Judge Stephanie M. Bowick, Case Number: 20STCV28241, Date: 2025-03-04 Tentative Ruling

Judge: Stephanie M. Bowick, Case: 20STCV28241, Date: 2025-03-04 Tentative Ruling

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CASE NAME: Stephen L’Heureux v. Frank Miller, et al.

CASE NUMBER: 20STCV28241

DATE FILED: 07/27/2020

TRIAL DATE: N/A

CALENDAR NUMBER: 8

PROCEEDING: Motion for Protective Order

MOVING PARTY: Defendant Frank Miller

OPPOSING PARTY: Plaintiff Stephen L’Heureux

REPLY: Yes

After consideration of the briefing filed, Defendant Frank Miller’s Motion for Protective Order is GRANTED.

This case arises out of defamation and commercial contractual interference. Plaintiff Stephen L’Heureux brings suit against Defendants Frank Miller (“Miller”), Silenn Thomas, and Frank Miller, Inc. (“FMI”) (collectively, “Defendants”) alleging the following causes of action:

The Complaint alleges that Plaintiff obtained from Defendant Miller the following: (1) the rights to produce a feature length films and/or a television series based on “Sin City” graphic novels created by Defendant Frank Miller (referred to in Complaint as the “Sin City Rights” and by the Court of Appeal as rights to “Sin City” and/or “Sin City TV”); and (2) the rights to produce a feature length film based on Defendant Miller’s graphic novel “Hard Boiled” (referred to in Complaint as the “Hard Boiled Rights” and by the Court of Appeal as rights to “Hard Boiled”).

Plaintiff alleges that he has sought to use these rights to produce projects, including feature length films, but that Defendants sought to interfere with Plaintiff’s attempts to produce the projects by defaming Plaintiff and wrongfully interfering with his contractual agreements and his prospective economic gain from the production of the Sin City and/or Hard Boiled projects which he intended to produce pursuant to the rights he obtained from Defendant Miller. (See id. at ¶¶ 3-4, 15-60.) The Complaint alleges that Defendant Thomas is the CEO of Defendant Miller, Inc. and exerts influence over Defendant Miller. (Id. at ¶ 7.)

On August 10, 2022, the Court granted in part and denied in part Defendants’ Special Motion to Strike Pursuant to Code of Civil Procedure section 425.16. (August 10, 2022 Minute Order, p. 1.)

On October 3, 2023, following the October 2, 2023 Remittitur, the Court entered a new order (1) striking all allegations of Defendants Miller, FMI, and Thomas’s (referred to collectively as the “Miller parties”) press releases and their statements about Plaintiff’s rights to Sin City; (2) striking in their entirety the First, Second, Third, and Fourth Causes of Action for Defamation, Intentional Interference with Contract, and Intentional and Negligent Interference with Prospective Economic Advantage; and 3) striking the Fifth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing against Defendants Frank Miller, Inc. and Thomas (but not Miller). (October 3, 2023 Minute Order, p. 1.)

On January 28, 2025, Defendant Miller filed the instant Motion for Protective Order (the “Motion”).

Pursuant to Code of Civil Procedure sections 1987.1, subdivision (a) and 2025.420, subdivision (a), Defendant Miller moves for a protective order preventing Plaintiff from conducting discovery related to the “Sin City TV” television series based on Defendant Miller’s graphic novel “Sin City” as follows:

Defendant Miller moves on the ¿grounds that the information sought is irrelevant to Plaintiff’s sole remaining claim for breach of the implied covenant of good faith and fair dealing and good cause exists to protect Defendant Miller and various subpoenaed third parties from unwarranted annoyance, oppression, and undue burden and expense.

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

However, Code of Civil Procedure section 2017.020, subdivision (a) provides as follows:

The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(5) That the deposition be taken only on certain specified terms and conditions.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

(g) If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.

