantino, during a 

podcast interview, mentioned Jones as one of dozens of actors 
5

used as inspiration for the film.5 The complaint also avers a

hairstylist who worked on the film said Tarantino instructed her 

to copy Jones’s hairstyle. 

The complaint goes on to allege various aspects of Jones’s 

life mirror aspects of the characters in the film. For example, the 

complaint alleges Jones had roles as a spy, a soldier, and in a 

musical with Virna Lisi; it also alleges he was filmed shirtless for 

one of his movies. In comparison, the complaint alleges Dalton is 

portrayed shirtless on a roof and his movie credits in the film

include portraying a solider, portraying a spy, and acting in a 

musical. As another example, the complaint alleges Jones often 

wore cowboy boots, wore a gold pendant necklace, spent some 

time with Tate while filming in Rome, and had a flashy agent, 

and that these elements are also present in the film as to Dalton 

or Booth (or both). 

The complaint seeks damages, as well as a permanent 

injunction prohibiting defendants from using Jones’s name, 

photographs, likeness, images, voice, sound-alike voice, 

signature, identity and persona, trademark, and trade dress until 

Jones’s influence on the film is credited.

5 The complaint attached a document it describes as a 

transcript of that interview. According to this transcript,

Tarantino described Dalton as a “he-man” leading man, stating 

he was a bit like a number of actors, including George Maharis, 

Edd Byrnes, Tab Hunter, Fabian, Vince Edwards, and Ty Hardin. 

He contrasted Dalton with the new leading man of the age, who 

was long haired and more androgynous, naming Michael 

Sarrazin, Christopher Tabori, Peter Fonda, Michael Douglas, 

Christopher Jones, Arlo Guthrie, and Robert Walker Jr. as 

examples. 
6

C. The Anti-SLAPP Motion 

1. The motion 

In October 2019, defendants filed a special motion to strike 

the complaint under section 425.16 (an anti-SLAPP motion). 

Defendants contended the film is a statement made in a public 

forum and conduct in furtherance of the exercise of free speech. 

They further contended the film concerns issues of public interest 

because it concerns the Manson family murders, the culture of 

the 1960s, and the movie and television industry. Defendants

further argued plaintiff could not demonstrate a probability of 

prevailing on the merits on any of her causes of action. 

Defendants submitted declarations in support of their

motion. The declaration of Shannon McIntosh, a producer on the 

film, avers: the film is set in the late 1960s, so the characters are 

occasionally depicted using consumer products that were popular 

at the time; there was one paid product placement arrangement 

related to a product depicted in the film, Hennessey cognac, but 

none of the uses of Hennessy in the film are connected to any use 

of Jones’s name or alleged use of his likeness; the remaining 

products used in the film were used because Tarantino wanted to 

capture the look and feel of the time period; and the products and 

logos were depicted for artistic reasons with no money being paid 

to the filmmakers to include them in the film. 

Another declaration submitted by defendants cataloged the 

three instances in which Jones’s name appeared in

advertisements or promotions for the film: (1) a mock magazine 

devoted to the semi-fictional world depicted in the film that 

mentions both the fictional characters Dalton and Booth and 

various real-life entertainers including Jones, Steve McQueen, 

Clint Eastwood, Michael Douglas, and Frank Sinatra, among 
7

others; (2) a promotional trailer, which ran in AMC theaters from

July 21 to 26, 2019, describing the transformation of several 

blocks of Hollywood Boulevard during filming and briefly 

featuring a mock marquee on the Pantages Theater for Jones’s 

film 3 in the Attic; and (3) a promotional trailer depicting the 

same content that ran on Comedy Central on or about July 26, 

2019.6 This declaration also maintained defendants did not sell 

any items of merchandise in connection with the film and those 

items that had been distributed for free did not make use of

Jones’s name or likeness. 

Defendants also submitted more than half a dozen reviews 

or articles about the film from publications including the Los 

Angeles Times, The New York Times, and The New Yorker. One 

review noted “[t]he film revels in the detritus of the 

era . . . there’s the cupboards stocked with Velveeta, Hi-C, 

Nestle’s Quik and Wonder Bread, oil cans of beer, with copies of 

Mad Magazine and TV Guide strewn on everyone’s coffee tables, 

and one scene in which the camera lovingly records [Booth] 

mixing himself up a box of Kraft Mac and Cheese and eating it 

out of the pan with a wooden spoon. (Marchant, Class act of ‘69: 

‘Once Upon a Time . . . in Hollywood’ is Tarantino’s homage to his 

Southern California youth, Arkansas Democrat Gazette (July 26, 

2019) <https://www.arkansasonline.com/news/2019/jul/26/classact-of-69-20190726/> [as of Feb. 7, 2023].) Another review 

describes the film as being “set in a stunningly evoked Hollywood 

past.” (Ide, Once Upon a Time in Hollywood review – uneven ode 

6 A supplemental declaration later explained one of the 

featurettes on the home video release included a marquee with 

Jones’ name, which appeared for about one second. 
8

to a lost era, The Guardian (August 18, 2019) 

<https://www.theguardian.com/film/2019/aug/18/once-upon-atime-in-hollywood-review-quentin-tarantino-leonardo-dicapriobrad-pitt> [as of Feb. 7, 2023].) A third describes Tarantino as 

“[f]orging a style from the scraps of a consuming culture” and 

notes he “may be on a mission to get everything right about 1969, 

down to the sounds and smells . . . .” (Lane, Quentin Tarantino 

Tweaks History in “Once Upon a Time . . . in Hollywood,” The 

New Yorker (July 26, 2019)

<https://www.newyorker.com/magazine/2019/08/05/quentintarantino-tweaks-history-in-once-upon-a-time-in-hollywood> [as 

of Feb. 7, 2023].) 

2. The opposition 

Plaintiff opposed the anti-SLAPP motion and submitted 

various exhibits in support of her opposition. Among them was a 

copy of an interview with the lead hairstylist on the film who said

Pitt’s look during the film was patterned off of Jones’s 

appearance. Plaintiff also submitted a number of declarations 

from relatives and friends stating Jones’s likeness is depicted in

the film. Many of the declarations also opined the inclusion of 

brand logos either involved payment or linked Jones to those 

products. For example, one declaration asserted the film is “all 

about” Jones, and stated both Booth and Dalton resembled Jones 

at different points in his life. 

