F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S G T

. J E F F R

E Y S. S A

R V E R , Plaintiff-Appellant
,

v

.

N I C O L A S C H A R T I E R ; S U M M I T E N T E R T A I N M E N T , L L C; K

A T H R Y N B I G E L O W ; T H E H U R

T L O C K E R L L C; M A R K B O A L ; G R

E G S H A P I R

O ; V O L T A G E P I C T U

R E S , L L C; G R O S V E N O R P A R

K M E D I A , L P; K I N G S G A T E F I L M S I

N C .; T O N

Y M A R K ; D O N A L L M C K

U S K E R ; F I R S T L I G H T P R

O D U C T I O N S I

N C ., Defendants-Appellees
,

P L A Y B O Y E N T E R

P R I S E S , I N C ., Defendant

. N o. 11-56986

D.C. No. 2:10-cv-09034- J HN-J CS A R V E R V

. C H A R

T I E R 2

S G T

. J E F F R

E Y S. S A

R V E R , Plaintiff-Appellant
,

v

.

N I C O L A S C H A R T I E R ; S U M M I T E N T E R T A I N M E N T , L L C; K

A T H R Y N B I G E L O W ; T H E H U R

T L O C K E R L L C; M A R K B O A L ; G R

E G S H A P I R

O ; V O L T A G E P I C T U

R E S , L L C; G R O S V E N O R P A R

K M E D I A , L P; K I N G S G A T E F I L M S I

N C .; D O N

A L L M C K U S K E R ; T O N Y M A R K ; F I R S T L I G H T P R

O D U C T I O N S I

N C ., Defendants-Appellees
,

and

P L A Y B O Y E N T E R

P R I S E S , I N C ., Defendant

. N o. 12-55429

D.C. No. 2:10-cv-09034- J HN-J C

OPI NI ON

A ppeal from the United States District Court for the Central District of California J acqueline H. Ng

uy en, District J udg e, Presiding

Arg ued and Submitted May 9, 2013 Submission Vacated May 9, 2013 Resubmitted December 24, 2015 Pasadena, California

F iled F ebruary

17, 2016S A R V E R V

. C H A R

T I E R 3

B efore: Diarmuid F . O’Scannlain, Richard A. Paez
, and Sandra S. I kuta, Circuit J udg es.

Opinion by J udg e O’Scannlain

SUMMARY *

Calif o rnia Anti-SLAP P / Choice of Law

The panel affirmed the district court’s dismissal, pursuant to filmmakers/defendants’ motions to strike the complaint under Cal. Civ. Proc. Code § 425

. 1 6
, California’s AntiStrateg ic L awsuit A g ainst Public Participation (anti-SL APP) statute, of plain t i f

f Army Serg e ant J effrey Sarver’s lawsuit relating to the Oscar-winning film The Hurt Locker

.

Sarver contended that W ill J a mes, The H u r t Locker ’s main character, was based on his life and ex periences wh e n he served a s a n United States A rmy ex plosive ordnance disposal technician in I raq; that he did not co n sent to such
use; a nd that some scenes in the film falsely portray e d him in
a way that harmed his reputation.

The panel applied the choice-of-law rules of N ew J ersey , and concluded that the California contacts predominated, a nd the Restatement (Second) of Conflicts § 145 factors weig h ed in fav o r o f the application of California law. The panel considered the section 6 Second Restatement principles, and concluded that California had the m o st sig nificant

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A R V E R V

. C H A R

T I E R 4

relationship to this litig ation, which wa s sufficient to

overcome any presumption of Sarver’s domicile, w h erever that may be. The panel applied California’s a nti-SL APP law.

The panel held that Cal. Civ. Proc

. C ode § 425.16(f), which g enerally provides that a n anti-SL APP motion be filed within 60 day s of the service of the complaint, did not apply in federal court. The p anel held that und e r Fe d eral Rule o f Civil Procedure 56, the defenda n ts’ anti-SL APP motions were timely

filed.

Turning to the merits of the d efen d a n t s’ a nti-SL APP

m o t i o ns, the panel a

pplied the statute’s two-step analy sis. F irst, the panel h e ld that The Hurt Locker film and the narrative of its central c haracter W ill J ames spoke directly to issues of a public nature. Second, the panel held t h a t T he Hurt Locker was speech that was fully protected by the F irst A m e n dment, which safeg

uards the story

tellers and art i s t s w h o take the raw materials of life and transfo rm them into art, such as movies. The panel held that b ecause Sarver c ould not show a compelling state interest in preventing the defendants’ speech, apply ing California’s ri gh t of publicity law – which prohibits a person from u si n g a c e lebrity ’s name or likeness without consent – in this ca s e w ould violate the F irst Amendment. T he panel concluded that b ecause Sarver could

n ot state a rig ht of publicity claim, the district court did n o t

err in g ranting the defendants’ anti-SL APP motion reg arding the claim.

The panel concluded that Sarver’s false lig ht invasion o f privacy
, defamation, b reach of contract, intentional infliction of emotional distress, fraud, a n d constructive fraud/neg lig ent misrepresentation claims were properly dismissed.S A R V E R V

. C H A R

T I E R 5

COUNSEL

Michael R. Dez si, L a w O ffice o f Michael R. Dez si, PL L C, De troit, Michig an, arg ued the cause a nd filed the briefs for the Plaintiff-Appellant.

J on-J amison Hill, Eisner, Kahan & Gorry
, B everly H ills, California; David Halberstadter, Katten Mu c hin Rosenman L L P, L o s Ang eles, California; and J eremiah T. R e y n o lds, K i nsella W eitz man I ser Kump & Aldisert L L P, San t a Monica, California, each arg ued the cause a nd filed the brief for the D efendants-Appellees. W i t h t h em on the b rief were Timot h y J

. Gorry and J a ckie M. J o seph, Eisner, Kahan & Gorry
, B everly Hills, California; R e b ecca F

. Ganz
, Katten Muchin Rosenman L L P
, L os Ang eles, California; and Dale F

. Kinsella, Kinsella W eitz man I s er Kump & Aldisert L L P, Santa Monica, California.

Kelli L

. Sag er, D avis W rig ht Tremaine L L P, L o s Ang eles, California, f

iled a brief on behalf of amici curiae Motion Picture Association of America, I nc. And Entertainment Merchants A s s o c iation in support o f the DefendantsAppellees. W ith her o n the brief w as Karen A. Henry
, D avis W r ig ht Tremaine L L P, L os Ang e les, California.S A R V E R V

. C H A R

T I E R 6

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decide whether the d i strict court properly applied California’s Anti-Strateg ic L awsuit Ag ainst P u blic Participation (anti-SL APP) s tatute when it dismissed Army Serg e a n t J effrey Sarver’s lawsuit relating to the Oscarwinning film The Hurt Locker

.

