Preview
FILED
10/23/2023 11:34 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
CAUSE NO. DC-23-06760
CHERIE BROUSSARD, an individual,
IN THE DISTRICT COURT
Plaintiffs,
vs.
SALLY BEAUTY SUPPLY, LLC, a 192ND JUDICIAL DISTRICT
Virginia Limited Liability Company;
RETIREMENT FILMS, INC., a California
Corporation; and DOES 1-100, inclusive,
DALLAS COUNTY, TEXAS
Defendants.
OPPOSITION TO SALLY BEAUTY SUPPLY, LLC’S MOTION FOR PARTIAL
SUMMARY JUDGMENT
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page i
TABLE OF CONTENTS
TABLE OF CONTENTS. i
TABLE OF AUTHORITIES...
OPPOSITION TO SALLY BEAUTY SUPPLY, LLC’S MOTION FOR PARTIAL SUMMARY
JUDGMENT
I SUMMARY OF ARGUMENT
II RELEVANT FACTS AND PROCEEDINGS
Ill. ARGUMENT
BROUSSARD’S SECTION 3344 CLAIM SHOULD NOT BE DISMISSED. 6
1 Sally Beauty Provides No Authority To Automatically Assume That The Court
Should Use Texas’s Choice-Of-Law Analysis. ..
i. Sally Beauty’s Cited Choice-Of-Law Authority Is Not Complete. ............
iii Sally Beauty Has Not Established A Conflict Of Law. ............
IV, If The Court Does Engage In A Texas Choice-Of-Law Analysis, A Conflict
Exists... 10
The Section 6 Restatement Factors Favor Keeping Broussard’s Section 3344
Claim. 12
California Has A Strong Statutory Scheme To Address Image Rights. . 12
The Court Should Protect Brousard’s Justified Expectations Of Being
Protected By California Law. ............
The Court Can Easily Apply California Law For Broussard’s Section 3344
Claim, Which Will Provide Certainty, Predictability, And Uniformity Of
Such Claims. oo... eccececeeseseseesceeeecseseeseecescacseeseecsreecaeescscareecaeesensavesacevensare 15
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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vi. California Has The Most Significant Relationship For Broussard’s Section
3344 Claim Under The Restatement Section 145 Factors. ...........
The Place Where The Injury Occurred .. 16
The Place Where The Conduct Causing The Injury Occurred 18
The Domicile, Residence, Nationality, Place Of Incorporation, And Place
Of Business Of The Parties............. es
The Place Where The Relationship, If Any, Between The Parties Is
Centered 18
vii. A Choice-Of-Law Analysis Pursuant To California’s Choice-Of-Law Rules
Favors Applying California Law. ........... lo
viii. Sally Beauty’s Cherry-Picked Cases Are Distinguishable And/Or Not
Persuasive. .........
1x, Judicial Estoppel Requires Denial Of The Motion On The Section 3344 Claim
Because Sally Beauty’s Counsel Told The California Court That Broussard
Would Not Be Prejudiced By Moving Her Claims To Texas. .. 25
THE AGREEMENT’S LIMITATION OF LIABILITY PROVISION DOES NOT
REQUIRE DISMISSAL OF BROUSSARD’S MISAPPROPRIATION CLAIMS
OR OTHERWISE LIMIT THE RELIEF AVAILABLE TO HER. .........::000000 27
Sally Beauty Has Not Shown How Summary Judgment Is Appropriate To Apply A.
Contractual Limitation Of Liability Clause To Tort Claims. ..0...0.. eee 28
ii. Sally Beauty Has Not Shown How It Can Enforce A Contractual Provision
When It Is Not A Party To The Contract.............
iii. Broussard Can Plead And Pursue Her Claims In The Alternative. ................31
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page iii
IV. The Agreement Does Not Trump Broussard’s Tort Claims. .........
V. An Advisory Opinion Regarding Damages Is Not Appropriate For Summary
Judgment 34
IV. CONCLUSION 35
CERTIFICATE OF SERVICE 36
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page iv
TABLE OF AUTHORITIES
Cases
Applied Equip. Corp. v. Litton Saudi Arabia Ltd.,7 Cal.4th 503 (1994)... 30
Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973) 16
Binur v. Jacobo, 135 8.W.3d 646 (Tex. 2004)
Birchfield v. Texarkana Mem 'l Hosp., 747 S.W.2d 361 (Tex. 1987)... 31
Brophy vz Almanzar, 2019 WL 10837404 (C.D. Cal. Aug. 22, 2019, No
SACV1701885CJCJPRX) 12
Brown v. Ames, 201 F.3d 654 (Sth Cir. 2000) ............. esses LL, 28, 29
Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994)... eee 16
California v. Copus, 158 Tex. 196, 309 S.W.2d 227 (1958) 15
Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995)
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995)
Corpus Christi Bank & Trust v. Smith, 525 S.W.2d 501 (Tex. 1975)... 29
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) 31
Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). 19, 20, 32
El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360 (Tex. App. 2005)...........5 27
Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied)
Faloona by Fredrickson v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D. Tex. 1985)............23
Ferreira v. Ferreira, 9 Cal.3d 824 (1973)...
First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017)... 29
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004)
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page v
Fraley v. Facebook, Inc., 830 F.Supp.2d 785 (N.D. Cal. 2011)... 33
Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979)... 7, 15
Hahn y. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ...
Hall v. State, 283 S.W.3d 137 (Tex. App.—Austin 2009, pet. Ref’d) (op. on reh’g) 26
Hill v. Nat’l Collegiate Athletic Assn., 7 Cal.4th 1 (1994)... 16
Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202 (Tex. 2000)............ 8,9
Inre CVR Energy, Inc., No. 01-15-00715-CV, 2016 WL 1389013 (Tex. App.—Houston [1st Dist.]
Apr. 7, 2016, orig. proceeding) (mem. OP.) ..........seesesescses
esses esreseseesceesreseseeasecareecatereneareesseerene 10
In re Friede & Goldman, LLC, No. 01-18-00409-CV, 2019 WL 2041071 (Tex. App.—Houston
[Ist Dist.] May 9, 2019, orig. proceeding)
Inre NCAA Student-Athlete Name & Likeness Licensing Litigation, 990 F.Supp.2d 996 (N.D. Cal.
D013) 32
Int. of P.W., 579 S.W.3d 713 (Tex. App. 2019) 34
Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518 (Sth Cir. 2001) ............
Jones v. Aetna Casualty & Surety Co., 26 Cal.App.4th 1717 (1994) 30
Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006) 19
KNB Enterprises v. Matthews, 78 Cal.App.4th 362 (2000)............. 16
KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
Lightbourne y. Printroom Inc., 307 F.R.D. 593 (C.D. Cal. 2015) 11
Logan y. Randall, No. 05-19-00043-CV, 2020 WL 948381 (Tex. App. Feb. 27, 2020) ........... 31
Lujan v. Navistar Fin. Corp., 433 S.W.3d 699 (Tex. App.—Houston [1st Dist.] 2014, no pet.)...5
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006)
Madison v. Williamson, 241 S.W.3d 145 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) . . . 31
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017)... 17
Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997) wee 32
McCann v. Foster Wheeler LLC, 48 Cal.4th 68 (2010).. 19
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647 (Tex. 1999) 29, 30
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)
Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988 (2008) ............ 12
Moore v. Big Picture Co., 828 F.2d 270 (Sth Cir. 1987)... 16
Nat’l Bank of Com. v. Shaklee Corp., 503 F.Supp. 533 (W.D. Tex. 1980) 21
Nixon v. Mr. Prop. Mgmt. Co., 690 8.W.2d 546 (Tex. 1985)
Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008)... 26
Rams v. Def Jam Recordings, Inc., 202 F.Supp.3d 376 (S.D.N.Y. 2016)... 20
Reich v. Purcell, 67 Cal.2d 551 (1967)... 18
Ross v. Roberts, 222 Cal.App.4th 677 (2013)... 12
Stevenson v. Ford Motor Co., 608 S.W.3d 109 (Tex. App. 2020) ............
Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) 31
Stilson v. Reader’s Dig. Assn., Inc., 28 Cal.App.3d 270 (1972)... 28
Stine v. Stewart, 80 S.W.3d 586 (Tex. 2002)... 30
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).........0++ 31
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) 8,9, 24
Toyota Motor Company v. Cook, 581 S.W.3d 278 (Tex. App. 2019)... 8,9, 16
Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) oo.
Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302 (Tex. App. 2004)............. 11
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) 10
Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182 (Tex. 1998)... 30
Wood v. Hustler Magazine, 736 F.2d 1084 (Sth Cir. 1984). 22
Statutes
28 U.S.C. § 1404
Cal. Civ. Code § 1559.0... 30
Cal. Civ. Code § 3344 10, 28, 32
Cal. Code Civ. Proc. § 410.30...
