Unpublished Disposition, 872 F.2d 429 (9th Cir. 1987)

MEMORANDUM^* 

Plaintiff/Appellant Max Maxwell (Maxwell), a stunt man injured in the filming of "Invasion U.S.A.," appeals from the grant of summary judgment in favor of defendants, Cannon Films, Inc., Cannon Group, Inc., Golan-Globus Productions, Joseph Zito, and Donald Pike (collectively referred to as the defendants) and the denial of Maxwell's motion for leave to file a third amended complaint to include a cause of action for the misappropriation of his "likeness" in using the injury footage in the released film. We affirm.

* On or about June 5, 1985, Defendant/Appellee Cannon Films (Cannon Films) hired Maxwell as a stunt player to appear in a feature motion picture entitled "Invasion U.S.A." On that same day, Maxwell signed a standard Producer-Screen Actors Guild Day Player's Employment Contract (contract) and a W-4 form.

The contract provided that Maxwell's employment with Cannon Films commenced on June 5, 1985, but did not provide for the termination of employment. The contract also provided that the parties would abide by the terms and conditions of the Producer-Screen Actors Codified Basic Agreement.

On June 7, 1985, Maxwell and the defendants were involved in the filming of a scene for the motion picture "Invasion U.S.A." in Atlanta, Georgia. Maxwell acted as a double for an actor playing the role of a security guard at the "North Atlanta Armored Car Garage," (garage) which contained seven armored cars. According to the script, a band of terrorists were staging an attack on the garage. Maxwell was sitting behind a wooden desk which faced the closed steel plated garage door. Explosives and mortars detonated near the garage door were to cause the door to collapse and expose the interior of the garage and its occupants to the terrorists. A terrorist was to enter the garage through the collapsed garage door and shoot Maxwell.

Pike informed Maxwell that an explosion would be detonated to blow down a steel garage door across the room from Maxwell in the armored-car garage scene. Instead, the door exploded and shattered into countless pieces, and portions of the steel door and debris hurled through the air with great force, destroying equipment and striking and injuring Maxwell.

Maxwell filed his original complaint in the district court on October 18, 1985. Maxwell filed a second amended complaint for personal injuries on April 7, 1986. On April 6, 1987, the district court heard Maxwell's motion for leave to file a third amended complaint. On April 30, 1987, the district court entered an order denying Maxwell's motion.

On July 20, 1987, defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The district court granted defendants' motion for summary judgment on September 16, 1987.

On October 22, 1987 Maxwell filed a notice of appeal of the order granting summary judgment in favor of defendants and the order denying plaintiff's motion for leave to file a third amended complaint. Maxwell's appeal is timely filed pursuant to Federal Rule of Appellate Procedure 4(a).

II

The district court's jurisdiction was based on diversity of citizenship. 28 U.S.C. § 1332. "In a diversity case, a federal court must follow the substantive law of the state in which it sits." Motschenbacher v. R.J. Reynolds Tobacco Co., 496 F.2d 821, 823 (9th Cir. 1974), citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). This court has jurisdiction to review the entry of final judgment in favor of defendants pursuant to 28 U.S.C. § 1291. The district court's Rule 54(b) certification was filed on August 25, 1987.

A denial of leave to amend is reviewed for an abuse of discretion. Klamath-Lake Pharmaceutical Assn. v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.), cert. denied, 464 U.S. 822 (1983). "Unless we have a definite and firm conviction that the district court committed a clear error of judgment, we will not disturb the district court's decision." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809 (9th Cir. 1988).

"We review the order of summary judgment de novo, in the light most favorable to the nonmoving party, to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986) (citation omitted).

Maxwell asserts that in his proposed amendments he sought to "clarify the legal theories supporting Mr. Maxwell's claim for damages from defendants' unauthorized publication of the explosion footage replaying his injury." Maxwell revised the unjust enrichment claim of the Second Amended Complaint to include misappropriation. Maxwell alleges that the defendants' misappropriation consists of invasion of Maxwell's right to privacy by appropriating Maxwell's likeness with the use of the injury footage in the "Invasion U.S.A." film.

