Norman v. Ross ( 2024 )

Filed 4/23/24
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
HAYLEY MARIE NORMAN, B316971 consolidated with
B326626
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. 20STCV35711)
TRACEE ELLIS ROSS et al.,
Defendants and Appellants.
HAYLEY MARIE NORMAN,
Plaintiff and Appellant,
v.
TRACEE ELLIS ROSS et al.,
Defendants and Respondents.
*Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of part D of the Discussion.
APPEAL from judgments and an order of the Superior
Court of Los Angeles County, Laura A. Seigle, Judge. The
judgments are affirmed; the order is reversed and the matter is
remanded with instructions.
Plonsker Law Group, Michael J. Plonsker and Rex D.
Glensy for Plaintiff and Appellant and for Plaintiff and
Respondent.
Mitchell Silberberg & Knupp, Elaine K. Kim, Yakub
Hazzard for Defendants and Appellants and for Defendants and
Respondents.
INTRODUCTION
Plaintiff Hayley Marie Norman filed a complaint alleging
that her idea for a television series was stolen by defendants
Tracee Ellis Ross, Artists First, Kenya Barris, Brian Dobbins,
Touchstone Productions dba ABC Studios (ABC), and Big
Breakfast LLC. Norman alleged her idea for a series—which she
intended to star in, write for, and produce—was turned into a
sitcom by defendants without her permission or involvement.
Defendants contend the sitcom, a spinoff of an existing television
series, was not based on Norman’s ideas.
Norman filed a complaint alleging breach of implied-in-fact
contract, breach of confidence, promissory estoppel, and other
claims. The defendants filed special motions to strike under Code
of Civil Procedure, section 425.16, the anti-SLAPP statute. 1 The
1 All further undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” stands for “strategic lawsuits
against public participation.” (FilmOn.com Inc. v. DoubleVerify
Inc. (2019) 7 Cal.5th 133, 139.) Big Breakfast did not file an anti-
SLAPP motion, and is not a party to this appeal.
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trial court granted the motions in full as to Barris, Dobbins, and
ABC; the court denied the motions in part as to Ross and Artists
First. The parties cross-appealed the court’s order.
Upon de novo review, we find that all of Norman’s claims
arise from protected activity, and the trial court erred in holding
that parts of Norman’s claims against Ross and Artists First did
not. We further find that Norman failed to demonstrate a
probability of success on her causes of action. Thus, we find that
the special motions to strike should have been granted in full. As
such, we reverse and remand the court’s order as it pertains to
Ross and Artists First.
Defendants moved for attorney fees following the special
motion to strike, and the trial court granted the motion in part,
awarding defendants less than 30 percent of the fees they
requested. Norman separately appealed after judgments were
entered in favor of Barris, Dobbins, and ABC. She contends the
trial court erred in not reducing the fee award even further. We
deny defendants’ motion to dismiss this appeal, find that the
award was not an abuse of discretion, and therefore affirm the
judgments entered in favor of Barris, Dobbins, and ABC.
BACKGROUND
A. Factual background
This case is at the pleadings stage, and therefore the facts
are not fully developed. The parties did, however, present a
significant amount of evidence in support of the anti-SLAPP
motions and oppositions. For purposes of this appeal, the
following facts are largely undisputed.
1. Black-ish and the character of Bow
Defendant Kenya Barris created the television show Black-
ish, which first aired in 2014. It is a 30-minute sitcom that
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portrays a family headed by father Andre (Dre) and mother
Rainbow (Bow) Johnson. Bow, played by defendant Tracee Ellis
Ross, is biracial, and the show includes themes relating to Bow’s
experiences as a mixed-race woman. Barris stated in a
declaration that the character of Bow “was inspired by my wife,
Dr. Rania ‘Rainbow’ Barris, who is biracial with a black mother
and a white father.” Barris also stated that the character Bow’s
“mother Alicia is black and her father Paul is white, and they
were hippies who raised Bow, and her younger siblings Johan
and Santamonica, in a commune or ‘cult’ before it got raided by
the government. As a result, Bow does not share the same
cultural background and experiences as her husband Dre, who
grew up in an urban black neighborhood and has two black
parents. Dre and his parents Pops and Ruby do not view Bow as
‘really’ black, while white people see Bow as a black woman.”