Tex. R. Civ. P. 166a S10
V.T.C.A., Property Code T. 4, Ch. 26 .......... 12
Other Authorities
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145.........0008
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6
Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890) 16
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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OPPOSITION TO SALLY BEAUTY SUPPLY, LLC’S MOTION FOR PARTIAL
SUMMARY JUDGMENT
I. SUMMARY OF ARGUMENT
1 Defendant Sally Beauty Supply, LLC (“Sally Beauty”) seeks partial summary
judgment to (1) dismiss Plaintiff Cherie Broussard’s (“Broussard”) claim for violation of
California Civil Code Section 3344 (“Section 3344”) based on choice-of-law principles and (2)
dismiss Broussard’s misappropriation of likeness claims based on a contractual limitation of
liability provision.
2. First, Sally Beauty has not justified dismissal of Broussard’s Section 3344 claim
and the exclusive use of Texas law for Broussard’s misappropriation claims based on choice-of-
law principles.
3 A choice-of-law analysis (under either Texas or California principles) favors
applying California law in this case, notwithstanding the fact that Broussard — a former California
resident — now lives in Texas. Texas has not shown that it has any intention to deprive its citizens
of the protections of Section 3344.
4 Additionally, one of the reasons that Sally Beauty presented to the California court
in convincing that court that Broussard’s claims should be litigated in Texas was that Broussard
would not be prejudiced in any way by a geographic change in the case. Sally Beauty should not
be permitted to now rely on a completely opposite position, i.e., that Broussard’s claims should be
treated differently simply because of the location of the case.
> Second, Sally Beauty has not justified why a contractual limitation of liability
provision precludes Broussard from seeking tort damages on separate tort claims, especially on
summary judgment.
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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6. Therefore, Broussard respectfully requests that the Court deny Sally Beauty’s
motion in its entirety.
Il. RELEVANT FACTS AND PROCEEDINGS
7 Plaintiff generally alleges that Defendant Sally Beauty Supply, LLC (“Sally
Beauty”) had a limited right to use Plaintiff's image until June 2020. Plaintiff generally alleges
that Defendants (including Sally Beauty) continued to use Plaintiff's image after the right to do so
expired and without Plaintiff's permission.
8 Sally Beauty is a company that sells beauty products throughout the United States
and the world through its over 4,000 retail locations. [Petition at { 11.]
9 Broussard is a retired model whose image was featured in television commercials
and print advertisements throughout the world. [Affidavit of Cherie Broussard filed concurrently
herewith (“Broussard Aff.”) at J 3.]
10. In or about June 2015, Sally Beauty conducted a casting for California talent in Los
Angeles, California and hired Broussard, who was then domiciled in Los Angeles, California, to
be photographed in Los Angeles, California for Sally Beauty’s commercial purposes. [See id. at
4 5-8.] Broussard entered into an agreement with Retirement Films, Inc., a California production
company, to use Broussard’s image in connection with the marketing of beauty products for Sally
Beauty (the “Agreement”). [/d. at ] 9 and Ex. A.] Sally Beauty’s rights to use Broussard’s image
expired no later than June 2020. [See id.] The terms of this Agreement were negotiated and
executed in Los Angeles, California. [Broussard Aff. at §7.] Sally Beauty’s marketing materials
containing Broussard’s image were shot in Los Angeles, California. [/d. at J 8.]
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT -—
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11. At the time she was hired for Sally Beauty’s photoshoot and marketing campaign,
Broussard resided in Los Angeles, California. [/d. at {6.] Broussard and her family resided in the
Los Angeles, California area until February 2017 and moved to Texas in November 2018. [/d.]
12. Sally Beauty has used, re-used, published, and re-published Broussard’s image in
advertisements and marketing without her consent and well after any legal right to do so expired.
[See id. at | 10-12 and Ex. B.] After the expiration of the original agreement granting Sally
Beauty the right to use Broussard’s image, Sally Beauty did not have authorization, consent, or a
license to use Broussard’s image in any manner, including for the promotion, marketing and
advertising of its goods and services. [/d. at] 10.] After the expiration of its rights, Sally Beauty
never reached out to Broussard to obtain her consent for the use of her image and likeness. [/d.]
13. On November 3, 2021, Plaintiff filed her Complaint in the Superior Court for the
State of California for the County of Los Angeles. [Motion at Ex. 2.]
14. On June 8, 2022, Sally Beauty stated in verified discovery responses that
Broussard’s image had been removed from all of Sally Beauty’s stores, precisely stating that “to
the best of Defendant’s knowledge, the last signs with Plaintiff's image were removed by January
13, 2022.” [Affidavit of Bassil A. Hamideh filed concurrently herewith (“Hamideh Aff.”) at Ex.
1 (Special Interrogatory No. 14).]
15. Thereafter, Broussard hired a private investigator to visit a group of stores near one
another in the Los Angeles, California area. [Broussard Aff. at { 11.] The private investigator
provided a report dated July 5, 2022. [/d. at §J 11-12 and Ex. B.] These Sally Beauty retail stores
are easy to visit and in geographically sequential order a mere few miles from one another and not
far from the courthouse. [See id. at Ex. B.] To Broussard’s shock and horror, her image was still
being used in the Sally Beauty stores the investigator visited. [/d. at {13 and Ex. B.]
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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16. On November 18, 2022, Sally Beauty supplemented its discovery responses stating
that “[i]n or around mid-July 2022, upon learning that Plaintiff's image remained in some Southern
California stores (despite the fact that the tasks had been marked completed by the stores),
Defendant promptly removed the same.” [Hamideh Aff. at Ex. 2 (Special Interrogatory No. 14).]
17. However, that response was knowingly false, wherein Broussard’s private
investigator visited another Sally Beauty store in the Los Angeles, California area on September
7, 2022 and discovered Sally Beauty was continuing to use Broussard’s image. [Broussard Aff. at
Ex. B.]
18. On February 23, 2023, the Superior Court for the State of California for the County
of Los Angeles granted Sally Beauty’s Motion to Dismiss (based on forum non conveniens) and
stayed that case pending the litigation in Texas. [Motion at Ex. 3.]
19. On May 22, 2023, Plaintiff filed her Original Petition in this Court.
Til. ARGUMENT
20. A party seeking summary judgment may combine in a single motion a request for
ummary judgment under the traditional and no-evidence standards. (Binur v. Jacobo, 135
S.W.3d 646, 650-651 (Tex. 2004); see also Tex. R. Civ. P. 166a(c), (i).)
21. To prevail on a motion for no-evidence summary judgment, the movant must
establish that there is no evidence to support an essential element of the non-movant’s claim on
which the non-movant would have the burden of proof at trial. (See Tex. R. Civ. P. 166a(i); Hahn
v. Love, 321 S.W.3d 517, 523-524 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden
then shifts to the non-movant to present evidence raising a genuine issue of material fact as to each
of the elements challenged in the motion. (Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006).) A no-evidence summary-judgment may not be granted if the non-movant brings forth
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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more than a scintilla of evidence to raise a genuine issue of material fact on the challenged
elements. (See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).) More than a
scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” (Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997).)
Dee In a traditional summary-judgment motion, the movant has the burden to show that
no genuine issue of material fact exists and the trial court should grant judgment as a matter of
law. (See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999).) When a defendant moves for a traditional summary judgment, it
must either: (1) disprove at least one essential element of the plaintiff's cause of action, or (2)
plead and conclusively establish each essential element of an affirmative defense, thereby
defeating the plaintiff's cause of action. (See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995);
Centeg Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Lujan v. Navistar Fin. Corp., 433
S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.).)
23. A court must take evidence favorable to the non-movant as true, indulge every
reasonable inference in favor of the non-movant, and resolve any doubts in its favor. (Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-549 (Tex. 1985).)
24. Here, Sally Beauty’s motion is seemingly not a no-evidence summary-judgment
motion because Sally Beauty does not expressly claim that Broussard lacks evidence to support
any element of her claims.
25) Sally Beauty also does not expressly claim to have disproved at least one essential
element of Broussard’s claims.
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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26. Similarly, Sally Beauty has not explicitly identified an affirmative defense that it
has pled and conclusively established.!
27. Therefore, it is not entirely clear under what specific authority Sally Beauty claims
to be entitled to summary judgment. The lack of clarity justifies summarily denying the motion.
(See Tex. R. Civ. P. 166a(c) [requiring that movant specifically challenge elements of the non-
movant’s cause of action].)
A BROUSSARD’S SECTION 3344 CLAIM SHOULD NOT BE DISMISSED.
i. Sally Beauty Provides No Authority To Automatically Assume That
The Court Should Use Texas’s Choice-Of-Law Analysis.
28. As an initial matter, Sally Beauty automatically assumes that Texas’s choice-of-
law analysis applies. [See Motion at p. 11.] Sally Beauty cited no authority for that assumption,
and Sally Beauty failed to consider whether California’s choice-of-law analysis should be followed
instead.