I

A

Serg e ant J effrey Sarver joined the U nited States Army in 1991. During parts of 2004 and 200 5
, h e s e r v ed as one o f
approx imately 150 Ex plosive Ordnance Disposal (E OD) technicians in I raq. Sarver led one of three teams in the 788th Ordnance Company whose principal duty was to id en tify
, make safe, and dispose of improvised ex plosive devices.

I n December 2004, Mark B oal, a journalist working for Pla y boy mag a z ine, w as embedded with the 788th out o f Camp Victory in B ag hdad, I r aq. B oal followe d S arver for a sig nificant amount of time and took photog raphs and v ideo o f him while he was on a n d o f f d uty

. After Sarver returned to the United States, B oal conducted additional interviews with him in W isconsin.

B o al wrote an article focused on Sarver’s life a nd

ex p eriences in I raq, which w as published in the Aug ust/September 2 0 05 issue of P layboy

. A c ondensed version of that article was later published in Reader’s Digest

. The P layboy article cont ained two photog raphs of Sarver inS A R V E R V

. C H A R

T I E R 7

addition to other personal information ab out him. Sarver

a l leg e s that he never consented to the use of his name a n d likeness in the Playboy article, that he obj e c t e d t o it a fter reviewing an advance copy , and that he attempted t o have portions of the article r emoved before its publication in Reader’s Digest

.

B o al l ater wrote the screenplay for the film that became The H urt Locker
, which was rele a s ed i n J une 2009 while Sarver was stationed at the Picatinny Arsenal in New J ersey

. Sarver contends that W ill J ames, the movie’s main character, is based o n his life and ex perie nces, pointing to

c h a r a c teristics of J ames a nd events in the movie that alleg edly mirror his life story

. Sarver asserts that he did not consent to such use and that several scenes in the film falsely portray him in a way that has harmed his reputation.

B

I n March 2010, Sarver filed suit in the Distric t o f New J ersey ag a inst B oal, Kathry n B ig e low, t he film’s director, Ni ch o l as Chartier, its p roducer, and numerous corporate defendants (collectively the “defendants”), alleg ing causes o f

a c tion f or misappropriation o f his likeness and rig ht o f publicity
, false lig ht invasion o f privacy
, defamation, breach of contract, intentional infliction of e motional distress, fraud, and neg lig ent misrepresentation. The defendan t s moved to dismiss Sarver’s complaint pursuant to F ederal Rules of Civil Procedure 12(b)(2) and 1 2(b)(3), o r, alternat el y , to transfer

venue to the Central District of Californi a pursuant to 28 U.S.C. § 1 404(a). I n r esponse, the District of New J ersey transferred the case to the Central District of California.S A R V E R V

. C H A R

T I E R 8

On F ebruary 1, 2011, Chartier and some of the corporate defendants filed a motion to strike Sarver’s complaint under Cal. Civ. Proc. Code § 4 25.16, California’s “an t i

- S L APP” statute, which was “en a c t e d to allow early dismissal o f meritless first amendment cases aimed at chilling ex pression throug h costly
, time-consuming litig ation.” Metabolife Int’l, Inc. v. W ornick
, 26 4 F. 3 d 8 32, 839 (9th Cir. 2001). Shortly thereafter, B oal and B ig elow filed a separate motion to strike on the same g r ounds.

F our day s before hearing oral arg ument, the district court released a tentative order that would have allowed Sarver to proce ed o n his rig ht of publicity claim but would have dismissed all other claims pursuant to the anti-SL APP statute. However, in its final order, the district court r eversed course, striking Sarver’s complaint in its entirety . The district court concluded that California’s anti- SL APP statute a pplied because the defendants were eng ag ed in the ex ercise of free speech in connection w ith a p ublic issue, a nd also that “[ e] ven assuming that [ Sarver] and W ill J ames share similar phy sical characteristics and idiosy nc r a cies, a sig nificant
amount of orig inal ex p ressive content was inserted in the work throug h the writing o f the screenplay
, and the production and direction o f the movie.” The district court concluded that the film’s use of Sa rver’s identity was transformative and dismissed all of Sarver’s claims.

Sarver timely

appealed. 1

1 We h av e j u risd ictio n t o rev iew th e d istrict co u rt’ s f in al o rd er p u rsu an t to 2 8 U.S.C. § 1 2 91

. W e rev iew th e district co u rt’ s ch o ice o f law an aly s is d e n o v o. S

ch o en b erg v. Exp o r ta d

o ra d e S a l, S .A. d e C.V.
, 9 3 0 F.2 d 7 7 7
, 7 8 2 (9 th Cir. 1 9 9 1 ). W e also rev i ew t h e d i s t r ict co u rt’ s g ran t o f th eS A R V E R V

. C H A R

T I E R 9

I I

B e fore reaching the merits of Sarver’s clai m s , w e must determine whether the dis t rict court properly a pplied C alifornia law instead of New J ersey law and whether t h e defendants’ anti-SL APP motion wa s t i m ely filed. Sarver contends that the district court erred on both counts, arg uing that the district court should have applied New J ersey law a nd that the anti-SL APP motion was not timely filed.

A

Our “choice o f law inquiry has two levels.” S choenberg
, 930 F

. 2d at 782. “F irst, we must determine w hose choice o f law rules g overn. Second, apply ing those rules, w e determine whose law applies.” 2 Id. Ty pically
, “ a federal court sitting in diversity applie s t h e conflict-of-law rules of the state in which it sits.” Id. ( internal quota tion marks omitted). However, after a transfer under 28 U.S.C. § 1404, the choiceof-law rules of the transferor court a p ply

. See Newton v

. Thomason
, 22 F .3d 1455, 1459 (9th Cir. 1 994). W e therefore apply the choice-of-law rules of New J ersey

.

The New J ersey S u p reme Court has adopted the choiceo f

- l a w approach set forth in the Restatement (Second) o f Conflict of L aws (“Second Restatement”). P.V. ex rel. T.V. v

. Camp Jaycee
, 962 A.2d 453, 4 6 0 (N.J

. 2008). Under that

d ef en d an t s’ m o tio n s to strik e u n der th e an ti- SL A P P statu te d e n o v o. Vess v. Cib a -Geig

y Co rp . US

A , 3 1 7 F.3 d 1 0 9 7 , 1 1 0 2 (9 th Cir. 2 0 0 3 ).

2 T h ere is n o d isp u

te th at th ere i s a co n f

lict o f law b etw een C alif

o rn ia

an d New J ersey w ith reg ard to Calif o rn ia’ s an ti- S L A P P statu t e, w h ich h as

n o New J ersey an alo g u e.S A R V E R V

. C H A R

T I E R 10

approach, w e must first consider the specific provisions of the Second Restatement which set forth the presumptive rule for the cla i m s a t i s s ue. See id. at 4 61. O nce this p r e sumptive

r u le is established, w e must then c onsult the g eneral t o r t principles o utlined in section 145 o f the Second Restatement,

see id. at 461–63, befo r e f i n a lly considering the two states’ competing interests under the g eneral p r inciple s outlined in section 6, id. at 455. W e address each in turn.

