L'Heureux v. Miller CA2/7 ( 2023 )

Filed 5/22/23 L’Heureux v. Miller CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
B322839
STEPHEN L’HEUREUX,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 20STCV28241)
v.
FRANK MILLER et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Bowick, Judge. Reversed with
directions.
Grodsky, Olecki & Puritsky, Allen B. Grodsky and Tim B.
Henderson for Defendants and Appellants.
Pillsbury Winthrop Shaw Pittmam, Kenneth E. Keller,
Alekzandir Morton and John J. Steger for Plaintiff and
Respondent.
INTRODUCTION
Frank Miller is a prominent comic book writer. Several
major motion pictures have been adapted from Miller’s works,
including two based on his Sin City comic book series. Stephen
L’Heureux was a producer for one of the Sin City movies.
L’Heureux filed this action against Miller; his company,
Frank Miller, Inc.; and the company’s chief executive officer,
Silenn Thomas (the Miller parties). L’Heureux alleged the Miller
parties granted him the rights to adapt Sin City and one of
Miller’s other comic books, Hard Boiled, for a television series
and a film, respectively, but reneged on the agreements and told
various people in the entertainment industry—in particular,
production studio executives— not to work with L’Heureux
because L’Heureux did not have the rights to use Miller’s works.
L’Heureux asserted causes of action for defamation, interference
with contract and with prospective economic advantage, and
breach of the implied covenant of good faith and fair dealing.
The Miller parties filed a special motion under Code of Civil
Procedure section 425.16 (section 425.16) to strike each of
L’Heureux’s causes of action and the entire complaint. As
relevant to this appeal, they argued their alleged statements
about L’Heureux’s rights to produce adaptations of Miller’s works
were protected activity under section 425.16, subdivision (e)(4).
The trial court separately analyzed the Miller parties’
statements about whether L’Heureux had rights to Sin City and
their statements about whether L’Heureux had rights to Hard
Boiled. On the first step of the now-familiar analysis under
section 425.16, the court ruled that the Miller parties’ statements
about L’Heureux’s Sin City rights were protected activity, but
that their statements about L’Heureux’s Hard Boiled rights were
2
not. On the second step, the trial court ruled L’Heureux
demonstrated a probability of success on most of his claims based
on the Miller parties’ statements about his rights to Sin City.
The Miller parties argue the trial court should have ruled
on the first step that both their statements about L’Heureux’s
rights to Hard Boiled, as well as the statements about
L’Heureux’s rights to Sin City, were protected activity under
section 425.16, subdivision (e)(4), while L’Heureux argues the
trial court should have ruled neither set of statements was
protected activity. We agree with the Miller parties on the first
step that they showed the statements about the production of a
Sin City television series and a Hard Boiled movie—and in
particular, the identity of the producers and others attached to
the series and the movie—were matters of public interest and
that, by stating to production studios L’Heureux had no rights to
use the works, the Miller parties participated in and furthered
the discourse, which made the issues ones of public interest. (See
FilmOn.com, Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 151
(FilmOn.com).)
On the second step of the analysis under section 425.16, the
Miller parties argue the trial court erred in ruling L’Heureux
demonstrated a probability of success on his claims based on the
Miller parties’ statements about L’Heureux’s rights to Sin City.
We again agree with the Miller parties. L’Heureux attempted to
show a probability of success by submitting a declaration
describing what a studio executive told him that she had heard
from Miller’s agent. The executive’s statement about what
Miller’s agent said was hearsay and, contrary to L’Heureux’s
contention, was not admissible as a statement against interest
under Evidence Code section 1230. Because L’Heureux does not
argue it is reasonably possible the executive would testify (or her
3
testimony would otherwise be admissible) at trial (see
Sweetwater Union High School Dist. v. Gilbane Building Co.
(2019) 6 Cal.5th 931 (Sweetwater)), and in fact argues the
opposite, the court erred in admitting the statement. Therefore,
we reverse the order denying the motion to strike the claims
relating to Sin City.
For the claims based on the Miller parties’ statements
about L’Heureux’s rights to Hard Boiled (for which the trial court
did not conduct a step-two analysis), we conclude L’Heureux
failed to show a probability of success on his causes of action for
defamation, for interference with contract, or for interference
with prospective economic advantage. L’Heureux, however, did
show a probability of success on his cause of action for breach of
the implied covenant of good faith and fair dealing—but only
against Miller, not against Frank Miller, Inc. or Thomas.
Therefore, we reverse the order with directions to enter a new
order granting the motion in part and denying it in part.
FACTUAL AND PROCEDURAL BACKGROUND
A. Miller Writes Comic Books and Wins Awards
Miller is a prominent comic book writer. He has won
several comic book industry awards, including the Comic-Con
International Icon Award.1 His Sin City comic book series has
also received several Comic-Con and other industry awards.
1 The Comic-Con convention has been held annually in San
Diego since 1970. “The convention spans several days in length
and showcases several hundred events,” including “panels of
special guests that include science fiction and fantasy authors,
film and television actors, directors, producers, and writers.
4
There have been several major motion pictures and at least
one television series based on Miller’s works. Miller codirected
and cowrote two movies based on the Sin City series: Sin City
(Dimension Films 2005) and its sequel, Sin City: A Dame to Kill
For (TWC-Dimension 2014). The first Sin City movie earned,
among other accolades, a Palme d’Or nomination at the Cannes
Film Festival and grossed over $158 million worldwide at the box
office. Miller was also an executive producer of the movie 300
(Warner Bros. Pictures 2006), an adaptation of one of his comic
book series, which grossed over $456 million worldwide at the box
office. Miller was also an executive producer of the television
series Cursed (Netflix 2020), also based on one of Miller’s comic
books.
B. L’Heureux’s Company Obtains Rights to Sin City and
an Option To Purchase the Rights to Hard Boiled
L’Heureux is a movie producer. In 2008—between the
release of the first and second Sin City movies—L’Heureux’s
company, Solipsist Films, entered an agreement with Miller to
obtain “the specific property currently entitled ‘Sin City 2’ (A
Dame to Kill For),” as well as “the characters, scenes, stories and
elements contained therein” and “all ancillary rights therein
. . . .” L’Heureux and Solipsist were among the producers of the
second Sin City movie.
In 2009 Solipsist entered into an agreement to obtain the
option, for a period of 18 months, to purchase all rights, including
[Citation.] In 2016, attendance to San Diego Comic-Con exceeded
over 135,000 attendees.” (San Diego Comic Convention v. Dan
Farr Productions (S.D.Cal. 2018) 336 F.Supp.3d 1172, 1177-
1178.)
5
film rights, to Hard Boiled, a comic book series coauthored by
Miller and Geoff Darrow. Miller signed the agreement on behalf
of a company called Empire City Inc.
At one point, Frank Miller, Inc. and Solipsist offered The
Weinstein Company (TWC) the rights to produce a television
series based on Sin City.2 However, in 2018 TWC filed for
Chapter 11 bankruptcy in the United States Bankruptcy Court
for the District of Delaware. (See In re: TWC Liquidation Trust,
LLC (Bankr.D.Del. filed March 19, 2018, No.18-10601). Miller
and Frank Miller, Inc. filed an objection in the bankruptcy
proceeding, and the bankruptcy court entered an order pursuant
to a stipulation of the parties stating that “any rights, title or
interests in the Sin City Television Series reverted prior to the
Petition Date . . . .”
C. L’Heureux Sues the Miller Parties for Obstructing His
Efforts To Produce a Sin City Television Series and a
Hard Boiled Movie
In 2020 L’Heureux filed this action against the Miller
parties alleging that, while L’Heureux was negotiating
agreements with production studios for a Sin City television
series and a Hard Boiled movie, the Miller parties falsely stated
L’Heureux did not have the rights to produce the series or the
movie. L’Heureux alleged that he had entered an agreement
with Legendary Television Productions “for the production of a
Sin City TV series,” but that the Miller parties made “false and
defamatory statements” to Legendary and others in the
2 TWC was also a producer of the second Sin City movie, and
TWC-Dimension, one of its subsidiaries, was the United States
distributor.
6
entertainment industry that “L’Heureux has no rights in or to
produce Sin City TV.” As a result of the Miller parties’
statements, L’Heureux claimed, “Legendary made a ‘revised offer’
to L’Heureux which dramatically reduced [his] compensation”
and “his involvement as a producer . . . .” L’Heureux also alleged
that, following the stipulation and order in the TWC bankruptcy
proceedings, “Miller and his representatives issued press releases
[falsely] claiming that all rights in Sin City and Sin City TV had
reverted to Miller” (but not to L’Heureux or Solipsist).
Regarding his efforts to produce a movie based on Hard
Boiled, L’Heureux alleged that, after Miller initially granted him
the option to purchase the rights to Hard Boiled for a limited
period, Miller and L’Heureux entered a new option agreement
that “extended indefinitely” L’Heureux’s option to purchase those
rights. L’Heureux alleged he entered into a separate agreement
with Miller’s coauthor, Darrow, “to develop, package, and produce
Hard Boiled.”