28 Under the Federal Rules of Civil Procedure, where a case is transferred to a more
onvenient forum pursuant to 28 U.S.C. § 1404(a), the original/transferor’s court/forum’s choice-
of-law rules govern the analysis of the applicable substantive law, not the transferee’s
court/forum’s choice-of-law rules. (See Van Dusen v. Barrack, 376 U.S. 612, 642-643, 84 S.Ct.
805, 11 L.Ed.2d 945 (1964) [Whereas 1404(a) transfer is thus held not to effect a change of law
but essentially only to authorize a change of courtrooms, the reference in Rule 17(b)to the law of
the State ‘in which the district court is held’ should be applied in a corresponding manner so that
' Sally Beauty’s motion does not even offer the Agreement, which is the entire basis of the
motion, into evidence, and Sally Beauty’s motion does not reference any affirmative defense
alleged in its Answer.
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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it will refer to the district court which sits in the State that will generally be the source of applicable
laws.”’].)
30. Sally Beauty has not shown how the same analysis should not apply in this case,
considering that the case is only here based on Sally Beauty’s forum non conveniens motion being
granted in the California case solely on the basis of convenience,” i.e., Broussard’s claims have
effectively been transferred from California to Texas. (Compare Jackson v. W. Telemarketing
Corp. Outbound, 245 F.3d 518, 523 (5th Cir. 2001) [where transfer was for improper venue under
28 U.S.C. § 1406(a), transferee court in Texas correctly applied Texas choice of law principles
rather than the state law of the transferor district court].)
ii. Sally Beauty’s Cited Choice-Of-Law Authority Is Not Complete.
31. While Sally Beauty referenced how Texas applies the most significant relationship
test outlined in the Restatement (Second) of Conflict of Laws to determine choice-of-law issues in
tort cases, as initially expressed in Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979), Sally Beauty
conveniently failed to give the Court the full story. [See Motion at pp. 11-12.]
32. “Under this approach, the laws of a single state do not necessarily govern all
substantive issues; accordingly, we consider each issue separately and apply the state law having
? The California court could have either dismissed or stayed that case on forum non
conveniens grounds in granting Sally Beauty’s motion (Cal. Code Civ. Proc. § 410.30(a)), and it
intentionally chose to stay the case (with conditions placed on Sally Beauty) instead of dismissing
it (Motion at Ex. 3), which suggests that the California court sought to protect Broussard. (See
Ferreira v. Ferreira, 9 Cal.3d 824, 838 (1973) [distinction between dismissal and stay not merely
terminology; staying court retains jurisdiction over the parties and the cause, it can compel the
foreign party to cooperate in bringing about fair and speedy hearing in foreign forum, it can resume
proceedings if foreign action is unreasonably delayed or fails to reach resolution on the merits;
dismissal divests court of jurisdiction over action, depriving itself of power to protect interests of
plaintiff].)
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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the most significant relationship to the issue.” (Toyota Motor Company v. Cook, 581 S.W.3d 278,
283 (Tex. App. 2019).)
33. The “process of applying the laws of different states to discrete issues within the
same case” is known as “depecage.” (Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529,
534 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citation omitted).)
34. Section 6 of the Restatement (Second) of Conflicts of Laws outlines the general
choice-of-law factors courts should consider, including: (a) the needs of the interstate and
international systems, (b) the relevant policies of the forum, (c) the relevant policies of other
interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations, (e) the basic policies underlying the particular field of
law, (f) certainty, predictability and uniformity of result, and (g) ease in determination and
application of the law to be applied.” (Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex.
2000) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)); see also Hughes
Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000).)
35. Sally Beauty’s motion does not reference or address the Section 6 Restatement
factors at all.
36. In addition to the general choice-of-law factors, in tort cases, courts consider the
section 145 contacts, which include: “(a) the place where the injury occurred, (b) the place where
the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of
incorporation, and place of business of the parties, and (d) the place where the relationship, if any,
between the parties is centered.” (RESTATEMENT (SECOND) OF CONFLICT OF LAWS §
145(2); see also Torrington, 46 S.W.3d at 848.)
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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37. In deciding choice-of-law issues, the number of contacts is not determinative, rather
courts must examine the contacts in light of state policies underlying the specific substantive issue.
(Torrington, 46 S.W.3d at 848.)
38. Courts must determine which state has the most significant relationship to each
substantive issue in their choice-of-law analysis. (See Torrington, 46 S.W.3d at 848 [“[W]e must
evaluate the contacts in light of the state policies underlying the particular substantive issue.”]
[citations omitted]; Hughes, 18 S.W.3d at 205 [“[T]he court of appeals determined that Texas has
the most significant relationship to the case and that therefore Texas law should apply to all issues.
But the Restatement requires the court to consider which state’s law has the most significant
relationship to the particular substantive issue to be resolved.”].)
iii. Sally Beauty Has Not Established A Conflict Of Law.
39. Courts “only undertake a choice of law analysis if a conflict of law exists that
affects the outcome of an issue.” (Toyota Motor Company v. Cook, 581 S.W.3d at 283.)
40. A conflict of law exists where the laws of competing states differ on a matter related
to the claims brought. (See, e.g., Stevenson v. Ford Motor Co., 608 S.W.3d 109, 124 (Tex. App.
2020) [finding Texas law differs from that of Michigan and Virginia as to existence of statute of
repose that could bar wrongful-death and survival claims].)
41. Sally Beauty’s motion does not identify any conflict of law.
42. The lack of a conflict of law in Sally Beauty’s motion warrants summarily denial
of the motion because the Court should not even engage in a choice-of-law analysis to override
Broussard’s Section 3344 claim. (Jn re Friede & Goldman, LLC, No. 01-18-00409-CV, 2019 WL
2041071, at *10 (Tex. App.—Houston [1st Dist.] May 9, 2019, orig. proceeding) [“The parties do
not identify any relevant conflict between Mexican, Texas, and German law, so we do not
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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undertake a choice-of-law analysis”); Jn re CVR Energy, Inc., No. 01-15-00715-CV, 2016 WL
1389013, at *4 (Tex. App.—Houston [lst Dist.] Apr. 7, 2016, orig. proceeding) (mem. op.)
[Absent a conflict between Kansas and Texas law on this record, we do not undertake a choice-
of-law analysis.”] [citing Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 51 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied)].
iv. If The Court Does Engage In A Texas Choice-Of-Law Analysis, A
Conflict Exists.
43. While Broussard maintains that Sally Beauty’s motion related to Broussard’s
Section 3344 claim should be denied because Sally Beauty has not cited a conflict of law,
Broussard will still address the choice-of-law analysis.
44. Here, for the purposes of a Texas choice-of-law analysis,’ a conflict exists between
the laws of California and Texas related to misappropriation of likeness claims, most notably a
claim pursuant to Section 3344.
45. The Texas common law claim does not provide the same relief as a Section 3344
claim.
46. For example, Section 3344 entitles Broussard to gross profits attributable to the
unlawful use of her image not taken into account in computing the actual damages. (Cal. Civ.
Code § 3344 (a).) Section 3344 also mandates that the “prevailing party in any action under this
section shall also be entitled to attorneys’ fees and costs.” (Cal. Civ. Code § 3344(a).))
47. In Texas, a plaintiff may recover general damages for a_ right of
publicity/misappropriation claim, which may include claims for mental and physical pain and
3 As detailed below, a “true conflict” would not exist under California’s choice-of-law
analysis had this case proceeded in California.
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page 10
suffering, plus any proven special damages. (See Brown v. Ames, 201 F.3d 654, 662 (Sth Cir.
2000) [applying Texas law].)
48. However, common law claims in Texas related to the right of
publicity/misappropriation do not allow for the statutory types of damages or the recovery of
attorneys’ fees, like Section 3344. California's right of publicity statute mandates an award of
attorney’s fees for “[t]he prevailing party in any action under this section.” (Cal. Civ. Code §
3344); Kirby v. Sega of Am., Inc., 144 Cal. App.4th 47, 62 (2006)
49. Therefore, a conflict exists pursuant to Texas’s choice-of-law analysis. (See
Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App. 2004) [“The first step in
deciding choice of law is whether the laws of the various jurisdictions conflict. When a party
contends that the law of another jurisdiction should apply, Texas courts will first examine if the
applicable laws conflict. ... There are no conflicts if there are no differences between the laws of
the respective states concerning the issues relevant to the case.”]; see also Lightbourne v.
Printroom Inc., 307 F.R.D. 593, 598 (C.D. Cal. 2015) [measure of damages available to prevailing
plaintiff a consideration for whether right of publicity laws differ and, therefore, present a
conflict].)
//
//
i
i
i
i
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PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
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v. The Section 6 Restatement Factors Favor Keeping Broussard’s
Section 3344 Claim.‘
1 California Has A Strong Statutory Scheme To Address Image
Rights.
