Judge: Armen Tamzarian, Case: 22STCV24014, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV24014    Hearing Date: December 5, 2022    Dept: 52

Defendants BET Productions IV, LLC, BET Interactive LLC, and The Nacelle Company, LLC jointly move to strike the complaint by plaintiffs Doug Williams, Ada Luz Pla-Williams, and DNA Media Productions, LLC under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16).

Legal Standard

Courts use a two-step process for resolving anti-SLAPP motions: “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, supra, 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.)

First Prong: Protected Activity

This entire action arises from protected activity: creating a television show connected to an issue of public interest.  Protected activity includes “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (§ 425.16, subd. (e)(4).)  “Creating a television show is an exercise of constitutionally protected expression.”  (Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802, 815 (Musero).)

The television show at the heart of this case is connected with issues of public interest.  When an anti-SLAPP motion “is based on section 425.16, subdivision (e)(4), ‘plaintiffs’ causes of action must arise from defendants’ conduct “in connection with a public issue or an issue of public interest.” ’ ”  (Musero, supra, 72 Cal.App.5th at p. 815.)   “ ‘In articulating what constitutes a matter of public interest, courts look to certain specific considerations, such as whether the subject of the speech or activity “was a person or entity in the public eye” or “could affect large numbers of people beyond the direct participants.” ’ ”  (Ibid.)

The complaint alleges defendants breached an implied contract to pay for plaintiffs’ creative work, the concept for a TV show called Black in the Day.  (Comp., ¶¶ 13, 18.)  Plaintiffs pitched the show to BET.  (Ibid.)  The show “was retro to all things black, which included Movies, TV shows, music, fashion & Style, and pop culture from the 70’s, 80’s and 90’s.”  (Id., ¶ 18.)  Plaintiffs also proposed “a personal list of celebrity guests to appear on the Show,” which “contained 26 black A-list celebrities.”  (Id., ¶ 21.)  The complaint alleges defendants stopped working with plaintiffs on Black in the Day, only to later release a show called All the Way Black that is “identical to Plaintiffs’ show.”  (Id., ¶ 23.) 

Defendants’ show All the Way Black consists of “strung together clips that focused on a theme and were punctuated by hilarious color commentary of famous (and infamous) moments and items in black pop culture from the ‘70s, ’80s, and ‘90s.  A few examples of episode topics include: the most memorable black household do’s and don’ts from childhood; afros and cornrows, high tops and hair weaves, celebrating the hairstyles that flex the creativity and love for black hair; and from The Juice to Air Jordan, spotlighting the sports celebrity endorsements and catchiest ad campaigns.”  (Volk-Weiss Decl., ¶ 9.)

The television show defendants released includes matters subject to broad public interest and people in the public eye.  Someone can only be an “A-list” celebrity if the public is interested in them.  Plaintiffs allege their show would include 26 A-list celebrities, and defendants’ show is “identical” to theirs. 

By definition, “pop culture” is popular, meaning a significant portion of the public is interested in it.  There is substantial public interest in Black popular culture, including famous (or now infamous) ad campaigns featuring star athletes such as “The Juice” and “Air Jordan.” 

Moreover, plaintiff Doug Williams himself states defendants’ show “used groundbreaking television shows and films, most notably, ‘Soul Train’, ‘The Cosby Show’ and ‘Malcolm X’ to show how Blacks influenced American dance.”  (Williams Decl., ¶ 18.)  Those are matters of public interest.

Both the television concept plaintiffs created and the show defendants released concern matters of public interest and people in the public eye.  Defendants establish plaintiffs’ complaint arises from protected activity.

Second Prong: Probability of Prevailing

Plaintiffs demonstrate a probability of prevailing on the merits on this action against two of the three defendants. 

The complaint alleges three causes of action: (1) breach of implied-in-fact contract, (2) breach of confidence, and (3) accounting.  The first two causes of action arise from allegations that defendants used plaintiffs’ idea for the television show Black in the Day without compensating them.

For the first cause of action “for breach of implied-in-fact contract, plaintiffs must show (1) they clearly conditioned the submission of their ideas on an obligation to pay for any use of their ideas; (2) the defendants, knowing this condition before the plaintiffs disclosed the ideas, voluntarily accepted the submission of the ideas; and (3) the defendants found the ideas valuable and actually used them—that is, the defendants based their work substantially on the plaintiffs’ ideas, rather than on their own ideas or ideas from other sources.”  (Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184 (Spinner).)