L’Heureux alleged that eventually he and two of his
business partners “brought the [Hard Boiled] movie project to
MGM Studios . . . .” According to L’Heureux, however, the Miller
parties “made false and defamatory statements” to MGM and
others in the entertainment industry that L’Heureux did “not
have the right to produce Hard Boiled.” L’Heureux also claimed
that Miller told MGM that he “would not sign [the] deal unless
L’Heureux did not receive a credit” and told MGM to reduce
L’Heureux’s compensation.
L’Heureux asserted causes of action against the Miller
parties for defamation, for falsely claiming L’Heureux did not
have the rights to Sin City or Hard Boiled; intentional
interference with contract, for disrupting L’Heureux’s agreement
with Legendary, as well as his partnership agreement with his
7
business partners and with his separate agreement with Darrow;
intentional and negligent interference with prospective economic
advantage, for interfering with his prospective deals with
Legendary and MGM; and breach of the implied covenant of good
faith and fair dealing, for frustrating the purposes of the
agreements granting L’Heureux the rights to produce the
Sin City and Hard Boiled adaptations.
D. The Miller Parties File a Special Motion To Strike
The Miller parties filed a special motion to strike under
section 425.16. As relevant to this appeal, the Miller parties
argued their alleged statements about L’Heureux’s rights to
Sin City and Hard Boiled constituted protected activity under
section 425,16, subdivision (e)(4). According to the Miller parties,
“the development [and] production of a Sin City television series
or Hard[ B]oiled motion picture are issues of public interest and,
indeed, have been widely reported on,” and “the alleged
defamatory statements supposedly made to studios [and]
producers . . . further[ed] the issues of public interest.” The
Miller parties submitted several articles from entertainment
news outlets discussing the possible production of a television
series based on Sin City and a movie based on Hard Boiled,
including articles about the studios and individuals involved in
the productions. Several of the articles specifically mentioned
L’Heureux and Solipsist. The Miller parties contended the press
releases stating the rights to Sin City had reverted to Miller after
the TWC bankruptcy proceeding were also protected under
section 425.16, subdivision (e)(4).
8
E. L’Heureux Opposes the Motion
L’Heureux argued the Miller parties’ statements to studio
executives and others in the entertainment industry were not
protected activity under section 425.16, subdivision (e)(4). Citing
FilmOn.com, supra, 7 Cal.5th 133, L’Heureux contended the
functional relationship between the statements and the public’s
interest in the production of a television series or movie based on
Sin City or Hard Boiled was “tenuous at best” because the Miller
parties made the statements “in private conversations to specific
individuals, rather than in the course of public discourse.”
L’Heureux also argued that, even if the statements were
protected activity, he could demonstrate a probability of success
on his claims. For the claims based on the Miller parties’
statements about L’Heureux’s rights to Sin City, L’Heureux
submitted an option agreement between Solipsist and Legendary.
Under the agreement, Legendary had a three-month option
(which Legendary extended multiple times) to purchase from
Solipsist the rights to Sin City for $1,000,000. L’Heureux
submitted a declaration describing a conversation he had with
Natalie Viscuso, an executive with Legendary. According to
L’Heureux, Viscuso told him that Miller’s agent, Ben Jacobson,
told her (Viscuso) that L’Heureux did not have any rights to
Sin City and demanded that Legendary reduce L’Heureux’s
compensation and his role as producer on the series. After the
option period ended (and after Jacobson purportedly made the
statements to Viscuso), Legendary sent Solipsist a new offer to
extend its option. Under the new offer, however, Legendary could
exercise its right to purchase the rights to Sin City for $750,000,
not $1,000,000.
In support of the claims based on the Miller parties’
statements about his rights to Hard Boiled, L’Heureux stated in
9
his declaration that in 2020 he approached the chairman of MGM
to produce a Hard Boiled movie and that MGM expressed
interest in a deal. L’Heureux also submitted a declaration from
Miller’s agent, Darren Boghosian, who stated that he told MGM
“it was Mr. Miller’s understanding that his option with Stephen
L’Heureux had expired and therefore Mr. L’Heureux had no
rights to the project” and that Miller “would therefore not agree
to a deal for his film rights if Mr. L’Heureux received producer or
other credit in the film.” L’Heureux also submitted deposition
testimony from Boghosian,3 who stated he similarly told
L’Heureux’s business partners that “the opinion of [Miller’s]
lawyers was that the option . . . had expired.” L’Heureux stated
in his declaration he “would have worked and received credit as a
producer, with significant compensation for [his] role,” had he
“finalize[d] a deal with MGM for Hard Boiled.”
F. The Miller Parties Object to L’Heureux’s Declaration
Describing What Viscuso Told Him
The Miller parties objected to L’Heureux’s description in
his declaration of what Viscuso told him about what Jacobson
told her, on the ground the statements were inadmissible
hearsay. In response to the hearsay objection, L’Heureux argued
Viscuso’s statement was admissible as a declaration against
Viscuso’s pecuniary interest under Evidence Code section 1230
(section 1230). L’Heureux stated that Viscuso told him she
“feared business repercussions if she voluntarily signed a
declaration stating what Mr. Jacobson told her” because she “still
3 The trial court granted L’Heureux’s motion under
section 425.16, subdivision (g), to take the Boghosian’s deposition
on limited topics.
10
works in the entertainment industry” and disclosing what
Jacobson told her “could impact her ability to work on projects”
with the Miller parties “or those in the industry who are loyal to
or under [their] control . . . in the future.” L’Heureux argued the
statement therefore “threaten[ed] the loss of [Viscuso’s]
employment, or reduce[d] the chances for future employment.”
Significantly, L’Heureux did not contend that there was any
possibility Viscuso would testify at trial or that he would take her
deposition in the United Kingdom and seek to have her testimony
admitted at trial.
G. The Trial Court Denies the Motion on Most of the
Claims
In ruling on the motion, the trial court considered three
separate sets of allegations on which L’Heureux’s claims were
based, two relating to Sin City and one relating to Hard Boiled.
The court’s grouping of claims was: (1) the Miller parties’
statements to Legendary about L’Heureux’s rights to Sin City;
(2) the Miller parties’ alleged press releases stating the rights to
Sin City reverted to Miller following the TWC bankruptcy
proceeding; and (3) the Miller parties’ statements to MGM about
L’Heureux’s rights to Hard Boiled.
On the first step of the analysis under section 425.16, the
court ruled the Miller parties met their burden to show the first
two sets of allegations described activity protected under
section 425.16, subdivision (e)(4). The court ruled the Miller
parties demonstrated “the production of a Sin City television
series . . . constitute[d] a matter of public interest” because
Sin City was “a critically acclaimed and commercially successful
graphic novel and motion picture” and there was “significant
public interest and speculation about the production” of the
11
potential television series. The court further ruled the Miller
parties, both by making statements to individuals about
L’Heureux’s rights and by issuing press releases, participated in
or furthered the discourse about an issue of public interest.
For the third set of allegations—the Miller parties’
statements about L’Heureux’s rights to Hard Boiled—the court
ruled the Miller parties did not meet their burden to show the
statements were protected under section 425.16. The court,
however, only considered whether the statements were protected
under section 425.16, subdivision (e)(1) and (2), as statements
made in connection with anticipated litigation. The court did not
consider whether the Miller parties’ statements were protected
under section 425.16, subdivision (e)(4), even though the Miller
parties also moved to strike the allegations on that ground.
On the second step of the analysis, the court ruled
L’Heureux met his burden to show a probability of success on
most of his causes of action based on the Miller parties’
statements to individuals in the entertainment industry about
L’Heureux’s Sin City rights. The trial court overruled the Miller
parties’ objection to L’Heureux’s statement in his declaration that
repeated what Viscuso told him Jacobson told her. The court
ruled L’Heureux showed Jacobson’s statement to Viscuso that
L’Heureux had no rights to Sin City (1) was a false statement
that damaged L’Heureux’s reputation (defamation); (2) disrupted
L’Heureux’s agreement and future economic benefit with
Legendary (interference with contract and prospective economic
advantage); and (3) frustrated the purposes of the agreement
granting L’Heureux the rights to Sin City (breach of the implied
covenant of good faith and fair dealing). The court ruled,
however, L’Heureux did not show Thomas was a party to the
contract granting L’Heuruex the Sin City rights or any other
12
contract. Therefore, the court ruled, L’Heureux did not show a
probability of success on his cause of action against Thomas for
breach of the implied covenant of good faith and fair dealing.
The court did not separately consider whether L’Heureux
demonstrated a probability of success on any causes of actions
based on the Miller parties’ alleged press releases.4 Ultimately,
the court granted the special motion to strike the cause of action
for breach of the implied covenant of good faith and fair dealing
based on the Miller parties’ statements about Sin City, against
Thomas only. The court denied the motion on the remaining
claims.
DISCUSSION
A. Applicable Law and Standard of Review
“Pursuant to section 425.16, a party may file a special
motion to strike a cause of action or particular claims underlying
a cause of action that arise from activity protected by
[section 425.16]. The moving party ‘must establish that the
challenged claim arises from activity protected by section 425.16’;
if the moving party does so, ‘the burden shifts’ to the nonmoving
party ‘to demonstrate the merit of the claim by establishing a
4 Although it is not entirely clear, it appears that in
conducting the second step of analysis the court assumed the
Miller parties’ statements to individuals about L’Heureux’s
Sin City rights and the Miller parties’ press releases gave rise to
a single claim, for which L’Heureux could meet his burden by
showing a probability of success based on either set of
allegations.
