Judge: Armen Tamzarian, Case: 22STCV23086, Date: 2023-06-22 Tentative Ruling

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Case Number: 22STCV23086    Hearing Date: June 22, 2023    Dept: 52

Tentative Ruling:

Defendants Boomtown Media Partners, LLC and Fast Charlie NOLA, LLC’s Special Motion to Strike

Defendants Boomtown Media Partners, LLC and Fast Charlie NOLA, LLC move to strike the complaint by plaintiffs Lee Goldberg and Adventures in Television under Code of Civil Procedure section 425.16.

Courts use a two-step process for resolving anti-SLAPP motions under section 425.16: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)  The defendant must show “the cause of action is based on the defendant’s protected free speech or petitioning activity.”  (Id. at p. 89.) 

Second, once the defendant establishes the first element, courts “must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”  (Navellier, 29 Cal.4th at p. 88.)  “[T]he plaintiff need only have stated and substantiated a legally sufficient claim.”  (Ibid., internal quotes and citations omitted.)  “[C]laims with the requisite minimal merit may proceed.”  (Id. at p. 94.)  “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ ”  (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Protected Activity

Defendants do not show this action arises from protected activity.  Plaintiffs’ causes of action arise, at least in part, from producing the movie “Fast Charlie” based on the book “Gun Monkeys.”     

Defendants rely on the anti-SLAPP statute’s catchall provision protecting “any other conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (CCP § 425.16(e)(4).)  Applying this provision requires two steps.  “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech.  (§ 425.16, subd. (e)(4).)  Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.  It is at the latter stage that context proves useful.”  (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150 (FilmOn).) 

“FilmOn’s first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute.”  (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1253 (Geiser).)  “FilmOn’s first step asks what issue or issues the challenged activity may reasonably be understood to implicate.  On that question, the movant’s beliefs, motivations, or characterizations may be relevant and, if objectively reasonable, will inform the analysis.  But they are not themselves dispositive and, if not objectively reasonable, will not carry weight.  If a reasonable inference can be drawn that the challenged activity implicates a public issue, then the analysis proceeds to FilmOn’s second step.”  (Id. at p. 1254.) 

In the second step, courts “look to the functional relationship between the challenged activity and the public conversation about that issue, and ask whether the activity contributes to public discussion of the issue.”  (Geiser, supra, 13 Cal.5th at p. 1249, internal quotes and alterations omitted.)  This “inquiry does not turn on a normative evaluation of the substance of the speech.  We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.”  (FilmOn, supra, 7 Cal.5th at p. 151.)

Defendants fail to show the challenged activity implicates any public issue or issue of public interest or participated in or furthered any discourse about such an issue.  They argue, “Both the Book and the Film are topics of widespread public interest.  The Book was nominated for an Edgar Award for best first novel and translated into several languages.  [Citation.]  Additionally, the pre-production, production and post-production of the Film have received extensive media coverage, such as: (1) this dispute about who authored the screenplay to the Film; (2) Pierce Brosnan being cast in the Picture; (3) James Caan being in the Film; and (4) once James Caan died, that the Film would be the renowned actor’s final work.  [Citation.]  Several of these articles discussed who was the screenwriter for the Film.”  (Amended Motion, p. 10.)

Assuming any of those constitutes a public issue or issue of public interest, producing the movie did not implicate them or contribute to the discourse that makes them issues of public interest.  “[N]ot all speech in a movie is of public significance and therefore entitled to protection under the anti-SLAPP statute.  The issue turns on the specific nature of the speech rather than generalities abstracted from it.”  (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280.)  The movie does not “implicate” anything about itself or the book it is based on.  It is difficult to conceptualize how a creative work can implicate itself or its source material.  Nor does the movie “implicate” anything about actors Brosnan or Caan.  They just play characters in it.

The parties identify only one published case applying the two-part test from FilmOn to a creative work: Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802 (Musero).  “Creating a television show” or other creative work “is an exercise of constitutionally protected expression,” but that is not sufficient for the anti-SLAPP statute’s catchall provision.  (Id. at p. 816.)  “The proper focus of the inquiry … must be on the specific nature of the speech.”  (Id. at p. 820, internal quotes omitted.) 

Musero’s facts are analogous to this case.  There, a screenwriter sued the defendants for misappropriating his “creative work, a proposed television pilot titled Main Justice, and using that material to assist in the development of a competing project, also titled Main Justice.”  (72 Cal.App.5th at p. 807.)  The Court of Appeal held the alleged misappropriation of the plaintiff’s ideas “did not contribute to the public conversation about a matter of public interest.”  (Id. at p. 822.) 