For the second cause of action, “[a]n actionable breach of confidence will arise when an idea, whether or not protectable, is offered to another in confidence, and is voluntarily received by the offeree in confidence with the understanding that it is not to be disclosed to others, and it is not to be used by the offeree for purposes beyond the limits of the confidence without the offeror’s permission.”  (Tele-Count Engineers, Inc. v. Pacific Tel. & Tel. Co. (1985) 168 Cal.App.3d 455, 462 (Tele-Count).) 

Both the first and second causes of action are “dependent on a showing that [defendants] actually used [plaintiffs’] ideas.”  (Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 649 (Hollywood Screentest).)

The third cause of action for accounting cannot stand without the first two.  “A right to an accounting is derivative; it must be based on other claims.”  (Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 833.)  When the “other claims fail, so too does the one for an accounting.”  (Id. at p. 834.)

A. Statutes of Limitations

Defendants argue plaintiffs’ three causes of action are barred by the two-year statutes of limitations.  Plaintiffs concede the applicable statutes of limitations are two years.  (Opp., p. 18.)  It is also undisputed that defendants first released the show “All the Way Black” on June 4, 2020.  (Griffin Decl., ¶ 8.)  Plaintiffs filed their complaint on July 22, 2022, more than two years later.  Plaintiffs argue their causes of action are timely because defendants released a second set of episodes of “All the Way Black” in October 2020. 

Plaintiffs’ complaint is timely for a reason neither side addressed.  Former Emergency Rule 9(a) provided, “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.”  Rule 9(c) provided, “This rule will sunset on June 30, 2022, unless otherwise amended or repealed by the Judicial Council.  This sunset does not nullify the effect of the tolling of the statutes of limitation and repose under the rule.”

At the earliest, plaintiffs’ claims accrued on June 4, 2020.  The statutes of limitations were tolled from that date until October 1, 2020, under Emergency Rule 9(a).  Though the rule sunsetted before plaintiffs filed their complaint, the effect of the tolling remained.  (Emergency Rule 9(c).)  Plaintiffs filed their complaint before October 1, 2022.  The complaint is timely under Emergency Rule 9.

B. Independent Creation

Defendants argue their evidence precludes plaintiffs from prevailing under the doctrine of independent creation.  “Even when the plaintiffs raise an inference of use, however, the defendants may dispel that inference with evidence that conclusively demonstrates the defendants independently created their product.  [Citation.]  When the defendants produce evidence of independent creation that is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved, the inference of use is dispelled as a matter of law.”  (Spinner, supra, 215 Cal.App.4th at p. 185, internal quotes omitted.) 

At this stage, defendants’ evidence is not clear, uncontradicted, and can rationally be disbelieved.  It is not enough to dispel plaintiffs’ interference of use as a matter of law.

Plaintiffs provide undisputed evidence that defendants BET Productions IV, LLC and BET Interactive LLC had access to plaintiffs’ ideas because plaintiffs communicated directly with BET to pitch their show Black in the Day.  (Williams Decl., ¶¶ 4-11; Pla-Williams Decl., ¶¶ 3-9.)  After plaintiffs shared their ideas with BET, BET employee Marisa Levy invited them to pitch the show “on January 18th, [2019,] at the BET/Viacom offices of Gower Street in Los Angeles.”  (Williams Decl., ¶ 9.) 

At the pitch meeting, plaintiffs met with “Raye Dowell and Andrea Reed from BET,” and “BET told [plaintiffs] that they were moving forward into development with ‘Black in the Day.’ ”  (Williams Decl., ¶ 10.)  About a week later, BET asked plaintiffs “to put together a personal list of guests they could choose from to come on the show.”  (Id., ¶ 11.)  “On April 26, 2019, BET asked [plaintiffs] to make some changes” to the show.  (Id., ¶ 12.)

Defendants’ evidence of independent creation is limited to declarations by two people saying they created the show independently and did not use plaintiffs’ ideas.  First, Brian Volk-Weiss states defendants’ show “All the Way Black” is an adaptation of his prior show “Discontinued” to focus on Black culture for a Black audience.  (Volk-Weiss Decl., ¶¶ 8-9.)  “Discontinued” was about “famous (and sometimes infamous) discontinued food, toys, customs, and businesses.”  (Id., ¶ 3.) 