The meet and confer declaration “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.2d 807, 819-820 (citing Waters v. Superior Court of Los Angeles County (1962) 58 Cal.2d 885, 893; Carlson v. Superior Court of Los Angeles County (1961) 56 Cal.2d 431, 437-438).)

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

A party may make such a motion pursuant to Code of Civil Procedure section 1987.1. (Code Civ. Proc., § 1987.1(b)(1).)

As an initial matter, the Court finds that Defendant Miller has satisfied the meet and confer requirements. (Courtney L. Puritsky Decl., ¶¶ 6-7, Exs. A, B, Q.)

In moving for the protective order, Defendant Miller argues that (1) information with respect to negotiations or discussions Defendant Miller had with parties regarding Sin City TV is not relevant to the remaining issues in this action; and (2) both Defendant Miller and third-parties have a right to privacy in the confidential communications they had with respect to the Sin City TV project. (Motion, pp. 7-9.)

To be relevant for purposes of discovery, the information sought must be relevant to the “subject matter” of the pending action or to the determination of a motion in that action. (Code Civ. Proc., § 2017.010.) The legal standards for admissibility of evidence at trial is quite different than the legal standards applicable for purposes of discovery, and materials or information need not be admissible to be discoverable. (See, e.g., Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 [“Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.”]; Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546; Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) “Relevancy to the subject matter has been construed to be broader than relevancy to issues and may vary with the size of the case.” (Bridgestone/Firestone, Inc. v. Superior Court (Rios) (1992) 7 Cal.App.4th 1384, 1392 (internal citations omitted).)

For discovery purposes, information is relevant if it might reasonably lead to admissible evidence or might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez, supra, 33 Cal.App.4th at 1546; see Code Civ. Proc., § 2017.010 [“…[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”].) The rules are applied liberally in favor permitting discovery, which means that the so called “fishing expedition” may be permitted in some cases. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013; see Gonzalez, supra, 33 Cal.App.4th at 1546.) There is no “single, comprehensive standard of relevancy,” but past cases have provided certain guidelines. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172.)

Here, based on the briefing filed, the Court agrees with Defendant Miller’s arguments and rejects Plaintiff’s arguments as unpersuasive.

Pursuant to the Court’s October 3, 2023 Order striking allegations and causes of action in accordance with the Court of Appeal’s Opinion filed by the Court of Appeal on June 15, 2023, the only cause of action that remains is the Fifth Cause of Action against Defendant Miller; all other causes of action, including the Fifth Cause of Action against Defendants FMI and Thomas, have been struck. (See October 3, 2023 Minute Order at p. 1.)

Thus, the Court agrees with Defendant Miller that there are no tort claims remaining and therefore Defendant Miller’s intent is not at issue. The implied covenant of good faith and fair dealing is a contract term, and has always been limited to contract rather than tort damages with the only exception recognized being in the insurance context. (See, e.g., Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683-684; Chu v. Old Republic Home Protection Company, Inc. (2021) 60 Cal.App.5th 346, 353–354; accord, California Capital Insurance Company v. Maiden Reinsurance North America, Inc. (C.D. Cal. 2020) 472 F.Supp.3d 754, 758 (citing Foley, supra, 47 Cal.3d at 683-684).)

The Fifth Cause of Action is premised upon the allegations that Defendant Miller, individually and on behalf of Defendant FMI, and Defendant Thomas, on behalf of Defendant FMI, breached the covenant of good faith and fair dealing implied into “[t]he agreements entered into between Miller and/or FMI and L’Heureux pursuant to which L’Heureux obtained the Sin City Rights and the Hard Boiled Rights” by making false statements concerning the agreements. (Compl. at ¶¶ 89-103.)

However, all claims, causes of action, and allegations against Defendants Thomas and FMI, as well as all allegations of the Defendants Miller, FMI, and Thomas’s press releases statements about Plaintiff’s rights to Sin City, have been struck, and therefore the Court finds that Defendant Miller sufficiently shows that any negotiations or discussions Defendant Miller had with respect to Sin City/Sin City TV will not reasonably lead to admissible evidence and will not reasonably assist Plaintiff in evaluating the case, preparing for trial, or facilitating settlement.

