Perez v. Sony Pictures Entertainment CA2/6

Opinion

Filed 9/14/26 Perez v. Sony Pictures Entertainment CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

KEVIN PEREZ, 2d. Civ. No. B349176 (Super. Ct. No. 24CVP0363) Plaintiff and Appellant, (San Luis Obispo County)

v. SONY PICTURES ENTERTAINMENT, INC., Defendant and Respondent.

Appellant appeals a judgment following the sustaining of a demurrer without leave to amend involving his defamation action against respondent Sony Pictures Entertainment, Inc. We conclude, among other things, that the trial court properly sustained the demurrer because: 1) appellant did not state facts sufficient to state a cause of action, 2) his cause of action for defamation was barred by the one year statute of limitations, and 3) the court did not abuse its discretion by denying leave to amend. We will affirm. FACTUAL AND PROCEDURAL HISTORY On November 22, 2024, appellant filed a civil action for damages against respondent. He alleged a one sentence statement of facts to support a cause of action against respondent for defamation. Appellant stated, “Defamation, of character that affects my business opportunities.” He provided no further details. He alleged the defamation occurred in 2013 and 2015. Respondent filed a demurrer to the complaint. It alleged, among other things, that appellant failed to state facts sufficient to state a cause of action and the action was barred by the one- year statute of limitations. Appellant did not amend his complaint. Before the hearing on the demurrer, the trial court granted leave to file an amended complaint by May 28, 2025. He did not file that amended pleading. The trial court sustained the demurrer at the hearing on June 10, 2025. The court ruled, appellant’s “complaint appears to allege a single cause of action for defamation . . . . [Appellant] alleges almost no facts to support his claim, alleging only that the reasons for liability are ‘defamations . . . .’ [¶] The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. [Citation.] (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312.) [¶] [Appellant] fails to allege any statement or publication made by [respondent] or otherwise plead any facts that support the elements of a claim for defamation.” The trial court ruled that appellant’s claim “is subject to a one-year statute of limitations, that accrues at the time the defamatory statement is published. (Code Civ. Proc, § 340, subd.

2 (c) [one year statute of limitations for libel, slander, defamation]; Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247 (Shively).) Here, [appellant] alleges that the actions that are the subject of his claims occurred in 2013 and 2015. [Fn. omitted.] Given that this action was not filed until near the end of 2024, the statute of limitations has long since run on [appellant’s] claims.” The trial court denied leave to amend. It found that it had previously given him leave to file an amended pleading by May 28, 2025. But he “did not file an amended complaint by that deadline.” Instead, appellant filed a number of irrelevant documents with the court. The court considered those filings “to discern whether he has presented any coherent articulation of facts that would justify providing him with leave to amend his complaint. He has not.” Appellant also failed to appear at the hearing on the demurrer. The trial court subsequently denied appellant’s reconsideration motion. DISCUSSION The demurrer Appellant claims the trial court erred by sustaining the demurrer without leave to amend. We disagree.1 A demurrer challenges the sufficiency of the complaint. A demurrer is properly sustained where the complaint fails to 1 The clerk of the superior court notified us that on January 14, 2026, the trial court entered an order dismissing this case against defendant Timothy Wolfe. Appellant did not appeal that order. But that dismissal order has no impact on this appeal because defendant Sony is the sole respondent on this appeal. On September 24, 2025, appellant filed an appeal from the “judgment of dismissal after an order sustaining a demurrer.” That demurrer was filed by respondent Sony.

3 include ultimate facts sufficient to support the elements of a cause of action. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1006.) Where a demurrer is “sustained without leave to amend “ ‘[t]he plaintiff bears the burden of proving an amendment could cure the defect.’ [Citation.]” (Mohler v. County of Santa Clara (2023) 92 Cal.App.5th 418, 428.) On appeal we determine whether the trial court abused its discretion by denying leave to amend. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Pleading facts sufficient to state a cause of action The trial court correctly ruled that appellant failed to state facts sufficient to state a cause of action for defamation. A cause of action for defamation must state all the elements of that tort and the words alleged to be defamatory “must be specifically identified, if not pleaded verbatim, in the complaint.” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.) Appellant only pled “Defamation, of character that affects my business opportunities.” That conclusory one sentence statement was not sufficient to state the required elements for a defamation cause of action. (John Doe 2 v. Superior Court, supra, 1 Cal.App.5th at p. 1312.) He alleged no facts about what respondent did, and no description about the words it allegedly published or whether they were false. (Ibid.) The statute of limitations Appellant’s complaint was also barred by the statute of limitations. The statute of limitations for defamation is one year. (Code Civ. Proc., § 340, subd. (c).) He alleged the defamations occurred in 2013 and 2015. But appellant filed his complaint in 2024. Even had he alleged a proper cause of action it was 9 years too late.