The character of Bow was introduced in the pilot episode of
Black-ish, which aired in September 2014. In the opening
moments, Dre, in a voiceover, introduced himself and Bow,
describing her as a doctor and a “pigment-challenged mixed-race
woman.” In the second episode, Dre commented that Bow “grew
up in a house full of naked hippies.”
Bow’s parents, Paul and Alicia, were introduced in season
1, episode 16, titled “Parental Guidance,” which aired in March
2015. The parents were portrayed as hippies, driving an RV that
“runs on vegetable oil and animal waste,” encouraging Dre to
warm his “heart with the light from within,” and talking about
their past participation in civil rights marches. Several episodes
of Black-ish portray the culture clash between Bow’s hippie
parents and Dre’s black family, and/or the white side of Bow’s
family and Dre’s black family. Bow’s brother Johan became a
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regular character in season 3 of Black-ish, and their sister
Santamonica appeared in one episode in season 3.
2. “Being Bow-racial”
Bow’s experiences with her racial identity were directly
addressed in Black-ish season 3 episode 8, “Being Bow-racial,”
which aired in November 2016. In that episode, Bow and Dre’s
son, Junior, came home with his new girlfriend Megan, who was
white. Bow had a strong reaction to seeing Junior with a white
girlfriend. In a voiceover, Bow explained the history of mixed-
race children in America, including the children of slaves and
white owners. She stated that Loving v. Virginia (1967) 388 U.S.
1 (Loving) officially held that states could no longer prohibit
interracial marriage, which resulted in skyrocketing rates of
biracial births and “more people with an identity crisis who don’t
even know what to call themselves, and are always asking,
‘Where do I fit in?’”
The episode shifted back to the present, and Dre’s mother
suggested to Bow that she can’t like Junior’s girlfriend “if you
don’t even like yourself. And you don’t even know who you are.”
Later, Bow’s brother, Johan, suggested to Bow that she always
had “an identity issue.” The episode flashed back to Bow as a
child, played by a child actor. Bow was in school, holding a pencil
and looking at a registration form trying to figure out which
“race” box to check. Young Bow asked the black teacher walking
by, “How come there’s not a box for both?” The teacher
responded, “Baby, you’d better check black.”
Returning to the present, Bow said to Johan, “It was
confusing! Didn’t you ever struggle with which box to check? I
mean if you check one, you’re denying a whole part of yourself.”
In a later scene Bow told Johan, “I’ve been confused most of my
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life. Do you remember me in high school?” The scene flashed back
to teenage Bow played by Ross, looking and talking like a
character from the film Clueless (Paramount Pictures 1995),
walking down a school hallway with several white peers. In the
present, Bow told Johan, “I couldn’t help it though! I mean, that’s
who we grew up around. Those were my friends.” Johan asked
skeptically, “Were they?” The scene cut back to the high school
flashback, where a white friend told teenage Bow, “You should
like, totally audition for the theater this year. We could really
use some strong black actors.” Bow looked uncomfortable at the
mention of her race, but agreed. The flashback then cut to a
school production of The Wizard of Oz, with Bow playing the part
of a flying monkey being rolled across the stage on a cart.
Back in the present, Johan asked Bow why she agreed to
play a flying monkey. Bow replied, “Admittedly, mistakes were
made. But if you were in that situation you just—you over-
compensate. You do what you can to fit in.” Bow continued, “In
college, with my black friends, I went in hella hard.” Again the
scene flashed back, this time to Bow in college. She was wearing
sunglasses, large hoop earrings, and a shirt that revealed her
midriff. Bow approached a picnic table where several black
friends were seated and called out, “What up y’all? Oh!” while
gesturing with her arms. Bow then awkwardly danced and
launched into a rap of her name.