13
probability of success.’” (Olson v. Doe (2022) 12 Cal.5th 669, 679;
see Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
Analysis of a special motion to strike under section 425.16
“is not confined to evaluating whether an entire cause of action,
as pleaded by the plaintiff, arises from protected activity or has
merit. Instead, courts should analyze each claim for relief—each
act or set of acts supplying a basis for relief, of which there may
be several in a single pleaded cause of action—to determine
whether the acts are protected and, if so, whether the claim they
give rise to has the requisite degree of merit to survive the
motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1010 (Bonni); see Baral v. Schnitt, supra, 1 Cal.5th at
pp. 393-395.)
“To succeed in opposing a special motion to strike the
nonmoving party must ‘demonstrate both that the claim is legally
sufficient and that there is sufficient evidence to establish a
prima facie case with respect to the claim.’” (Olson v. Doe, supra,
12 Cal.5th at p. 679; see Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 788.) The Supreme Court has “‘described this
second step as a “summary-judgment-like procedure.” [Citation.]
The court does not weigh evidence or resolve conflicting factual
claims. . . . It accepts the plaintiff’s evidence as true, and
evaluates the defendant’s showing only to determine if it defeats
the plaintiff’s claim as a matter of law. [Citation.] “[C]laims with
the requisite minimal merit may proceed.”’” (Monster Energy, at
p. 788; see Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 891.)
We review de novo a trial court’s order granting or denying
a special motion to strike under section 425.16. (Monster Energy
Co. v. Schechter, supra, 7 Cal.5th at p. 788; Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
14
1067 (Park).) “We exercise independent judgment in determining
whether, based on our own review of the record, the challenged
claims arise from protected activity. [Citations.] In addition to
the pleadings, we may consider affidavits concerning the facts
upon which liability is based.” (Park, at p. 1067; see Li v. Jin
(2022) 83 Cal.App.5th 481, 490.)
B. The Trial Court Erred In Denying the Motion To
Strike the Allegations About the Press Releases
The Miller parties first contend the trial court erred by not
striking the allegations the Miller parties issued press releases
stating the rights to Sin City reverted to Miller following the
TWC bankruptcy proceeding. They argue the trial court correctly
ruled the press releases were protected activity under section
425.16, but erred in failing to consider whether L’Heuruex
showed a probability of success on any claims arising from the
press releases. The Miller parties also argue L’Heureux did not
show a probability of success because he did not submit any
evidence of press releases issued by the Miller parties. (See
Sweetwater, supra, 6 Cal.5th at pp. 940, 679 [“As to the second
step inquiry, a plaintiff seeking to demonstrate the merit of the
claim ‘may not rely solely on its complaint, even if verified;
instead, its proof must be made upon competent admissible
evidence.’”].)
L’Heureux does not dispute that the press releases were
protected under section 425.16 or that he failed to demonstrate a
probability of success on any claim based on the press releases.
Instead, L’Heureux contends that none of his causes of action
arises “from statements made in press releases” because the
press releases only “provided context and background in
15
understanding the history and relationship between the parties.”
L’Heureux’s view of his allegations is incorrect.
Special motions to strike “may only target claims ‘arising
from’” activity protected under section 425.16. (Park, supra,2 Cal.5th at p. 1062.) A claim does not arise from protected
activity when the “activity merely provides evidentiary support or
context for the claim.” (Rand Resources, LLC v. City of Carson
(2019) 6 Cal.5th 610, 621.) Rather, a “claim arises from protected
activity when that activity . . . ‘gives rise to [the defendants’]
asserted liability . . . .’” (Park, at pp. 1062-1063.) To determine
what activity gives rise to the defendant’s asserted liability,
“courts must ‘consider the elements of the challenged claim and
what actions by the defendant supply those elements . . . .’”
(Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 884;
see Bonni, supra, 11 Cal.5th at p. 1015.) “If conduct that supplies
a necessary element of a claim is protected, the defendant’s
burden at the first step of the . . . analysis has been carried . . . .”
(Wilson, at p. 718.)
The Miller parties’ press releases did not merely provide
background or context; the press releases supplied elements of
(at least) his causes of action for defamation, interference with
contract, and interference with prospective economic advantage.
L’Heureux alleged that the Miller parties “issued false and
misleading press releases within the past two years regarding
L’Heureux’s rights in Sin City and Sin City TV” and that “these
press releases were untrue and were made by [the Miller parties]
to interfere with L’Heureux’s relationship and contractual
agreements with Miller [and] Legendary, . . . to damage
L’Heureux’s reputation in the entertainment industry and to
further harm L’Heureux’s relationships with other prospective
clients and his ability to produce future projects.” L’Heureux
16
incorporated these allegations into each of his causes of action.
The press releases were some of the allegedly false publications
L’Heureux claimed defamed him (see Taus v. Loftus (2007)
40 Cal.4th 683, 720 [elements of defamation (include “(a) a
publication that is (b) false”])5 and some of the acts that
interfered with his contracts and economic relationships (see
Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1141
[element of intentional interference with contract is “‘intentional
acts designed to induce a breach or disruption of the contractual
relationship’”]; Roy Allan Slurry Seal, Inc. v. American Asphalt
South, Inc. (2017) 2 Cal.5th 505, 512 [element of intentional
inference with prospective economic advantage is “intentionally
wrongful acts designed to disrupt the [economic] relationship”].)
L’Heureux similarly alleged, in support of his negligent
interference with prospective economic advantage cause of action,
5 Although the press releases may not have been defamatory
on their face, L’Heureux claimed they had a meaning or
“innuendo” that made them defamatory. (See Smith v.
Maldonado (1999) 72 Cal.App.4th 637, 645; see also Washer v.
Bank of America Nat. Trust & Savings Assn. (1943) 21 Cal.2d
822, 828 [“[t]he office of an innuendo is to declare what the words
meant to those to whom they were published,” and an “innuendo
. . . is necessary where the words used are susceptible of either a
defamatory or an innocent interpretation”], disapproved on
another ground in MacLeod v. Tribune Pub. Co. (1959) 52 Cal.2d
536, 551; Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th
1217, 1226-1227 [“if the reader would be able to recognize a
defamatory meaning only by virtue of his or her knowledge of
specific facts and circumstances, extrinsic to the publication,
which are not matters of common knowledge rationally
attributable to all reasonable persons, then . . . the libel cannot be
libel per se but will be libel per quod”].)
17
the Miller parties “committed wrongful acts, including but not
limited to . . . issuing the press releases alleged herein, which
acts disrupted L’Heureux’s economic relationship under the
existing agreements as alleged . . . .”
Because L’Heureux alleged the Miller parties’ liability
arose from the press releases, he cannot now reframe the
allegations as simply contextual background. If L’Heureux
“wishes to abandon” his claims based on the press releases, “he
may seek to do so in an appropriate forum. But for present
purposes, we will assume his complaint means what it says.”
(Bonni, supra, 11 Cal.5th at p. 1017; see JKC3H8 v. Colton (2013)
221 Cal.App.4th 468, 477-478 [plaintiff “may not seek to subvert
or avoid a ruling” a ruling on a special motion to strike under
section 425.16 “by amending the challenged complaint . . .
in response to the motion].) Because L’Heureux did not submit
any evidence showing the Miller parties issued any press
releases, let alone defamatory ones, the trial court erred in
denying the special motion to strike these allegations.
C. The Statements About L’Heureux’s Sin City and
Hard Boiled Rights Were Protected Activity Under
Subdivision (e)(4)
Section 425.16 defines four categories of protected activity.
(See § 425.16, subd. (e).) Section 425.16, subdivision (e)(4),
commonly referred to as the “catchall provision” (Geiser v. Kuhns
(2022) 13 Cal.5th 1238, 1243 (Geiser), protects “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.” As the Supreme Court explained in FilmOn.com,
supra, 7 Cal.5th 133, the “inquiry under the catchall provision . . .
calls for a two-part analysis . . . .” (Id. at p. 149; see Geiser, at
18
p. 1249.) “[W]e first ‘ask what “public issue or [ ] issue of public
interest”’ is implicated by the challenged activity. [Citation.]
Second, we look to the ‘functional relationship’ between the
challenged activity and the ‘public conversation’ about that issue,
and ask whether the activity ‘“contribute[s]”’ to public discussion
of the issue.” (Geiser, at p. 1250; see FilmOn.com, at pp. 149-
150.) “‘[I]it is not enough that the statement refer to a subject of
widespread public interest; the statement must in some manner
itself contribute’” to the public discussion of the issue.
(FilmOn.com, supra, 7 Cal.5th at p. 150; see Bishop v. The
Bishop’s School (2022) 86 Cal.App.5th 893, 905 (Bishop).)
1. The Statements Implicated an Issue of Public
Interest
The Miller parties contend the trial court correctly ruled
the production of a Sin City television series was an issue of
public interest, but erred in ruling the production of a Hard
Boiled movie was not an issue of public interest. They are right
on both contentions.
