By Bonnie Eslinger
(Law360, Los Angeles)
A California judge granted “Gone with the Wind” actress Olivia de Havilland, 101, an early trial in her right of publicity suit against FX Networks LLC over the use of her name and identity in the series “Feud: Bette and Joan,” saying her advanced age necessitated the “fast track.”
Los Angeles Superior Court Judge Holly E. Kendig said on Wednesday that de Havilland's jury trial would start on Nov. 27.
“I can't image how one could not do that when the plaintiff is 101 years old,” the judge said.
In her July motion for trial preference, de Havilland told the court that her “unusually” advanced age brings with it a susceptibility to disease and recurring health issues that doesn’t ensure she’ll survive for much longer. Because her statutory right of publicity expires upon her death, de Havilland said she has a substantial interest in her case against FX Networks and its production company, Pacific 2.1 Entertainment Group Inc.
An attorney for the network, Robert Rotstein of Mitchell Silberberg & Knupp LLP, said his clients weren’t opposed to moving up the trial date, but he needed more than 11 weeks to prepare.
“The end of November is quite quick,” he said.
Judge Kendig said waiting until December put the trial smack in the middle of holidays.
“You don't want jurors here before Christmas,” the judge said. “You're not going to have jurors paying a single bit of attention.”
When Judge Kendig asked Rotstein why he needed more time, he said securing, preparing and deposing experts would not be quick or easy.
The judge suggested the network could have started that shortly after June, when de Havilland filed her suit.
An attorney for de Havilland, Suzelle Smith of Howarth & Smith, jumped in and told the court that her client’s opposition to FX’s motion to dismiss would be filed on Friday, and it would provide the network with the names of the experts that the actress was using along with some form of their reports, which would expedite their pretrial work.
“That will give them the opportunity — essentially a preview of our whole case,” Smith said. “They'll be able to anticipate everything we'll do at trial, so they’ll be way ahead of the game.”
During Wednesday’s proceeding, FX’s attorney also said the network would likely take up the court’s suggestion to mediate the matter if the judge ruled against its motion to toss the case under California’s anti-SLAPP statute, which bars suits that infringe free speech.
“It’s up to you,” the judge said. “You are on a fast track to trial, and if you do have the case revealed on Friday, then you are in much better shape than most ... So hopefully that’s good.”
After the hearing, which was attended by de Havilland’s daughter, Gisèle Galante, Smith told reporters that the centenarian might attend the trial, saying de Havilland was “very invested in this case."
Smith later told Law360 that if the actress defeats FX’s motion to dismiss and the network appealed, the Rules of Court allow an expedited appeal based on age.
In its motion, FX, the network behind “Feud,” which details the rivalry between de Havilland’s close friend Bette Davis and Joan Crawford, urged the court to strike the latest iteration of the two-time Academy Award winner’s suit challenging her portrayal in the popular docudrama, saying the state’s anti-SLAPP statute is intended to protect against suits like this that threaten free speech in connection with a matter of public interest.
“Because the anti-SLAPP statute applies to Feud, plaintiff must show a probability of prevailing on the merits of each of her claims,” FX said, contending that she can’t do so because the show’s portrayal of the actress isn’t defamatory and was, in fact, based on meticulous research, among other arguments.
Despite garnering a reputation for honesty and integrity over a nearly 80-year career in front of the camera, de Havilland said in a complaint filed in June that no one at FX asked her for permission to be portrayed in “Feud,” which explores how the on-again, off-again relationship between Davis and Crawford played out during the shooting of their 1962 film “What Ever Happened to Baby Jane?”
The suit claims that the show — which was created by Ryan Murphy, who is also behind popular shows like “Glee” and “American Horror Story” — isn’t protected by the First Amendment because the network put false words into her mouth in the interviews and documentary-style conversations portrayed in the script.
Shortly thereafter, de Havilland tweaked her complaint, accusing FX and production company Pacific 2.1 Entertainment of casting her in a false light, specifically taking issue with her character being shown giving an interview where she discusses Crawford and Davis; referring to her sister, actress Joan Fontaine, as a “bitch”; and joking about Frank Sinatra drinking alcohol in his dressing room, according to court filings.
The actress also claims that her inclusion in the show violates her right to publicity because the creators didn’t get her permission. But these allegations are no more availing, FX asserted, saying it didn’t need permission to include the “living legend” because “Feud” is an expressive TV show that concerns matters of public interest.
De Havilland’s request for an early trial falls under a California state law that allows people over 70 to request an early trial, according to her counsel.
De Havilland is represented by Suzelle Smith, Don Howarth and Zoe E. Tremayne of Howarth & Smith.
FX and the production company are represented by Robert H. Rotstein, Aaron M. Wais and Emily F. Evitt of Mitchell Silberberg & Knupp LLP.
The suit is de Havilland v. FX Networks LLC et al., case number BC667011, in the Superior Court of the State of California, County of Los Angeles.