Returning to the present, Johan told Bow it was no big deal
that she “leaned into a few dumb stereotypes to try to get people’s
approval. Everybody does it.” Bow responded, “Yeah, but not
everybody is pulled into day-to-day situations where they’re
forced to pick a side.” The scene flashed back again, this time to
Bow sitting in the middle of a couch. A group of black young
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adults was sitting and standing to one side of her, and a group of
white young adults was on the other side. They were watching a
television on which the O.J. Simpson verdict was about to be
read. When the not guilty verdict was announced, Bow initially
turned to the black side of the room and joined their cheers.
However, she quickly turned to the white side of the room, saw
their looks of shock and disappointment, and changed her
expression. Back in the present, Bow said to Johan, “I’m so
confused.”
Bow decided to talk with her white father, Paul, at his RV.
Bow told him she felt uncomfortable about Junior having a white
girlfriend, and they discussed her confusion about her racial
identity. Bow noted that Paul was white, and said she did not
want to deny that half of herself. Paul suggested that because
Bow had a black husband and a “black family,” Junior choosing a
white girlfriend “feels like a rejection.” Bow responded, “Exactly.
That’s exactly it.” Paul reassured Bow, “you know who you are.”
Bow nodded and responded, “I know who I am. Thank you.” As
the scene ended with Paul and Bow hugging, Bow said in a
voiceover, “So there it was—I had to go back to my past to look at
my future.”
3. Norman’s development of Tragic
Norman stated in a declaration that she began to develop a
comedy television series in 2014 or 2015 “based on my own
experiences growing up as a mixed-race woman in the suburbs.”
Initially calling the series Mixed, she developed a treatment that
she filed with the Writers Guild of America in 2016. Norman’s
series idea was later called Tragic and The Girl With the Hair.
For ease of reference, we will refer to Norman’s proposed series
as Tragic.
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In August 2017, Norman approached defendant production
company Big Breakfast about selling or producing Tragic.
Norman worked with producer Jillian Vogel, sending Vogel
information about Tragic. 2 In some of the early pitches Norman
developed for the series, she described the show as “Arrested
Development meets Blackish,” and an “earnest, yet un-PC
comedy about a biracial woman’s fight to find acceptance in both
her very White home and very Black workspace.” The show was
supposed to be a fictionalized version of Norman’s own life, with
Norman as the star.
Norman asserts that she sent these materials to Vogel and
Big Breakfast “with the understanding that pursuant to the
custom and practice of the entertainment industry, they would be
kept confidential and not used without payment to me.” Norman
proposed Tragic as a series that she would write for, star in,
produce, and “be compensated for all with appropriate credits.”
Norman and Vogel continued collaborating to develop ideas
for Tragic. It was suggested that a “mixed-race celebrity” could
get involved as a producer, and Norman thought Ross would be a
good fit. Vogel told Norman that Big Breakfast’s parent
company, Electus, was a “majority stake holder” in defendant
management company Artists First, and the companies
sometimes worked together. Vogel told Norman that once the
Tragic “deck” was done, “I’ll be sharing with our managers at
[Artists First] – they know of EP [executive producer] level talent
who may be interested in attaching” to the project.
2 The series idea went through several iterations; the early
versions that were never shared with defendants are not
described in detail here.
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In October 2017, Vogel sent the deck for Tragic to
defendant Brian Dobbins, who was Ross’s manager through
Artists First; Dobbins forwarded the materials to Ross. The
Tragic deck Dobbins received described the series as “an honest
and irreverent look at ‘post-racial America’ told by Hayley Marie
Norman, a biracial comedian who unabashedly confronts her
identity in everyday interactions.” The character Hayley “grew
up not even knowing she was black. Living in the mayonnaise-
white suburb of Agoura Hills will do that to a girl. Although
she’s forced to visit her parents back home in Agoura Hills often,
Hayley now lives with her fiancé Sam in the newly labeled East
Hollywood, a.k.a Little Armenia.”