“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’ [citation]; and whether the
activity ‘occur[red] in the context of an ongoing controversy,
dispute or discussion’ [citation], or ‘affect[ed] a community in a
manner similar to that of a governmental entity.’” (Filmon.com,
Inc., supra, 7 Cal.5th at pp. 145-146; see Bishop, supra,
86 Cal.App.5th at p. 905.) The “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
19
issue, even if it also implicates a private dispute. Only when an
expressive activity, viewed in context, cannot reasonably be
understood as implicating a public issue does” a special motion to
strike under section 425.16 fail at the first step of the
FilmOn.com analysis. (Geiser, supra, 13 Cal.5th at pp. 1253-
1254.)
The production of both a Sin City series and Hard Boiled
movie can reasonably be understood to implicate public issues.
The Miller parties demonstrated Miller was a person in the
public eye—at least in the comic book and entertainment
industries. He and his comic books won multiple industry
awards. Miller’s works have been adapted into major motion
pictures and a television series that reached wide audiences, and
Miller was a director or producer of several of the productions.
The production of either the series or the movie would also
affect a large number of people. Both the Hard Boiled comic book
series and the Sin City comic book series generated significant
interest in the comic book and entertainment industries. Miller
and Darrow won a Comic-Con Eisner Award for Hard Boiled, and
Miller won multiple Eisner Awards and Harvey Awards for
several of the comic book issues in the Sin City series. Sin City
was also adapted into two major motion pictures codirected by
Miller, one of which was commercially successful. And the
studios interested in obtaining the rights to the television series
and movie, Legendary and MGM, produce major motion pictures
that reach wide audiences.
Finally, the Miller parties demonstrated that several
entertainment media publications and websites had reported, on
several occasions, on the production of both a Sin City television
series and a Hard Boiled movie. (See Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [“the creation
20
and broadcasting” of an episode for a popular television show was
“an issue of public interest because the public was demonstrably
interested in the creation and broadcasting of that episode”].)
Several digital and print magazines and news websites reported
that Miller regained the rights to produce a Sin City television
series from TWC following the TWC bankruptcy proceeding.
Multiple entertainment and cable television websites reported on
a potential deal for Legendary to produce the series. Several
media outlets and film industry websites also reported that
Miller was working on a movie adaptation of Hard Boiled and
that (before MGM) Warner Bros. was trying to acquire the rights
to produce the movie.
2. The Statements Contributed to the Public
Discussion of the Issues of Public Interest
The closer question is whether the Miller parties’
statements to Legendary, MGM, and others that L’Heureux had
no rights to Hard Boiled or Sin City satisfied the second step of
the FilmOn.com analysis; that is, whether the statements
contributed to public discussion of the issues of public interest.
In the circumstances of this case, they did.
As the Supreme Court explained in Filmon.com, supra,
7 Cal.5th 133: “What it means” to contribute to public discussion
“will perhaps differ based on the state of public discourse at a
given time, and the topic of contention. But ultimately, our
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
21
an issue one of public interest.” (Id. at pp. 150-151.) “In
conducting this inquiry, we ‘must consider the particular context
of the speech, including the speaker’s identity; the “purpose” of
the speech; the nature of the audience and the intended audience;
and the “timing” and “location” of the communication.’” (Bishop,
supra, 86 Cal.App.5th at p. 906; see Murray v. Tran (2020)
55 Cal.App.5th 10, 30.)
Filmon.com, supra, 7 Cal.5th 133, for example, involved a
dispute between a company that provided internet-based
entertainment content (FilmOn) and a company that collected
information about websites for its clients to use for targeted
advertisements (DoubleVerify). (Id. at p. 141.) FilmOn sued
DoubleVerify after DoubleVerify sent confidential reports to its
clients classifying some material on FilmOn’s websites as “Adult
Content” and “Copyright Infringement.” (Id. at pp. 141-142.)
The Supreme Court held that, although the presence of adult
content and copyright-infringing material on the internet
generally may have been issues of public interest, DoubleVerify’s
reports did not constitute protected activity under section 425.16,
subdivision (e)(4), because they did not further the public’s
conversation about those issues. The Supreme Court explained
that “DoubleVerify issue[d] its reports not to the wider public . . .
but privately, to a coterie of paying clients. Those clients, in
turn, use the information DoubleVerify provides for their
business purposes alone. The information never entered the
public sphere, and the parties never intended it to.” (Filmon.com,
at pp. 153-154.)
L’Heureux focuses on the fact that the Miller parties made
the statements that L’Heureux had no rights to Sin City or Hard
Boiled to “a private network of individuals” as part of a “business
dispute” involving “Hollywood insiders,” not to the public at
22
large. That the defendant communicated the challenged
statements privately “makes heavier [the defendant’s] burden of
showing that, notwithstanding the private context, the alleged
statements nevertheless contributed to discussion or resolution of
a public issue for purposes of subdivision (e)(4).” (Wilson v. Cable
News Network, supra, 7 Cal.5th at p. 903; see Musero v. Creative
Arts Agency, LLC (2021) 72 Cal.App.5th 802, 821.) And, like the
reports in FilmOn.com., the Miller parties’ statements at least
partially served business purposes—the Miller parties made the
statements during negotiations with Legendary and MGM.
Other contextual factors, however, show that this is one of
those circumstances where, notwithstanding the private nature
of the statements, the Miller parties “participated in, or
furthered, the discourse” (FilmOn.com, supra, 7 Cal.5th at p. 151)
that made the production of a Sin City television series or a Hard
Boiled movie one of public interest. This is not a situation where
the defendant is offering “a ‘synecdoche theory’ of public interest”
under section 425.16 by “defining [a] narrow dispute by its slight
reference to [a] broader public issue.” (Id. at p. 153; see Wilson v.
Cable News Network, supra, 7 Cal.5th at p. 902.) The Miller
parties showed not only that there was public interest in the
production of movies and television shows generally, or even in
Miller and his works generally, but also that there was public
interest specifically in the production of both a Sin City television
series and Hard Boiled movie. (See Geiser v. Kuhns, supra,
13 Cal.5th at p. 1250 [determination of the public interest
implicated by the statements “operates as a lens that focuses the
analysis at the second step”].)
Moreover, the Miller parties showed there was public
interest in which studios and which specific individuals were
working on a Sin City television series and a Hard Boiled movie,
23
including in the involvement of L’Heureux and Solipsist in the
projects. For example, the Miller parties submitted a 2013 article
from an entertainment news publication discussing a potential
Hard Boiled movie that stated L’Heureux and Solipsist were
among the collaborators. The Miller parties also submitted two
2016 articles from an entertainment news outlet stating that
Warner Bros. was trying to produce the movie and that the movie
would be a coproduction with Solipsist and L’Heureux, among
others. The Miller parties submitted a 2017 article from an
entertainment news media publication stating that TWC-
Dimension was developing a Sin City television series and that
L’Heureux would be a producer. And the Miller parties
submitted a 2019 article discussing the agreement for Legendary
to produce the television series, which stated L’Heureux would be
an executive producer with Miller. Each article mentioned
L’Heureux’s prior production of the second Sin City movie.
The Miller parties’ statements that L’Heureux had no
rights to produce the television series and the movie thus had a
close connection to the specific issue in which the public was
interested. That distinguishes this case from FilmOn.com and
other cases where courts have held the statements were only
marginally related to issues of public interest. (Cf. FilmOn.com,
supra, 7 Cal.5th at p. 153 [“[t]hat DoubleVerify identifies FilmOn
as falling within certain categories . . . tells us nothing of how
that identification relates to the issues of copyright and adult
content”]; Musero v. Creative Artists Agency, LLC, supra,72 Cal.App.5th at p. 821 [while “a proposed television series
. . . based on the life of former Attorney General Holder . . . would
be a topic of widespread public interest,” private discussions
between writer and talent agents “[c]ommunicating the general
idea of a legal drama . . . involving the Attorney General and
24
prosecutors in the Department of Justice” were not protected
activity because they were “not closely linked to any ongoing
public interest that might exist with respect to former Attorney
General Holder”]; Dyer v. Childress (2007) 147 Cal.App.4th 1273,
1280-1281 [although a documentary film “address[ed] topics of
widespread public interest,” alleged misuse of plaintiff’s persona
in the film was not protected because there was “no discernable
public interest in [plaintiff’s] persona”].)
Finally, the identity of the speakers, the purpose of the
statements, and the nature of the audience (see Bishop, supra,
86 Cal.App.5th at p. 906) all showed the Miller parties
participated in the discourse that made the issues of public
interest. The people who stated L’Heureux had no rights to
Sin City or Hard Boiled were not random people. They were
agents of Miller, the creator of the works. One would expect
comments from a prominent creator about adaptations of his
(also prominent) works to generate public interest. The
audiences were major motion picture studios interested in
producing adaptations for a wide audience. And at least one
purpose of the statements was to prevent L’Heureux and
Solipsist from influencing the creation of the movie or the
television series that would ultimately reach the public. By
making statements about whom they wanted involved in the
production, the Miller parties participated in the developments of
a potential movie and television series that had already
generated public interest and that, if produced, would be topics of
public discussion. (See Ojjeh v. Brown (2019) 43 Cal.App.5th
1027, 1043 [producers’ “discussions to make a feature
documentary film” were in connection with an issue of public
interest, even though the film had not been completed, because
“the proposed documentary was speech activity intended for ‘the
25
public sphere’” [citation] and defendants’ work thereon
constituted an “attempt to participate in a larger public
discussion”].)