Plaintiff also submitted other materials with her opposition 

including: photographs and photo compilations comparing Jones’s 

appearance to the appearance of Pitt and DiCaprio in the movie;

printouts of third-party websites advertising merchandise related 

to the film; articles identifying brand endorsement and product 
9

placement deals involving other movies; and portions of articles 

stating the new owner of the Playboy mansion, where a scene in 

the film was shot, was an associate producer on the film. 

3. The trial court’s decision 

After hearing argument, the trial court granted defendants’

special motion to strike and struck the complaint in its entirety. 

The court found plaintiff’s causes of action arose from protected 

conduct under section 425.16, subdivision (e)(3) or (e)(4) because 

movies are protected free speech and defendants established 

overwhelming public interest in the film.7 The trial court also 

found plaintiff failed to establish a probability of prevailing on 

the merits on any of her causes of action. 

D. Attorney Fee Proceedings 

1. The fee motion 

In April 2020, defendants filed a motion for attorney fees. 

The motion argued defendants were entitled to a mandatory fee 

award in the amount of $64,350.50 because they were the 

prevailing parties in an action under Civil Code section 3344.1, 

7 Section 425.16, subdivision (e) provides in relevant part: 

“As used in this section, ‘act in furtherance of a person’s right of 

petition or free speech under the United States or California 

Constitution in connection with a public issue’ includes . . . (3) 

any written or oral statement or writing made in a place open to 

the public or a public forum in connection with an issue of public 

interest, or (4) any other conduct in furtherance of the exercise of 

the constitutional right of petition or the constitutional right of 

free speech in connection with a public issue or an issue of public 

interest.”
10

subdivision (a), and because they were the prevailing defendant 

on their anti-SLAPP motion.8 The motion was served on plaintiff, 

in pro per, the same day it was filed. The hearing on the fee 

motion was later rescheduled from August 2020 to December 

2020. 

Plaintiff opposed the motion arguing it should be denied 

because it had not been timely served on her then-attorney of 

record9and because it incorrectly included defendants’ entire 

defense fee for the case. Plaintiff objected to the amount of fees 

defendants’ counsel incurred in performing certain identified 

tasks, including watching the film, watching Jones’s movie 3 in 

the Attic, researching Jones, reviewing bonus material included 

on the home video release of the film, drafting declarations, and 

drafting the anti-SLAPP motion. 

The trial court granted the attorney fees motion.10 The 

court found the motion was timely served on plaintiff in pro per. 

8 The motion represented $48,326.50 was incurred in 

connection with the anti-SLAPP motion and $9,427.50 was

incurred in connection with the fee motion.

9 At the time the motion was served, plaintiff was 

represented by counsel in connection with her appeal of the order 

granting the anti-SLAPP motion. That attorney was not then 

representing her in connection with the fee motion, though the 

attorney later briefly assumed that role before withdrawing from 

the case altogether. 

10 The record on appeal does not contain a reporter’s 

transcript of the hearing on the fee motion. Plaintiff did, 

however, seek and obtain a settled statement regarding the 

hearing.
11

It found defendants prevailed on their anti-SLAPP motion and 

were entitled to mandatory fees and costs incurred in connection 

with the motion under section 425.16, subdivision (c). The court 

further found that pursuant to Civil Code section 3344.1, 

subdivision (a), defendants were the prevailing party and entitled 

to all fees and costs incurred to litigate the action. The court 

stated plaintiff did not argue the fees and costs should be 

apportioned and, in any event, apportionment would be 

impracticable. The court concluded the requested fees, in the 

amount of $64,350.50, were reasonable.

Defendants filed and served a notice of entry of the order 

granting the attorney fee motion on December 11, 2020. 

2. The fee appeal 

Plaintiff initiated the filing of a notice of appeal at 11:49 

p.m. on February 9, 2021. Her “final portal entry” was at 11:52 

p.m. The notice of appeal was file-stamped at 12:00 a.m. on 

February 10, 2021. (February 10, 2021, was 61 days after the 

notice of the court’s attorney fees ruling was served.) The notice 

of appeal, however, did not specify the judgment or order from 

which plaintiff was appealing (or the name of the appealing 

party), and it was later rejected by the clerk’s office for that 

reason. Plaintiff filed an amended notice of appeal at 11:48 a.m. 

on February 10, 2021; this one specified she was appealing the 

attorney fees ruling.

Plaintiff later filed a motion to correct the notice of appeal, 

asserting the midnight file stamp was due to a transmission 

failure. She asked this court to deem the first notice of appeal to 

have been filed on February 9, 2021, and to apply the initial filing 

date to the amended notice of appeal that was filed at 11:48 a.m. 
12

on February 10, 2021. Defendants opposed the motion, arguing 

in pertinent part that plaintiff’s submission was late not because 

of a transmission issue but because she waited until eight 

minutes prior to midnight to submit the filing. Defendants also 

submitted a declaration asserting the e-filing service plaintiff 

used instructs users to submit documents no later than 11:50 

p.m. on the day the filing is due.

II. DISCUSSION

We conclude the relevant acts involved in making Once 

Upon a Time...in Hollywood, including decisions to include 

recognizably branded products, are activity protected by the antiSLAPP statute. The film is a creative work that focuses on a 

time period of interest and reimagines a widely known historical 

event. Defendants submitted evidence establishing the decisions 

to include branded products in the film were creative, not 

financially motivated. Plaintiff’s allegation to the contrary does 

not negate defendants’ showing that the claims arise out of 

protected activity.

We also conclude plaintiff did not demonstrate any of her 

claims have minimal merit. Her statutory right of publicity claim

concerning a creative audiovisual work is defeated as a matter of 

law by defendants’ evidence. Her Lanham Act and UCL claims 

fail because defendants’ pertinent filmmaking decisions are 

protected by the First Amendment and because she has not 

established a protectible trademark or trade dress interest. 