As for the “tone” of the show, the deck described Tragic as
“an off-kilter comedy series that presents an unflinching, self-
deprecating depiction of the minutiae of Hayley’s everyday life as
a biracial woman, and the predicaments she gets herself into
with her friends, family, and complete strangers.” Hayley was to
be a millennial “who lives in the grey area of ‘Feeling extremely
self-confident,’ and ‘Waking up at 4AM to delete all the stupid
shit you said on Instagram when you were feeling yourself.’” The
deck described other characters including Hayley’s white mother,
black father, white half-sister, aunts, fiancé, and best friend. The
deck included a meme-style picture, presumably of Norman as a
child, with messy hair escaping an off-center ponytail. The
picture included the words, “when ur mom is white and does ur
hair for class picture day.”
The deck stated that each episode of Tragic would start
with a flashback to the life of “Young Hayley”: “Every episode
begins with a flashback into Hayley’s uniquely diverse and
comically misguided coming of age (i.e.[, t]he time her elementary
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school teacher wouldn’t let her choose both black and white on a
standardized test . . . ).” In one plot idea, a neighbor watches
Young Hayley as she enters another neighbor’s house to water
the plants. In the present day, Hayley is shopping for wedding
dresses and accuses a salesperson of following her because she’s
black; a video about the incident goes viral. Another episode’s
plot involves Christmas; in flashbacks, Young Hayley’s white
family takes her to see a white Santa Claus and her black family
takes her to see a black Santa Claus. In the present day,
Hayley’s family gets upset when Hayley says she is not a
Christian. In a third episode, Young Hayley runs for fifth grade
class president, but another student tells her black girls can’t be
president. In the present day, “Hayley lectures all of her white
friends on the importance of boycotting the Oscars for being
#SoWhite, but then gets totallyyyy FOMO when none of them
invite her to their viewing parties.” In a fourth episode, Young
Hayley gets detention for talking even though she is not the
culprit. In the present day, Hayley is arrested for trying to take
down a Confederate statue, and Hayley’s sister “starts an Etsy
business with ‘Free Hayley’ t-shirts.” The “season arc” includes
an engagement party with Hayley’s and Sam’s families; “Hayley’s
too outspoken, the families clash, a fight erupts, and Hayley and
Sam are forced to take opposite sides. . . . [Hayley will]
impulsively call off the wedding.”
In November 2017, Norman and Big Breakfast entered into
an agreement, the “Term Sheet,” to develop Tragic and sell it to a
broadcaster, network, distributor, or other financier. Ross then
got involved to help develop the project. Norman and Ross first
met in January 2018 to discuss ideas about Tragic; throughout
2018, Norman had conversations with Ross, Dobbins, and Vogel
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about developing Tragic. In March 2018, Ross and Big Breakfast
entered into a written agreement stating that Ross would assist
with the development of Tragic, and in return would be attached
to the series as an executive producer if it was set up with a
financier.
In November 2018, a revised version of Tragic (now titled
The Girl With the Hair) was prepared to pitch to financiers. 3 In
the revised version of the deck, Norman introduced herself/her
character: “I’m Hayley Marie Norman, The Girl With The Hair,”
and described herself as “a biracial woman in a not-so-post-racial
America, torn between two very different identities, but ever
hopeful that I’ll eventually discover common ground with my
family, friends and, more often than you’d expect, complete
strangers!” The deck stated that Hayley was raised by her single,
white mother “in a conservative, homogenous Los Angeles
suburb,” “Nobody in Agoura Hills, or even my own house for that
matter, looked like me,” and “I didn’t even know I was black!”