D. L’Heureux Failed To Show a Probability of Success on
His Claims Based on the Miller Parties’ Statements
About L’Heureux’s Rights to Sin City
L’Heureux submitted only one piece of evidence to show the
Miller parties made statements about his rights to Sin City:
L’Heureux’s statement in his declaration that Viscuso, an
executive at Legendary, told him that Miller’s agent, Jacobson,
told her that Miller had no rights and demanded Legendary
reduce L’Heureux’s compensation. The Miller parties contend
the trial court erred in overruling their hearsay objection to this
statement.6
In Sweetwater, supra, 6 Cal.5th 931 the Supreme Court
addressed what evidence is admissible for purposes of
determining whether a plaintiff has shown a probability of
6 The Miller parties describe the statement as “triple
hearsay,” presumably because it was (1) L’Heureux’s statement
in his declaration (2) about what Viscuso told him (3) about what
Jacobson told her. The description is not accurate. The first level
is L’Heureux’s declaration; that’s admissible. (See § 425.16, subd.
(b)(2) [in ruling on special motion to strike, “the court shall
consider . . . affidavits stating the facts upon which the liability
. . . is based”].) The third level is not hearsay. L’Heureux did not
offer Jacobson’s purported statement to Viscuso for the truth of
what Jacobson stated. (See Evid. Code, § 1200.) L’Heureux
offered the statement to show what Jacobson said about
L’Heureux (and indeed, intends to prove what he said was false).
It is only the second level—what Viscuso told L’Heureux—that is
potentially inadmissible hearsay.
26
success. The Supreme Court distinguished “between evidence
that may be admissible at trial and evidence that could never be
admitted.” (Id. at p. 948.) The Supreme Court explained that
courts “may consider affidavits, declarations, and their
equivalents if it is reasonably possible the proffered evidence set
out in those statements will be admissible at trial. Conversely, if
the evidence relied upon cannot be admitted at trial, because it is
categorically barred or undisputed factual circumstances show
inadmissibility, the court may not consider it in the face of an
objection. If an evidentiary objection is made, the plaintiff may
attempt to cure the asserted defect or demonstrate the defect is
curable.” (Id. at p. 949; see Musero v. Creative Arts Agency, LLC,
supra, 72 Cal.App.5th at p. 816, fn. 6; Harris v. Thomas Dee
Engineering Co. (2021) 68 Cal.App.5th 594, 603.)
In response to the Miller parties’ hearsay objection,
L’Heureux did not argue the trial court could consider Viscuso’s
statement because it was reasonably possible that Viscuso would
testify at trial or that he would go to Europe, take her deposition,
and present her deposition testimony. (Cf. Sweetwater, supra,
6 Cal.5th at p. 949 [trial court may consider statements in grand
jury testimony and plea forms because the “signers of those
documents or other competent witnesses could testify at trial”
and “[t]hat live testimony would supplant any improper reliance
on hearsay”].) Nor does L’Heureux argue on appeal the hearsay
defect is curable because Viscuso may eventually testify. To the
contrary, L’Heureux maintains that Viscuso, who lives in the
United Kingdom, is unavailable to testify at trial (because she is
beyond the court’s subpoena power) and that she is unwilling to
repeat the statement she made to L’Heureux because she fears
business repercussions. As he did in the trial court, L’Heureux
argues only that the court may consider Viscuso’s statement to
27
him because it is admissible as a declaration against interest
under section 1230.
We generally review the trial court’s evidentiary rulings on
a special motion to strike under section 425.16 for abuse of
discretion (Winslett v. 1811 27th Avenue, LLC (2018)
26 Cal.App.5th 239, 246; Klem v. Access Ins. Co. (2017)
17 Cal.App.5th 595, 606), including whether a statement is
admissible under section 1230 (People v. McDaniel (2021)
12 Cal.5th 97, 132; People v. Grimes (2016) 1 Cal.5th 698, 711).
“Whether a trial court has correctly construed section 1230 is,
however, a question of law that we review de novo.” (Grimes, at
p. 712.)
Section 1230 provides: “[E]vidence of a statement by a
declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable
as a witness and the statement, when made, was so far contrary
to the declarant’s pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability, or so far
tended to render invalid a claim by him against another, or
created such a risk of making him an object of hatred, ridicule, or
social disgrace in the community, that a reasonable man in his
position would not have made the statement unless he believed it
to be true.” L’Heureux contends that Viscuso, by telling him
what Jacobson told her, “put [her] pecuniary and financial
interests at risk” by “jeopardiz[ing] her ability to work with [the
Miller parties] and those loyal” to Miller. The Miller parties
argue that, for the exception to apply, “it is not sufficient that the
mere making of the statement” was against the declarant’s
interest because of the circumstances; rather, the “facts contained
in the statement” must be against the declarant’s interest as
well. According to the Miller parties, that Jacobson said Miller
28
had no rights to Sin City was not against Viscuso’s interest. The
Miller parties have the better argument, and the trial court erred
in overruling their hearsay objection.
In In re Weber (1974) 11 Cal.3d 703 (Weber) the petitioner
in a habeas proceeding sought to introduce an out-of-court
statement from another inmate who was unavailable to testify.
The inmate stated his cellmate told him that he (the cellmate)
framed the petitioner by giving perjured testimony during the
petitioner’s trial. (Id. at pp. 711, 721.) The petitioner argued the
inmate’s statement about what his cellmate said was admissible
under section 1230 as a statement that created a risk of making
the declarant an object of hatred, ridicule, or social disgrace in
the community. (Weber, at p. 721.) According to the petitioner,
by making the statement the inmate “became a ‘snitch’ within
the prison community” and therefore “‘assumed the risk of the
ultimate sanction’” (presumably death). (Ibid.) The Supreme
Court held that the statement was not admissible under
section 1230. The Supreme Court explained that, “in order for a
declaration to be against the declarant’s social interest to such an
extent that it becomes admissible under section 1230 of the
Evidence Code, both the content of the statement and the fact
that the statement was made must be against the declarant’s
social interest.” (Weber, at p. 722.)
A similar analysis applies here. L’Heuruex is essentially
arguing that, if Viscuso were to disclose what Jacobson told her,
she would risk future business opportunities because she would
have “broke[n] a confidence” and “betray[ed] the trust placed in
[her]” by Miller and his agents, causing Miller and others to
refuse to work with her. However, the “content of the
statement”—that Jacobson said L’Heureux had no rights in
Sin City—was not contrary to Viscuso’s pecuniary interest.
29
Therefore, under Weber the hearsay exception in section 1230
does not apply.
L’Heureux contends the rule in Weber is limited to the
exception under section 1230 for a statement against social
interest. Although the Supreme Court in Weber specifically
analyzed the exception under section 1230 for a statement
against social interest, there is no principled reason not to apply
the same reasoning to the exception under section 1230 for a
statement against pecuniary interest—at least where the
purported reason the statement is against the declarant’s
interest is because the declarant risks consequences of breaking
confidences. As the Supreme Court explained, if section 1230
were not limited to situations where the content of the statement
was against the declarant’s social interest, “each time a witness
broke a confidence, he could claim that . . . by betraying the trust
placed in him, he had incurred social opprobrium.” (Weber,
supra, 11 Cal.3d at p. 722.) Similarly, under L’Heureux’s theory,
each time a witness (like Viscuso) broke a confidence with any
person who worked in the same industry as the witness, the
person seeking to introduce the statement could claim the
witness risked losing future business opportunities. Indeed, the
risk the witness faced in Weber by betraying his former cellmate’s
confidences (death or bodily injury by the cellmate or the
cellmate’s “immediate friends” (Weber, at p. 722) in prison) was
far greater than the remote risk Viscuso faced by telling
L’Heureux about the statements by Miller’s agent (losing the
possibility of working with Miller in the future).
In addition, in holding that both the content of the
statement and the fact the statement was made must be against
the declarant’s social interest, the Supreme Court cited the
following rule from Wigmore’s treatise: “‘It must be remembered
30
that it is not merely the statement that must be against interest,
but the Fact stated. It is because the fact is against interest that
the open and deliberate mention of it is likely to be true.’”
(Weber, supra, 11 Cal.3d at p. 722, citing Wigmore, Evidence
(3d ed. 1940) § 1462, p. 26.) Wigmore did not limit the rule to the
exception for statements against social interest. Rather,
Wigmore labeled the hearsay exception analogous to section 1230
as “statement of facts against interest” and explained the “basis
of the exception is the principle of experience that a statement
asserting a fact distinctly against one’s interest is unlikely to be
deliberately false or heedlessly incorrect . . . .” (5 Wigmore,
Evidence (Chadbourn ed. 1972) §§ 1455, 1458, pp. 324-325; 329-
330; see People v. Johnson (1974) 39 Cal.App.3d 749, 761; People
v. Traylor (1972) 23 Cal.App.3d 323, 331; see also State v.
Fredette (Me. 1983) 462 A.2d 17, 22 [citing Weber and Wigmore’s
treatise for the proposition that “[i]t is irrelevant whether the
statement of fact could tend to create liability; it is the fact stated
which must be against interest”].)
