The opinion of the court was delivered by: Chesney, District Judge.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; VACATING HEARING (Docket Nos. 90, 98, 114)
Before the Court is defendant Viacom International Inc.'s ("Viacom") motion to dismiss, filed April 12, 2002, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Diana Lynn Daly has filed opposition, to which Viacom replied. Also before the Court are the parties' supplemental memoranda in support of and in opposition to Viacom's earlier filed special motion to strike pursuant to California Code of Civil Procedure § 425.16.*fn1 Plaintiff filed separate oppositions to the motions, to which Viacom replied. Having considered the papers filed in support of and in opposition to the motions, the Court finds the matters appropriate for decision on the papers, VACATES the hearing scheduled for June 28, 2002, and rules as follows.
The instant action arises from the filming, distribution and promotional advertising of the television program "Bands on the Run." On August 1, 2001, plaintiff filed a complaint alleging seven causes of action: statutory and common law commercial misappropriation, intrusion, false light, defamation, infliction of emotional distress and unfair business practices. On November 29, 2001, plaintiff filed a First Amended Complaint ("FAC"), in which plaintiff added a cause of action for Fraud. Viacom thereafter moved to dismiss plaintiff's FAC. By order filed January 23, 2002, the Court granted in part and denied in part Viacom's motion to dismiss. On February 22, 2002, plaintiff filed a Second Amended Complaint ("SAC"). By the instant motion, Viacom moves to dismiss plaintiff's SAC.
A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). Dismissal is disfavored, however, and should be granted only in "extraordinary" cases. See United States v. Redwood City, 640 F.2d 963, 966 (9th Cir.1981).
Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1989). Material which is properly submitted as part of the complaint may, however, be considered. See id. In addition, documents specifically referred to in a complaint, though not physically attached to the pleading, may be considered where authenticity is unquestioned. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994).
In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Factual allegations may be disregarded, however, if contradicted by documents to which the court may properly refer. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992).
1. Statutory and Common Law Misappropriation
Plaintiff's First Cause of Action (Invasion of Privacy by Commercial Appropriation in Violation of Civil Code Section 3344) and Second Cause of Action (Invasion of Privacy by Commercial Appropriation) allege claims against Viacom for statutory and common law misappropriation, respectively. In support of these claims, plaintiff alleges that defendant "invaded plaintiff's right to privacy by appropriating plaintiff's photograph and likeness and using plaintiff's photograph and likeness in a nationwide magazine, billboard and television advertisement campaign for defendant's television program entitled Bands on the Run" and "without plaintiff's prior valid consent." (Second Amended Compl. ("SAC") ¶ 9.) As noted in the Court's prior order of January 23, 2002, California Civil Code § 3344 prohibits the use of "another's name, voice, signature, photograph, or likeness ... for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent." Cal. Civ.Code § 3344(a). Prior consent is not required, however, if the use is "in connection with any news, public affairs, or sports broadcast or account, or any political campaign." Cal. Civ.Code § 3344(d). Similarly, to assert a common law cause of action for commercial misappropriation, plaintiff must plead: "(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." See Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir.2001) (citing Eastwood v. Superior Court, 149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342 (1983)). As with the statutory cause of action, a defense under the First Amendment is provided where the publication or dissemination of matters is "in the public interest." See Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639 (1995) ("[N]o cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.").
In Viacom's prior motion to dismiss, Viacom argued that Bands on the Run was a "public affairs" and "public interest" program that could not be held liable for statutory or common law misappropriation. The Court found that Viacom had not meet its burden of demonstrating that the show was a "public affairs" and "public interest" program as a matter of law and, therefore, denied Viacom's motion to dismiss plaintiff's statutory and common law misappropriation claims. ( See Order filed January 23, 2002.)
By the instant motion, Viacom seeks dismissal of these claims on the ground that Bands on the Run is an "expressive work" that is subject to the protections of the First Amendment "[r]egardless of whether it is categorized as 'news,' 'public affairs,' or purely entertainment." ( See Mot. at 16.) According to Viacom, because Bands on the Run is an expressive work, "any advertisement showing the content of the program, including ...