50. Section 3344 was specifically enacted to protect people who provide services in
California like those envisioned at issue in this case — a professional model photography shoot for
a national promotional campaign. (Brophy v. Almanzar, 2019 WL 10837404, at *6 (C.D. Cal.,
Aug. 22, 2019, No. SACV1701885CJCJPRX) [California has an interest in protecting its
residents from the unlawful misappropriation of their likeness for commercial benefit, an interest
expressed through the legislature’s enactment of California Civil Code § 3344”].)
ole “The statutory right, enacted in 1971, was intended to complement this common
law right of publicity.” (Ross v. Roberts, 222 Cal.App.4th 677, 685 (2013).)
52. In Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988 (2008), the court traced
the history of Section 3344 in order to determine, inter alia, what the minimum statutory damages
(i.e., the $750 award) set forth in subdivision (a) were meant to remedy. (/d. at 1002.) According
to Miller, “[t]he statute’s legislative history reveals section 3344(a) was intended to fill ‘a gap
which exist[ed] in the common law tort of invasion of privacy’ as applied to noncelebrity plaintiffs
whose names lacked ‘commercial value on the open market.’ [Citation.] Unlike an entertainment
or sports star, noncelebrity plaintiffs often could not prove damages under the common law;
therefore, section 3344(a) as originally enacted in 1971 ‘established a concrete remedy for the little
* It comes as no surprise that Sally Beauty’s motion completely avoids addressing these
factors because they favor Broussard. Sally Beauty’s intentional reference only to part of the
analysis required for choice-of-law issues in Texas should be viewed as an attempt to mislead the
Court.
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page 12
man with a minimum ... payment,’ ‘a simple, civil remedy for the injured individual.’ [Citation.]”
(id. at 1002 [fn. omitted].) Thus, the Miller court confirmed that Section 3344 was enacted to
provide a “practical remedy for a noncelebrity plaintiff whose damages are difficult to prove...”
Ud.)
53. On the other hand, Texas should not have any interest in limiting the extent of relief
its residents could obtain in California when Texas does not have a statutory misappropriation of
likeness regime like California for living plaintiffs, like Broussard. (Compare V.T.C.A., Property
Code T. 4, Ch. 26 [Texas statutes regarding use of deceased individual’s name, voice, signature,
photograph, or likeness].)
2. The Court Should Protect Brousard’s Justified Expectations Of
Being Protected By California Law.
54. As detailed herein, Broussard was a California resident at the time she was cast,
interviewed, hired, and photographed for her images at issue in this case and when she entered into
the Agreement that provided rights for the commercial use of her images.
55. Further, the Agreement has a California choice-of-law provision: “CHOICE OF
LAW. This Agreement has been entered into in the State of California and the validity,
interpretation and legal effect of this Agreement shall be governed by the laws of the State of
California (but not its conflict of law rules) applicable to agreements executed and fully performed
within the State of California.” [Broussard Aff. at Ex. A (at § 10) (emphasis in original).]*
5 Sally Beauty devotes a significant portion of its motion arguing that the Agreement’s
choice-of-law provision should be construed narrowly and only applied to Broussard’s breach of
contract claim. [See Motion at pp. 8-11.] Even accepting that premise, the Agreement and its
California choice-of-law provision are still relevant to the Section 6 Restatement factors, even if
the choice-of-law provision does not conclusively establish that California law applies to all of
Broussard’s claims.
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page 13
56. As a California resident at the time and based on the California choice-of-law
provision in the Agreement, Broussard was justified in expecting that she would be protected by
California’s statutory scheme specifically for the commercial use of her image. Broussard only
engaged in the Sally Beauty photoshoot because she firmly believed California law would always
protect her from any unlawful use of her image by Sally Beauty for all time. [Broussard Aff. at §
10.]
Sie Sally Beauty reached into California to plan the production, hired a California
production company, a California casting agency, had hundreds of California models to consider
for its production, selected a reduced amount to interview and meet in person in California, hired
Broussard in California, photographed Broussard in California, captured all of Broussard’s
photographs for use in its advertising campaign in California, and while in California had no plan
in place, contrary to its promise to Broussard, that it would have a system in place to ensure
Broussard’s image rights were not violated. [See Hamideh Aff. at Ex. 3 (Longberg Tr. at 33:21-
34:18; 37:12-39:9; 43:2-47:16; 76:8-77:4; 79: 18-82:21; 84:11-85:10; and Exhibit 6 thereto).]
58. Further, in sworn discovery responses, Sally Beauty points to Retirement Films, the
California production company, and its president Mare Longberg, domiciled in California, as being
the only person that Sally Beauty is aware of that have information regarding the agreement for
the use of Broussard’s image and the decision to use and approval of using Broussard’s image, and
Sally Beauty points to Retirement Films and Longberg as having information regarding the use of
Broussard’s image. [See Hamideh Aff. at Ex. 1 (06/08/2022 responses to Special Interrogatory
Nos. 1, 4, 5, 6, 7, 13, 14, and 17).]
59. Chet Lofgren, the creative director of Sally Beauty, who, with his boss Ashley
Sheetz, made all of the decisions related to the use of Broussard’s image for Sally Beauty, decided
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page 14
to invest in a California production, flew from Texas to California to attend the photoshoot and
hire Broussard, and admitted that, while in California at the time Broussard was promised her
image would not be used beyond the agreed upon term, that he was not aware of any processes in
place to ensure that Sally Beauty would not violate Broussard’s image rights. [Hamideh Aff. at
Ex. 4 (Tr. at 23:17-19, 52:9-17 (Lofgren final decision maker with boss Sheetz); id. at 71:19-73:17,
81:10-19 (not aware of a process being in place to not violate Broussard’s rights); id. at 191:10-
194-8 (could have gone to iStock photo but instead decided to invest in an out of state [California]
production). ]
3. The Court Can Easily Apply California Law For Broussard’s
Section 3344 Claim, Which Will Provide Certainty, Predictability.
And Uniformity Of Such Claims.
60. Section 3344 is relatively unambiguous, and the universe of published opinions
related to Section 3344 is vast, wherein Westlaw cites nearly 200 reported decisions addressing
Section 3344. (See Gutierrez v. Collins, supra, 583 S.W.2d at 321 [“Furthermore, the members
of this state’s judiciary are fully capable of comprehending and applying laws of other
jurisdictions.”].)
61. On the other hand, Texas has relatively minimal precedential opinions dealing with
misappropriation of likeness claims.
62. If the foreign law is not “against good morals or natural justice” r “prejudicial to
the general interest” of Texas residents, mere differences between Texas law and foreign law
would not render the foreign law so contrary to Texas public policy that it should not be enforced.
(California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232 (1958) [citations omitted]; see also
Gutierrez y. Collins, 583 S.W.2d at 321.)
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page 15
vi. California Has The Most Significant Relationship For Broussard’s
Section 3344 Claim Under The Restatement Section 145 Factors.
63. Here, while some events or omissions giving rise to Broussard’s claims occurred in
Dallas County, Texas, Texas does not have the most significant relationship to preclude Broussard
from maintaining a Section 3344 claim here.®
1 The Place Where The Injury Occurred
64. In more standard personal injury cases, the place where the injury occurred is
typically much easier to determine. (See, e.g., Toyota Motor Company v. Cook, supra, 581 S.W.3d
at 285 [in car accident case, “the van involved in the accident was directly imported from Japan to
Mexico, sold in Mexico to a Mexican national, and operated exclusively in Mexico. Therefore,
Mexico was not a fortuitous location where the accident occurred.[] These facts support the
application of Mexico’s law to the liability issues.”].)
65. The same can be said for the place of injury for other right of privacy claims,
namely intrusion into private affairs, false light, and disclosure of private facts claims, because
those claim emanate from the theory that individuals have rights to determine to what extent their
thoughts, sentiments, and emotions shall be communicated to others, best described as the right to
be let alone. (See Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994) [recognizing other three right
of privacy claim but holding Texas does not recognize tort of false light invasion of privacy];
Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973) [“The right of privacy has been defined as
° Sally Beauty also argues that Broussard “represented in her initial disclosures that most
of the witnesses with relevant knowledge reside in Texas.” [Motion at p. 2.] However, Sally
Beauty does not describe how that is relevant to the most significant relationship test, and, in fact,
has pointed to Retirement Films and Mare Longberg in California as having the knowledge of the
issues presented in sworn discovery responses in this case. [See Hamideh Aff. at Ex. 1 (06/08/2022
responses to Special Interrogatory Nos. 1, 4, 5, 6, 7, 13, 14, and 17).]
PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT —
Page 16
the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted
publicity.”]; see also Hill v. Nat’l Collegiate Athletic Assn., 7 Cal.4th 1, 23 (1994) [citing Warren
& Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 195, 198, 205 (1890)].)