Finally, even if section 1230 extended to some
circumstances where the fact the declarant made a statement,
but not the facts in the statement, was against the declarant’s
pecuniary interest, the trial court abused its discretion in
overruling the Miller parties’ objection here. Under section 1230
an out-of-court statement is admissible only “if the statement,
when made, was so far against the declarant’s interests, penal or
otherwise, that a reasonable person would not have made the
statement unless he or she believed it to be true.’ [Citation.] The
focus of the declaration against interest exception to the hearsay
rule is the basic trustworthiness of the declaration.” (People v.
McDaniel, supra, 12 Cal.5th at p. 132; see People v. Westerfield
(2019) 6 Cal.5th 632, 704.) Even under L’Heureux’s
31
understanding of section 1230, the potential adverse
consequences to Viscuso of making the statement were too
remote and speculative, and the statement lacked sufficient
indicia of trustworthiness, to make it admissible.
The parties cite little authority addressing the exception for
statements against pecuniary interest. The exception
traditionally applies when the declarant admits a debt. (See, e.g.,
Dodd v. Cantwell (1960) 179 Cal.App.2d 727, 729, 732 [ranch
owner’s statement to ranch hands that she would pay their back
wages after selling the ranch was an admission of a debt and
therefore a declaration against interest]; Newby v. Gibson (1935)
6 Cal.App.2d 359 [declarant’s admissions that he owed an
individual $10,000 and that he instructed his attorney to carry
out a settlement agreement resolving the debt was an admission
against pecuniary interest]; Wegner et al., Cal. Practice Guide:
Civil Trials & Evidence (The Rutter Group 2022) ¶ 8:1299
[a “statement is against the declarant’s pecuniary . . . interest if it
acknowledges a detrimental change in the declarant’s position
regarding a debt”].) In Cheal v. El Camino Hospital (2014)
223 Cal.App.4th 736 (Cheal) the court applied the exception to an
admission that jeopardized a person’s employment. There,
a hospital supervisor told her friend “that she favored younger
and pregnant workers, and that she was concerned about this
treatment being noticed.” (Id. at pp. 755, 757.) The court stated
a “supervisor’s statement that she ‘favors’ one class of employees,
potentially at the expense of a protected class, creates a . . . risk
of future economic loss” because, “if publicly known, it would
expose her employer to liability and jeopardize her own present
and future employment.” (Id. at p. 757; see Gichner v. Antonio
Troiano Tile & Marble Co. (D.C.Cir. 1969) 410 F.2d 238, 242
[a “statement is against pecuniary and proprietary interest when
32
it threatens the loss of employment, or reduces the chances for
future employment”].)
L’Heureux contends Viscuso’s statement about what
Jacobson told her similarly reduced her chance for future
employment. The risk that Viscuso’s statement would affect her
future employment, however, was too remote for the exception to
apply. In Cheal the supervisor directly admitted to wrongdoing
that, if known, could cause her employer to terminate her
employment and would likely deter future employers from hiring
her. In contrast, Viscuso did not admit to any wrongdoing. She
merely expressed concern that, if she signed a declaration
attesting to what Jacobson told her, it “could impact her ability to
work on projects” (italics added) with Miller or others close to him
in the future. Moreover, there is no reason to believe Viscuso is
ever likely to work with Miller in the future. According to
L’Heureux’s evidence, Viscuso no longer works at Legendary, the
studio that once negotiated with Miller to produce a Sin City
television series. There is no evidence Viscuso has an
independent relationship with Miller. And while L’Heureux
stated in his declaration Viscuso still works in the
“entertainment industry,” there is no evidence what her current
position is or that she works at a company that might do business
with Miller in the future. (Cf. People v. Chhoun (2021) 11 Cal.5th
1, 48 [“potential consequences” of an inmate’s belated admissions
about his crime on his chance for parole or on a motion for new
trial “were too speculative or remote to impinge on penal
interest” for purposes of section 1230].)
In addition, Viscuso’s statement to L’Heureux about what
Jacobson purportedly told her did not evidence the same level of
trustworthiness the supervisor’s statement in Cheal did. In
Cheal the supervisor made the statement to her friend. As the
33
court in Cheal observed, courts generally find “a strong assurance
of trustworthiness in the circumstance that a statement was
made in a ‘“conversation . . . between friends in a noncoercive
setting that fosters uninhibited disclosures.”’” (Cheal, supra,
223 Cal.App.4th at p. 760; see People v. Tran (2013)
215 Cal.App.4th 1207, 1217.) The court in Cheal also stated “the
statement’s evident purpose . . . was to enlist [the friend’s]
cooperation in concealing” her favoritism, which suggested the
supervisor “was conscious of the damaging potential her
favoritism, if established, could have.” (Cheal, at p. 760.) Here,
Viscuso made the statement to L’Heureux either while Legendary
was negotiating with L’Heureux and Miller for a valuable
production deal or after the deal had fallen through.7 Discussions
between parties on opposite ends of potential business deal do not
foster the same uninhibited disclosures as conversations between
friends. Nor was there any evidence about why Viscuso made the
statement to L’Heureux, and thus whether she may have an
incentive to be less than forthcoming or withhold details of her
conversation with Jacobson.
Therefore, the trial court abused its discretion in admitting
Viscuso’s statement over the Miller parties’ hearsay objection.
Because L’Heureux did not submit any other evidence to show
the Miller parties made statements about his Sin City rights,
L’Heureux did not show a probability of success on the claims
arising from those statements.
7 L’Heureux does not state when Viscuso told him about the
conversation.
34
E. L’Heureux Showed a Probability of Success on Some
but Not All of His Claims Arising from the Miller
Parties’ Statements About His Rights to Hard Boiled
1. L’Heureux Did Not Show a Probability of
Success on His Cause of Action for Defamation
a. Applicable Law
The elements of defamation are “‘“(a) a publication that is
(b) false, (c) defamatory, and (d) unprivileged, and that (e) has a
natural tendency to injure or that causes special damage.”’”
(Taus v. Loftus, supra, 40 Cal.4th at p. 720; accord, Bishop,
supra, 86 Cal.App.5th at p. 909.) To show the Miller parties
made a false publication, L’Heureux relied on the statement by
Miller’s agent Boghosian to MGM that “it was Mr. Miller’s
understanding that [the] option with Stephen L’Heureux had
expired and therefore that Mr. L’Heureux had no rights” to
produce a movie based on Hard Boiled. The Miller parties argue
the statement was an opinion about an unsettled legal dispute,
which is not a provably false assertion of fact.
“‘Because [a defamatory] statement must contain a
provable falsehood, courts distinguish between statements of fact
and statements of opinion for purposes of defamation liability.’”
(Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1163; see Taus v.
Loftus, supra, 40 Cal.4th at p. 720; Bishop, supra, 86 Cal.App.5th
at p. 909.) “Statements of opinion, however, do not enjoy blanket
protection. [Citation.] Rather, ‘a statement that implies a false
assertion of fact, even if couched as an opinion, can be actionable.’
[Citation.] The dispositive question is not whether a statement
is fact or opinion, but ‘whether a reasonable fact finder could
conclude the published statement declares or implies a provably
35
false assertion of fact.’” (Dickinson, at p. 1163; see
ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 624;
Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418,
427.) The same analysis applies to legal conclusions. (See
Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006)
140 Cal.App.4th 515, 527; Ruiz v. Harbor View Community Assn.
(2005) 134 Cal.App.4th 1456, 1471 (Ruiz).)
“‘We apply a “‘totality of the circumstances’” test to
determine . . . whether a statement declares or implies a provably
false factual assertion; that is, courts look to the words of the
statement itself and the context in which the statement was
made.’ [Citation.] Under this test, ‘“‘[f]irst, the language of the
statement is examined. For words to be defamatory, they must
be understood in a defamatory sense . . . . [¶] Next, the context
in which the statement was made must be considered.’”’” (Balla
v. Hall (2021) 59 Cal.App.5th 652 ,678; see Baker v. Los Angeles
Herald Examiner (1986) 42 Cal.3d 254, 260-261; Dickinson v.
Cosby, supra, 37 Cal.App.5th at p. 1163.) “Whether a statement
declares or implies a provably false assertion of fact is generally a
question of law to be decided by a court.” (Bishop, supra,
86 Cal.App.5th at p. 910; see Balla, at p. 678; Issa v. Applegate
(2019) 31 Cal.App.5th 698 ,703.)
b. L’Heuruex Did Not Show Boghosian’s
Statement Implied False Facts
Boghosian qualified his statement to MGM about
L’Heureux’s rights by stating it was Miller’s “understanding” that
L’Heureux’s option to produce a Hard Boiled movie had “expired.”
That Boghosian qualified his statement as Miller’s
“understanding” suggests Boghosian was expressing an opinion
based on a potentially unsettled set of facts. (See Baker v.
36
Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 261-262
[“When one states a view in terms of an ‘impression,’ the listener
or reader is on notice that the maker is not vouching for its
accuracy. A reasonable person would understand that a
statement of opinion rather than of fact was to follow.”].)
That, however, is not the end of the analysis. There is no
evidence in the record Boghosian explained to anyone at MGM
with whom he spoke the basis for Miller’s opinion L’Heureux’s
rights had expired. Where “‘an opinion in form or context, is
apparently based on facts regarding the plaintiff or his conduct
that have not been stated by the defendant,’” the opinion may
still “‘give[ ] rise to the inference that there are undisclosed
facts that justify the forming of the opinion . . . .’” (John Doe 2 v.