Maxwell relies upon Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) in support of the claim for misappropriation of performance. Zacchini is clearly distinguishable. The Supreme Court in Zacchini compared the claim in that matter to a copyright case in that the "act is the product of [Zacchini's] own talents and energy, the end result of much time, effort, and expense." Id. at 575. Maxwell's appearance as a stunt man sitting in a chair was not an original "act." Unlike Zacchini, Maxwell had no proprietary interest in the uniqueness of his performance. Maxwell knew that his performance was being filmed. He contracted for Cannon's use of any footage of the garage scene. Additionally, Maxwell could not be identified in the film as himself, since, as a stunt performer, his performance included doubling as another actor in the film. Therefore, Maxwell does not have a claim for misappropriation under Zacchini.

Federal Rule of Civil Procedure 15(a) provides in pertinent part that:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

"Whether to grant leave to amend is within the discretion of the trial court." Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981) (citation omitted).

We review "the exercise of a trial court's discretion to deny a motion to amend strictly." Klamath-Lake Pharmaceutical Assoc., 701 F.2d at 1292. This court has been unwilling to affirm a district court's decision denying a motion to amend without written findings "and have reversed findings that were merely conclusory." Id. at 1292-93 (citing United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981); Howey v. United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973)). " [A] denial without stated reasons, where the reasons are not readily apparent, constitutes an abuse of discretion." Hurn v. Retirement Fund Trust of Plumbing, etc., 648 F.2d 1252, 1254 (9th Cir. 1981) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). "Several factors are usually used as criteria to determine the propriety of a motion for leave to amend. These criteria include undue delay, bad faith, futility of amendment, and prejudice to the opposing party." Howey, 481 F.2d at 1190.

At the hearing on Maxwell's Motion on April 6, 1987, the district court stated:

I am going to deny the motion to amend, finding that the defendants will be prejudiced, number one, and also that the Court, after viewing the video outtake or the scene involved, would find that there would be futility because of the fact that the plaintiff could not establish the specific identity of the plaintiff or the likeness.

The denial of an amendment is proper where "any amendment would have been futile in that it could be defeated on a motion for summary judgment." Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986) (citation omitted). "Clearly, if the district court correctly determined as a matter of law that plaintiff is not identifiable in the commercial, then in no sense has plaintiff's identity been misappropriated nor his interest violated." Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 826-27 (9th Cir. 1974). In Motschenbacher, we were also required to construe California law. The district court in Motschenbacher found that while the plaintiff's face was unrecognizable, the driver of the race car was identifiable as plaintiff because of the distinctive decorations appearing on the car. Id., at 827.

After viewing the film of the explosion scene, the district court in the instant matter found that the defendants did not misappropriate Maxwell's likeness. The district court commented: "All you see is the back of his head, and his head is jerked when the explosion takes place." Maxwell's beard was shaved and his hair styled by the Cannon Films make-up department to resemble the actor he was "doubling" in the film. From the back, Maxwell was identifiable only as the actor, not as himself. Under these circumstances, amendment to claim appropriation of Maxwell's likeness would have been futile. Therefore, the district court did not abuse its discretion in denying the motion to amend the complaint

2. Defendants' Motion to Strike Portions of Appellant's Opening Brief

Defendants have filed a motion before this court to strike those portions of Maxwell's opening brief which refer to the deposition testimony of Martin Shindler, Vice-President of Financial Operations for Appellees Cannon Films, Inc., and Cannon Group, Inc. Defendants argue that Maxwell failed to present this testimony to the district court in opposing defendants' motion for summary judgment.

"Normally, an appellate court will not supplement the record on appeal with evidence not reviewed by the lower court." Karmun v. C.I.R., 749 F.2d 567, 570 (9th Cir. 1984), cert. denied, 474 U.S. 819 (1985) (citation omitted). Where, for example, information contained in an investigative report was submitted after the summary judgment hearing and was not considered by the trial court, we declined to consider the information when reviewing the case. Daly-Murphy v. Winston, 837 F.2d 348, 351 (9th Cir. 1988).