The Court rejects Plaintiff’s argument that broad discovery “¿into how Miller and others involved conducted negotiations for similar intellectual property amongst the same entities is not only reasonably calculated to lead to the discovery of admissible evidence, it is directly relevant.” (Opposition, p. 6.) As correctly argued by Defendant Miller, the Sin City/Sin City TV project and the Hard Boiled project, as alleged in the Complaint, are different projects involving different agreements with different parties. (See, e.g., Compl. at ¶¶ 19-49.)

The state Constitution expressly grants Californians a right of privacy.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Cal. Const., art I, § 1); John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) “Accordingly, a litigant may invoke the constitutional right to privacy as justification for refusing to answer questions that unreasonably intrude on that right.” (John B.Superior Court (2006) 38 Cal.4th 1177, 1198.) However, the right to privacy is not absolute, and court must balance right of civil litigants to discover relevant facts against privacy interests of persons subject to discovery. (Id. at 1199.)

The California Supreme Court in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 “sets forth in detail the analytical framework for assessing claims of invasion of privacy under the state Constitution.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 (citing Hill, supra, 7 Cal.4th at 35); accord, Williams, supra, 3 Cal.5th at 552-557.)

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at 552 (citing Hill, supra, 7 Cal.4th at 35-37).)

“The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id. (citing Hill, supra, 7 Cal.4th at 37-40).) “A court must then balance these competing considerations.” (Ibid.)

If a serious invasion of privacy interest has been established, the party seeking the information must show “that the information requested is ‘directly relevant’ to their claims and ‘essential to the fair resolution’ of their lawsuit.” (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425-1430.)

The Court rejects Plaintiff’s argument that Defendant Miller can have no legally protected privacy interest in the information because the public also has an interest in the information. (See Opposition at pp. 7-8.) The fact that the public may have an interest in a Sin City television project, relevant for purposes of an anti-SLAPP analysis, does not mean that Defendant Miller can have no legally protected privacy interest in private conversations with others concerning the development of such a project for purposes of discovery.

The Court finds that Defendant Miller shows that he, as well as the third-parties Plaintiff now seeks to depose, have an objectively reasonable expectation of privacy in communications he and others, including Defendants FMI and Thomas as well as the third-parties Plaintiff now seeks to depose, had concerning the production of a Sin City TV television project. (Motion at p. 8; Puritsky Decl. at ¶5, Exs. D-P at Attachment 3; Courtney L. Puritsky Supp. Decl., ¶ 2, Ex. R.)

People v. Superior Court for Los Angeles County (1967) 248 Cal.App.2d 276, 281, the only legal authority cited by Defendant, does not compel a different conclusion.

Given their broad scope, the Court finds that the discovery requests constitute a serious invasion of Defendant Miller’s legally protected privacy interests.

Given that all claims, causes of action, and allegations against Defendants Thomas and FMI, as well as all allegations of Defendants Miller, FMI, and Thomas’s press releases statements about Plaintiff’s rights to Sin City, have been struck, the Court agrees with Defendant Miller that “¿[w]hat negotiations or discussions Miller had with third parties regarding Sin City TV is simply none of L’Heureux’s business….” (Motion at p. 8.)

Thus, the Court finds that Plaintiff may only proceed with the discovery requests if the information sought is “directly relevant” to Plaintiff’s claims and “essential to the fair resolution” of the action.

For the reasons discussed above, the Court finds that the information sought is not “directly relevant” to Plaintiff’s claims and “essential to the fair resolution” of the action.

In any event, even if the Court were to find that Defendant Miller lacked a legally protected privacy interest in the information, the Court finds, as discussed above, that the requested information is still not sufficiently relevant pursuant to the liberal rules concerning relevance for purposes of discovery.

As such, the Court DENIES Plaintiff’s request for sanctions. (See Opposition at pp. 8-9.)