1

B o th sections 150 and 1 53 of the Second Restatement a re relevant when determining the presumptive rule for Sarver’s claims. 3 F ortunately
, “essentially the same choice-of-law rules a re applicable to the two torts.” Restatement (Second) of Conflicts § 152 cmt. d. Section 150 a ddresses mu l t istate defamation that arises from, among other thing s, “ex h ibition of a motion p icture” or “similar ag g reg a t e c o mmunication.” Id. § 150(1). This section provides that rig hts and liabilities
reg arding defamation claims are “determined by the local law of the state w hich

. . . has the most sig nificant relationship to the occurrence a

nd the parties.” Id. Se c t i on 153, which addresses multistate invasion o f p r ivacy
, provides the same

r u l e

. Section 153 e x plains that the state with the mo s t sig nificant r elationship “will usually b e the state w here the plaintiff wa s d omiciled at the time if the matter complained of was published in that state. ” See also Hanley v. Trib. Publ’g Co.
, 527 F .2d 68, 70 (9th Cir. 1975) (“I n cases o f

3 Sarv er erro n eo u s l y c on ten d s th at sectio n 1 4 6
, w h ich g o v ern s actio n s f o r p erso n al in

j u ry , ap p lies. Ho w ev er, t

h e Seco n d Restatem en t ex p ressly

ex clu d es “ i n

j u ries to a p erso n ’ s rep u tatio n ” an d “ th e v io latio n o f a p erso n ’ s rig h t o f p riv acy ” f ro m th ose in

j u ries classif

ied as “ p erso n al in j u ries.” Restatem en t

(Seco n d ) o f

Co n f licts § 1 4 6 cm

t. b (1 9 71 ).S A R V E R V

. C H A R

T I E R 11

d efamation, [the Second Restatement f a c t o r s ] n o r

m a l l y w o u l d call for application of the law of the plaintiff’s domicil.”).

Determining where Sarver was dom iciled is not straig htforward. Sarver c ontends that his domicile is New J ersey , and calls on us to enforce the laws of that s t at e. However, Sarver has p r o v i ded little support for his contention. W ithout c itation to the record, Sarver asserts that he lived i n N e w J ersey f or approx imately two y ears while stationed there, including a t the time The Hurt L o c k e r was released in theaters. Even if we credit Sarver’s assertion, this
statement alone is insufficient to establi s h the state as his leg al domicile. See 13E Charles A. W rig ht et a l

. , F ederal Practice & Procedure § 3617 (3d ed. 2015) (“Service personnel a

re presumed not to acquire a new domicile when they are stationed in a p lace pursuant to orders; they retain the domicile they had at the time o f entry into the s e rvice.”). Sarver does not appear to have marsha l e d o ther indicia o f domicile in N ew J e rsey , for ex ample that he obtained a New J ersey d river’s license, reg istered to vot e in the state, o r acquired property there. I n sum, other t han Sarver’s o wn assertion, w e h ave little basis t o c onclude that New J ersey

was indeed his leg a l domicile at the time The Hurt Locker was released.

2

Even assuming arguendo that New J ersey w a s Sarver’s domicile w o u l d not end our inquiry

. As the New J ersey Supreme Court wo u l d
, w e must nex t consider the f actors enumerated in section 145 o f the Second Restatement, which presents the “ g eneral r u l e” that informs a ll torts. Camp Jaycee
, 962 A.2d at 458, 461–63. Those factors include: “ ‘[ 1] the place where the injury occur re d
, [ 2 ] the place where theS A R V E R V

. C H A R

T I E R 12

conduct causing the injury occurred, [ 3] the domicile, residence, n ationality
, place of i ncorporation and place o f business of the parties, and [ 4] the place wh ere the relationship, if any , b etween the parties is centered.’” Id. at 4 5 8 ( q u o t i n g R e s t a t e m e n t ( S e c o n d ) o f C o n f l i c t s § 145(2)(a)–(d)).

Here, the second and third factors weig h strong ly in favor of application of California l a w

. The conduct causing the alleg ed injury

— the product i o n of The Hurt Locker —took place in California. Moreover, all of the corporate defendants other than Play

boy Enterprises are incorporated and alleg ed to be conducting business in California. And, althoug h B oal is a citiz en o f New York and Play b oy Enterprises is a citiz en of I llinois a

nd Delaware, Sarver a lleg es th at b o th conduct business in California. F or his part, a lthoug h Sarver contends that he was domiciled in New J ersey , as ex plained above, he has failed to support that contention.

The first and fourth factors do not weig h strong ly in favor of either state. F irst, it is difficult to identify , let alone place
g reat weig ht upon, the location o f Sarver’s alleg ed injury

. Sarver insists that New J ersey was the p rimary location o f his injuries, because that is where he was best known to his Army cohorts. B ut even t h at contention is somewhat belied b y Sarver’s admission that he a nd fellow service members traveled to view the film at its p remiere in New York—not in New J ersey

. F u rther, Sarver’s c laims of r eputational harm b y those who k n ew him would have presumably been felt not only in the location he lived in 2009, but also wh e r e his various f riends and family live a n d i n the states in which he has lived since the film ’s re l e ase. The multistate nature o f Sarver’s a lleg ed harms is c entral to t h e choice-of-law analy sis. B e cause the f

ilm was distributed nationwide a ndS A R V E R V

. C H A R

T I E R 13

Sarver’s alleg ed injuries would most likely have occurred in multiple states, “the p lace of injury will not play an important role in the selection of the state of appli c a ble law.” Restatement (Second) of Conflicts § 145 cmt. e (emphasis added); see also BP Chems. Ltd. v. Formosa Chem. & Fibre Corp.
, 229 F .3d 254, 267 (3d Cir. 2 009) (applying this rule to

a claim of misappropriation of trade values involving multistate harms). F inally
, the fourt h fa c tor is neutral here becau s e the o nly relationship between Sarver and the defendants centered around interviews for the Playboy article that occurred in I

raq and W isconsin.

Altog ether, we conclude that the California conta c ts predominate, and the section 145 factors weig h in favor of the application of California law.

3

F inally
, we consider the section 6 prin c i ples, w hich the New J ersey Supreme Cou rt has identified as: “(1) the interes t s of interstate c omity ; (2) the interests of the p arties; (3) the interests u nderly ing the fi eld of tort law; ( 4) the interests o f judicial a dminist r ation; and (5) the c ompeting interests o f t h e s t a tes.” Camp Jaycee
, 9 62 A.2d at 463 (internal q

uotation marks o mitted). I n effect, this analy sis “focus[ es] primarily on the interests of the two states.” Peter Hay
, Patrick J

. B orchers & Sy meon C. Sy

meonides, Conflict of Laws 888 ( 5th ed. 2010). W e apply these pri n c iples to “determine whether more or less weig h t should b e a scribed
to those contacts” we have just discussed. Camp Jaycee
, 962 A.2d at 468.

