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BEVERLY HILLS (CNS) - A judge Tuesday dismissed most of a woman's lawsuit against a West Hollywood plastic surgeon who she alleged had posted photos of her pre- and post-operative procedures on Instagram in 2018 without her permission.
In her Beverly Hills Superior Court complaint against Dr. Gary Motykie, plaintiff Celeste Bianchi said she is a private person who has told few people about her plastic surgery choices.
On Tuesday, Judge Edward Moreton found that Bianchi's causes of action for common law and statutory misappropriation of likeness, defamation and intentional infliction of emotional distress were all time-barred.
Moreton also struck Bianchi's claim for punitive damages as well as her request for restitution, lost revenues and lost profits in connection with her claim for professional negligence.
In their court papers, the doctor's attorneys stated that misappropriation occurs when a defendant obtains a commercial advantage in selling a product or service by using an identity or likeness to attract a consumer's attention.
"Although plaintiff's complaint details the discovery of her photographs through her viewing of an alleged unauthorized publication, the alleged publication was through a social media account not associated with Dr. Motykie," the doctor's lawyers further argued. "Nowhere in plaintiff's complaint are facts showing that Dr. Motykie himself published said photos, neither are there facts supporting the theory that Dr. Motykie gained a commercial advantage, let alone any other, for posts which he had no control over."
According to the lawsuit, Motykie performed primary rhinoplasty surgery on Bianchi in March 2014 and in anticipation of conducting the procedure, the doctor or his staff took photos of the plaintiff at her initial consultation, which included very clear images of her face, without her consent.
Unknown to Bianchi, in July 2018 Motykie published on Instagram the plaintiff's 2014 pre-operative photographs as well as her 2016 post-operative images in order to present before-and-after comparisons as part of an advertisement for his services, according to her complaint filed May 22.
"Ms Bianchi is a very private person and she diligently guards her and her family's privacy," according to the suit, which further states the plaintiff uses no social media other than her private accounts.
Bianchi "has not shared her plastic surgery journey with even all of her family members, much less the public, social media or the world," the suit states.
One of Bianchi's co-workers at Drai's nightclub in Las Vegas tagged other girls in the July 2018 post, including another co-worker of Bianchi's, which affected her working relationships and reputation throughout the nightclub industry in the desert city, according to the suit.
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