Plaintiff’s negligence claim cannot be maintained consistent with

First Amendment protections. And her common law right of 

publicity claim has no likelihood of success because such rights 

under the common law expire upon the death of the original 
13

holder. As a result, we affirm the trial court’s order granting 

defendants’ anti-SLAPP motion.

We dismiss plaintiff’s appeal of the attorney fees order as 

untimely.

A. The Anti-SLAPP Statute 

The anti-SLAPP statute was enacted to curtail lawsuits 

“brought primarily to chill the valid exercise of the constitutional 

rights of freedom of speech and petition . . . .” (§ 425.16, subd. 

(a).) “[A] special motion to strike under section 425.16 involves a 

two-step process. First, the moving defendant must make a 

prima facie showing ‘that the act or acts of which the plaintiff 

complains were taken “in furtherance of the [defendant]’s right of 

petition or free speech . . . .’” [Citation.]” (City of Montebello v. 

Vasquez (2016) 1 Cal.5th 409, 420 (Montebello).) If the defendant 

carries this burden, the plaintiff must then demonstrate its 

claims have at least “‘minimal merit.’” (Baral v. Schnitt (2016) 1 

Cal.5th 376, 384-385 (Baral).) “The procedure is meant to 

prevent abusive SLAPP suits, while allowing ‘claims with the 

requisite minimal merit [to] proceed.’ [Citation.]” (Montebello, 

supra, at 420.)

We review an order granting or denying an anti-SLAPP 

motion de novo. (Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1067 (Park).) We consider the 

parties’ pleadings and affidavits describing the facts on which 

liability or defenses are predicated. (§ 425.16, subd. (b)(2); see 

also San Diegans for Open Government v. San Diego State 

University Research Foundation (2017) 13 Cal.App.5th 76, 94.)
14

B. The Complaint Arises from Protected Activity 

A party filing an anti-SLAPP motion satisfies the first 

analytical step if the party makes a prima facie showing the 

plaintiff’s cause of action “aris[es] from” an act the defendant 

performed in furtherance of the defendant’s right of petition or 

free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; 

accord, Park, supra, 2 Cal.5th at 1062 [“A claim arises from 

protected activity when that activity underlies or forms the basis 

for the claim”].) “[I]n ruling on an anti-SLAPP motion, courts 

should consider the elements of the challenged claim and what 

actions by the defendant supply those elements and consequently 

form the basis for liability.” (Park, supra, at 1063; accord, Bonni 

v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010, 1015 

[anti-SLAPP analysis begins with a consideration of the elements 

of each claim, “the actions alleged to establish those elements, 

and whether those actions are protected”].) Whether a claim is 

based on protected activity turns on “whether the ‘“core injuryproducing conduct”’ warranting relief under the cause of action is 

protected activity.” (Mission Beverage Co. v. Pabst Brewing Co., 

LLC (2017) 15 Cal.App.5th 686, 698.)

There are four categories of protected activity under the 

anti-SLAPP statute. The categories defendants invoke in this 

case are the subdivision (e)(3) and (e)(4) categories we earlier 

quoted in the margin: statements in a public forum in connection 

with an issue of public interest and conduct in furtherance of the 

exercise of the constitutional right of free speech in connection 

with a public issue or an issue of public interest. (§ 425.16, subd. 

(e)(3), (4).) “In articulating what constitutes a matter of public 

interest, courts look to certain specific considerations, such as 

whether the subject of the speech or activity ‘was a person or 
15

entity in the public eye’ or ‘could affect large numbers of people 

beyond the direct participants’ [citation] and whether the activity 

‘occur[red] in the context of an ongoing controversy, dispute or 

discussion’ [citation], or ‘affect[ed] a community in a manner 

similar to that of a governmental entity’ [citation].” (FilmOn.com 

Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146.)

Here, the acts from which the counts alleged in the 

complaint arise include mentioning Jones’s name in the film, 

depicting a marquee with Jones’s name on it in the background of 

a shot, mentioning Jones’s name in a fake magazine promoting 

the film, using Jones as an inspiration for the characters Booth 

and/or Dalton, and portraying Booth and/or Dalton in proximity 

to various commercial products like Kraft macaroni and cheese 

and the Champion logo. In other words, all of the pertinent acts 

and statements were included in the film and advertisements 

promoting the film.

The creation of a movie is an exercise of free speech. (E.g., 

Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th 

802, 816 (Musero); Dyer v. Childress (2007) 147 Cal.App.4th 1273, 

1280; see also Olivia N. v. National Broadcasting Co. (1981) 126 

Cal.App.3d 488, 493 (Olivia N.) [“[m]otion pictures are accorded 

First Amendment protections”].) “Steps taken to advance such 

constitutionally protected expression are properly considered 

‘conduct in furtherance of’ the exercise of the right of free speech 

within the meaning of section 425.16, subdivision (e)(4).” 

(Musero, supra, at 816.) Additionally, insofar as plaintiff’s claims

relate to the alleged use of Jones’s name or likeness in the 

promotional trailers for the film, our review of the trailers reveals 

they constitute advertisements for the film, not any other 

product. We conclude they are “merely . . . adjunct[s] to the 
16

exhibition of the film” (Guglielmi v. Spelling-Goldberg 

Productions (1979) 25 Cal.3d 860, 872 (Guglielmi)) and as such 

constitute noncommercial speech that falls within the scope of

anti-SLAPP protection.

The acts and speech at issue also involve issues of public 

interest. The film concerns the culture of the late 1960s in 

Hollywood and the Manson family murder of Tate. These are 

matters of public interest about which discussions are still 

ongoing. (See, e.g., Brodeur v. Atlas Entertainment, Inc. (2016) 

248 Cal.App.4th 665, 675; Dyer, 147 Cal.App.4th at 1284.) The 

uses of Jones’s name, the portrayal of Booth and/or Dalton in 

proximity to branded products, and the portrayal of Booth 

wearing shirts with brand logos on them are details that add to 

the depiction of the culture in Hollywood in the late 1960s. The 

public interest in these topics is demonstrated by the numerous 

articles and reviews discussing the film that defendants 

submitted in support of the motion, some of which specifically 

reference Tarantino’s inclusion of era-appropriate products, as 

well as the many-months-long run the film had in theaters (late 

July to early October 2019).