I n the tex t of the statute itself, California has ex pressed a strong interest in enforcing its anti-SL APP law to “encourag eS A R V E R V

. C H A R

T I E R 14

continued participation in matters of public sig n ificance” a nd
to protect ag ainst “ a disturbing increase in lawsui t s broug ht primarily to chill the valid ex ercise” of constitutiona lly protected speech. See Cal. Civ. Proc. Code § 425.16(a). T o this end, courts are instructed to construe California’s statute “broadly .” Id.

Althoug h New J e rsey has d eclined to establ ish a similar law, its c ourts have allowed defendan t s t o bring a claim for malicious use of process to p r otect ag ainst suspected SL APP

ac t ions. See LoBiondo v. Schwartz
, 970 A.2d 1007, 1022 (N.J

. 2 009). I n this reg a

r d, N ew J ersey seems to have staked something of a middle g round to g uard ag ainst S L AP P lawsuits. I ndeed, in an opinion d eclining to create a specific anti-SL A PP cause of action, New J e r sey ’s Appellate D ivision nevertheless acknowledg ed t h at SL APP suits require some level of “ counteraction.” Lobiondo v

. Schwartz
, 733 A.2d 516, 533 (N.J

. Super. Ct. App. Div. 1999).

O n balance, the interests of interstate comity and the competing interests o f the states ti l t in favor of a pply ing California law. W hereas California w o uld appear to object strong ly to the absence of a r o bust anti-SL APP reg ime, New J ersey ’s interests would be less harmed by the u s e o f California law. Moreove r , b e ca use the vast majority of the part i e s i n this action are citiz ens of or do business in California, the parties’ ex pectations likewise ti lt in f avor o f California law.

Thus, like our a n aly sis under section 145, our section 6 inquiry weig hs in favor of a p p ly ing California law. Taken tog ether, we conclude that California has the most sig nificant relationship to this litig ation, which is sufficient to overcome any presumption of Sarver’s domicile, wherever that may be.S A R V E R V

. C H A R

T I E R 15

See Camp Jaycee
, 962 A.2d at 4 61 (recogniz ing that analy sis under sections 145 and 6 c a n overcome presum p t i v e rule). Thus, a s d i d the district c ourt, we apply California’s antiSL APP law.

B

Having determined that California’s anti-SL APP law applies, we must consider whether the defendant s ’ antiSL APP motions—wh i c h w ere filed almost one y e ar a fter Sarver filed his complaint— were timely

. Sarver c ontends that they w e re not, relying on Cal. Civ. Proc. Code § 425.16(f), which provides that an anti-SL APP motion “may be filed within 6 0 day s of the service of t he complaint or, in the court’s discretion, at any later t i m e u p on terms it deems proper.”

Sarver asserts that the defendants showed no g ood cause for their filing d elay and that the district court therefore abused its discretion in accepting the anti-SL APP motions so far bey ond California’s 60-day time f r ame. The defendants
counter that California’s timing p rovision does not apply in federal court, because it is a procedural device that conflicts directly with F eder a l R u l e of Civil Procedure 56. See, e.g. , Metabolife
, 264 F

. 3d at 8 4 5 (“Procedural state laws are not used in f ederal court if to d o s o wo uld result in a direct collisi o n w ith a F ederal Rule of Civil Procedure.” (internal quotation marks omitted)).

W e have previously recog niz ed that the requirements set forth in subsections 425.16(f) and (g ) fundamen t a l l y collide wit h f e d er al courts’ rules of procedure. I n Metabolife
, we considered whether federal courts are o blig ed to adhere to the

ex p edited discovery process established under subsectionsS A R V E R V

. C H A R

T I E R 16

4 25.16(f) and (g )

. 264 F .3d at 8 46. W e concluded that w e

are n ot, ag reeing with the district court that “[ b] e c a u s e the discovery -limiting aspects of § 425.16(f) and (g ) collide with the discovery -allowing aspec t s of Rule 56, these aspects o f subsections (f) and (g ) cannot apply in federal court.” Id. (internal quotation marks omitted)).

So, too, do the timing c ontrols imposed by section 425.16(f) directly c ollide with the m o re permissive timeline R u l e 56 provides for the filing of a motion for summ a r y judg ment. See F ed. R. Civ. P. 5 6(b) (permitting parties to file

a motion for summa ry judg ment “ a t any time until 30 day s after the close of all discovery ”). Althoug h section 425.16(f) does not prohibit the f

iling of an anti-SL APP motion after 60 day s, it ce r t a i n ly restricts a party ’s a b ility to do so in a way Rule 56 would not. W e ther e fore decline to apply the statute’s 6 0-day time frame in f ederal co urt, and we refer instead to our own rules of procedure. Under those rules, the defendants’ anti-SL

APP motions were timely filed. 4

I I I

Turning to the merits of t h e d efendants’ a nti-SL APP motions, we have previously observed that “California’s antiSL APP statute is desig ned t o discourag e suits that ‘masquerade as ordinary lawsuits b ut are brou gh t to deter

common c itiz ens from ex ercising their political or leg al rig hts

or to punish them for doing so.’” In re NCAA Student-Athlete Name & Likeness Licensing Litig.
, 724 F .3d 1268, 1 272 (9th

4 B ecau s e w e co n clu d e th at sectio n 42 5 .1 6 (f ) d oes n o t ap ply h ere, w e d o

n o t reach th e p arties’ arg u m en t s reg ard in g w h eth er it w as w ith in t h e District Co u rt’ s d iscretio n to accep t def en d an ts’ an ti- SL A P P m o tio n s

u n d er Calif

o rn ia’ s p ro ced u ral req u irem en ts.S A R V E R V

. C H A R

T I E R 17

Cir. 2013) [ hereinaf

t e r Keller ] (quoting Batzel v. Smith
, 333 F .3d 101 8
, 1 0 2 4 (9th Cir. 2003)). I n relevant p art, the
statute states:

A cause of action ag ainst a person aris i ng from a ny act of that p e r s on in furtherance o f th e person’s rig ht of petition or free speech

u n d e r the United States Constitution or the California Consti tution in connection with a public issue shall be subject to a special motion to st r ike, unless the c ourt determines that the plaintiff h as established that there is a probability that the plaintiff will p revail on the claim.

Cal. Civ. Proc. Code § 425.16(b)(1).