In 2018, Volk-Weiss pitched a streaming version of “Discontinued” to Devin Griffin, who worked for Netflix.  (Volk-Weiss Decl., ¶ 5.)  “In March or April 2019,” Griffin called Volk-Weiss “about doing Discontinued for BET’s primarily black audience.”  (Id., ¶ 8.)  Volk-Weiss further states, “We developed All the Way Black … comprised of strung together clips that focused on a theme and were punctuated by hilarious color commentary of famous (and infamous) moments and items in black pop culture from the ‘70s, ‘80s, and ‘90s.”  (Id., ¶ 9.)  Volk-Weiss states he first heard of plaintiffs’ idea for “Black in the Day” during this lawsuit.  (Id., ¶ 10.)

The second witness, Devin J. Griffin, became an executive vice president for BET in April 2019.  (Griffin Decl., ¶ 1.)  Before he worked for BET, he talked to Volk-Weiss about making “various spin-offs of the Discontinued concept.”  (Id., ¶ 5.)  Griffin states, “When I started at BET, I immediately contacted Mr. Volk-Weiss and we discussed creating a version of Discontinued that we could bring to BET+ with a focus on African-American pop culture.”  (Ibid.)  Finally, Griffin states, “Prior to bringing the Series to BET, I never had any conversations with any Plaintiff, or third party representing any Plaintiff, relating to their alleged concept.”  (Id., ¶ 9.)

Defendants rely on Spinner, where the evidence that dispelled any inference of use included not just “sworn statements of the creators,” but also “contemporaneous correspondence documenting the creation process” as “supported by … voluminous exhibits.”  (Spinner, supra, 215 Cal.App.4th at p. 192.)  The record included copious details of how and when defendant ABC created its show:

[The creators’] initial meeting yielded many ideas and six pages of notes containing many of the main characters and concepts that eventually became the LOST pilot.  Lindelof and Abrams thereafter began drafting an outline to submit to ABC, and the various drafts of this outline are documented in the record through Lindelof’s contemporaneous emails, which attach these drafts, to Abrams and the Alias writers and producer.  Similarly, after ABC picked up the pilot based on the outline, the drafts of character sides for auditions, drafts of each act, and drafts of the complete pilot script are in the record, and, for the most part, they are attached to Lindelof’s contemporaneous emails as he distributed the drafts to Abrams and the rest of the group.  Thus, documented in the record is the evolution of the LOST pilot from six pages of notes to a 90–plus–page script, over the course of approximately three months (from January 13, 2004, to April 19, 2004).

(Ibid.)  This evidence was particularly convincing because the plaintiff submitted his script decades before ABC created LOST.  (Id. at pp. 192-193.)

The record in this case has none of that.  Defendants’ evidence boils down to declarations by Griffin and Volk-Weiss disclaiming any knowledge of plaintiffs’ concept and asserting they began creating their show when Griffin asked Volk-Weiss to make a Black version of Discontinued in April 2019.  Defendants provided no contemporaneous documents corroborating their declarations.  Instead of providing details, they make only a cursory explanation of how they developed All the Way Black.

Plaintiffs’ evidence is also far stronger than in Spinner.  There, the plaintiff submitted his script for a TV movie called Lost to ABC in 1977, then sued ABC for using his ideas in the TV series LOST.  (Spinner, supra, 215 Cal.App.4th at pp. 175-176.)  LOST, however, was developed in 2003 and premiered in 2004.  (Id. at pp. 178-182).  The people who communicated with plaintiff about his script “were not employed [by ABC] at the same time” as those who created LOST, and “the people who actually received the 1977 Script” stopped working for ABC “decades before” anyone involved with LOST worked for ABC.  (Id. at p. 187.)    

Spinner stated the plaintiff “relies on a bare possibility of theoretical access premised on mere speculation.  His theory of access is that the ABC drama development executives who were involved in the creation of LOST—Braun, Kadin, and Sherman—had a reasonable opportunity to view the 1977 Script because ABC had a policy of permanently retaining unreturned scripts, and the script must have been present somewhere in a ‘script library’ at ABC. This is guess work.”  (Spinner, supra, 215 Cal.App.4th at p. 187.)  And “despite the 1972 retention policy Spinner cites, ABC never found the 1977 Script in its drama development file” when searching for it after plaintiff filed suit.  (Ibid.) 

In contrast with Spinner, there is an inference that BET used plaintiffs’ ideas because they made All the Way Black soon after plaintiffs pitched their show.  Plaintiffs pitched Black in the Day to BET in 2019, and BET released All the Way Black in June 2020.  There were no intervening decades.  Plaintiffs are not speculating that All the Way Black’s creators somehow discovered their ideas decades after plaintiffs submitted them. 