Plaintiff advances a number of arguments to the contrary, 

most of which relate back to her contention that the activity on 

which her complaint is based is simply “false brand endorsement”

or, in other words, the recreation of Jones’s likeness and 

portrayal of that likeness in connection with commercial brands, 

without consent or credit. The film, she claims, is incidental to 

this false endorsement for profit issue and she asserts there is no 

public interest in the brand endorsement or in her private 

dispute with defendants over their alleged use of Jones’s likeness. 

The problem with plaintiff’s argument, however, is that the 
17

broader creative acts of including the aforementioned aspects in 

the film and the alleged use of Jones’s likeness are inextricably 

linked. For example, in the context of the film, any alleged 

commercial reason for dressing Booth in a t-shirt with the 

Champion logo on it cannot be isolated from the creative impetus 

for the same action. Furthermore, defendants submitted a 

declaration representing the brands depicted (other than 

Hennessey) were included for artistic reasons and were used to 

“capture the look and feel of the time period,” and to “accurately 

portray the late 60s.”

11

Plaintiff also relies upon a handful of cases for the 

proposition that advertisements for an artistic work are not 

necessarily noncommercial speech. (E.g., Serova v. Sony Music 

Entertainment (2022) 13 Cal.5th 859, 867; Rezec v. Sony Pictures 

Entertainment, Inc. (2004) 116 Cal.App.4th 135 (Rezec).) To the 

extent plaintiff relies on these cases to argue the advertisements 

for the film should not be eligible for anti-SLAPP protection, the 

authority is inapposite. Unlike the advertisements at issue in 

11 Insofar as plaintiff argues the product placement can be 

considered separately because the film could have been made 

without the insertion of those products and brands, the 

contention lacks merit. “As stated in a different context, ‘[t]he 

creative process must be unfettered, especially because it can 

often take strange turns . . . . [¶] . . . We must not permit juries 

to dissect the creative process in order to determine what was 

necessary to achieve the final product and what was not, and to 

impose liability . . . for that portion deemed unnecessary. 

Creativity is, by its nature, creative. It is unpredictable. Much 

that is not obvious can be necessary to the creative process.’ 

[Citations.]” (Tamkin v. CBS Broadcasting, Inc. (2011) 193 

Cal.App.4th 133, 144-145.)
18

the cases plaintiff cites, the advertisements for the film are not 

alleged to include any false statements and are merely adjuncts 

of the film.12 To the extent plaintiff contends these cases 

transform the portions of the film with product placement into 

commercial speech, that is also incorrect. Both of plaintiff’s cases 

addressed separate advertisements for creative works, not 

allegedly integrated advertising within the works themselves.

C. Plaintiff’s Claims Lack Minimal Merit

“‘In order to establish a probability of prevailing on the 

claim . . . a plaintiff responding to an anti-SLAPP motion must 

“‘state[ ] and substantiate [ ] a legally sufficient claim.’”

[Citation.] Put another way, the plaintiff “must demonstrate that 

the complaint is both legally sufficient and supported by a 

sufficient prima facie showing of facts to sustain a favorable 

judgment if the evidence submitted by the plaintiff is credited.”

[Citations.] In deciding the question of potential merit, the trial 

court considers the pleadings and evidentiary submissions of both 

the plaintiff and the defendant . . . ; though the court does not 

weigh the credibility or comparative probative strength of 

competing evidence, it should grant the motion if, as a matter of 

law, the defendant’s evidence supporting the motion defeats the 

plaintiff’s attempt to establish evidentiary support for the claim.

[Citation.]’” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19-

20.) “[A] plaintiff cannot simply rely on his or her pleadings, even 

12 Indeed, Rezec notes that where advertisements for a movie 

are mere “adjuncts” to exhibition, including advertisements that 

reflect characters or portions of the film, they are noncommercial 

speech. (Rezec, supra, 116 Cal.App.4th at 142-143.)
19

if verified. Rather, the plaintiff must adduce competent, 

admissible evidence.” (Grenier v. Taylor (2015) 234 Cal.App.4th 

471, 480.)

1. Statutory right of publicity 

Civil Code section 3344.1, subdivision (a)(1) provides in 

pertinent part: “Any person who uses a deceased personality’s 

name, voice, signature, photograph, or likeness, in any manner, 

on or in products, merchandise, or goods, or for purposes of 

advertising or selling, or soliciting purchases of, products, 

merchandise, goods, or services, without prior consent from the 

person or persons specified in subdivision (c), shall be liable for 

any damages sustained by the person or persons injured as a 

result thereof.”

Subdivision (a)(2), however, exempts from subdivision (a)(1) 

a “play, book, magazine, newspaper, musical composition, 

audiovisual work, radio or television program, single and original 

work of art, work of political or newsworthy value, or an 

advertisement or commercial announcement for any of these 

works . . . if it is fictional or nonfictional entertainment, or a 

dramatic, literary, or musical work.” (Civ. Code, § 3344.1, subd. 

(a)(2).) But there is also an exception to the exemption. Under 

Civil Code section 3344.1, subdivision (a)(3), “If a work that is 

protected under paragraph (2) includes within it a use in 

connection with a product, article of merchandise, good, or 

service, this use shall not be exempt under this subdivision, 

notwithstanding the unprotected use’s inclusion in a work 

otherwise exempt under this subdivision, if the claimant proves 

that this use is so directly connected with a product, article of 

merchandise, good, or service as to constitute an act of 
20

advertising, selling, or soliciting purchases of that product, article 

of merchandise, good, or service by the deceased personality 

without prior consent from the person or persons specified in 

subdivision (c).” (§ 3344.1, subd. (a)(3), italics added.)

Subdivision (k) of the statute provides that “[t]he use of a 

name, voice, signature, photograph, or likeness in a commercial 

medium shall not constitute a use for which consent is required 

under subdivision (a) solely because the material containing the 

use is commercially sponsored or contains paid advertising. 

