## Facts

- Marion Kerby was a professional performer with a reputation for good character and was the only “Marion Kerby” listed in Los Angeles public directories in 1939.
- Hal Roach Studios, through its publicity department, conducted an advertising campaign for a motion picture then showing in Los Angeles.
- Defendants created a handwritten-style letter on pink stationery, reproduced it mechanically, and mailed about 1,000 copies in pink envelopes to male householders in Los Angeles.
- The letter was designed to appear as a personal, intimate communication and was signed “Marion Kerby,” without Kerby’s knowledge or consent.
- The letter invited the recipient to meet the “writer” and contained language reasonably read as sexually suggestive (e.g., being “in the mood for fun” and promising “an evening you won’t forget”).
- Kerby presented evidence that she received numerous telephone calls and at least one personal visit related to the letter.

## Issues

1. Whether defendants’ nonconsensual use of Kerby’s name in a mass-mailed, sexually suggestive advertising letter could support liability for invasion of privacy and related reputational injury.
2. Whether the trial court erred in granting a judgment of nonsuit after plaintiff’s evidence.

## Decision

- The Court of Appeal reversed the judgment of nonsuit and remanded.
- Viewing the evidence and reasonable inferences in Kerby’s favor, the record permitted a finding that recipients could identify the letter with the real Kerby.
- The letter’s content was reasonably capable of an interpretation that would subject Kerby to embarrassment, unwanted attention, or harm to reputation.
- The evidence was sufficient to require submission of the case to a jury.

## Legal Principles

- Nonconsensual commercial use of an individual’s name in a manner reasonably likely to expose the person to humiliation or reputational harm can be actionable as an invasion of privacy under California law.
- On a motion for nonsuit, the court must accept as true the plaintiff’s evidence and draw all reasonable inferences in the plaintiff’s favor; nonsuit is improper if substantial evidence could support a verdict for the plaintiff.
- A defendant’s asserted lack of intent to refer to the plaintiff is not dispositive when circumstances support an inference that the public would associate the challenged publication with the plaintiff.

## Conclusion

The court held that a jury could find defendants liable for using Kerby’s name without consent in an advertising letter that plausibly portrayed her as sexually available, and it reversed the nonsuit because the evidence, taken favorably to Kerby, supported actionable invasion of privacy and reputational injury.


Kerby v. Hal Roach Studios, Inc., 53 Cal. App. 2d 207 (Cal. Ct. App. 1942)