While defendants’ witnesses state they independently created the show, they do not state they never spoke to or received input from the people plaintiffs communicated with at BET in 2019.  Marisa Levy, Raye Dowell, and Andrea Reed could have contributed to All the Way Black by sharing plaintiffs’ ideas with Volk-Weiss or Griffin—without explaining those ideas came from plaintiffs’ pitch for Black in the Day.  In Spinner, everyone at ABC who dealt with the plaintiff was long gone by the time ABC made LOST.

Furthermore, in Spinner, “ABC decided to pass on the” plaintiff’s script in 1977.  (Spinner, supra, 215 Cal.App.4th at p. 176.)  “Spinner was told the project was far too expensive for ABC to produce.”  (Ibid.)  Here, plaintiffs present uncontroverted evidence that BET planned to go forward with producing Black in the Day.  BET gave “notes” on the show, which plaintiff Ada Luz Pla-Williams “worked to incorporate.”  (Pla-Williams Decl., ¶ 9.)  BET also asked plaintiffs “to put together a personal list of guests they could choose from to come on the show.”  (Ibid.)  “On April 26, 2019, BET asked [plaintiffs] to make some changes to the format of the show” and stated they would find Doug Williams a smaller role instead of hosting the show.  (Id., ¶ 10; Williams Decl., ¶ 12.)  That BET told plaintiffs they were moving forward with their show, then stopped communicating with plaintiffs before releasing a similar show the next year supports plaintiffs’ inference that defendants used their ideas. 

This case also differs from Hollywood Screentest.  There, the plaintiffs submitted their ideas to NBC numerous times beginning in 2001, but NBC had limited interactions with them.  (Hollywood Screentest, supra, 151 Cal.App.4th at p. 634.)  After first “provid[ing] a letter expressing NBC’s ‘interest,’ ” NBC stated the project “was ‘not in the cards.’ ”  (Ibid.)  Plaintiffs later contacted NBC about various ideas, but NBC “rejected [the] proposal, stating: ‘Unfortunately we are not looking for this type of program right now.’ ”  (Id. at p. 635.)  A different NBC employee “was uninterested.”  (Ibid.) 

Here, BET expressed substantial interest in plaintiffs’ idea by giving them notes and asking for a list of potential guests.  Evidence that BET planned to use plaintiffs’ ideas supports the inference that BET ultimately did use those ideas.

Moreover, in Hollywood Screentest, NBC presented “undisputed evidence of independent creation by entities unrelated to NBC and unassisted by NBC.”  (Hollywood Screentest, supra, 151 Cal.App.5th at p. 647.)  Those entities had contemporaneous documentary evidence “including [a] proposal written for USA Networks …, notes from meetings among the producers of the show, and various documents describing the state of the project at various times throughout 2002,” before they ever communicated with NBC.  (Id. at p. 637.)  “NBC had no involvement with [the show] prior to the initial meeting in August 2002.”  (Id. at p. 638.) 

Here, the evidence establishes that BET was directly involved with developing All the Way Black.  BET employee Devin J. Griffin reached out to Brian Volk-Weiss about the show—shortly after plaintiffs pitched Black in the Day to BET.      

Plaintiffs also controvert and cast doubt on defendants’ evidence of independent creation by detailing how their ideas and defendants’ show differ from Volk-Weiss’s prior show Discontinued.  Doug Williams states:

“All the Way Black” is not a Spin-Off of “Discontinued”.  They are completely different shows with only two similarities: 1) the format is the same—using special guests and comedians to add humor to the content of the show.  It is called a clip show.  This is an old format that has been done for several years on MTV, VH1, Comedy Central, etc. 2) both shows have a retro aspect.  “Discontinued” is a show about the rise and fall of discontinued retro items that were popular in the past.  “All the way Black” is a show that takes a retro look at the evolution of black culture.  It is historical, educational, and teaches audiences of this generation about the influence that Blacks have had on pop culture through film, television, music, dance, fashion, and so forth.  That’s the show we pitched to BET.  Defendants brought on another production company—Nacelle—to execute our vision.

(Williams Decl., ¶ 17.) 

Plaintiffs provide examples of how All the Way Black took this approach, which differed from comedy about discontinued products or businesses as in Discontinued.  For example, episode 11 of All the Way Black “pay[s] tribute to the black actors, writers, and directors of the 70s, 80s and 90s.”  (Williams Decl., ¶ 22.)  Plaintiffs’ pitch included discussing “Spike Lee and how he helped to bring out black awareness with his films,” and episode 11 of All the Way Black “showed clips of the film ‘School Daze’ and how Spike Lee introduced black college life to mainstream media and included things like stepping and black fraternities and sororities.”  (Ibid.) 