Rather, it shall be a question of fact whether or not the use of the 

deceased personality’s name, voice, signature, photograph, or 

likeness was so directly connected with the commercial 

sponsorship or with the paid advertising as to constitute a use for 

which consent is required under subdivision (a).” (Civ. 

Code, § 3344.1, subd. (k).)

The film unquestionably falls into the exemption under 

Civil Code section 3344.1 subdivision (a)(2), as it is an 

audiovisual work of fictional entertainment.13 In order to 

demonstrate minimal merit under subdivision (a)(3), then, 

plaintiff must have made a prima facie case that the film 

“includes within it a use [of a deceased personality’s name, voice, 

signature, photograph, or likeness] . . . [that] is so directly 

connected with a product, article of merchandise, good, or service 

13 By its plain terms, Civil Code section 3344.1, subdivision 

(a)(2) does not require a work to be transformative in order to 

qualify for its exemption. Accordingly, and contrary to plaintiff’s 

contentions, application of the Comedy III Productions, Inc. v. 

Gary Saderup, Inc. (2001) 25 Cal.4th 387 (Comedy III 

Productions), transformative test is unnecessary.
21

as to constitute an act of advertising, selling, or soliciting 

purchases of that product, article of merchandise, good or 

services . . . .” (Civ. Code, § 3344.1, subd. (a)(3).)

There is no contention that Jones’s voice, signature, or 

photograph was used in the film. Jones’s name is mentioned 

twice during advertisements for his movie 3 in the Attic (played 

within the film), and his name appears fleetingly as characters 

drive past a marquee promoting the same movie. Plaintiff has 

not provided any evidence demonstrating these brief references to 

Jones, which narratively serve to identify Jones as a 

contemporary of Dalton and Booth, are “so directly connected” to 

any products, merchandise, good, or service that they constitute 

advertisements. The same is true of the appearance of Jones’s 

name in promotional trailers for the film and the fake magazine 

promoting the film.

The true heart of plaintiff’s claim is that Booth, and to a 

lesser extent Dalton, were based on and styled after Jones. 

Plaintiff identifies aspects of both characters that she contends 

make up a whole constituting a likeness of Jones. Some of these 

aspects are physical—like Booth’s hairstyle and aviator 

sunglasses—while others are biographical—like the scene in 

which Dalton is comforted by a child. While we are doubtful that 

plaintiff has demonstrated a probability of success in alleging 

Jones’s likeness was used in the film,14 we need not reach that 

14 The biographical similarities, at a minimum, cannot be 

considered part of Jones’s alleged likeness. Similarities between 

a real person’s life experiences and those of a fictional character 

do not support a claim for misappropriation of that person’s 

“likeness.” (Polydoros v. Twentieth Century Fox Film Corp.

(1997) 67 Cal.App.4th 318, 322-323 (Polydoros); see also Kirby v. 
22

issue to decide plaintiff has not demonstrated a probability of 

prevailing on her Civil Code section 3344.1 cause of action.

The film depicts Booth and Dalton, though primarily Booth, 

using a slew of household products and otherwise appearing in 

scenes that feature brand logos. It also depicts Booth wearing 

one or more t-shirts with a brand logo on it. In response to 

plaintiff’s allegation, defendants submitted the declaration of 

producer McIntosh that asserts the only product placement in the 

film was for Hennessy cognac, a product not used by either Booth 

or Dalton and thus not associated with Jones’s alleged likeness. 

The declaration further asserts the other products depicted in the 

film were used solely for creative, not financial, reasons and the 

filmmakers were not paid to include them. As the film was, in 

fact, not compensated for the inclusion of the products and was 

not advertising them through any sort of product placement, 

Booth and Dalton’s proximity to the products was not so directly 

Sega of America, Inc. (2006) 144 Cal.App.4th 47, 55 (Kirby) [“[t]he 

misappropriation of one’s “likeness” refers to a person’s visual 

image”].) 

Additionally, there is a logical inconsistency to some of

plaintiff’s arguments. On the one hand, plaintiff argues 

defendants have improperly linked Jones’s character with brand 

name products without giving her, as the holder of his surviving 

publicity rights, a slice of the hypothetical endorsement pie. Yet 

on the other hand, plaintiff argues defendants have 

misrepresented the characters of Booth and Dalton by stating 

other actors, not Jones, served as the inspiration for them and 

unfairly declined to credit Jones. If, as plaintiff claims, 

defendants were capitalizing on Jones’s identity and celebrity, it 

would seem counterproductive to proclaim actors other than 

Jones served as the inspiration for Dalton and Booth.
23

connected to any of the products that their presence constituted 

advertisement or sale.

Thus, even accepting as true plaintiff’s evidence on the 

matter, defendants’ evidence “defeats [her] claim as a matter of 

law.” (Baral, supra, 1 Cal.5th at 385; see also J-M Manufacturing 

Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 96 

[“the court should grant the motion ‘“if, as a matter of law, the 

defendant’s evidence supporting the motion defeats the plaintiff’s 

attempt to establish evidentiary support for the claim”’”].) 

Plaintiff’s evidence in support of her claim consists of articles 

discussing the practice of celebrity endorsements and/or product 

placement, articles stating the current owner of the Playboy 

Mansion (at which a scene in the film was shot) is credited as a 

producer on the film, and declarations from friends and family 

members asserting their personal opinions about the inclusion of 

brand name products in the film. None of these are sufficient to 

overcome defendants’ evidence.

2. Lanham Act

“Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), 

forbids the use of false designations of origin and false 

descriptions or representations in the advertising and sale of 

goods and services. [Citation.]” (Smith v. Montoro (9th Cir. 

