Rogers v. Justmugshots.com CA2/8

Filed 10/7/15 Rogers v. Justmugshots.com CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

ZIM ROGERS, B258863

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC530194) v.

JUSTMUGSHOTS.COM, CORP.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jane L. Johnson, Judge. Affirmed.

Reed & Scardino, LLP, Joshua G. Jones; Schiffer & Buus, APC, Eric M. Schiffer and William L. Buus for Defendant and Appellant.

Kabateck Brown Kellner, LLP, Brian S. Kabateck, Joshua H. Haffner and Sally J. Son for Plaintiff and Respondent.

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As of January 1, 2015, Civil Code section 1798.91.1, subdivision (b) makes it unlawful for “any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph.” Plaintiff Zim Rogers filed this putative class action lawsuit against defendant Justmugshots.com, Corp. to challenge that very practice. But because plaintiff filed this lawsuit before the effective date of Civil Code section 1798.91.1, plaintiff alleged claims pursuant to Civil Code section 3344 for misappropriation of likeness and Business and Professions Code section 17200 for unfair and unlawful business practices. Defendant filed an anti- SLAPP1 motion to strike both claims (Code Civ. Proc., § 425.16 (section 425.16)), which the trial court denied, finding plaintiff’s claims were not based on protected activity, and even if they were, plaintiff demonstrated a probability of prevailing. We agree plaintiff’s claims were not based on protected activity, so we need not decide whether plaintiff has shown a probability of prevailing. We affirm. BACKGROUND According to plaintiff’s complaint, defendant operates two Web sites— www.justmugshots.com and mugshots.mobi—on which it posts public record booking photographs and/or names of individuals who have been arrested and charges a fee of $199 to remove them. It also derives revenue from paid advertising that incorporates the names of the individuals. It posts the photographs within hours of the individuals’ arrests and without regard to their guilt. It also inflates search engine results to ensure its Web sites would be a top result in a search for the individual’s name. Even after an individual has paid to have a photograph removed, defendant posts additional photographs of the same individual to obtain additional payments. Plaintiff alleged these acts constituted misappropriation of likeness in violation of Civil Code section 3344 because defendant used the names and photographs “for