4 “Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the ‘first general distribution of the publication to the public.’ [Citations.]” (Shively, supra, 31 Cal.4th at p. 1245). “Under this rule, the cause of action accrues and the period of limitations commences, regardless of when the plaintiff secured a copy or became aware of the publication.” (Id., at pp. 1245-1246) “[T]his statute serves to protect potential defendants from stale claims and to encourage plaintiffs to be diligent.” (Id., at p. 1246.) Appellant claims he was entitled to rely on the “delayed discovery rule” pursuant to Code of Civil Procedure section 338, subdivision (d), to avoid the statute of limitations and sue for defamation. But our Supreme Court has rejected that claim. (Shively, supra, 31 Cal.4th at pp. 1245-1246.) Leave to amend Appellant claims the trial court abused its discretion by not granting him sufficient leave to file an amended pleading. We disagree. Appellant had reasonable opportunities to amend. As the trial court noted, he could have amended after respondent filed its demurrer. (Code Civ. Proc., § 472.) But he did not do so. The court thereafter granted him additional leave to amend. On May 5, 2025, it granted him an extension to May 28, 2025, to file an amended pleading. But appellant failed to amend. He thereafter failed to appear for the hearing on the demurrer. Appellant has not shown the May 5th order was unreasonable, that he lacked sufficient time to amend or any valid justification for not amending or for not appearing at the demurrer hearing. Appellant claimed he could amend to state a cause of action under Civil Code section 3344 ― unauthorized commercial use of 5 his likeness against respondent. He attempted to make this showing in his briefs in opposition to the demurrer. But “ ‘defects of a complaint are properly cured by amendments thereto, not by extraneous factual recitals in “response” to the demurrers.’ ” (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1437; Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 993.) The trial court, however, considered his briefs to determine if he could state a cause of action. It correctly found he had not shown the ability to do so. Pleading an amended cause of action To plead a cause of action for unauthorized commercial use of a plaintiff’s likeness, the pleader must allege “ ‘(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. [Citations.] In addition, to plead the statutory remedy provided in Civil Code section 3344, there must also be an allegation of a knowing use of the plaintiff’s name, photograph or likeness for purposes of advertising or solicitation or purchases. [Citation.] Furthermore, recent judicial construction of [Civil Code] section 3344 has imposed an additional requirement. A “direct” connection must be alleged between the use and the commercial purpose.’ ” (Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1918 (Fleet).) Civil Code section 3344, subdivision (a)(1) requires the plaintiff to prove “the gross revenue attributable to the use.” Appellant did not address the Fleet elements. In his brief in opposition to the demurrer, he did not attempt to plead any cause of action. Instead, he made a long narrative and a series of vague, conclusory and unconnected assertions such as “I am 6 Romeo Spider-Man, The Tarzan Boy,” and “We are the inspiration for the show Euphoria.” As to the Cobra Kai show he said, “I know for a fact that Miguel Diaz and Johnny Lawrence in this fiction represent where I was in life after school. . . . Miguel Diaz was stylized as a nerd that no one liked and was father- son’d by a neo-Caucasian man. That’s hurtful, it’s untrue because I do have a great father. I never worked with children in my life, I was an amateur boxer turned pro.” Appellant said, “Today, I know that the real reason Hollywood has been stalking and invading my privacy as well as coercing people around me is because I am the real Romeo Spider-Man.” Appellant’s description of the of the fictional Miguel Diaz character is substantially different from his description of his own personal history. He consequently made no required showing of how any third party viewing the show would reasonably believe it was about him. (Aguilar v. Universal City Studios, Inc. (1985) 174 Cal.App.3d 384, 391 (Aguilar).) Appellant did not allege why respondent would use him as a model for its fictional characters, how such use was to respondent’s economic advantage, or the other Fleet pleading requirements. Appellant is representing himself. But he must comply with the rules of civil procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Respondent properly objected to appellant’s attempt to amend. In its opposition, respondent noted appellant alleged he was “ ‘used as an inspiration’ in various shows such as ‘Cobra Kai’ or ‘Lucifer’ ” but 1) “his name, image and likeness has never been used and there are no references to him whatsoever,” and 2) he did not allege that “he was portrayed in some film or show.”

7 (Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 147 (Tamkin).) His “vague assertions” do not support a factual claim that he “was portrayed in ‘Cobra Kai’ or ‘Euphoria.’ ” These shows are fiction and he did not allege that any reasonable person “would believe the fiction is of and concerning plaintiff.” (Id., at p. 148.) A cause of action is not stated merely because the plaintiff believes “the character depicted” in the show is him. (Aguilar, supra, 174 Cal.App.3d at p. 391.) “ ‘The issue [is] whether persons who knew or knew of the plaintiff could reasonably have understood the exhibited picture to refer to [the plaintiff].’ ” (Ibid.; Tamkin, supra, 193 Cal.App.4th at p. 147.) “[A]ppellant is not entitled to recover under a commercial appropriation of name or likeness theory merely because respondents used a name that sounds like appellant’s name or employed an actor who resembles appellant at the age of 10.” (Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318, 325.) “Because the film is obvious fantasy, appellant could not reasonably suffer injury to his feelings or his peace of mind.” (Ibid.) “Because respondents were creating a fictionalized artistic work, their endeavor is constitutionally protected.” (Ibid.) “The law was never intended to apply to works of pure fiction.” (Id., at p. 322.) Appellant’s claim that his history was essentially “part of the raw material” from which the “characters were fashioned,” does not change the result because respondent had a constitutional right to use “significant expressive content” to create fictional “creative characters” and it was not publishing “near literal depictions” of appellant. (Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 58-59.) There was no error.

8 Other issues Appellant claims the trial judge should have recused himself, the court lacked jurisdiction and “law enforcement agencies working with mobile crisis officers are dirty governmental officials working under color of law, conspiring with [respondent] and a white supremist organization to commit the overt act of assaulting [appellant] . . . .” Respondent objects to these arguments because appellant has not cited to the record and relies on matters that are not part of the record. This objection has merit. These claims cannot be considered because he has not presented “ ‘ “ ‘cogent argument supported by legal analysis and citations to the record.’ ” ’ [Citation.]” (County of Los Angeles v. Niblett (2025) 116 Cal.App.5th 454, 463.) DISPOSITION The judgment is affirmed. Costs on appeal are awarded to respondent. NOT TO BE PUBLISHED.

CODY, P. J.

We concur:

YEGAN, J. BALTODANO, J.

9 Michael C. Kelley, Judge Superior Court County of San Luis Obispo ______________________________ Kevin Perez, in pro. per., for Plaintiff and Appellant. Berry Silberberg Stokes and Carol M. Silberberg for Defendant and Respondent.