In this case Maxwell did not lodge the transcript of Mr. Shindler's deposition with the district court. However, the relevant portions of Shindler's deposition testimony were quoted on pages 21 to 24 in Maxwell's Statement of Genuine Issues of Material Fact Submitted in Opposition to Motion for Summary Judgment. The defendants have not alleged that the quoted passages deviate in any manner from Shindler's deposition testimony.

Therefore, defendants' motion to strike portions of the deposition testimony of Martin Shindler referred to in the Opening Brief is denied.

3. Validity of the Order Granting Summary Judgment

Maxwell's Second Amended Complaint for Personal Injuries alleges claims for gross negligence, ultra-hazardous activity, battery, fraud, unjust enrichment and constructive trust for monies obtained through fraud. The district court granted defendants' motion for a summary judgment on the ground that recovery on these theories was barred by California's Workers' Compensation Law. Maxwell claims that his "fifth and sixth claims for relief for defendants' unauthorized use of the injury footage are not barred by workers' compensation law because they relate to an injury to which workers' compensation law does not even apply."

Defendants contend that there is no genuine issue of the material facts that Maxwell was an employee of defendant Cannon Films, Inc., at the time of his injury. Accordingly, these defendants argue that Maxwell's claims are barred by the exclusive remedy provisions of the Workers' Compensation Act pursuant to California Labor Code Sections 3601(a) and 3602(a). Defendants also assert that because Maxwell failed to demonstrate that he was subjected to a willful physical assault, his claims for battery and fraud do not come within the exception set forth in Section 3602(b) (1) to the exclusive remedy provisions of the Workers' Compensation Act.

The district court found that "the exclusive remedy provision of the California Labor Code sections 3601(a) and 3602 of the Workers' Compensation Act preclude the plaintiff from bringing the instant action against the defendants." California Labor Code Section 3602(a) provides in pertinent part:

Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is ... the sole and exclusive remedy of the employee or his or her dependents against the employer ... [and the] injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer."

Section 3602(b) (1), (2) provides two exceptions to the exclusive remedy provisions of section 3602(a):

An employee ... may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:

(1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer.

(2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment.

Section 3601(a) provides for similar compensation against other employees of the employer for injuries suffered in the course of employment.

a. Maxwell's Employment

Maxwell claims that the district court accepted defendants' version of the facts concerning his employment status and rejected his evidence. "Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). Maxwell has not met this burden.

Maxwell claims that he is an independent contractor. He argues, therefore, that the Worker's Compensation Act does not govern his claim. Maxwell's declaration filed in opposition to the motion for a summary judgment states that he "executed a 'day players' contract on June 5, 1985, engaging him to work as a stunt man."

The California Court of Appeals determined in Durae v. Indus. Acc. Com., 206 Cal. App. 2d 691 (1962) that an injured stunt man was an employee subject to the Workers' Compensation Act. Notwithstanding the fact that the employment agreement specified that the injured stunt man was an independent contractor, the court found that the agreement had no effect where the factual circumstance clearly indicated an employee-employer relationship. Id., at 700-701. The employer in Durae supplied the "instrumentalities for the performance of [the stunt man's] saddle fall," including a pelican hook necessary to execute the fall. Id., at 700. The employer had "general supervision and immediate control of all details of applicant's performance to the extent that it was possible to control any skilled workman." Id. The employer's "instructions amounted to more than mere suggestion as to detail." Id. The stunt man was not "employed to perform a totally independent act but, rather, was employed as an assistant, to perform as a part of an act prepared and arranged by petitioner." Id. In this matter, Cannon Films supplied the uniform and equipment including the desk, chair, pistol, and makeup Maxwell needed to perform his stunt. Maxwell performed his stunt according to a written script under the general direction and supervision of Zito and Pike. Therefore, the district court properly found that Maxwell was an employee of Cannon Films.