Superior Court (2016) 1 Cal.App.5th 1300, 1314.) “‘[A]n opinion
based on implied, undisclosed facts is actionable if the speaker
has no factual basis for the opinion.’” (Bently Reserve LP v.
Papaliolios, supra, 218 Cal.App.4th at p. 429; see Ruiz, supra,
134 Cal.App.4th at p. 1471 [same]; Rest.2d Torts, § 566,
com. (c)(4) [“If the defendant expresses a derogatory opinion
without disclosing the facts on which it is based, he is subject to
liability if the comment creates the reasonable inference that the
opinion is justified by the existence of unexpressed defamatory
facts.”].)
Boghosian stated that L’Heureux’s option rights had
expired, presumably during discussions with MGM about
whether to produce the movie; according to Boghosian, the
purpose of the statement was to prevent L’Heureux from
receiving any production credit and to see if there was a way to
“get [the production] moving. There is no indication, for example,
Boghosian made the statement during an impassioned “rant” or
“diatribe” (Bently Reserve LP v. Papaliolios, supra,
37
218 Cal.App.4th at p. 433) or intended the statement as
hyperbole (see Baker v. Los Angeles Herald Examiner, supra,
42 Cal.3d at p. 267 [statements “‘being used in a metaphorical,
exaggerated or . . . fantastic sense’ . . . did not imply the existence
of any undisclosed facts”]). Therefore, a jury could reasonably
find Boghosian’s statement implied Miller was aware of specific,
undisclosed facts supporting his understanding that L’Heureux’s
rights had expired. (See Ruiz, supra, 134 Cal.App.4th at p. 1472
[“statements that [a lawyer] acted unconscionably and in
violation of his ethical duties as a lawyer [were] not mere
hyperbole, epithet, or ‘subjective expressions of disapproval,
devoid of any factual content’”].)
The problem for L’Heureux, however, is that he did not
submit evidence showing the facts implied by Boghosian’s
statement were false—i.e., that there was no factual basis for
Miller’s opinion. For example, had Miller signed an agreement
unambiguously granting L’Heuruex the option to purchase the
rights during the time he was negotiating with MGM, Miller’s
statement may have had no factual basis. The evidence
submitted by the parties, however, was to the contrary. The
latest written option agreement between Solipsist and Miller’s
company, Empire City, Inc., was from 2009. The agreement gave
Solipsist 18 months to acquire the rights to Hard Boiled and the
ability to extend the option term an additional 18 months.
Boghosian’s discussions with MGM were in 2020, well after the
option term described in the written agreement expired. And
while L’Heureux stated in his declaration that Miller orally
agreed to extend the option rights indefinitely, counsel for Miller
sent counsel for L’Heureux a letter in 2018—prior to Boghosian’s
discussions with MGM—stating the Miller parties’ position that
any oral agreement to extend the agreement was invalid under
38
the Copyright Act of 1976 (see 17 U.S.C § 204) (an issue we will
discuss shortly). (See Integrated Healthcare Holdings, Inc. v.
Fitzgibbons, supra, 140 Cal.App.4th at p. 529 [even if the court
were to construe an individual’s assertion that the company was
“going bankrupt” as “implying undisclosed facts, it would still not
constitute actionable libel because [the company] failed to provide
competent evidence that it was not headed toward bankruptcy at
the time [the individual] sent his email”]; Vogel v. Felice (2005)
127 Cal.App.4th 1006, 1021 [while statements that one plaintiff
was a “deadbeat dad” and the other was “bankrupt, drunk, and
‘[c]hewin’ tobaccy’” were “capable of conveying a provably false
factual imputation,” the plaintiffs did not show a probability of
success “because they failed to make a prima facie showing that
the statements were substantially false”].)
L’Heureux’s primary arguments for why Boghosian’s
statement was a false assertion of fact are that the Miller parties
are wrong about the Copyright Act and that whether L’Heureux
had the rights to Hard Boiled ultimately depended on “facts
regarding Miller’s unavailability during the option period and his
oral agreements to extend the option.” True enough: The
resolution of most legal disputes in some way depends on
applying law to facts. But for L’Heureux to prove defamation, it
is not enough to show Miller’s “understanding” that L’Heureux’s
legal rights expired was, as a matter of law, incorrect. (See
Coastal Abstract Service, Inc. v. First American Title Ins. Co.
(9th Cir. 1999) 173 F.3d. 725, 731 [“Absent a clear and
unambiguous ruling from a court or agency of competent
jurisdiction, statements by laypersons that purport to interpret
the meaning of a statute or regulation are opinion statements,
and not statements of fact.”]; see also Savage v. Pacific Gas &
Electric Co. (1993) 21 Cal.App.4th 434, 445 [A statement that a
39
journalist had a conflict of interest was not actionable because
“[t]he determination of a conflict of interest involves . . . an
application of an ethical standard to facts, reflecting the exercise
of judgment. The judgment may, of course, be reasonable or
unreasonable; but whatever quality may be attributed to it, the
expressed belief in the existence of a conflict of interest . . .
[cannot] be proved to be true or false.”].) L’Heureux had to show
Miller’s conclusion implied facts that were false—i.e., that Miller
had no factual basis for his conclusion. (See Hughes v. Hughes
(2004) 122 Cal.App.4th 931, 937 [if an “unfavorable comment
implies the existence of facts that justify the terms in which [the
speaker] has described the person of whom he spoke, it is the
truth of these facts that is to be determined”]; Rest.2d Torts,
§ 566, com. (f) [“In the case of a derogatory comment implying the
existence of undisclosed facts that justify the opinion, it is the
truth or falsity of these facts that is in issue.”].) L’Heureux did
not do that. (See Integrated Healthcare Holdings v. Fitzgibbons,
supra, 140 Cal.App.4th at p. 529 [in evaluating whether a
plaintiff met his burden of showing a probability of success in
opposition to a special motion to strike under section 425.16,
courts “will not engage in a leap of faith that, despite [the
plaintiff’s] inadequate evidentiary showing in opposition,” the
plaintiff “will present substantial evidence supporting its
defamation claim”].)
2. L’Heureux Did Not Show a Probability of
Success on His Causes of Action for Interference
with Prospective Economic Advantage
A “plaintiff seeking to recover for alleged interference with
prospective economic relations has the burden of pleading and
proving that the defendant’s interference was wrongful ‘by some
40
measure beyond the fact of the interference itself.’” (Della Penna
v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-
393; see Korea Supply Co. v. Lockheed Martin Corp. (2003)
29 Cal.4th 1134, 1158; Redfearn v. Trader Joe’s Co. (2018)
20 Cal.App.5th 989, 1005.) “‘[A]n act is independently wrongful if
it is unlawful, that is, if it is proscribed by some constitutional,
statutory, regulatory, common law, or other determinable legal
standard.’” (Ixchel Pharma, LLC v. Biogen, Inc., supra, 9 Cal.5th
at p. 1142; see Korea Supply Co., at p. 1159; Redfearn, at
p. 1006.)
Like for his defamation claim, L’Heureux relied on
Boghosian’s statement to MGM that L’Heureux’s option rights
had expired to show the Miller parties interfered with his
economic relationship with MGM. He contends the statement
was independently wrongful because it was defamatory.
L’Heureux does not offer any other ground for why the statement
was independently wrongful. As discussed, however, Boghosian’s
statement was not defamatory. Therefore, L’Heureux failed to
show a probability of success on these causes of action.
3. L’Heureux Did Not Show a Probability of
Success on His Cause of Action for Interference
with Contract
Interference with contractual relations requires “(1) the
existence of a valid contract between the plaintiff and a third
party; (2) the defendant’s knowledge of that contract; (3) the
defendant’s intentional acts designed to induce a breach or
disruption of the contractual relationship; (4) actual breach or
disruption of the contractual relationship; and (5) resulting
damage.” (Ixchel Pharma, LLC v. Biogen, Inc., supra, 9 Cal.5th
at p. 1141.) L’Heureux stated in his declaration he had a
41
partnership agreement with two other producers, Gianni
Nunnari and Bernie Goldmann, to produce a Hard Boiled movie.
He contended Boghosian’s demands to MGM that he (L’Heureux)
receive no production credit on the movie disrupted the
agreement. L’Heureux also stated in his declaration he had a
separate agreement with Darrow, Miller’s Hard Boiled coauthor,
granting L’Heureux the rights to produce the movie. L’Heureux
submitted a declaration from Mark Lichtman, Darrow’s manager
(and Miller’s manager before 2014), who stated that, during the
negotiations with MGM, Thomas (Frank Miller, Inc.’s chief
executive officer) “harass[ed] Mr. Darrow,” “tried to pressure Mr.
Darrow to break his agreement with Mr. L’Heureux,” and asked
“Mr. Darrow to pressure Mr. L’Heureux to step aside.”
The Miller parties argued that, regardless of whether they
disrupted the agreements, L’Heureux did not show the alleged
interference caused him any damages. L’Heureux’s only evidence
of damages was his statement that, had he finalized a deal with
MGM to produce a Hard Boiled movie, he would have “received
credit as a producer, with significant compensation for [his] role
. . . .” This was not enough to show prima facie showing of
damages resulting from the disruption of the agreements.