Tracking the lang uag e of the statute, we evaluate antiS L A P P m otions in two steps. T h e d efendant must first “make a prima facie showing that the p lain t i f f ’ s suit arises from an act by the defendant made in connection with a public issue in furtherance of t h e d efendant’s rig ht to free speech under the United States o r C alifornia Constitution.” Keller
, 724 F .3d at 1272–73 (internal quotation marks omitted). Second, if the defenda n t has made such showing
, we evaluate whether the plaintiff has “ est a b l i s h[ ed] a reasonable probability that the plaintiff will prevail on his o r her

. . . claim.” Id. (internal q uotation marks omitted) (alterations in o rig inal). “ ‘Put another way , the plaintiff must demonstrate that the complaint is both leg ally sufficient a

nd supported by a sufficient prima facie showing of f a c t s to sustain a favorable judg ment if the evidence submitted by the plaintiff is credited.’” Hilton v. H allmark Cards
, 599 F .3dS A R V E R V

. C H A R

T I E R 18

894, 9 0 3 (9th Cir. 2009) (quoting W ilson v. Parker, Covert & Chidester , 50 P.3d 733, 739 (Cal. 2002)).

A

F or the d efendants’ anti-SL APP motions to succeed, they
must first show t h a t “ ‘ the act or a c ts of which the p laintiff complains were taken in furtherance of [ the defendants’] rig ht of petition or fr e e speech under the United States o r California Constitution in conne c t i o n with a public issue.”’ Hi l t o n , 5 99 F .3d at 903 (citing Equilon Enters., LLC v

. Consumer Cause, Inc.
, 52 P.3d 6 85, 694 (Cal. 2002)). Thus, if the defendants fail to show that Sarver’s lawsuit involves

a matter of public concern, California’s a nti-SL APP provisions are inapplicable on their face.

In t e r p r e t i n g t h e C a l i f o r n i a S u p r e m e C o u r t ’ s p r o nouncements, we h ave “construe[ d] ‘public issue o r p u b l i c interest’

. . . broadly in lig ht of the statute’s stated purpose to encourag e participation in matters of p u b l ic importance o r consequence.” Hilton
, 5 99 F .3d at 906 ( q uoting Cal. Civ. Proc. Code § 425.16(e)(4)). California’s intermediate appellate courts have offered insig ht into how we s h ould conduct this analy sis. The California Court of Appeal for the F irst District has identified “three categ ories of public issues: (1) s t a t e m e n ts ‘concern[ ing ] a person or entity in the public
ey e’; ( 2) ‘conduct that could directly affect a larg e number o f people bey ond the d irect parti c i p ants’; (3) ‘or a topic o f widespread, public interest.’” Id. (alteration in orig inal) (quoting Rivero v. Am. Fed’n of State, Cnty., & Mun. Emps.
, 130 Cal. Rptr. 2d 81, 89–90 (Cal. Ct. App. 2003)). C a l i fornia’s Court of Appeal for the Third District h a s

e x plained that “‘public interest’ does not equate with mere curiosity ,” b ut instead “a matter of p ublic interest s h o u l d beS A R V E R V

. C H A R

T I E R 19

something of concern to a substantial num ber o f people.” W einberg v. Feisel
, 2 Cal. Rptr. 3 d 385, 392 (Cal. Ct. App. 2 0 0 3). F urther, “there should be some deg r ee o f closen e s s between the challeng ed s t a tements and the a sserted public interest,” and the “focus of the speaker’s conduct should be the public interest.” Id. F inally
, a “person canno t turn otherwise private information into a matter of public interest simply by communicating it to a larg e number of people.” Id. at 393.

The defendants rig htly contend that the I r aq W a r was a matter of sig nificant a n d s ustained public attention, a s was the use of improvised e x plosive devices (I EDs) by insurg ents during the war. According ly
, the d e f endants c o n clude that The Hurt Locker ’s port r ay al of those issues necessarily presents a matter of public concern. Sarver counters that our analy sis should not b e so encompassing

. Rather than ask whether the film’s portray al of the I raq War raises a question of public concern, Sarver c a lls o n us t o ask specifically whether the defendants’ alleg ed misappropriatio n o f his private persona is of public interest

. Under this standard, Sarver concludes that—because he was not personally in the public’s ey e before this film— t h e defendants cannot satisfy the first step of the anti-SL APP analy sis.

Sarver’s arg ument relies principally on Dyer v. Childress
, 55 Cal. Rptr. 3d 5 4 4 (Cal. Ct. App. 2 007). I n that case, Troy Dy er sued the m a k e r s o f the film Reality Bites
, for what he claimed to b e an u n flattering representation of his y oung er self. See id. at 545–46. A ffirming the denial o f the defendants’ a

nti-SL A PP motion, the California Court o f App e a l f o r the Second District held that, althoug h the film broadly addressed p ublic m a t t e r s such as the issues facing G eneration X, the film’s depiction of Dy er as “a r ebelli o u sS A R V E R V

. C H A R

T I E R 20

slacker” failed to address any such issue, as there was “ no discernable public interest in Dy e r ’s persona.” Id. at 547–48.

Th e nature of Sarver’s occupation and the contex t in

w h ich his alleg ed portray al appears in The H urt Locke r s et h i m a part from D y er. U nlike Dy er’s y outh, Sarver’s work

w h i l e deploy ed in I raq was an issue of public concer n sig nificant atte n tion devoted to the war and to the role o f I EDs in it. I mportantly
, th e f i l m ’ s alleg ed portray al o f Sarver’s persona specifically centers around that wo r k. A l t h o u gh the fi l m a l l e ge d l y i n c o r p o r a t e s p er s o n al characteristics of Sarver—for ex a m ple his appearance, his
t e m p e r a m e n t , a n d p a r t s o f h i s b i o g r a p h y

— s u c h characteristics are disp l a y e d only in the contex t o f the character’s ex p eriences f

ig hting in I r a q

. I n other words, the
pr ivate aspects that Sarver alleg es the film misappropriated

a r e inherently entwined with the film’s alleg ed portray al o f his participation in the I raq W ar.

W e c o n c l ude that this focus on the conduct of the I raq W a r satisfies California’s standards for determining whether

an issue is one of public concern

. T h a t war, its dang ers, a nd soldiers’ ex p eriences w ere subjects of long standing public attention. I ndeed, The Hurt Locker
, with its unique focus on I ED d isposal team s , c o n t ributed to that attention. T hat the film w o n several Oscars and reached widespread audiences only buttresses our conclusion. T he film and the narrative o f its central c haracter W ill J ames speak direc t l y to issues of a public nature.

B

Having satisfied the public interest inquiry
, we turn to the second step in the a

naly sis, where the burden shifts to SarverS A R V E R V

. C H A R

T I E R 21

to “state and substantiate a leg ally sufficient claim.” Hilton
, 599 F .3d at 908 (internal quotation marks omitted).