Musero reached that conclusion after a detailed discussion of the subject of the allegedly misappropriated ideas and the defendants’ television pilot.  Defendants’ “pilot was built around [former Attorney General Eric] Holder and the complexities of being a Black Attorney General,” and they planned to involve Holder in making the show.  (72 Cal.App.5th at p. 812.)  The trial court reasoned that “the Attorney General and, more specifically, Eric Holder are public figures regularly in the public eye and that” defendants “ ‘participated in, or furthered, the discourse that makes the topic of the first [B]lack Attorney General, one of public interest.’  ‘Such a show,’ the court concluded, ‘would undeniably contribute to the public debate and discourse that makes the Attorney General and Eric Holder topics of public interest.’ ”  (Id. at p. 821.) 

The Court of Appeal stated, “It is undoubtedly correct that a proposed television series not only based on the life of former Attorney General Holder but also apparently created in part by him would be a topic of widespread public interest.”  (72 Cal.App.5th at p. 821.)  But “[a]s to content, significantly, Musero’s creative work that [defendants] allegedly misappropriated and conveyed to [a producer] did not relate in any way to Eric Holder or to the first Black Attorney General of the United States; Musero’s pilot script protagonist was an entirely fictional female Attorney General.  Communicating the general idea of a legal drama (a ‘procedural,’ in television industry parlance) involving the Attorney General and prosecutors in the Department of Justice is not significantly different from the second 30 minutes of each episode of the Law & Order franchise that ran on NBC for 20 years… and is not closely linked to any ongoing public interest that might exist with respect to former Attorney General Holder or even to the [defendants’] series itself.”  (Id. at pp. 821-822.)

Musero continued, “The other creative elements allegedly misappropriated by [defendants] are even further removed from any public interest in the professional and personal life of former Attorney General Holder or, indeed, any nonfictional individual who actually held the office.  The title of the two pilots, Main Justice, for example, is simply the frequently used nickname for the Department of Justice’s headquarters … .  Car crashes, assassination attempts, cliffhanger endings and analogies—direct or subtle—between the justice system and the rules of basketball, whatever they may indicate about the similarity between the two pilot scripts, contribute nothing to the discussion of the issue of public interest identified by the [defendants] or the trial court.”  (72 Cal.App.5th at p. 822.) 

Here, defendants do not show the nature or content of their movie Gun Monkeys implicates or contributes to public discussion of any public issue.  It is an action movie.  It tells a fictional story.  One could accurately summarize the movie as being about which characters kill one another and how they do it.  Its subject and content are equivalent to the car crashes and assassination attempts discussed in Musero.  Indeed, in one scene, the protagonist “Charlie successfully kills [another character] Mercury by intentionally crashing a vehicle that caused a soda bottle to stab Mercury.”  (Reply, p. 9.)  The public may be interested in movies or shows about these things, but that does not mean the movie contributes to discussion of a public issue.  For example, the public has great interest in many successful horror movies.  But horror movies about, to use a typical example, a killer murdering people, do not implicate or contribute to a discussion of a public issue. 

Though it predates FilmOn, the case Jackson v. Mayweather (2017) 10 Cal.App.5th 1240 (Jackson) is instructive.  There, plaintiff Shantel Jackson sued the famous (or infamous) boxer Floyd Mayweather, Jr. for various torts arising from his public “postings and comments concerning his relationship with Jackson, as well as Jackson’s pregnancy, its termination and her cosmetic surgery.”  (Id. at p. 1254.)  The court stated, “In general, a public issue is implicated if the subject of the statement or activity underlying the claim was a person or entity in the public eye.”  (Ibid., internal quotes and alterations omitted.)  “[Floyd] Mayweather, like [Marlon] Brando, is someone whose professional accomplishments and private life have generated widespread public interest.”  (Id. at p. 1255.)  The court further reasoned that Jackson had already “become famous” due to her relationship with Mayweather.  (Ibid.)  The court held Mayweather’s statements “were ‘celebrity gossip’ … in connection with an issue of public interest.”  (Id. at p. 1254.) 

Mayweather’s statements were about himself, Jackson, and their relationship, which were already the subject of public interest and discussion.  The public may well be interested in anything at all Mayweather publishes, even statements about something innocuous.  The public’s interest in such a statement would not mean the statement contributes to a public conversation about a matter of public interest.