1981) 648 F.2d 602, 603.) Plaintiff argues the trial court erred in 

finding her Lanham Act claims for false endorsement and 

trademark infringement did not have minimal merit.15

15 Plaintiff’s complaint also makes reference to a claim for 

“reverse passing off.” As plaintiff does not advance any 

arguments in support of the claim on appeal, we deem it 

abandoned.
24

a. false endorsement

“Courts recognize false endorsement claims ‘brought by 

plaintiffs, including celebrities, for the unauthorized imitation of 

their distinctive attributes, where those attributes amount to an 

unregistered commercial “trademark.”’ [Citation.] The Lanham

Act ‘prohibits only false endorsement, not mere use of an image 

or name.’ [Citations.] In other words, not all uses of a celebrity’s 

image or likeness are actionable under § 1125(a)—only those 

which ‘suggest sponsorship or approval are prohibited.’ 

[Citation.] The key inquiry for a false endorsement claim is 

whether the unauthorized use of the plaintiff’s distinctive 

attributes is ‘likely to confuse consumers as to the plaintiff’s 

sponsorship or approval of the product.’ [Citation.] This means 

‘show[ing] more than simply a possibility of confusion.’

[Citation.]” (Miller v. Easy Day Studios Pty. Ltd. (S.D. Cal., Sept. 

16, 2021, No. 20-CV-02187-LAB-DEB) 2021 U.S. Dist. Lexis

176582).)

“‘Generally, to assess whether a defendant has infringed on 

a plaintiff’s trademark, we apply a “likelihood of confusion” test 

that asks whether use of the plaintiff’s trademark by the 

defendant is “likely to cause confusion or to cause mistake, or to 

deceive as to the affiliation, connection, or association’ of the two 

products. [Citation.]” [Citations.]” (No Doubt v. Activision 

Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1037.) However, 

“[t]he test does not apply in a case such as this, in which there is 

a colorable defense that the use of the celebrity’s likeness or 

identity is entitled to First Amendment protection.” (Kirby, 

supra, 144 Cal.App.4th at 57, fn. 4.) Under these circumstances, 

we must consider “the intersection of trademark law and the 

First Amendment.” (E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, 
25

Inc. (9th Cir. 2008) 547 F.3d 1095, 1099 (E.S.S.).) In doing so, we 

apply the test articulated in Rogers v. Grimaldi (2d Cir. 1989) 

875 F.2d 994 (Rogers). (E.g., Mattel, Inc. v. MCA Records (9th 

Cir. 2002) 296 F.3d 894, 902 [adopting Rogers test]; E.S.S., supra, 

at 1099 [extending applicability of Rogers from titles of artistic 

works to use of trademark in the body of the work]; see also 

Winchester Mystery House, LLC v. Global Asylum, Inc. (2012) 210 

Cal.App.4th 579, 590 (Winchester) [applying Rogers test to 

Lanham Act claim].)

For the Rogers test to apply, defendants must “‘make a 

threshold legal showing that [their] allegedly infringing use is 

part of an expressive work protected by the first amendment.’” 

(Dickinson v. Ryan Seacrest Enterprises Inc. (9th Cir. 2020) 839 

F. App’x 110, 111.) There can be no serious contention that the 

film is not an expressive work, including the scenes featuring 

Jones’s alleged likeness in proximity to branded products and 

featuring, however briefly, Jones’s name.

Rogers accordingly requires plaintiff to “show that the 

defendant[s’] use of the mark is either: (1) ‘not artistically 

relevant to the underlying work[,]’ or (2) ‘explicitly misleads 

consumers as to the source or content of the work.’ [Citation.]”

(VIP Prods. LLC v. Jack Daniel’s Props., Inc. (9th Cir. 2020) 953 

F.3d 1170, 1174.) “The first prong of the Rogers test requires 

only that the title pass ‘the appropriately low threshold of 

minimal artistic relevance’ to the content of the film.” 

(Winchester, supra, 210 Cal.App.4th at 590; see also E.S.S., 

supra, 547 F.3d 1100 [“the level of relevance merely must be 

above zero”].) Here, all of the referenced uses of Jones’s name 

and alleged likeness are artistically relevant to the film, as they 

add to the depiction of the culture and times of the late 1960s. 
26

(See Twentieth Century Fox Television v. Empire Distribution, 

Inc. (9th Cir. 2017) 875 F.3d 1192, 1199 [defendant’s use of 

trademark had “artistic relevance by supporting the themes and 

geographic setting of the work”].)

The second prong of the Rogers test requires a showing that 

the use of Jones’s likeness “explicitly misleads” consumers as to 

the source or content of the work. (Winchester, supra, 210 

Cal.App.4th at 592; Rogers, supra, 875 F.2d at 999.) The relevant 

inquiry is whether people watching the film would be misled into 

thinking Jones endorsed or sponsored the film. (E.S.S., supra, 

547 F.3d at 1100.) “[T]he mere use of a trademark alone cannot 

suffice to make such use explicitly misleading.” (Ibid.) Assuming 

for the sake of argument that Jones’s likeness is used in the film, 

the film does not indicate or suggest that Jones either endorsed 

or sponsored the film. The uses of Jones’s name itself are brief 

background moments linked to Jones’s film 3 in the Attic that 

serve to situate Jones as a contemporary of Dalton and Booth. 

They do not suggest either endorsement or sponsorship. Though 

the question of customer confusion is a factual one, it is simply 

not plausible that a reasonable viewer watching the film would 

be misled. Accordingly, “[t]he Rogers test tells us that, in this 

case, the public interest in free expression outweighs the public 

interest in avoiding consumer confusion.” (Brown v. Electronic 

Arts, Inc. (9th Cir. 2013) 724 F.3d 1235, 1248 (Brown).)

Plaintiff’s attempt to rely on survey evidence to 

demonstrate consumer confusion is unpersuasive. Survey 

evidence does not establish that the use of the likeness is 

explicitly misleading to consumers. (Brown, supra, 724 F.3d at 

1245-1246.) “To be relevant, evidence must relate to the nature 

of the behavior . . . not the impact of the use.” (Id. at 1246.) The 
27

declarations plaintiff refers to as survey evidence thus do not 

support the claim that the alleged use was explicitly misleading.

b. trademark infringement 

“A trademark may be protected under . . . the Lanham Act

if it is either inherently distinctive or has acquired 

distinctiveness.” (Franklin Mint Co. v. Manatt, Phelps & 

Phillips, LLP (2010) 184 Cal.App.4th 313, 336 (Franklin Mint).) 