California’s rig ht of publicity law “prohibit[ s] any o t her
person from u sing a c elebri t y ’ s name, voice, sig nature, photog raph, or likeness for commercial p urposes w ithout the [ ce l e b r i t y ’s] consent.” Comedy I II Prods., Inc. v. Gary Saderup, Inc.
, 25 Cal. 4th 387, 391 (2001). The elements o f

a claim of misappropriation o f the rig ht of p ublicity a re “(1) the defendant’s use of the plaintiff’s identity ; (2 ) the appropriation of plaintiff’ s n ame or likeness to defendant’s advantag e, commercially or otherwise; (3) lack o f consent; and (4) resulting injury .” Downing v

. Abercrombie & Fitch
, 265 F .3d 9 94, 1001 (9th Cir. 2001) (internal quotation marks omitted). T he parties disag ree pr i m arily over the second element—whether the f ilmmakers appropriated Sarver’s name or likeness in their production of The Hurt Locker

.

B u t, even assuming for the sake of arg ument that Sarver

can e stablish all elements of his claim, the defendants contend that their production of the fil m is nevertheless protected under the F irst A mendment. Tha t i s , t hey a rg ue that allowing Sarver to pur s u e h is rig h t of publicity action
ag ainst them would infring e their constitutional rig ht to free speech. B ecause it is dispositive, we consider that arg ument first.

1

The F irst Amendment, applicable to the states throug h the F ourteenth Amendment, forbids laws “abridg ing the f reedom of s p e e ch

. ” U.S. Const. amend. I ; R eed v. Town of Gilbert
, 135 S. Ct. 2218, 2226 (20 1 5 )

. State laws, including state

common l a w , may not “ r estrict e x pression because o f itsS A R V E R V

. C H A R

T I E R 22

messag e, its ideas, its subject matter, or its c ontent.” Police Dep’t of City of Chi. v. Mosley
, 408 U.S. 92
, 95 (1972). “Content-based laws—th o s e t hat targ e t speech b ased on its communicative content—are presumptively unconstitutional and may be justified only if the g overnment proves that they

are narrowly tailored to serve compelling state interest s

. ” 5 Reed , 135 S. Ct. at 2226.

B y its terms, California’s r i g h t of publicity law clearly restricts speech based upon its content. The Supreme Court has reviewed th e c o n s titutionality of a state’s rig h t o f publicity law only onc e , concluding that application of such

a law t o prevent the broadcast of a performer’s entire performan c e did n ot v iolate the F irst Amendment. I n Zacchini v. Scripps-Howard Broadcasting Co.
, a journalist videotaped a

nd broadcasted Z acchini’s entire 15-second “human cannonball” act. 4 33 U.S. 56 2
, 5 6 3 –64 (1977). Za c chini b roug ht an action ag ainst the television station for violation of his rig ht of publicity under Ohio law. Id. at 564. I n r ejecting the station’s F irst Amendment defense, the Court first considered the nature of Ohio’s interest in enforcing the law. According to the Court, the state’s rig ht of publicity law

was aimed at protecting “the proprietary interest o f t he individual in his act” and “prevent[ ing ] unjust enrichment b y the theft of g ood will,” in order to provide “an economic incentive for [the individual] to make the investment r equired
to prod u c e a performance of interest to the public.” Id. at 573, 576 (internal quotation marks o mitted). The Court

5 T h is case d o e s n o t co n cern a law t h at g o v ern s co m

m ercial sp eech or sp eech th at f

alls w ith in

o n e o f a f ew trad itio n al categ o ries w

h ich receiv e lesser First A m en d m en t p ro tectio n

. S ee Un i ted S ta tes v. Steven s , 5 5 9 U .S. 4 6 0
, 4 6 8 (2 0 1 0 ); Cen t. Hu d s o n Ga s & Elec. Co rp

. v. Pu blic S erv. Co mm’n

o f N.Y. , 4 4 7 U.S. 5 5 7 , 5 6 2

– 6 3 (1 9 80 ).S A R V E R V

. C H A R

T I E R 23

analog iz e d this interest to those which “underlie[ ] the patent and copy rig ht laws long e nforced by this Court,” as opposed
to reputational and p rivacy -based interests which under lie torts like defamation. Id. at 573–76.

The Court balanced this state interest ag ainst the station’s

cou n tervailing F irst Amendment interests in broadcasting Z a cchini ’ s p e rformance. I t determined that the F irst Amendment interest in broadc a s t i ng the entire performance (as opposed to just using Z a c c h i ni’s name or picture) was minimal because “[ n] o social purpose [ was] served by h aving the defendant g et free some aspect of the plaintiff that would have market v a l u e and for which he would normally pay

. ” Id. (internal quotation marks omitted). The Court ex p lained that such a broadcast is tantamount to “ preventing [ Z a cchini] from charg ing an admission f ee” to view what was “the product of [ his] own talents a n d energ y , t h e e n d result o f much time, e ffort, a

nd ex pense.” I

d

. a t 575–76. Thus, because the “broadcast o f a film of [ Z acch i n i ] ’s entire act pose[ d ] a substantial threat to the e co n omic value of that performance,” and p rotection provided an “economic incentive” for him to develop such a performance of public interest, the Court held that the F irst A m e n dment d id not prevent O hio from protectin g Z acchini’s rig ht o f publicity

. Id. at 575–79. The Court has n ot revisited the question o f when a state’s rig ht of publicity law is consistent with the F irst Amendment since Zacchini

.

2

W e , however, h ave interpreted Zacchini t o uphold the rig ht of publicity in a variety of contex ts where the defendant appropriates the economic value that the plaintiff has b uilt in

an identity or performance. F or ex ample, in Hilton v

.S A R V E R V

. C H A R

T I E R 24

Hallmark Cards
, we held that Paris H ilton c o u l d p u rsue a rig ht of publicity claim for Hallmark’s use of her imag e a nd catch phrase (“that’s hot”) from her television show in o ne o f i t s g reeting cards. 5 9 9 F .3d at 899. I n doing so , w e sug g ested that “merely merchandising a celebrity ’s im a g e without that person’s consent, the prevention of which is the

core of the rig ht of publicity
, ” is not protected by the F irst Amendment. 6 Id. at 910. Similarly
, i n K e l ler v. Electronic Arts, Inc.
, we upheld an action by a colleg e football play er who soug ht t o p r event the use of his likeness in EA’s video
g ame. 724 F .3d at 1268; se e also D avis v. Elec. Arts, Inc.
, 775 F .3d 1172 (9th Cir. 2015) (upholding r ig ht of publicity

a c tion challeng ing EA’s use of professional football play er likenesses in a video g ame). W e noted that the video g ame “literally recreates [ the football p lay er] in the very setting in which he has a chieved r e n own,” K el l e r , 724 F .3d at 1271, and interferes with his ability “to capitaliz e on his a thletic success,” which took “talent and y ears o f h ar d work on the football field” to build. Id. at 1277 n.9, 1281. 7

6 T h at case ad d ressed th e First A m en dm en t o n ly th ro u g h t h e l e n s of Calif o rn ia’ s “ t

ran sf o rm ativ e u se” d octrin e, a n af f irm ativ e d ef

en s e f o r m u lated b y th e Calif

o rn ia Su p rem e Co u rt w

h ich aim s to strik e a b alan ce b etw een F irst A m en d m en t in terests an d a p lain tif f ’ s asserted rig h t

o f p u b licity

. W e n eed n o t an d d o n o t reach th e q u estio n o f w h eth er su ch d ef en se ap p l ies in

th is case.