Defendants argue the public is interested in their speech, therefore their speech concerns a matter of public interest.  That the public may have been interested in the movie (or the book it is based on) does not mean the movie constitutes speech implicating a matter of public interest.  That is circular reasoning.  Unlike Jackson, defendants’ movie may include famous actors Pierce Brosnan and James Caan in its cast—but the actors are not the subject of the movie.

Defendants incorrectly argue, “ ‘[E]xtensive media coverage’ is sufficient to demonstrate the existence of a topic of widespread public interest.”  (Amended Motion, p. 10, quoting Geiser, supra, 13 Cal.5th at p. 1248.)  Prior authority says the opposite: “Media coverage cannot by itself … create an issue of public interest within the statutory meaning.  If that were the case, the more sensational and hence injurious a statement might be, the more public interest it would generate.”  (Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1121, internal quotes omitted, disapproved on other grounds by Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114.) 

In Geiser, media coverage of the challenged activity (a protest outside someone’s home) was part of the context that “bolstered” the conclusion that the protest was not just about the moving parties’ private dispute but “also about broader issues concerning unfair foreclosures and evictions.”  (13 Cal.5th at p. 1255.)  Like Musero, the California Supreme Court’s discussion in Geiser focused on the content of the speech or challenged activity.  In other words, what was the protest about?  “[T]he demonstration was not only about the dispute over the [defendants’] long-term residence, but also about broader issues concerning unfair foreclosures and evictions.”  (Ibid.)  The challenged activity of producing the movie “Gun Monkeys” is not about any broader issue concerning the public.

Probability of Prevailing

Assuming defendants had met the first prong, plaintiffs have demonstrated a probability of prevailing on the merits of this action.

1st Cause of Action: Breach of contract (exercise of option)

Plaintiffs show a probability of prevailing on this cause of action.  The first cause of action alleges defendants breached the parties’ contract because they “exercised the option contained in the Option/Purchase agreement by commencing principal photography of Fast Charlie, a motion picture based on Gun Monkeys, as permitted under the Option/Purchase Agreement, but failed to meet [their] obligations” under the agreement.  (Comp., ¶ 14.)

Under the agreement, defendants purchased an option to make a movie based on Lee Goldberg’s screenplay titled “Gun Monkeys”, an adaptation of the novel with the same name by Victor Gischler.  (Grodnik Decl., Ex. F [Agreement].)  The agreement provides, “As used herein, the term ‘Property’ shall mean, collectively, the Screenplay and all of its plots, themes, formats, characters, title, and other elements, in all past present and future versions, adaptations and translations thereof.  The term ‘Picture’ shall mean the first motion picture produced based on the Property.”  (Id., ¶ 1.)The agreement further provides, “The Option may be exercised by notice to” plaintiffs.  (Id., ¶ 4.)  Finally, it provides, “Whether or not the Purchaser serves such notice, commencement of principal photography of the Picture during the Option Period shall be deemed to be the exercise of the Option and proper notice thereof.”  (Ibid.)

Defendants breached this provision if what they commenced filming was “the Picture.”  The movie they filmed was “the Picture” under the contract if it was “based on the Property,” which includes “the Screenplay and all of its plots, themes, formats, characters, title, and other elements, in all past present and future versions, adaptations and translations thereof.”  (Agreement, ¶ 1.) 

Defendants argue their film and the shooting script were not based on Goldberg’s screenplay.  Defendants assert they were based on actor Bryan Cranston’s notes on Goldberg’s script (Grodnik Decl., ¶¶ 6-8) and a “new script” by screenwriter Richard Wenk (id., ¶ 9).  Defendants state, “Wenk wrote an original story using Gischler’s characters and based primarily off Mr. Cranston’s notes.  (Id., ¶ 10.)

Defendants’ own evidence undermines their defense to this cause of action.  If Wenk wrote a script based on Cranston’s notes, which were based on Goldberg’s script, plaintiff’s script was still part of the chain of events that resulted in defendants’ film.  This constitutes a prima facie case that the movie was “based on the Property” as defined by the Goldberg agreement.  Moreover, defendants’ agreement with Wenk begins, “Re: ‘Fast Charlie’ rewrite.’ ”  (Grodnik Decl., Ex. H, p. 1.)  It continues to state defendants employ Wenk “for a rewriting of a screenplay (the ‘Rewrite’) of a feature length motion picture entitled ‘Fast Charlie’.”  (Id., ¶ 1.)  That Wenk’s contract refers to his service as rewriting a screenplay substantially undermines defendants’ claim that he wrote an “original story” not based on Goldberg’s script. 