66. However, the place where the injury occurred is not always clear (or even only one
place) in cases involving misappropriation of likeness claims. That is because such claims, like
the ones in this case, are different from standard personal injury and other rights of privacy claims
in that they now flow from the right to control a person’s name, image, likeness, etc. (See Moore
v. Big Picture Co., 828 F.2d 270, 272-276 (5th Cir. 1987) [insufficient evidence of publicity to
support false light claim but sufficient evidence to support misappropriation of name claim]; see
also KNB Enterprises v. Matthews, 78 Cal.App.4th 362, 366-367 (2000) [“What may have
originated as a concern for the right to be left alone has become a tool to control the commercial
use and, thus, protect the economic value of one’s name, voice, signature, photograph, or
likeness.”]; Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) [right of publicity
“seeks to prevent commercial exploitation of an individual’s identity without that person’s
onsent”’].)
67. Therefore, the place where the injury occurred for misappropriation of likeness
claims includes the place of the infringing commercialization of the plaintiff's name, image,
likeness, etc. because that is where the plaintiff must exercise her right to control that use.
68. Here, Broussard has definitive proof that Sally Beauty commercially used
Broussard’s image after any rights to do so ex
Preview
FILED 10/23/2023 11:34 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY CAUSE NO. DC-23-06760 CHERIE BROUSSARD, an individual, IN THE DISTRICT COURT Plaintiffs, vs. SALLY BEAUTY SUPPLY, LLC, a 192ND JUDICIAL DISTRICT Virginia Limited Liability Company; RETIREMENT FILMS, INC., a California Corporation; and DOES 1-100, inclusive, DALLAS COUNTY, TEXAS Defendants. OPPOSITION TO SALLY BEAUTY SUPPLY, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page i TABLE OF CONTENTS TABLE OF CONTENTS. i TABLE OF AUTHORITIES... OPPOSITION TO SALLY BEAUTY SUPPLY, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT I SUMMARY OF ARGUMENT II RELEVANT FACTS AND PROCEEDINGS Ill. ARGUMENT BROUSSARD’S SECTION 3344 CLAIM SHOULD NOT BE DISMISSED. 6 1 Sally Beauty Provides No Authority To Automatically Assume That The Court Should Use Texas’s Choice-Of-Law Analysis. .. i. Sally Beauty’s Cited Choice-Of-Law Authority Is Not Complete. ............ iii Sally Beauty Has Not Established A Conflict Of Law. ............ IV, If The Court Does Engage In A Texas Choice-Of-Law Analysis, A Conflict Exists... 10 The Section 6 Restatement Factors Favor Keeping Broussard’s Section 3344 Claim. 12 California Has A Strong Statutory Scheme To Address Image Rights. . 12 The Court Should Protect Brousard’s Justified Expectations Of Being Protected By California Law. ............ The Court Can Easily Apply California Law For Broussard’s Section 3344 Claim, Which Will Provide Certainty, Predictability, And Uniformity Of Such Claims. oo... eccececeeseseseesceeeecseseeseecescacseeseecsreecaeescscareecaeesensavesacevensare 15 PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page ii vi. California Has The Most Significant Relationship For Broussard’s Section 3344 Claim Under The Restatement Section 145 Factors. ........... The Place Where The Injury Occurred .. 16 The Place Where The Conduct Causing The Injury Occurred 18 The Domicile, Residence, Nationality, Place Of Incorporation, And Place Of Business Of The Parties............. es The Place Where The Relationship, If Any, Between The Parties Is Centered 18 vii. A Choice-Of-Law Analysis Pursuant To California’s Choice-Of-Law Rules Favors Applying California Law. ........... lo viii. Sally Beauty’s Cherry-Picked Cases Are Distinguishable And/Or Not Persuasive. ......... 1x, Judicial Estoppel Requires Denial Of The Motion On The Section 3344 Claim Because Sally Beauty’s Counsel Told The California Court That Broussard Would Not Be Prejudiced By Moving Her Claims To Texas. .. 25 THE AGREEMENT’S LIMITATION OF LIABILITY PROVISION DOES NOT REQUIRE DISMISSAL OF BROUSSARD’S MISAPPROPRIATION CLAIMS OR OTHERWISE LIMIT THE RELIEF AVAILABLE TO HER. .........::000000 27 Sally Beauty Has Not Shown How Summary Judgment Is Appropriate To Apply A. Contractual Limitation Of Liability Clause To Tort Claims. ..0...0.. eee 28 ii. Sally Beauty Has Not Shown How It Can Enforce A Contractual Provision When It Is Not A Party To The Contract............. iii. Broussard Can Plead And Pursue Her Claims In The Alternative. ................31 PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page iii IV. The Agreement Does Not Trump Broussard’s Tort Claims. ......... V. An Advisory Opinion Regarding Damages Is Not Appropriate For Summary Judgment 34 IV. CONCLUSION 35 CERTIFICATE OF SERVICE 36 PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page iv TABLE OF AUTHORITIES Cases Applied Equip. Corp. v. Litton Saudi Arabia Ltd.,7 Cal.4th 503 (1994)... 30 Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973) 16 Binur v. Jacobo, 135 8.W.3d 646 (Tex. 2004) Birchfield v. Texarkana Mem 'l Hosp., 747 S.W.2d 361 (Tex. 1987)... 31 Brophy vz Almanzar, 2019 WL 10837404 (C.D. Cal. Aug. 22, 2019, No SACV1701885CJCJPRX) 12 Brown v. Ames, 201 F.3d 654 (Sth Cir. 2000) ............. esses LL, 28, 29 Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994)... eee 16 California v. Copus, 158 Tex. 196, 309 S.W.2d 227 (1958) 15 Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995) Corpus Christi Bank & Trust v. Smith, 525 S.W.2d 501 (Tex. 1975)... 29 Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) 31 Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). 19, 20, 32 El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360 (Tex. App. 2005)...........5 27 Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) Faloona by Fredrickson v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D. Tex. 1985)............23 Ferreira v. Ferreira, 9 Cal.3d 824 (1973)... First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017)... 29 Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page v Fraley v. Facebook, Inc., 830 F.Supp.2d 785 (N.D. Cal. 2011)... 33 Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979)... 7, 15 Hahn y. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ... Hall v. State, 283 S.W.3d 137 (Tex. App.—Austin 2009, pet. Ref’d) (op. on reh’g) 26 Hill v. Nat’l Collegiate Athletic Assn., 7 Cal.4th 1 (1994)... 16 Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202 (Tex. 2000)............ 8,9 Inre CVR Energy, Inc., No. 01-15-00715-CV, 2016 WL 1389013 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, orig. proceeding) (mem. OP.) ..........seesesescses esses esreseseesceesreseseeasecareecatereneareesseerene 10 In re Friede & Goldman, LLC, No. 01-18-00409-CV, 2019 WL 2041071 (Tex. App.—Houston [Ist Dist.] May 9, 2019, orig. proceeding) Inre NCAA Student-Athlete Name & Likeness Licensing Litigation, 990 F.Supp.2d 996 (N.D. Cal. D013) 32 Int. of P.W., 579 S.W.3d 713 (Tex. App. 2019) 34 Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518 (Sth Cir. 2001) ............ Jones v. Aetna Casualty & Surety Co., 26 Cal.App.4th 1717 (1994) 30 Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006) 19 KNB Enterprises v. Matthews, 78 Cal.App.4th 362 (2000)............. 16 KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) Lightbourne y. Printroom Inc., 307 F.R.D. 593 (C.D. Cal. 2015) 11 Logan y. Randall, No. 05-19-00043-CV, 2020 WL 948381 (Tex. App. Feb. 27, 2020) ........... 31 Lujan v. Navistar Fin. Corp., 433 S.W.3d 699 (Tex. App.—Houston [1st Dist.] 2014, no pet.)...5 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) Madison v. Williamson, 241 S.W.3d 145 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) . . . 31 PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page vi Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017)... 17 Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997) wee 32 McCann v. Foster Wheeler LLC, 48 Cal.4th 68 (2010).. 19 MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647 (Tex. 1999) 29, 30 Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988 (2008) ............ 12 Moore v. Big Picture Co., 828 F.2d 270 (Sth Cir. 1987)... 16 Nat’l Bank of Com. v. Shaklee Corp., 503 F.Supp. 533 (W.D. Tex. 1980) 21 Nixon v. Mr. Prop. Mgmt. Co., 690 8.W.2d 546 (Tex. 1985) Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008)... 26 Rams v. Def Jam Recordings, Inc., 202 F.Supp.3d 376 (S.D.N.Y. 2016)... 20 Reich v. Purcell, 67 Cal.2d 551 (1967)... 18 Ross v. Roberts, 222 Cal.App.4th 677 (2013)... 12 Stevenson v. Ford Motor Co., 608 S.W.3d 109 (Tex. App. 2020) ............ Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) 31 Stilson v. Reader’s Dig. Assn., Inc., 28 Cal.App.3d 270 (1972)... 28 Stine v. Stewart, 80 S.W.3d 586 (Tex. 2002)... 30 Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).........0++ 31 Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) 8,9, 24 Toyota Motor Company v. Cook, 581 S.W.3d 278 (Tex. App. 2019)... 8,9, 16 Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) oo. Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302 (Tex. App. 2004)............. 11 PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page vii Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) 10 Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182 (Tex. 1998)... 30 Wood v. Hustler Magazine, 736 F.2d 1084 (Sth Cir. 1984). 22 Statutes 28 U.S.C. § 1404 Cal. Civ. Code § 1559.0... 30 Cal. Civ. Code § 3344 10, 28, 32 Cal. Code Civ. Proc. § 410.30... Tex. R. Civ. P. 166a S10 V.T.C.A., Property Code T. 4, Ch. 26 .......... 12 Other Authorities RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145.........0008 RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890) 16 PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page viii OPPOSITION TO SALLY BEAUTY SUPPLY, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT I. SUMMARY OF ARGUMENT 1 Defendant Sally Beauty Supply, LLC (“Sally Beauty”) seeks partial summary judgment to (1) dismiss Plaintiff Cherie Broussard’s (“Broussard”) claim for violation of California Civil Code Section 3344 (“Section 3344”) based on choice-of-law principles and (2) dismiss Broussard’s misappropriation of likeness claims based on a contractual limitation of liability provision. 