7 T h ese cases f

o llo w Calif

o rn ia d ecisio n s , w

h ich h av e lik ew ise h eld th at th e state’ s rig h t o f p u

b licity law p ro tects celeb rities f ro m ap pro priatio n of th eir p erf o rm an ce o r pers o n a

. See C o med y III
, 2 5 Cal. 4th at 3 9 1 (reg istered o w

n er o f T h e T h ree Sto o g es act w as p erm itted to su e an artist

w h o so l d lith o g rap h s an d t

- sh irts created f ro m h is ch arco al d raw i n g o f T h e T h ree Sto o g es); N

o Do u b t v. Activisio n Pu b l’g

, In c. , 1 9 2 Cal. A

p p

. 4 th 1 0 1 8
, 1 0 2 3 (2 0 1 1 ) (ro ck ban d No Do u b t w as p erm itted to su e v id eo g am e

co m pan y th at u sed co m

p ut e r g e n erated im ag es o f th e b an d in its v i deo
g am e).S A R V E R V

. C H A R

T I E R 25

L ikewise, we have upheld acti o n s involving celebrities challeng i n g the use o f their imag es in commercial advertising

. See, e.g. , Newcombe v. Adolf Coors Co.
, 157 F .3d 686, 691–94 (9th Ci r

. 1 9 98) (California’s rig ht o f publicity law applied to u se o f Dodg ers pitch er D on Newcombe’s imag e in printed beer advertisement); W hite v

. Samsung Elecs. Am., Inc.
, 971 F .2d 1 395, 1397–99, 1 4 01 n.3 (9th Cir. 1992) (same f

or use of Vanna W hite’s likeness as a robot in an advertisement for VCRs). Althoug h we have not

ex p licitly a p p l i e d Zacchini in these cases, o u r o p inions indicate that t h e s t ate’s interest is in preventing “the

ex p loitation of celebrity to sell products
, and an attempt to t a ke a f ree r ide on a celebrity ’ s celebrity value.” W hite
, 971 F .2d at 1401 n.3. 8

I n sum, our precedents have held that speech which either appropriates the e conomic value of a performance or persona

or seeks to capitaliz e off a celebrity ’s imag e in commercial advertiseme nts is unprotected by the F irst A mendment
ag ainst a California rig ht-of-publicity claim.

3

Such lines of cases are not applicable here.

F irst, The H

u r t Locker is not speech proposing a commercial transaction. According ly
, our precedents rely ing

on the lesser protection affor d e d to commercial speech a re

8 In o n e cas e , w e also u

p h eld a rig h t o f p u

blicity actio n bro u g h t b y p riv ate in d iv i d u als ch allen g in g th e u se o f th eir p h o to in retail ad v ertisin g

u n d er th e less p ro tectiv e stan d ard s ap p licab le to co m m ercial sp eech

. S

ee Do wn in g , 2 6 5 F.3 d at 10 0 1 –0 2 & n .2

. B ecau s e th is case d o es n o t in v o lv e p u rely co m

m ercial sp eech
, w e d o n o t o p in e o n th e sco p e o f th at h old in g

.S A R V E R V

. C H A R

T I E R 26

inapposite. Second, and critically
, unlike the plaintiffs in Zacchini
, Hilton
, and Keller
, Sarver d id not “make the investment required to produce a p erformance of interest to t he public,” Zacchini
, 433 U.S. at 5 76, or invest time a n d
money to build up economic value in a marketa b le
p e rformance or identity

. Cf. Keller
, 7 24 F

. 3d at 12 8 0

– 8 1

. Rather, Sarver is a privat e p er s o n who lived his life a nd worked his job. I ndeed, while Sarver’s life and story may have proven to be of public interest, Sarver has ex pressly disavowed the notion that he soug ht to a ttract public attention
to himself. Neither the journalist who initially told Sarver’s story nor the movi e t h a t b roug ht the story to life stole Sarver’s “ entire act” or otherwi s e ex ploited the economic value of a n y p e rformance or persona he had worked to develop. T he state ha s n o i n terest in g iving Sarver an economic incentive to live his life as he otherwise would.

I n sum, The Hurt Locker

is speech that is fully

protected by the F irst Amendment, which safeg uar d s the story

tellers and a rtists who take the raw materials of life—including the stories of real individuals, ordinary or ex traordinary —and transform them into art, be it articles, books, movies, or p lay s. I f California’s rig ht of publicity law a p plies in this case, 9 it is

9 A n d it is n o t clear th at Calif o rn ia w ou ld ex ten d its rig h t o f p u blicity to Sarv er’ s s itu atio n

. In a case d ecid ed s h ortly af ter Za cch in i
, th e C alif

o rn ia Su p rem e Co u

rt barred a rig h t o f p u

b licity actio n f

iled b y t h e n e p h ew of
acto r Ru d o l p h V alen t in o b ased u p o n th e u n au th o rized ex h i b i tio n o f a

“ f ictio n alized v ersio n ” o f Valen tin o ’ s lif e o n telev isio n , u

p o n th e

co n clu sio n th at su ch rig h t “ ex p ires u p on th e d eat h o f th e p erso n so p ro tected .” G u glielmi v. S pellin g -Go ld

b erg Pro d

s. , 6 0 3 P .2 d 45 4
, 4 5 5 (Cal. 1 9 7 9 ). B u t a co n cu rrin g o p in i o n j o i n e d b y th ree o f Calif o rn ia’ s

sev en Su p rem e Co u rt j u stices (an d i m p licitly ap p ro v ed b y a f o u rth )

ex p ressed b ro ad er d o u

b t th at th e p l ain tif

f co u ld prev ail ev en o n th e m erits

o f su ch a claim

. T h e co n cu rren ce ex p lain ed th at, u n lik e in Z a cch in i
, th ereS A R V E R V

. C H A R

T I E R 27

s imply a c ontent-based speech restriction. As such, it i s presumptively unconstitutional, and c annot stand unless Sarver can show a compelling state interest in p reventing the d e fendants’ speech. B ecause Sarver c annot do so, appl y i n g California’s rig ht of publicity in this case would violate the F irst Amendment.

According ly
, Sarver c annot “state and substant i a t e a leg ally sufficient” rig ht of p u b l icity claim, Hilton
, 599 F .3d
at 908, a nd the district court did not err in g r anting the defendants’ anti-SL

APP motions reg arding such claim.