Plaintiffs’ opposition includes further evidence that this cause of action has the minimal merit required.  Indeed, they introduce what could be considered the ideal evidence.  Richard Wenk submitted a sworn declaration expressly stating his script was a rewrite of Goldberg’s script and incorporated elements from it.  (Wenk Decl., ¶¶ 3-7.) 

Plaintiffs also have evidence undermining defendants’ claim that any similarities between the two screenplays originate from the novel they are both based on.  In an email in September 2021, producer Dan Grodnik asked Wenk, “Did you ever read the book?”  (Eubanks Decl., Ex. 7, p. 1.)  Wenk replied, “I started it.  Never finished it.”  (Ibid.)  Furthermore, in the same email thread, Grodnik contemplates that defendants would pay Lee Goldberg under the option/purchase agreement.  He wrote, “I’ve got Lee’s fee budgeted I’m wondering how the WGA will assign credit.  I assume you’ll both be credited?  Do you agree with that?”  (Ibid.) 

Defendants rely on the rule typically applied in similar cases: “When plaintiffs do not have direct evidence of use, they may raise an inference of use by showing the defendants had access to their ideas and the defendants’ work is substantially similar to the plaintiffs’ ideas.”  (Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184–185.)  This argument overlooks the first part of the rule: “When plaintiffs do not have direct evidence of use.”  Plaintiffs have direct evidence of use.  Wenk, who wrote the screenplay for the film, expressly states he based his work on Goldberg’s screenplay.

Defendants contend plaintiffs must show a substantial similarity between Goldberg’s screenplay and Wenk’s screenplay, which does not arise from the common source of Victor Gischler’s novel.  Assuming defendants are correct, plaintiffs show a probability of prevailing.  As discussed above, Richard Wenk, the author of defendants’ screenplay, expressly states his script is based on Goldberg’s.  He states, “[T]he Shooting Script incorporated or adapted certain characters, plots, and dialogue from the Goldberg Script.  In fact, throughout the process, Grodnik on several occasions requested that I re-incorporate into my script certain dialogue from the Goldberg Script that I had chosen to omit in the rewrite.  I reincorporated that dialogue at Grodnik’s request.”  (Wenk Decl., ¶ 7.)  He identifies specific lines as “taken or adapted from the Goldberg Script into the Shooting Script” (id., ¶ 8.c) and identifies elements of other scenes taken from or adapted from Goldberg’s script (id., ¶ 8.d).  Defendants argue that these details are either derived from the novel or are not extensive enough to make the works “substantially” similar.  These similarities suffice at least to show this cause of action has the minimal merit required. 

2nd Cause of Action: Breach of contract (provision regarding Writers Guild and credits)

Plaintiffs show a reasonable probability of prevailing on this cause of action.  The complaint alleges defendants breached the Goldberg agreement’s provision “that Boomtown or its assignee must be a Writers Guild of America (‘WGA’) signatory.”  (Comp., ¶ 26.)  Defendants promised to do so.  (Agreement ¶ 2 [“Purchaser or its assignee shall be a WGA signatory”].) 

Plaintiffs show this cause of action has at least minimal merit.  There is substantial, undisputed evidence that defendants broke their promise to become a WGA signatory.  Neither the parties nor the court found any authority that a non-signatory who breaches a promise to one person to enter an arbitration agreement with a third party can be estopped from avoiding arbitration.  They successfully opposed the Writers Guild of America’s motion to compel arbitration precisely because they did not become WGA signatories.  But if defendants had complied with this obligation, they would have signed the WGA’s agreement and would have been bound by its terms, including its arbitration provision. 

Defendants argue, “Plaintiffs’ second cause of action fails because they cannot prove Defendants and the WGA demonstrated mutual assent to arbitrate Plaintiffs’ claim.”  (Amended Motion, p. 14.)  Defendants present no explanation or authority for why WGA’s mutual assent is an element of plaintiffs’ second cause of action for breach of contract.  Plaintiffs allege defendants breached a contract with plaintiffs, not with WGA.  The Goldberg agreement includes defendants’ express manifestation of assent to become a WGA signatory.