Plaintiff contends she has viable claims for trademark 

infringement based on Jones’s name and likeness, and based on 

trade dress. None of these three theories is viable.

First, personal names are generally descriptive, not 

inherently distinctive, and require proof of secondary meaning for 

protection. (Id. at 337.) A mark has acquired secondary meaning 

“if the public comes to associate [it] with a specific source.”

(Kendall-Jackson Winery v. E. & J. Gallo Winery (9th Cir.1998) 

150 F.3d 1042, 1047; Franklin Mint, supra, 184 Cal.App.4th at 

338 [“secondary meaning ‘occurs when, “in the minds of the 

public, the primary significance of a [mark] is to identify the 

source of the product rather than the product itself”’”].) “‘Factors 

considered in determining whether a secondary meaning has 

been achieved include: (1) whether actual purchase[r]s of the 

product bearing the claimed trademark associate the trademark 

with the producer, (2) the degree and manner of advertising 

under the claimed trademark, (3) the length and manner of use of 

the claimed trademark and, (4) whether use of the claimed 

trademark has been exclusive.’” (Levi Strauss & Co. v. Blue Bell, 

Inc. (9th Cir. 1985) 778 F.2d 1352, 1358.) Jones’s name is not 

inherently distinctive, and plaintiff did not present evidence 

indicating his name had acquired a secondary meaning. 
28

Accordingly, plaintiff did not demonstrate her trademark 

infringement claim based on Jones’s name had minimal merit.

Second, “as a general rule, a person’s image or likeness 

cannot function as a trademark” because it does not “perform the 

trademark function of designation.” (ETW Corp. v. Jireh 

Publishing, Inc. (6th Cir. 2003) 332 F.3d 915, 922.) “Under some 

circumstances, a photograph of a person may be a valid 

trademark—if, for example, a particular photograph was 

consistently used on specific goods.” (Pirone v. MacMillan, Inc.

(2d Cir. 1990) 894 F.2d 579, 583.) Here, plaintiff did not present 

evidence of any such consistent use of a photograph or likeness of 

Jones, or any evidence that Jones’s likeness otherwise performs 

the “trademark function of designation.” Instead, she broadly 

claims rights to images and portrayals that she believes resemble 

Jones’s likeness. That is insufficient.

Finally, plaintiff argues she had a viable Lanham Act claim 

based on infringement of Jones’s trade dress. “Trade dress refers 

generally to the total image, design, and appearance of a product 

and ‘may include features such as size, shape, color, color 

combinations, texture or graphics.’” (Clicks Billiards, Inc. v. 

Sixshooters, Inc. (9th Cir. 2001) 251 F.3d 1252, 1257.) Common 

trade dress claims involve the appearance of restaurants and 

similar establishments, or the appearance of products such as 

wine bottles. (E.g., ibid.; Nova Wines, Inc. v. Adler Fels Winery 

LLC (N.D. Cal. 2006) 467 F.Supp.2d 965, 977.) Plaintiff has not 

cited, and we have not found, any authority suggesting that an 

individual’s appearance, manner of dress, or details regarding an 

individual’s life can constitute protectable trade dress. Nor do we 

believe such a claim would be viable, at least under the 

circumstances here. (See Davis v. Adler (S.D. Cal., Sept. 13, 
29

2017, No. 17-CV-387-AJB-JLB) 2017 WL 4050352, at *3

[contention that plaintiff’s “likeness [wa]s being commercialized 

[wa]s not an appropriate trade dress claim under the law”].) 

Accordingly, plaintiff’s trade dress theory lacks minimal merit

too.

3. Unfair Competition Law

The complaint alleges a cause of action under the unfair 

prong of California’s Unfair Competition Law (Bus. & Prof. 

Code, § 17200.) “[A]ctions pursuant to [ . . . section] 17200 are 

‘substantially congruent’ to claims made under the Lanham Act.” 

(Cleary v. News Corp. (9th Cir. 1994) 30 F.3d 1255, 1263. “This 

means that if claims relying on the exact same factual conduct 

are validly dismissed under the Lanham Act, they should also be 

dismissed under California Unfair Competition law.” (Dr. Seuss 

Enters., L.P. v. ComicMix LLC (S.D.Cal. 2017) 256 F. Supp. 3d 

1099, 1113; see also E.S.S., supra, 547 F.3d at 1101 [summary 

judgment proper on both Lanham Act and UCL claims because 

“First Amendment defense [under Rogers] applies equally to 

ESS’s state law claims as to its Lanham Act claim”]; Twentieth 

Century Fox TV v. Empire Distrib. (C.D.Cal. 2016) 161 F. Supp. 

3d 902, 910 [conclusion that First Amendment barred Lanham 

Act claim also barred UCL claim].) Plaintiff’s UCL claim is based 

on the same facts as her Lanham Act claim.16 Because the latter 

is not viable, so is the former.

16 To the extent plaintiff contends she also alleges a UCL 

claim based on her statutory right of publicity claim, she failed to 

make a prima facie showing on that claim for the reasons we 

have already given in connection with our discussion of Civil 

Code section 3344.1.
30

4. Negligence 

Plaintiff’s negligence cause of action alleges defendants 

owed plaintiff a duty not to use Jones’s publicity rights and 

breached that duty by using those rights, thereby injuring 

plaintiff. Even assuming defendants had some duty not to use 

Jones’s name or alleged likeness in the film, plaintiff has not 

made a showing of probability of success on the merits because 

she has not made a prima facie case that any such duty was 

breached.

“Motion pictures are accorded First Amendment 

protections.” (Olivia N., supra, 126 Cal.App.3d at 493 [noting 

imposition of negligence liability for creative decisions would 

have an undesirable chilling effect].) “The commercial nature of 

an enterprise does not introduce a nonspeech element or relax 

the scrutiny required by the First Amendment.” (Ibid.) “Because 

respondents’ artistic effort is constitutionally guaranteed, it was 

not negligent.”