The show was to focus on “Hayley’s personal exploration of
‘belonging’ [which] will, naturally, bring up racially charged
social interactions that are ripe for commentary.” The show
would be “driven by Hayley’s comically honest, and immensely
personal, experiences. [¶] The series is Curb Your Enthusiasm
. . . if Larry David was lovable. And half-black. And larger than
life.”
Hayley’s white mother was to be a “neurotic[ ]
catastrophizer” who lives with a long-term boyfriend. Hayley’s
black father was to be an unreliable “sweetheart” who loves
gambling. Hayley’s fiancé, Sam, was to be a musician and former
3 Multiple versions of a deck are included with Norman’s
declaration, but it is unclear which one was the final version.
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addict who is “very white.” The deck asked, “[C]an Hayley really
claim that she’s pro-black when her own fiancé is white? Even
her pussy is colonized!” One episode proposal suggested that
Sam, a former heroin addict, was curious about trying ayahuasca;
Hayley tries it and has a bad trip. Hayley’s half-sister, who in
the revised version of the deck is a black character named
Jazmyn, “has a quick wit and is Black Twitter famous”; she’s
“eager to date but can’t seem to find a black man she doesn’t
think is a ‘fucknigga.’” Ross was to play a fairy godmother and
mentor who “materializes, Cheshire Cat style—hair first, then
the rest of her fills out.”
Again the deck stated that each episode would begin with a
flashback to Hayley’s “comically misguided coming of age,” such
as “the time her elementary school teacher wouldn’t let her
choose both the black and white race boxes on a standardized
exam.” One episode idea was described in detail. The episode
would begin with a flashback in which Hayley’s white friends
were shoplifting at a drug store, but Hayley was detained for it.
In the present day, Hayley uses a lipstick at a store that is not a
tester, and when a sales associate confronts her, Hayley says she
didn’t do it and “go[es] on an epic rant . . . about the epidemic and
dangers of not believing black women.” Hayley then lies about
having a medical condition in an audition in an attempt to land
the part of a “real patient” in a commercial. Another episode
includes the class president/Oscars idea described above, but
with Hayley’s black half-sister Jazmyn stepping in to show
Hayley “all the best classic black films that Hayley missed out on
in her childhood (and which she’s spent her whole life pretending
to have seen . . . ).” A third episode idea includes Hayley being
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“forced to spend Thanksgiving with Sam’s Trump supporting
Evangelical family in the corn fields of Illinois.”
A written discussion portion of the pitch included a
conversation-style narrative about the show, including jokes,
among Ross, Norman, and others. In it, Norman stated that
when she discussed the show idea with Ross, Ross “told me that
she too has struggled with the same identity issues I struggle
with and that every person who doesn’t fit neatly into some
preconceived box struggles with. . . . And she too has dealt with
feelings of rejection, and insecurity, and being around black
people and having to secretly look around to make sure they
didn’t catch her accidentally clapping off beat.” Ross agreed that
“[i]t is a real thing that white people clap to music on the 1 and 3
counts, where black people clap on the 2 and 4.” Hayley also
said, “I wanted to be cute like Cher from Clueless but people just
thought I was the babysitter (or alt joke: ppl just looked at me
like then unpopular unattractive [sic] black character).” Norman
said she tried to fit in by “bleaching my hair and wearing green
contacts to try to pass for white and then a month later, when
that didn’t work, getting cornrows and speaking with an
affectation to try to pass as fully black.” Vogel stated that the
show represents “a story that has never been told. Anywhere. On
any platform. I mean, the idea has been touched on, but it’s not
an identity that’s been explored in the way it deserves, reflecting
all of the dimensions of a modern, mixed-race experience.”
In November 2018, Ross and Norman pitched Tragic to
Showtime, Netflix, HBO, Hulu, Amazon, and Starz as potential
financiers. All six companies eventually passed on Tragic.