3rd Cause of Action: Declaratory relief

Plaintiffs show a probability of prevailing on this cause of action.  Defendants argue it is duplicative of the first cause of action—which is true in part.  This cause of action seeks, among other things, a judicial declaration “that the option contained in the Option/Purchase Agreement has been exercised, and thus, Defendants are required to perform all obligations thereunder owed to Plaintiffs upon exercise of said option.”  (Comp., ¶ 36.) 

The first half of that declaration duplicates an element of plaintiffs’ first cause of action for breach of the agreement.  The latter half of that declaration, however, includes a future obligation to negotiate with Goldberg about writing any remake, prequel, or sequel.  It therefore concerns “a probable future controversy … relating to the legal rights and duties of the parties,” which is a proper subject of declaratory relief.  (Reiner v. Danial (1989) 211 Cal.App.3d 682, 688.) 

Defendants contend plaintiff cannot succeed on that portion of the cause of action because doing so would mean improperly mandating specific performance of “[a]n obligation to employ another in personal service.”  (Civ. Code, § 3390(b).)  But the contract’s future obligation is not limited to negotiating with Goldberg regarding employing him to write a remake, sequel, or prequel.  The agreement provides that, if the parties cannot reach an agreement on employing Goldberg to write the remake, sequel, or prequel, defendants “shall be free to hire another writer,” but “shall pay the Owner a one-time only payment in the budget equal to 100% of the Purchase Price paid Owner in connection with the first Picture, pursuant to paragraph 5 above, and 100% of the percentage amount of net proceeds paid to Owner pursuant to paragraph 6 above.”  (Grodnik Decl., Ex. F, ¶ 11.a.)  So, if defendants ultimately make a remake, sequel, or prequel based on Goldberg’s screenplay without hiring Goldberg, they still must pay him more money.  That is a prospective future controversy.  Plaintiffs thus show a probability of prevailing on this cause of action for the same reasons as the first cause of action.

Defendants’ Motion Does Not Address the 4th Cause of Action

            Defendants’ anti-SLAPP motion purportedly seeks to strike all causes of action in plaintiffs’ complaint.  The motion, however, never mentions the fourth cause of action for declaratory relief. 

Assuming the motion is procedurally proper as to the fourth cause of action, that cause of action does not arise from any protected activity.  In it, plaintiff seeks to correct a purported scrivener’s error via a judicial declaration that instead of “Adventures in Television, Lee “Goldberg shall receive both a ‘Written by’ credit and a ‘Co-Producer’ credit, both of which are to be included in the main titles of the motion picture” and that “Boomtown or Longridge, LLC is the ‘Purchaser’ that entered the Option/Purchase Agreement with AiT.”  (Comp., ¶ 40.)  Correcting the terms of the parties’ private agreement is not related to any public issue.

Even if this cause of action arose from protected activity, plaintiffs would show a probability of prevailing on the merits.  The parties’ agreement defines the “owner” as “Adventures in Television f/s/o Lee Goldberg” (Grodnik Decl., Ex. F, p. 1), and later provides that “Owner shall be accorded” credits as a writer and co-producer (id., ¶ 9).  As the complaint alleges, it is “illogical … that Goldberg’s loan-out company AiT should receive the Credits, not Goldberg the individual writer.”  (Comp., ¶ 39.)  Plaintiffs have a reasonable likelihood of prevailing on the grounds that the parties intended to give credit to Goldberg, the individual screenwriter, as is typical in film credits. 

As for naming the purchaser, the parties’ option/purchase agreement begins by identifying “Longridge, LLC” as the “Purchaser.”  (Grodnik Decl., Ex. F, p. 1.)  Both paragraph 20 of the agreement and the signature line at the end, however, identify the purchaser as “Boomtown Media Partners, LLC.”  Plaintiffs have a reasonable probability of prevailing by showing the parties intended for Boomtown Media Partners, LLC to be the purchaser.  

Evidentiary Objections

Plaintiffs make dozens of unnumbered objections to defendants’ evidence.  Regarding motions for summary judgment, California Rules of Court, rule 3.1354(b) requires that “[e]ach written objection must be numbered consecutively.”  Though this rule does not expressly apply to other motions, consecutively numbering objections is necessary for the court to make clear rulings on them.  All of plaintiffs’ objections are overruled. 

Disposition

            Defendants Boomtown Media Partners, LLC and Fast Charlie NOLA, LLC’s special motion to strike is denied.