To make a prima facie showing on his interference with
contract claim, L’Heureux had to show more than that the Miller
parties’ actions caused him some damage; he had to show
damages “resulting” from the breach or disruption of his specific
agreements with Nunnari and Goldmann, or with Darrow.
(Ixchel Pharma, LLC v. Biogen, Inc., supra, 9 Cal.5th at p. 1141;
see Zimmerman v. Bank of America of Nat. Trust and Savings
Assn. (1961) 191 Cal.App.2d 55, 57 [for interference with either
contract or prospective economic advantage, the “actionable
wrong lies in the inducement to break the contract or to sever the
42
relationship,” and the “essence” of the tort is “a disruption of the
relationship”].) In other words, L’Heureux had to make a prima
facie showing the disruption of those agreements was a
substantial factor in causing his alleged damages. (See Harh v.
Diaz-Barba (2011) 194 Cal.App.4th 1177, 1196 [a breach or
disruption of the plaintiff’s contract is a “cause of injury, damage,
loss or harm” if it “is a substantial factor in bringing about [the]
injury, damage, loss or harm”]; Franklin v. Dynamic Details, Inc.
(2004) 116 Cal.App.4th 375, 391 [same]; see also Greathouse v.
Amcord, Inc. (1995) 35 Cal.App.4th 831, 837 [the “Supreme Court
has . . . definitively adopted the substantial factor test of
causation for tort liability”].)
L’Heureux, however, did not present evidence or explain
how the purported disruption of his agreements with Nunnari
and Goldmann, or with Darrow, was a substantial factor in
preventing the MGM deal from moving forward. For example,
had L’Heureux presented evidence Darrow sabotaged the MGM
deal by objecting to L’Heureux’s involvement after Thomas made
the statement to Darrow about L’Heureux, the disruption of the
L’Heureux-Darrow agreement may have been a substantial factor
in L’Heureux’s lost compensation from the MGM deal. There was
no evidence, however, Thomas’s statements to Darrow affected
Darrow’s conduct during the MGM negotiations. Similarly, there
was no evidence Boghosian’s efforts to prevent L’Heureux from
receiving production credit affected Nunnari’s or Goldmann’s
efforts to finalize a deal. The evidence was that the reason the
MGM deal did not go forward was that Miller and MGM did not
agree to the deal. While the Miller parties’ conduct may have
contributed to L’Heureux’s lost compensation from the MGM deal
(for example, because it disrupted the relationship between
L’Heureux and MGM), it was not because their conduct disrupted
43
his agreements with Nunnari and Goldmann or with Darrow.
(See Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at
p. 394 [sales representative failed to show a triable issue of
material fact regarding whether the defendant’s emails interfered
with his contracts with his vendors because “a trier of fact could
not draw a reasonable inference” the defendant’s emails to
vendors “were a substantial factor in bringing about [the sales
representative’s] lost business merely because the emails
preceded the loss”].)
4. L’Heureux Showed a Probability of Success on
His Cause of Action for Breach of the Implied
Covenant of Good Faith and Fair Dealing
Against Miller, but Not Against the Other
Defendants
“‘“Every contract imposes upon each party a duty of good
faith and fair dealing in its performance and its enforcement.”’
. . . . [¶] The covenant of good faith finds particular application
in situations where one party is invested with a discretionary
power affecting the rights of another. Such power must be
exercised in good faith.” (Carma Developers (Cal.), Inc. v.
Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371-
372; see Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th
230, 252.) “The covenant operates ‘“as a supplement to the
express contractual covenants, to prevent a contracting party
from engaging in conduct which (while not technically
transgressing the express covenants) frustrates the other
party’s rights to the benefits of the contract.”’” (Cobb v. Ironwood
Country Club (2015) 233 Cal.App.4th 960, 966; see Ojjeh v.
Brown, supra, 43 Cal.App.5th at p. 1037; Thrifty Payless, Inc. v.
The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230,
44
1244.) “A breach of the implied covenant of good faith is a breach
of the contract . . . .” (Thrifty Payless, at p. 730; accord, Digerati
Holdings, LLC v. Young Money Entertainment, LLC (2011)
194 Cal.App.4th 873, 885; see Archdale v. American Internat.
Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 468
[covenant of good faith and fair dealing “is an implied-in-law
term of the contract and its breach will necessarily result in a
breach of the contract”].)
L’Heureux showed a probability of success on his cause of
action against Miller for breach of the implied covenant, based on
Miller’s statements about L’Heureux’s rights to Hard Boiled.
L’Heureux submitted the 2009 agreement between Solipsist and
Empire, Inc. (one of Miller’s companies) granting Solipsist an
18-month option to purchase Hard Boiled. He stated in his
declaration that Miller’s agent, Lichtman, extended the option
agreement on behalf of Miller “in perpetuity,” in exchange for
L’Heureux’s promise to continue working to produce the movie
and for “being flexible” with Miller’s inability to meet his
obligations under the option agreement because of personal
issues. Lichtman confirmed in his declaration that he made the
offer to L’Heureux and that L’Heureux accepted. L’Heureux
showed Miller frustrated the purposes of the agreement when
Boghosian told MGM that L’Heureux’s option rights had expired
and that Miller would not agree to a deal if L’Heureux received
producer credit. And L’Heureux showed he was harmed by
Miller’s breach. L’Heureux submitted an email from Miller’s
attorney stating MGM had made an offer for the rights to Hard
Boiled, which Miller had initially agreed to accept. And as
discussed, L’Heureux stated in his declaration he would receive
(at least some) compensation under the deal.
45
The Miller parties do not challenge most of L’Heureux’s
showing. They only contest whether Miller and Frank Miller,
Inc. were parties to the agreement that gave L’Heureux the
option to purchase Hard Boiled. According to the Miller parties,
it was Empire, Inc.—not Miller or Frank Miller, Inc.—that signed
the agreement granting Solipsist the option; therefore, Miller and
Frank Miller, Inc. cannot be liable for any breach of an implied
covenant in the option agreement. This argument works for
Frank Miller, Inc., but not for Miller.
In his declaration L’Heureux stated that Lichtman told him
that “Mr. Miller would agree to extend my option to produce
Hard Boiled . . . .” Lichtman similarly stated that L’Heureux
“accepted Mr. Miller’s offer to extend his option to produce Hard
Boiled . . . .” A reasonable inference from L’Heureux’s and
Lichtman’s declarations is that, when Miller “extended” the
option agreement, he was personally offering L’Heureux the
option to purchase the rights to Hard Boiled under the terms of
the earlier agreement between Solipsist and Empire, Inc. (See
Jenni Rivera Enterprises, LLC v. Latin World Entertainment
Holdings (2019) 36 Cal.App.5th 766, 781 [“[e]vidence supporting
a reasonable inference may establish a prima facie case” under
the second step of the section 425.16 analysis].) Therefore,
L’Heureux met his burden to present prima facie evidence Miller
was a party to the agreement granting L’Heureux the Hard
Boiled rights. On the other hand, the Miller parties are correct
that L’Heureux offered no evidence tying Frank Miller, Inc. to the
agreement. Therefore, L’Heureux failed to show a probability of
success against Frank Miller, Inc.8
8 L’Heureux concedes he did not demonstrate a probability of
success against Thomas on this cause of action.
46
The Miller parties also argue Miller’s purported agreement
to extend L’Heureux’s option rights was not enforceable under
section 204(a) of the Copyright Act of 1976, which provides: “A
transfer of copyright ownership, other than by operation of law, is
not valid unless an instrument of conveyance, or a note or
memorandum of the transfer, is in writing and signed by the
owner of the rights conveyed or such owner’s duly authorized
agent.” (17 U.S.C. § 204(a).) Citing a treatise on copyright law
(2 Patry on Copyright, § 5:125) (but no cases), L’Heureux argues
section 204 does not apply to an “‘unexercised option agreement
whether revocable or nonrevocable.’”
Given the parties’ limited argument, we decline to resolve
this issue of federal copyright law at this stage of the
proceedings. The Copyright Act defines a “transfer of copyright
ownership” as “an assignment, mortgage, exclusive license, or
any other conveyance, alienation, or hypothecation of a copyright
or of any of the exclusive rights comprised in a copyright,
whether or not it is limited in time or place of effect, but
not including a nonexclusive license.” (17 U.S.C. § 101.) Other
than citing the applicable code sections, the Miller parties offer
little argument regarding why the specific option agreement at
issue here would qualify as a transfer of copyright ownership
under the Copyright Act. While their conclusion may ultimately
be correct, the Miller parties did not meet their burden to show
the agreement was unenforceable. (See Sloan v. Hiatt (1966)
245 Cal.App.2d 926, 934 [invalidity is generally a defense to an
action based on a contract]; Pappas v. Delis (1947) 79 Cal.App.2d
392, 398 [party seeking to avoid a contract generally bears
burden of showing a contract is void].)
47
DISPOSITION
The order is reversed. The trial court is directed to vacate
its order and enter a new order granting the special motion to
strike under section 425.16 in part and denying it in part. The
court is directed to enter a new order that (1) strikes all
allegations of the Miller parties’ press releases and the Miller
parties’ statements about L’Heureux’s rights to Sin City;
(2) strikes 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) strikes the fifth cause of
action for breach of the implied covenant of good faith and fair
dealing against Frank Miller, Inc. and Thomas (but not Miller).
The Miller parties are to recover their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
48