On June 4, 2012, the present action went to trial on two claims: plaintiff General Charles Yeager's claim that defendant AT&T Mobility, LLC violated his common law right to publicity and plaintiff's related right to publicity claim based on California Civil Code section 3344. (ECF 208.) On June 8, 2012, the jury returned a verdict in favor of plaintiff on the California statutory claim and in favor of defendant AT&T Mobility, LLC on the common law claim. (ECF 222.) Defendant now moves for judgment as a matter of law on the California statutory claim under Federal Rule of Civil Procedure ("Rule") 50. (ECF 242.) For the reasons set forth herein, the court denies defendant's motion.
In the wake of Hurricanes Katrina, Rita and Wilma, large portions of the southeastern United States were affected by cell phone outages. This was a source of frustration to cell phone users who were anxiously attempting to locate relatives and loved ones. In response to coverage failures during the 2005 hurricane season, defendant updated its emergency preparedness plans. One new addition was a mobile unit that transmits a cell signal and is capable of housing repair-persons. Defendant named this unit a mobile access command headquarters, otherwise known as "M.A.C.H." In announcing its preparation for the upcoming hurricane season through a press release on PRNewswire.com, defendant used the name of plaintiff Charles Yeager because his singular achievement of breaking the sound barrier and achieving "Mach 1" dovetailed with the acronym used to describe the mobile units. In its fifth paragraph, the press release stated:
Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.
Upon learning that defendant used his name without his permission, plaintiff initiated the present suit.
II. JUDGMENT AS A MATTER OF LAW
Federal Rule of Civil Procedure 50(b) governs renewed motions for judgment as a matter of law, following a motion made during trial under Rule 50(a), and provides that the court may: "(1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law." In rendering its decision on a Rule 50 motion, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. Lakeside--Scott v. Multnomah County, 556 F.3d 797, 802 (9th Cir. 2009); Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). "The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Josephs, 443 F.3d at 1062. "The verdict will be upheld if it is supported by substantial evidence, 'even if it is also possible to draw a contrary conclusion.'" First Nat. Mortg. Co. v. Federal Realty Inv. Trust, 631 F.3d 1058, 1067 (9th Cir. 2011) (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)). In reviewing the complete record, the court should disregard evidence favorable to the moving party that the jury was free to disbelieve. Id. However, judgment as a matter of law "is appropriate when the jury could have relied only on speculation to reach its verdict." Lakeside-Scott, 556 F.3d at 803. This court's limited role is to determine whether sufficient evidence was elicited at trial to support the claim on which plaintiff prevailed.
The jury returned a verdict in plaintiff's favor on his claim based on California Civil Code § 3344. Section 3344 provides in pertinent part:
Any person who knowingly uses another's . . . likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.
CAL. CIV. CODE § 3344(a)."To sustain a claim for violation of California Civil Code section 3344, a plaintiff must prove: (1) the defendant's knowing use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage; (3) lack of consent; (4) resulting injury and (5) a direct connection between the alleged use and the commercial purpose." Palermo v. Underground Solutions, Inc., No. 12cv1223 WQH (BLM), 2012 WL 3134255, at *5 (S.D. Cal. August 1, 2012) (alterations and quotation omitted); see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 413-15 (9th Cir. 1996). At trial, the court instructed the jury as follows:
Plaintiff claims that defendant violated his statutory right to publicity under Civil Code 3344. To establish this claim, plaintiff must prove all of the following:
(1) That defendant knowingly used plaintiff's name to advertise its products or services;
(2) That the use did not occur in connection with a news, public affairs, or sports broadcast or account, ...