2. First, Sally Beauty has not justified dismissal of Broussard’s Section 3344 claim and the exclusive use of Texas law for Broussard’s misappropriation claims based on choice-of- law principles. 3 A choice-of-law analysis (under either Texas or California principles) favors applying California law in this case, notwithstanding the fact that Broussard — a former California resident — now lives in Texas. Texas has not shown that it has any intention to deprive its citizens of the protections of Section 3344. 4 Additionally, one of the reasons that Sally Beauty presented to the California court in convincing that court that Broussard’s claims should be litigated in Texas was that Broussard would not be prejudiced in any way by a geographic change in the case. Sally Beauty should not be permitted to now rely on a completely opposite position, i.e., that Broussard’s claims should be treated differently simply because of the location of the case. > Second, Sally Beauty has not justified why a contractual limitation of liability provision precludes Broussard from seeking tort damages on separate tort claims, especially on summary judgment. PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 1 6. Therefore, Broussard respectfully requests that the Court deny Sally Beauty’s motion in its entirety. Il. RELEVANT FACTS AND PROCEEDINGS 7 Plaintiff generally alleges that Defendant Sally Beauty Supply, LLC (“Sally Beauty”) had a limited right to use Plaintiff's image until June 2020. Plaintiff generally alleges that Defendants (including Sally Beauty) continued to use Plaintiff's image after the right to do so expired and without Plaintiff's permission. 8 Sally Beauty is a company that sells beauty products throughout the United States and the world through its over 4,000 retail locations. [Petition at { 11.] 9 Broussard is a retired model whose image was featured in television commercials and print advertisements throughout the world. [Affidavit of Cherie Broussard filed concurrently herewith (“Broussard Aff.”) at J 3.] 10. In or about June 2015, Sally Beauty conducted a casting for California talent in Los Angeles, California and hired Broussard, who was then domiciled in Los Angeles, California, to be photographed in Los Angeles, California for Sally Beauty’s commercial purposes. [See id. at 4 5-8.] Broussard entered into an agreement with Retirement Films, Inc., a California production company, to use Broussard’s image in connection with the marketing of beauty products for Sally Beauty (the “Agreement”). [/d. at ] 9 and Ex. A.] Sally Beauty’s rights to use Broussard’s image expired no later than June 2020. [See id.] The terms of this Agreement were negotiated and executed in Los Angeles, California. [Broussard Aff. at §7.] Sally Beauty’s marketing materials containing Broussard’s image were shot in Los Angeles, California. [/d. at J 8.] PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT -— Page 2 11. At the time she was hired for Sally Beauty’s photoshoot and marketing campaign, Broussard resided in Los Angeles, California. [/d. at {6.] Broussard and her family resided in the Los Angeles, California area until February 2017 and moved to Texas in November 2018. [/d.] 12. Sally Beauty has used, re-used, published, and re-published Broussard’s image in advertisements and marketing without her consent and well after any legal right to do so expired. [See id. at | 10-12 and Ex. B.] After the expiration of the original agreement granting Sally Beauty the right to use Broussard’s image, Sally Beauty did not have authorization, consent, or a license to use Broussard’s image in any manner, including for the promotion, marketing and advertising of its goods and services. [/d. at] 10.] After the expiration of its rights, Sally Beauty never reached out to Broussard to obtain her consent for the use of her image and likeness. [/d.] 13. On November 3, 2021, Plaintiff filed her Complaint in the Superior Court for the State of California for the County of Los Angeles. [Motion at Ex. 2.] 14. On June 8, 2022, Sally Beauty stated in verified discovery responses that Broussard’s image had been removed from all of Sally Beauty’s stores, precisely stating that “to the best of Defendant’s knowledge, the last signs with Plaintiff's image were removed by January 13, 2022.” [Affidavit of Bassil A. Hamideh filed concurrently herewith (“Hamideh Aff.”) at Ex. 1 (Special Interrogatory No. 14).] 15. Thereafter, Broussard hired a private investigator to visit a group of stores near one another in the Los Angeles, California area. [Broussard Aff. at { 11.] The private investigator provided a report dated July 5, 2022. [/d. at §J 11-12 and Ex. B.] These Sally Beauty retail stores are easy to visit and in geographically sequential order a mere few miles from one another and not far from the courthouse. [See id. at Ex. B.] To Broussard’s shock and horror, her image was still being used in the Sally Beauty stores the investigator visited. [/d. at {13 and Ex. B.] PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 3 16. On November 18, 2022, Sally Beauty supplemented its discovery responses stating that “[i]n or around mid-July 2022, upon learning that Plaintiff's image remained in some Southern California stores (despite the fact that the tasks had been marked completed by the stores), Defendant promptly removed the same.” [Hamideh Aff. at Ex. 2 (Special Interrogatory No. 14).] 17. However, that response was knowingly false, wherein Broussard’s private investigator visited another Sally Beauty store in the Los Angeles, California area on September 7, 2022 and discovered Sally Beauty was continuing to use Broussard’s image. [Broussard Aff. at Ex. B.] 18. On February 23, 2023, the Superior Court for the State of California for the County of Los Angeles granted Sally Beauty’s Motion to Dismiss (based on forum non conveniens) and stayed that case pending the litigation in Texas. [Motion at Ex. 3.] 19. On May 22, 2023, Plaintiff filed her Original Petition in this Court. Til. ARGUMENT 20. A party seeking summary judgment may combine in a single motion a request for ummary judgment under the traditional and no-evidence standards. (Binur v. Jacobo, 135 S.W.3d 646, 650-651 (Tex. 2004); see also Tex. R. Civ. P. 166a(c), (i).) 21. To prevail on a motion for no-evidence summary judgment, the movant must establish that there is no evidence to support an essential element of the non-movant’s claim on which the non-movant would have the burden of proof at trial. (See Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-524 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. (Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).) A no-evidence summary-judgment may not be granted if the non-movant brings forth PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 4 more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. (See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).) More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” (Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).) Dee In a traditional summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. (See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).) When a defendant moves for a traditional summary judgment, it must either: (1) disprove at least one essential element of the plaintiff's cause of action, or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff's cause of action. (See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeg Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.).) 23. A court must take evidence favorable to the non-movant as true, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in its favor. (Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-549 (Tex. 1985).) 24. Here, Sally Beauty’s motion is seemingly not a no-evidence summary-judgment motion because Sally Beauty does not expressly claim that Broussard lacks evidence to support any element of her claims. 25) Sally Beauty also does not expressly claim to have disproved at least one essential element of Broussard’s claims. PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 5 26. Similarly, Sally Beauty has not explicitly identified an affirmative defense that it has pled and conclusively established.! 27. Therefore, it is not entirely clear under what specific authority Sally Beauty claims to be entitled to summary judgment. The lack of clarity justifies summarily denying the motion. (See Tex. R. Civ. P. 166a(c) [requiring that movant specifically challenge elements of the non- movant’s cause of action].) A BROUSSARD’S SECTION 3344 CLAIM SHOULD NOT BE DISMISSED. i. Sally Beauty Provides No Authority To Automatically Assume That The Court Should Use Texas’s Choice-Of-Law Analysis. 28. As an initial matter, Sally Beauty automatically assumes that Texas’s choice-of- law analysis applies. [See Motion at p. 11.] Sally Beauty cited no authority for that assumption, and Sally Beauty failed to consider whether California’s choice-of-law analysis should be followed instead. 28 Under the Federal Rules of Civil Procedure, where a case is transferred to a more onvenient forum pursuant to 28 U.S.C. § 1404(a), the original/transferor’s court/forum’s choice- of-law rules govern the analysis of the applicable substantive law, not the transferee’s court/forum’s choice-of-law rules. (See Van Dusen v. Barrack, 376 U.S. 612, 642-643, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) [Whereas 1404(a) transfer is thus held not to effect a change of law but essentially only to authorize a change of courtrooms, the reference in Rule 17(b)to the law of the State ‘in which the district court is held’ should be applied in a corresponding manner so that ' Sally Beauty’s motion does not even offer the Agreement, which is the entire basis of the motion, into evidence, and Sally Beauty’s motion does not reference any affirmative defense alleged in its Answer. PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 6 it will refer to the district court which sits in the State that will generally be the source of applicable laws.”’].) 