Defendants cite Spinner in arguing that “[t]iming alone cannot ‘give rise to a reasonable inference of access.’ ”  (Reply, p. 13.)  The plaintiff in Spinner argued there was an inference of access because ABC made the show LOST at “record-breaking speed.”  (Spinner, supra, 215 Cal.App.4th at p. 188.)  In other words, plaintiff argued it was impossible to make a show from scratch so quickly, so it had to be based on his existing work.  The court held, “Even if we assume that this was unprecedented timing for creating a 21–page outline and making a decision, these facts alone do not give rise to a reasonable inference of access.”  (Id. at pp. 188-189.) 

Here, plaintiffs do not rely on the speed with which defendants made All the Way Black to support their inference of use.  The relevant timing is the proximity of their pitch to defendants’ show.  Plaintiffs pitched Black in the Day in 2019, then defendants released All the Way Black the next year.  These facts starkly contrast with the timing in Spinner: submission in 1977 following by alleged use in 2003.    

Based on the record developed thus far, defendants’ evidence is not enough to dispel the inference of use as a matter of law.  The case instead turns on whom the trier of fact believes and on the weight of the evidence.  Courts “do not weigh credibility” or “evaluate the weight of the evidence” on an anti-SLAPP motion.  (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)  “Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.  [Citation.]  Only a cause of action that lacks ‘even minimal merit’ constitutes a SLAPP.”  (Id. at pp. 699-700.)  Plaintiffs present sufficient evidence to meet the “minimal merit” standard against defendants BET Productions IV, LLC and BET Interactive LLC.

C.  Defendant The Nacelle Company, LLC

Plaintiffs do not demonstrate any probability of prevailing on the merits against defendant The Nacelle Company, LLC.  For their first cause of action for breach of implied-in-fact contract, plaintiffs must show that defendants’ conduct made an “implied promise” and “voluntarily accepted” plaintiffs’ ideas “with knowledge of the conditions of tender.”  (Mann v. Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 646.)  The plaintiff “must prove [defendant’s] conduct from which defendant’s promise may be implied.”  (Ibid.)  For their second cause of action for breach of confidence, “[t]here must exist evidence of the communication of the confidentiality of the submission or evidence from which a confidential relationship can be inferred.”  (Tele-Count, supra, 168 Cal.App.3d at p. 462.)

Plaintiffs present no evidence of any conduct by The Nacelle Company, LLC that constituted an implied promise or voluntary acceptance of plaintiffs’ ideas with knowledge of the condition of payment.  Nor do they present evidence they communicated to The Nacelle Company, LLC at all or any evidence supporting an inference of a confidential relationship between plaintiffs and The Nacelle Company, LLC.

The complaint mentions defendant The Nacelle Company, LLC only twice: in the caption’s list of defendants (Comp., p. 1) and in paragraph six, which alleges, “Defendant The Nacelle Company, LLC is a California limited liability company, with its principal place of business located in Los Angeles County, State of California.” 

Plaintiffs’ opposition and supporting evidence mention defendant The Nacelle Company, LLC in only four places.  Three of them are the same sentence repeated verbatim: “Defendants brought on another production company—Nacelle—to execute Plaintiffs’ vision.”  (Opp., p. 10; Williams Decl., ¶ 17; Pla-Williams Decl., ¶ 15.)  The fourth is a photograph of a T-shirt with logos for “BET+,” “Black in the Day,” and “Nacelle.”  (Williams Decl., Ex. A.)  None of this constitutes an implied promise, a confidential communication, or evidence of a confidential relationship between plaintiffs and The Nacelle Company, LLC.  The opposition does not address defendants’ argument on this subject. 

Plaintiffs’ evidence does not show any probability of prevailing on the merits against defendant The Nacelle Company, LLC on the first two causes of action.  The third cause of action fails because it cannot stand alone. 

Evidentiary Objections

Defendants make one evidentiary objection to the declaration of Doug Williams.  The objection is sustained.

Disposition

Defendants BET Productions IV, LLC and BET Interactive LLC’s special motion to strike is denied.  Defendant The Nacelle Company, LLC’s special motion to strike plaintiffs’ complaint is granted.  The court hereby strikes plaintiffs’ complaint as to defendant The Nacelle Company, LLC without leave to amend.