Man Sues Alleging Brother-in-Law’s Autobiography Book Jacket Summary “Whitewashes [Author’s] Life Story”

From Wizmann v. Simon & Schuster, LLC, decided Thursday by the California Court of Appeal Justice Stephen Goorvitch, joined by Justices Victoria Chavez and Anne Richardson:

Forefront Books published “Dreams Don’t Die: The Story of a Man on a Mission to Inspire a Generation of Dreamers” …, the memoir of prominent real estate developer Izek Shomof …. Simon & Schuster distributed the book.

Over the course of his career, Shomof has been involved in many high-profile real estate projects in Los Angeles, including redeveloping several historic hotels and attempting to build an ambitious housing support center. These projects have generated consistent media attention and occasional controversy.

The inside flap of the book’s dust jacket states, as relevant here, that “[i]t is the memoir of a man who had every opportunity to take unethical and often-illegal shortcuts but who instead chose the lesser-trod path of honesty and integrity” (the synopsis). The synopsis was also included in various promotional materials, including material published on respondents’ websites….

Wizmann [Shomof’s brother-in-law] sued respondents for violating the Unfair Competition Law (UCL) … and the False Advertising Law (FAL) …. Wizmann alleged that, by stating that Shomof “chose the lesser-trod path of honesty and integrity[,]” the synopsis falsely led consumers to believe that he is a “scrupulous[,]” “honest[,] [and] law-abiding businessman[,]” even though Shomof had been charged with three counts of felony receipt of stolen property … in the 1980s.

Wizmann sought monetary damages, civil penalties, and an injunction ordering respondents to (1) replace the dust jackets of “all copies of the [b]ook currently in circulation” and (2) delete the offending sentence from their websites….

[According to Shomof,] he pled nolo contendere to one charge of felony receipt of stolen property in 1989. After he completed a term of probation and paid full restitution to the property owner, the conviction was reduced to a misdemeanor. Shomof “did not share this story in the [b]ook” or with respondents, as he did not consider that the conviction “detract[ed] from the story of [his] success built on honesty and integrity.” Shomof believed that Wizmann, who had filed two unrelated lawsuits against him in the 14 months preceding this suit, “sued [respondents] just to harass and embarrass” Shomof….

Wizmann [claims he] “was induced into purchasing the [b]ook out of curiosity regarding the veracity of” the synopsis, especially “how the [b]ook would reconcile the claims in the [synopsis] with the reality of Shomof’s history.” After “read[ing] the [b]ook in its entirety[,]” Wizmann found that “[i]t d[id] not address Shomof’s arrest on felony charges[ ] and subsequent plea of no contest.” …

Wizmann has not demonstrated that the synopsis is false or misleading to a reasonable consumer. The synopsis says that the book shows that Shomof “had every opportunity to take unethical and often-illegal shortcuts but … instead chose the lesser-trod path of honesty and integrity.” Wizmann’s contention that the 1989 conviction renders the synopsis false is unreasonable. One conviction occurring nearly 40 years ago does not render false the synopsis’s summary of the overall trajectory of Shomof’s life and career.

Moreover, the synopsis summarizes the content of the book, promising readers that the book contains the tale of “a man who had every opportunity to take unethical and often-illegal shortcuts but who instead chose the lesser-trod path of honesty and integrity.” Wizmann alleges that Shomof’s prior conviction contradicts that premise, but concedes that the book “does not address Shomof’s arrest on felony charges[ ] and subsequent plea[.]” The synopsis thus truthfully advertises the book…. “[T]he principle motivating California’s protection of advertisements adjunct to expressive works ‘is the need to protect advertisers from tort actions that would otherwise threaten the ability of publishers to truthfully promote particular works’ by accurately conveying the content of those works, even when that content is itself false.” …

As respondents note, “[w]hat [Wizmann] truly is arguing is that … the [b]ook supposedly whitewashes Shomof’s life story by failing to address [Shomof’s conviction]. Put differently, his grievance is with the content of the [b]ook itself rather than the description about the [b]ook’s content on the dust jacket.” Wizmann’s complaint reveals a glaring constitutional issue that he makes no attempt to address. Nor could he…. “[N]o one involved in modern jurisprudence can reasonably dispute[ ] [that] the content of … books is entitled to the full protection of the First Amendment.” …

David Aronoff and Joshua Bornstein (Fox Rothschild) and Jerry Sparks (Sparks Law Firm) represent defendants.