30. Sally Beauty has not shown how the same analysis should not apply in this case, considering that the case is only here based on Sally Beauty’s forum non conveniens motion being granted in the California case solely on the basis of convenience,” i.e., Broussard’s claims have effectively been transferred from California to Texas. (Compare Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518, 523 (5th Cir. 2001) [where transfer was for improper venue under 28 U.S.C. § 1406(a), transferee court in Texas correctly applied Texas choice of law principles rather than the state law of the transferor district court].) ii. Sally Beauty’s Cited Choice-Of-Law Authority Is Not Complete. 31. While Sally Beauty referenced how Texas applies the most significant relationship test outlined in the Restatement (Second) of Conflict of Laws to determine choice-of-law issues in tort cases, as initially expressed in Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979), Sally Beauty conveniently failed to give the Court the full story. [See Motion at pp. 11-12.] 32. “Under this approach, the laws of a single state do not necessarily govern all substantive issues; accordingly, we consider each issue separately and apply the state law having ? The California court could have either dismissed or stayed that case on forum non conveniens grounds in granting Sally Beauty’s motion (Cal. Code Civ. Proc. § 410.30(a)), and it intentionally chose to stay the case (with conditions placed on Sally Beauty) instead of dismissing it (Motion at Ex. 3), which suggests that the California court sought to protect Broussard. (See Ferreira v. Ferreira, 9 Cal.3d 824, 838 (1973) [distinction between dismissal and stay not merely terminology; staying court retains jurisdiction over the parties and the cause, it can compel the foreign party to cooperate in bringing about fair and speedy hearing in foreign forum, it can resume proceedings if foreign action is unreasonably delayed or fails to reach resolution on the merits; dismissal divests court of jurisdiction over action, depriving itself of power to protect interests of plaintiff].) PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 7 the most significant relationship to the issue.” (Toyota Motor Company v. Cook, 581 S.W.3d 278, 283 (Tex. App. 2019).) 33. The “process of applying the laws of different states to discrete issues within the same case” is known as “depecage.” (Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529, 534 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citation omitted).) 34. Section 6 of the Restatement (Second) of Conflicts of Laws outlines the general choice-of-law factors courts should consider, including: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in determination and application of the law to be applied.” (Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)); see also Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000).) 35. Sally Beauty’s motion does not reference or address the Section 6 Restatement factors at all. 36. In addition to the general choice-of-law factors, in tort cases, courts consider the section 145 contacts, which include: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” (RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2); see also Torrington, 46 S.W.3d at 848.) PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 8 37. In deciding choice-of-law issues, the number of contacts is not determinative, rather courts must examine the contacts in light of state policies underlying the specific substantive issue. (Torrington, 46 S.W.3d at 848.) 38. Courts must determine which state has the most significant relationship to each substantive issue in their choice-of-law analysis. (See Torrington, 46 S.W.3d at 848 [“[W]e must evaluate the contacts in light of the state policies underlying the particular substantive issue.”] [citations omitted]; Hughes, 18 S.W.3d at 205 [“[T]he court of appeals determined that Texas has the most significant relationship to the case and that therefore Texas law should apply to all issues. But the Restatement requires the court to consider which state’s law has the most significant relationship to the particular substantive issue to be resolved.”].) iii. Sally Beauty Has Not Established A Conflict Of Law. 39. Courts “only undertake a choice of law analysis if a conflict of law exists that affects the outcome of an issue.” (Toyota Motor Company v. Cook, 581 S.W.3d at 283.) 40. A conflict of law exists where the laws of competing states differ on a matter related to the claims brought. (See, e.g., Stevenson v. Ford Motor Co., 608 S.W.3d 109, 124 (Tex. App. 2020) [finding Texas law differs from that of Michigan and Virginia as to existence of statute of repose that could bar wrongful-death and survival claims].) 41. Sally Beauty’s motion does not identify any conflict of law. 42. The lack of a conflict of law in Sally Beauty’s motion warrants summarily denial of the motion because the Court should not even engage in a choice-of-law analysis to override Broussard’s Section 3344 claim. (Jn re Friede & Goldman, LLC, No. 01-18-00409-CV, 2019 WL 2041071, at *10 (Tex. App.—Houston [1st Dist.] May 9, 2019, orig. proceeding) [“The parties do not identify any relevant conflict between Mexican, Texas, and German law, so we do not PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 9 undertake a choice-of-law analysis”); Jn re CVR Energy, Inc., No. 01-15-00715-CV, 2016 WL 1389013, at *4 (Tex. App.—Houston [lst Dist.] Apr. 7, 2016, orig. proceeding) (mem. op.) [Absent a conflict between Kansas and Texas law on this record, we do not undertake a choice- of-law analysis.”] [citing Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 51 (Tex. App.— Houston [1st Dist.] 2010, pet. denied)]. iv. If The Court Does Engage In A Texas Choice-Of-Law Analysis, A Conflict Exists. 43. While Broussard maintains that Sally Beauty’s motion related to Broussard’s Section 3344 claim should be denied because Sally Beauty has not cited a conflict of law, Broussard will still address the choice-of-law analysis. 44. Here, for the purposes of a Texas choice-of-law analysis,’ a conflict exists between the laws of California and Texas related to misappropriation of likeness claims, most notably a claim pursuant to Section 3344. 45. The Texas common law claim does not provide the same relief as a Section 3344 claim. 46. For example, Section 3344 entitles Broussard to gross profits attributable to the unlawful use of her image not taken into account in computing the actual damages. (Cal. Civ. Code § 3344 (a).) Section 3344 also mandates that the “prevailing party in any action under this section shall also be entitled to attorneys’ fees and costs.” (Cal. Civ. Code § 3344(a).)) 47. In Texas, a plaintiff may recover general damages for a_ right of publicity/misappropriation claim, which may include claims for mental and physical pain and 3 As detailed below, a “true conflict” would not exist under California’s choice-of-law analysis had this case proceeded in California. PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 10 suffering, plus any proven special damages. (See Brown v. Ames, 201 F.3d 654, 662 (Sth Cir. 2000) [applying Texas law].) 48. However, common law claims in Texas related to the right of publicity/misappropriation do not allow for the statutory types of damages or the recovery of attorneys’ fees, like Section 3344. California's right of publicity statute mandates an award of attorney’s fees for “[t]he prevailing party in any action under this section.” (Cal. Civ. Code § 3344); Kirby v. Sega of Am., Inc., 144 Cal. App.4th 47, 62 (2006) 49. Therefore, a conflict exists pursuant to Texas’s choice-of-law analysis. (See Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App. 2004) [“The first step in deciding choice of law is whether the laws of the various jurisdictions conflict. When a party contends that the law of another jurisdiction should apply, Texas courts will first examine if the applicable laws conflict. ... There are no conflicts if there are no differences between the laws of the respective states concerning the issues relevant to the case.”]; see also Lightbourne v. Printroom Inc., 307 F.R.D. 593, 598 (C.D. Cal. 2015) [measure of damages available to prevailing plaintiff a consideration for whether right of publicity laws differ and, therefore, present a conflict].) // // i i i i i PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 11 v. The Section 6 Restatement Factors Favor Keeping Broussard’s Section 3344 Claim.‘ 1 California Has A Strong Statutory Scheme To Address Image Rights. 50. Section 3344 was specifically enacted to protect people who provide services in California like those envisioned at issue in this case — a professional model photography shoot for a national promotional campaign. (Brophy v. Almanzar, 2019 WL 10837404, at *6 (C.D. Cal., Aug. 22, 2019, No. SACV1701885CJCJPRX) [California has an interest in protecting its residents from the unlawful misappropriation of their likeness for commercial benefit, an interest expressed through the legislature’s enactment of California Civil Code § 3344”].) ole “The statutory right, enacted in 1971, was intended to complement this common law right of publicity.” (Ross v. Roberts, 222 Cal.App.4th 677, 685 (2013).) 52. In Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988 (2008), the court traced the history of Section 3344 in order to determine, inter alia, what the minimum statutory damages (i.e., the $750 award) set forth in subdivision (a) were meant to remedy. (/d. at 1002.) According to Miller, “[t]he statute’s legislative history reveals section 3344(a) was intended to fill ‘a gap which exist[ed] in the common law tort of invasion of privacy’ as applied to noncelebrity plaintiffs whose names lacked ‘commercial value on the open market.’ [Citation.] Unlike an entertainment or sports star, noncelebrity plaintiffs often could not prove damages under the common law; therefore, section 3344(a) as originally enacted in 1971 ‘established a concrete remedy for the little * It comes as no surprise that Sally Beauty’s motion completely avoids addressing these factors because they favor Broussard. Sally Beauty’s intentional reference only to part of the analysis required for choice-of-law issues in Texas should be viewed as an attempt to mislead the Court. PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 12 man with a minimum ... payment,’ ‘a simple, civil remedy for the injured individual.’ [Citation.]” (id. at 1002 [fn. omitted].) Thus, the Miller court confirmed that Section 3344 was enacted to provide a “practical remedy for a noncelebrity plaintiff whose damages are difficult to prove...” Ud.) 53. On the other hand, Texas should not have any interest in limiting the extent of relief its residents could obtain in California when Texas does not have a statutory misappropriation of likeness regime like California for living plaintiffs, like Broussard. (Compare V.T.C.A., Property Code T. 4, Ch. 26 [Texas statutes regarding use of deceased individual’s name, voice, signature, photograph, or likeness].) 2. The Court Should Protect Brousard’s Justified Expectations Of Being Protected By California Law. 54. As detailed herein, Broussard was a California resident at the time she was cast, interviewed, hired, and photographed for her images at issue in this case and when she entered into the Agreement that provided rights for the commercial use of her images. 55. Further, the Agreement has a California choice-of-law provision: “CHOICE OF LAW. This Agreement has been entered into in the State of California and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of California (but not its conflict of law rules) applicable to agreements executed and fully performed within the State of California.” [Broussard Aff. at Ex. A (at § 10) (emphasis in original).]* 5 Sally Beauty devotes a significant portion of its motion arguing that the Agreement’s choice-of-law provision should be construed narrowly and only applied to Broussard’s breach of contract claim. [See Motion at pp. 8-11.] Even accepting that premise, the Agreement and its California choice-of-law provision are still relevant to the Section 6 Restatement factors, even if the choice-of-law provision does not conclusively establish that California law applies to all of Broussard’s claims. PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 13 56. As a California resident at the time and based on the California choice-of-law provision in the Agreement, Broussard was justified in expecting that she would be protected by California’s statutory scheme specifically for the commercial use of her image. Broussard only engaged in the Sally Beauty photoshoot because she firmly believed California law would always protect her from any unlawful use of her image by Sally Beauty for all time. [Broussard Aff. at § 10.] Sie Sally Beauty reached into California to plan the production, hired a California production company, a California casting agency, had hundreds of California models to consider for its production, selected a reduced amount to interview and meet in person in California, hired Broussard in California, photographed Broussard in California, captured all of Broussard’s photographs for use in its advertising campaign in California, and while in California had no plan in place, contrary to its promise to Broussard, that it would have a system in place to ensure Broussard’s image rights were not violated. [See Hamideh Aff. at Ex. 3 (Longberg Tr. at 33:21- 34:18; 37:12-39:9; 43:2-47:16; 76:8-77:4; 79: 18-82:21; 84:11-85:10; and Exhibit 6 thereto).] 58. Further, in sworn discovery responses, Sally Beauty points to Retirement Films, the California production company, and its president Mare Longberg, domiciled in California, as being the only person that Sally Beauty is aware of that have information regarding the agreement for the use of Broussard’s image and the decision to use and approval of using Broussard’s image, and Sally Beauty points to Retirement Films and Longberg as having information regarding the use of Broussard’s image. [See Hamideh Aff. at Ex. 1 (06/08/2022 responses to Special Interrogatory Nos. 1, 4, 5, 6, 7, 13, 14, and 17).] 59. Chet Lofgren, the creative director of Sally Beauty, who, with his boss Ashley Sheetz, made all of the decisions related to the use of Broussard’s image for Sally Beauty, decided PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 14 to invest in a California production, flew from Texas to California to attend the photoshoot and hire Broussard, and admitted that, while in California at the time Broussard was promised her image would not be used beyond the agreed upon term, that he was not aware of any processes in place to ensure that Sally Beauty would not violate Broussard’s image rights. [Hamideh Aff. at Ex. 4 (Tr. at 23:17-19, 52:9-17 (Lofgren final decision maker with boss Sheetz); id. at 71:19-73:17, 81:10-19 (not aware of a process being in place to not violate Broussard’s rights); id. at 191:10- 194-8 (could have gone to iStock photo but instead decided to invest in an out of state [California] production). ] 3. The Court Can Easily Apply California Law For Broussard’s Section 3344 Claim, Which Will Provide Certainty, Predictability. And Uniformity Of Such Claims. 60. Section 3344 is relatively unambiguous, and the universe of published opinions related to Section 3344 is vast, wherein Westlaw cites nearly 200 reported decisions addressing Section 3344. (See Gutierrez v. Collins, supra, 583 S.W.2d at 321 [“Furthermore, the members of this state’s judiciary are fully capable of comprehending and applying laws of other jurisdictions.”].) 61. On the other hand, Texas has relatively minimal precedential opinions dealing with misappropriation of likeness claims. 62. If the foreign law is not “against good morals or natural justice” r “prejudicial to the general interest” of Texas residents, mere differences between Texas law and foreign law would not render the foreign law so contrary to Texas public policy that it should not be enforced. (California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232 (1958) [citations omitted]; see also Gutierrez y. Collins, 583 S.W.2d at 321.) PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 15 vi. California Has The Most Significant Relationship For Broussard’s Section 3344 Claim Under The Restatement Section 145 Factors. 63. Here, while some events or omissions giving rise to Broussard’s claims occurred in Dallas County, Texas, Texas does not have the most significant relationship to preclude Broussard from maintaining a Section 3344 claim here.® 1 The Place Where The Injury Occurred 64. In more standard personal injury cases, the place where the injury occurred is typically much easier to determine. (See, e.g., Toyota Motor Company v. Cook, supra, 581 S.W.3d at 285 [in car accident case, “the van involved in the accident was directly imported from Japan to Mexico, sold in Mexico to a Mexican national, and operated exclusively in Mexico. Therefore, Mexico was not a fortuitous location where the accident occurred.[] These facts support the application of Mexico’s law to the liability issues.”].) 65. The same can be said for the place of injury for other right of privacy claims, namely intrusion into private affairs, false light, and disclosure of private facts claims, because those claim emanate from the theory that individuals have rights to determine to what extent their thoughts, sentiments, and emotions shall be communicated to others, best described as the right to be let alone. (See Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994) [recognizing other three right of privacy claim but holding Texas does not recognize tort of false light invasion of privacy]; Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973) [“The right of privacy has been defined as ° Sally Beauty also argues that Broussard “represented in her initial disclosures that most of the witnesses with relevant knowledge reside in Texas.” [Motion at p. 2.] However, Sally Beauty does not describe how that is relevant to the most significant relationship test, and, in fact, has pointed to Retirement Films and Mare Longberg in California as having the knowledge of the issues presented in sworn discovery responses in this case. [See Hamideh Aff. at Ex. 1 (06/08/2022 responses to Special Interrogatory Nos. 1, 4, 5, 6, 7, 13, 14, and 17).] PLAINTIFF’S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT — Page 16 the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity.”]; see also Hill v. Nat’l Collegiate Athletic Assn., 7 Cal.4th 1, 23 (1994) [citing Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 195, 198, 205 (1890)].) 66. However, the place where the injury occurred is not always clear (or even only one place) in cases involving misappropriation of likeness claims. That is because such claims, like the ones in this case, are different from standard personal injury and other rights of privacy claims in that they now flow from the right to control a person’s name, image, likeness, etc. (See Moore v. Big Picture Co., 828 F.2d 270, 272-276 (5th Cir. 1987) [insufficient evidence of publicity to support false light claim but sufficient evidence to support misappropriation of name claim]; see also KNB Enterprises v. Matthews, 78 Cal.App.4th 362, 366-367 (2000) [“What may have originated as a concern for the right to be left alone has become a tool to control the commercial use and, thus, protect the economic value of one’s name, voice, signature, photograph, or likeness.”]; Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) [right of publicity “seeks to prevent commercial exploitation of an individual’s identity without that person’s onsent”’].) 67. Therefore, the place where the injury occurred for misappropriation of likeness claims includes the place of the infringing commercialization of the plaintiff's name, image, likeness, etc. because that is where the plaintiff must exercise her right to control that use. 68. Here, Broussard has definitive proof that Sally Beauty commercially used Broussard’s image after any rights to do so ex