I V

Sarver also contends that his claims for defamation, false li g h t , a nd intentional infliction of emotional d istress were improperly dismissed. 1 0 W e address each in turn.

First
, to prevail on his defamation claim, Sarv er must

s how that The Hurt Locker depicted him in a way t h a t i s “provably false” and which ex posed him “to hatred, contempt, ridicule, or obloquy
, o r which cause[ d] him to be

w as n o c l a i m th at t

h e d ef en d an ts s ecretly f

i lm ed Valen tin o ’ s

“ perf orm an ce” o r o t

h erw ise sto l e h is “ en tire act,” so as to “ u n d ercu t[] h is ab ility to earn a liv in g .” Id

. at 4 6 4 (B ird
, C.J
., co n cu rrin g ). T h e j u stices

cau tio n ed th at th e d efe n d an ts’ f ictio n alized p ortray al o f Valen tin o ’ s lif e

w as en titled to g reater First A m en d m en t p ro tectio n th an th e co n d u ct in Za cch in i
, an d ex p l a i n e d th at t h ey w ro te in an ef

f o rt “ to d ef

in e on e b o u n d ary o f th i s state’ s co m

m o n law rig h t o f p u b licity .” Id

.

10 B ecau s e S arv er f

ailed in h is o p en i n g b r ief to arg u e an y erro r

c o n cern in g t

h e d i sm issal o f h is b reach of co n tract, f rau d
, an d n eg li ge n t

m isrep resen tatio n claim s, h e h as w aiv ed su ch arg u m en ts o n ap p eal. S ee Un ited S ta tes v. Ma rcia -Aco sta , 7 8 0 F.3 d 1 2 4 4 , 1 2 5 0 (9 th Cir. 2 0 1 5 ).S A R V E R V

. C H A R

T I E R 28

shunned or avoided, or which ha[ d ] a tendency to injure him in his o ccup a t i o n.” Nygard, Inc. v. Uusi-Kerttula
, 159 Cal. App. 4th 1027, 10 47–48 (2008) (internal quotation marks omitted). Sarver contends that the film has interfered w ith his
emp l o y m ent p rospects because it portray ed him as a b ad father, bereft of compassion, fascinated with war an d d e a t h, and disobedient.

Sarver’s alleg ations do not stand up in lig ht of the f ilm a s

a whole. W e ag ree with the dist rict court that a reasonable viewer of the film would be left with the conclusion that the character W ill J ames was a heroic fig ure, albeit o ne strug g ling with certain internal conflicts. Directly contrary to S arver’s alleg ations, J ames ex hibits compassion for vario u s I raqi c i tiz ens, including a y oung boy a nd a man trapped in a suicide vest; appears to ca r e f o r a nd miss his son; a

nd occasionally departs from military protocol in an effort to

s a v e h uman lives. 1 1 Even if Sarver is correct that certain aspects of Will J ames’s c haracter are unflattering
, it does not support the conclusion that the film’s o v e r a ll depiction o f J ames could reasonably

be seen to defame Sarver. 1 2

11 F u rth er, m an y of Sarv er’ s a l l e g a t i on s are n o t “ p ro v ab ly f alse.” Fo r

ex am p le, ev en if th e f

ilm d id sh o w J am es to b e f asci n a t e d w ith w ar or d eath
, m an y o f th e scen es su p p o sed ly su

p p o rtin g su ch a co n c l u s i o n

resem b le statem en ts Sarv er m ad e to B o al, su c h a s t h at Sarv er “ lo v e[s]”

w o rk in g w ith ex p lo siv es an d th at “ [a]n y th in g th at g o es bo o m ” is

“ ad d ictiv e.”

12 W e d o n o t a g ree w i th Sarv er th at th e d istrict co u rt en g ag ed in im p erm issib le f

actf in d in g in reach i n g th is c o n clu sio n

. Un d er C alif o rn ia law
, it is a q u estio n o f law f o r th e co u rt w

h eth er a ch allen g ed statem en t is

reaso n ab ly su s cep tib le to a d e fa m a t o ry in terp retatio n

. S ee In re S icro

ff
, 4 0 1 F.3 d 1 1 0 1 , 1 1 0 5 (9 th Cir. 2 0 0 5 ).S A R V E R V

. C H A R

T I E R 29

Second
, to prevail o n h i s false lig ht invasion of privacy claim, S a r ver must show that The Hurt Locker publicly portray ed him “in a false lig ht that would be h ig hly offensive
to a reasonable p erson. ” P r ice v

. O perating Eng’rs Local Union No. 3
, 195 Cal. A pp. 4th 962, 970 (2011). This claim fails for the same reason s t h at Sarver’s defamation claim does; we a g ree wi t h t he d istrict court that, even if the film’s portray al o f Sarver were s o m e how false, such depiction certainly would not “hig hly

offend” a reasonable person.

Finally
, to prevail on h is claim for intentional infliction o f emotional distress
, S arver must show that the defendants i n t e n tionally or recklessly caused him to suffer “severe o r

ex treme emot ional d istress” throug h their “ex treme a nd outrag eous conduct.” H u ghes v. Pair
, 209 P.3d 963, 976 (Cal. 2009). W e ag ree with the d istrict court that Sarver has
not alleg e d facts sufficient to show that any p ortray a l of him in The Hurt Locker was the result of “ex treme” o r “outrag e ous” conduct th a t induced severe or e x treme emotional distress.

B o al w a s e mbedded with Sarver’s u nit, interviewed Sarver, and ultimately publish e d a factual account of those

ex p eriences. I t is not outrag e ous that B oal’s factual account then led to a fictionaliz ed screenplay and film. This is especially t r ue g iven Sarver’s numerous alleg ations that the film did not transform his personality
, but instead adhered closely to Bo al’s nonfiction account and Sarver’s actual

ex p eriences. Althoug h Sarver sug g ests the defendants made substantial use of his identity and persona, he has not alleg ed facts to support the notion that any such use was somehow “outrag e ous.”S A R V E R V

. C H A R

T I E R 30

I n sum, we conclude that Sarver’s false lig ht invasion of privacy
, defamation, b reach of contract, intentional infliction of emotional distress, f

raud, and constructive fraud/neg lig ent misrepresentation claims were properly dismissed. 1 3

V

The judg ment of the district court is AF F IRMED

. 1 4

13 In ad d itio n , w e rej ect as m oo t Sarv er’ s ch allen g e to th e d istrict co u rt’ s d en ial o f h is m o tio n

to stay ex ecu tio n

an d w aiv e b o n d p en d in g ap peal.

1 4 T h e m o tio n o f Mo tio n P i ctu re A sso ciatio n o f A m erica, In c. an d En t ertain m en t Mer c h a n t s A sso ciatio n f o r leav e to f

ile a b rief as am i ci

cu riae is g ran t ed

.