Accordingly, the exclusive remedy provision of the Worker's Compensation Act bars Maxwell's claims. Cal. Labor Code Sec. 3601, 3602; see also State Compensation Ins. Fund v. Workers' Compensation Appeals Board, 59 Cal. App. 3d 647, 652 (1976) (an injured party is entitled to workers' compensation benefits for injuries arising "out of and in the course of employment" where there is a subsisting employment, such employment depending upon an underlying agreement, or contractual relationship between the parties).

b. Willful Intent to Injure Maxwell

The district court further found that Maxwell's claims for battery and fraud did not come within the exception to the California Labor Code Section 3602(b) (1), or the exclusive remedy provisions of the Workers' Compensation Act. The district court concluded that Maxwell did not controvert defendants' evidence that no one committed a willful physical assault on Maxwell during the filming.

Appellant simply states that the "district court thus accepted defendants' version of the facts wholesale, despite plaintiff's submission of evidence controverting every single one." The opposition papers to the motion for a summary judgment merely state that "an intent to injure plaintiff can be inferred." Maxwell did not specify what evidence or facts support his contention that defendants willfully injured him. The record does not reveal any facts or evidence supporting Maxwell's factual theories.

The defendants presented declarations executed by Zito and Pike that allege that they did not know or intend that Maxwell would be injured as a result of the explosion in the armored-car garage scene.

Maxwell failed to controvert this evidence. Maxwell claims that he was impeded in conducting discovery and that the defendants prevented him from obtaining evidence directly bearing on Pike's and Zito's knowledge and intent.

The district court correctly found that no genuine issue of material fact existed regarding the intent of Zito and Pike. Maxwell's claims for battery and fraud are barred by the exclusive remedy provision of the Workers' Compensation Act.

c. Existence of Golan-Globus Productions

Maxwell contends that the district court erroneously found fact number 18 uncontroverted. Finding of fact number 18 states: "Golan-Globus Productions does not exist; nor has it ever existed."

Defendants submitted declarations of Menahem Golan ("Golan") and Yoram Globus ("Globus") as evidence that the entity "Golan-Globus Productions" does not exist. Golan and Globus both state that:

To my knowledge, no such company exists or ever has existed. On most, if not all, of Cannon Films, Inc.'s productions, I do receive co-producer credit along with Yoram Globus, and each such film is advertised as "a Golan-Globus Production," meaning only that both Menahem Golan and Yoram Globus produced the film.

Both Golan and Globus also state that there "is an entity known as 'Golan-Globus Productions, Ltd.' which is incorporated in Israel" and is "not licensed to do business in the United States."

Maxwell attempted to controvert the fact that "Golan-Globus Productions" does not exist with evidence that the "Invasion" credits state that the movie is a "Golan-Globus Production and that Golan and Globus declared that they are chairmen of the board of that company." Both Golan and Globus admit in their declarations that they inadvertently and incorrectly referred to that company in their declarations.

" [T]he burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. Maxwell has not presented any evidence that "Golan-Globus Productions" exists, is licensed to do business in this state, or is subject to the jurisdiction of the district court. Therefore, the district court properly found that "Golan-Globus Productions" does not exist.

Defendants assert that Cannon should be awarded double costs and attorney's fees because Maxwell has initiated this appeal based upon Maxwell's unsupported contention that Cannon cannot legally use "real" accident footage.

Rule 38 of the Federal Rules of Appellate Procedure provides that " [i]f a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee." 28 U.S.C. Section 1912 also provides that " [w]here a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double cost." "An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." DeWitt v. W. Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983).

In the present case the result is not obvious and the arguments of error are not wholly without merit. Therefore, we will not assess double costs and attorney's fees to the defendants.

CONCLUSION

The district court did not abuse its discretion in denying Maxwell's third amended complaint on the ground of futility because the proposed pleading would not have withstood a summary judgment on the issue of identification in the misappropriation-right to privacy claim.

The district court did not err in granting summary judgment in favor of defendants. No triable issues of material fact exist. The exclusive remedy provisions of the Workers' Compensation Act, California Labor Code preclude Maxwell's present action against defendants.

AFFIRMED.