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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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(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.
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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.
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“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
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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
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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.”
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(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.
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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.
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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.