17

 (Polydoros, supra, 67 Cal.App.4th at 326.) Here, 

as in Polydoros, defendants’ creation of the film, an artistic 

endeavor, is protected by the First Amendment. As a result, 

plaintiff did not demonstrate that her negligence claim had 

minimal merit.

5. Common law right of publicity

The right of publicity in California is both a common law 

right and a statutory right (codified at the aforementioned Civil 

17 The First Amendment is, of course, not absolute. But the 

complaint does not allege defendants engaged in any unprotected 

speech. 
31

Code section 3344.1). (Comedy III Productions, supra, 25 Cal.4th 

at 391.) The common law “cause of action [does] not survive the 

death of the person whose identity was exploited and [is] not 

descendible to his or her heirs or assignees.” (Ibid.; see also 

Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819-821

(Lugosi); Guglielmi, supra, 25 Cal.3d at 861.) Because Jones is 

deceased, plaintiff cannot demonstrate a probability of success on 

the merits of her common law claim.

Plaintiff argues in response that Jones’s publicity rights 

were assigned in 2011, while he was still living, not upon his 

death in 2014. Her principal authority for that is the dissenting 

opinion in Lugosi, which we are not bound to follow and do not 

follow. Plaintiff also relies upon Estate of Fuller v. Maxfield & 

Oberton Holdings, LLC (N.D.Cal. 2012) 906 F.Supp.2d 997, 1008. 

The court in that case, however, similarly recognized that “the

common law cause of action for misappropriation does not apply 

to deceased persons” and dismissed the common law claims on 

that basis.18 (Ibid.)

18 Plaintiff’s opening brief also includes a list of procedural 

requests that were denied, such as requests to file a first 

amended complaint, and to conduct limited discovery. Plaintiff 

provides no argument or authority indicating those denials were 

erroneous. To the extent plaintiff intended to appeal them, she 

has waived the issue. (Benach v. County of Los Angeles (2007) 

149 Cal.App.4th 836, 852 [“When an appellant fails to raise a 

point, or asserts it but fails to support it with reasoned argument 

and citations to authority, we treat the point as waived”].)
32

D. Attorney Fees

A notice of appeal must be filed the earlier of 60 days after 

the superior court clerk or a party serves notice of entry of 

judgment or 180 days after entry of judgment. (Cal. Rules of 

Court, rule 8.104(a)(1)(A)-(C).) “‘[T]he timely filing of an 

appropriate notice of appeal or its legal equivalent is an absolute 

prerequisite to the exercise of appellate jurisdiction.’” (K.J. v. Los 

Angeles Unified School Dist. (2020) 8 Cal.5th 875, 881; see Cal. 

Rules of Court, rule 8.104(b) [“If a notice of appeal is filed late, 

the reviewing court must dismiss the appeal”].)

Defendants served the notice of entry of the fee order on 

December 11, 2020. Plaintiff’s deadline to file a notice of appeal 

was thus February 9, 2021. Plaintiff’s initial notice of appeal was 

file-stamped at 12:00 a.m. on February 10, 2021. California Rule 

of Court Rule 8.77(c) provides that “[a] document that is received 

electronically by the court after 11:59 p.m. is deemed to have 

been received on the next court day.” The notice of appeal is thus 

facially untimely. (See, e.g., Hollister Convalescent Hosp., Inc. v. 

Rico (1975) 15 Cal.3d 660, 666-674 (Hollister) [dismissing appeal 

where notice was filed one day late]; Nu-Way Associates, Inc. v. 

Keefe (1971) 15 Cal.App.3d 926, 927-928 [same].)

Plaintiff argues California Rule of Court Rule 8.77(d) 

should save her appeal. Rule 8.77(d) provides that “[i]f a filer 

fails to meet a filing deadline imposed by court order, rule, or 

statute because of a failure at any point in the electronic 

transmission and receipt of a document the filer may file the 

document on paper or electronically as soon thereafter as 

practicable and accompany the filing with a motion to accept the 

document as timely filed. For good cause shown, the court may 

enter an order permitting the document to be filed nunc pro tunc 
33

to the date the filer originally sought to transmit the document 

electronically.”

Plaintiff submitted a declaration establishing she visited 

the “File Now” page of Nationwide Legal, the service she used to 

file the notice of appeal, at 11:49 p.m. on February 9, 2021. Her 

declaration also asserts she visited or logged in to the Nationwide 

Legal website at 11:52 p.m. Plaintiff then asserts a “slow 

connection” caused a delay in her transmission, resulting in the 

12:00 a.m. timestamp on her notice of appeal. Though she 

implies she actually submitted the notice of appeal between 11:49 

and 11:52 p.m., plaintiff’s declaration does not directly identify 

the time at which the document was submitted.

In any event, we do not believe a “slow connection”

resulting in a delay of a few minutes between the submission of 

an electronically-filed document and its receipt by the court is a 

“failure . . . in the electronic transmission” as contemplated by 

Rule 8.77(d). If relatively short delays in last-minute filings were 

meant to be excused, Rule 8.77(c) would provide that any 

document submitted after 11:59 p.m., rather than received by the 

court after that time, is deemed filed the next court day. Reading 

the two portions of Rule 8.77 together, we conclude that because 

plaintiff’s original notice of appeal was received by the court and 

file-stamped at 12:00 a.m. on February 10, 2021, it was untimely.

Just as important, however, is the fact that the notice of 

appeal that plaintiff filed one minute late was still insufficient to 

invoke this court’s jurisdiction because it did not specify the order 

or judgment from which plaintiff was appealing. While a court 

might find reason to excuse a one-minute delay for a properly 

prepared notice of appeal, that is not what we have here. We 

instead confront an appeal that was properly noticed hours late 
34

on the 61st day. Dismissal in that circumstance is appropriate. 

(E.g., Estate of Hanley (1943) 23 Cal.2d 120, 122 [timely filing of 

a notice of appeal is an essential jurisdictional requirement]; In 

re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 116; 

see also Hollister, supra, 15 Cal.3d at 674.)

DISPOSITION

The appeal in case number B310814 is dismissed. The 

judgment in case number B304256 is affirmed. Defendants are 

awarded costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.