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4. Mixed-ish is developed as a spinoff of Black-ish
According to defendants, in August 2018, producer and
director Randall Winston pitched a spinoff idea to Black-ish
creator Barris. Winston’s idea was to do a retrospective, coming-
of-age show in the style of The Wonder Years depicting Bow’s
childhood growing up in suburbia with hippie parents of different
races. Winston stated in a declaration that he did not know
Norman or Ross, and he was unaware of Norman’s ideas
involving Tragic. At Barris’s request, Dobbins, who also
managed Barris, pitched the idea to ABC. 4
ABC liked the idea, and initially developed it in a script
intended for season 5, episode 24 of Black-ish, titled “Becoming
Bow.” The episode was shot beginning in March 2019. ABC
ordered a full season of Mixed-ish, and “Becoming Bow” was aired
as the first episode of Mixed-ish in September 2019.
“Becoming Bow” began with the family from Black-ish (Dre,
Bow, and some of their children) discussing Bow’s childhood. Bow
mentioned that she lived on a “commune” and that she never
would have met Dre “if the elders hadn’t gotten arrested.”
The scene flashed back to show Bow as a 12-year-old child,
with a voiceover by Ross, stating that her childhood was
“anything but normal.” Young Bow was with other people of all
ages and races wearing white gowns, dancing together, and
holding hands. Bow’s voiceover explained that she lived on a
commune, separate from the problems of the rest of the world—a
“hippie, judgment-free utopia where love ruled all.” She
continued, “There was no racism, no sexism, and everyone was
4 There was an earlier spinoff of Black-ish as well. In
January 2018, a series called Grown-ish began to air; it focuses
on Bow and Dre’s adult daughter, Zoey.
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truly equal.” But the government considered them a “radicalized
cult” and raided the compound. Ross’s voiceover stated, “In the
summer of 1985, I was 12 years old. And my life changed
forever.”
Young Bow, her parents (Paul and Alicia), her younger
brother Johan (age 7), and their younger sister Santamonica (age
5) moved to Paul’s father’s “rental house” in a nondescript
suburb, which Bow said felt like “a whole other planet.” Young
Bow, Johan, and Santamonica were fascinated with things like
electric lights and flush toilets. As the episode progressed, Ross’s
voiceover explained that her father Paul and mother Alicia met
at Berkeley law school; Paul dropped out “as a protest against the
glass ceiling of classism,” and Alicia graduated. Paul’s father,
Harrison, was introduced as an “ambulance-chasing
multimillionaire owner of a personal injury law firm” who
“might’ve voted for Reagan, but he loved his brown grandkids.”
Later, Harrison, acting very amped up, said to Alicia, “I do
cocaine.”
Young Bow and her siblings began attending school, where
they were “introduced to the real world.” As the three children
walked through a cafeteria with black kids sitting on one side
and white kids sitting on the other, Ross’s voiceover stated that
the siblings were faced with “a question that would follow us for
the rest of our lives”: what it means to be “mixed.” The voiceover
explained that “growing up on the commune, race wasn’t a
thing.” And because Loving did not legalize interracial marriage
until the 1960s, Bow and her siblings “were basically the beta
testers for biraciality.” The voiceover said, “Imagine being the
new kid when no one in the world is like you. Not even your
parents.” Johan and Santamonica each decided to “pick a side”—
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Johan began sitting with the black kids and Santamonica began
sitting with the white kids. Back at home, Bow told her father
she was struggling because “I feel like if I choose being white, I’m
giving up on mom. And if I choose being black, I’m giving up on
you.” Both parents reassured Bow that together they would find
a way to move forward.
The series remained set in 1985, with Bow as the main
character living with her parents and siblings as they attempted
to navigate the culture clashes arising from moving from a
commune to an American suburb, and from being mixed-race.
Ross’s voiceovers continued to narrate the episodes and explain
historical context. Two extended family members regularly
visited the family: Alicia’s sister Denise, and Paul’s father
Harrison, who also became Alicia’s boss when she began working
for his law firm. Much of the familial conflict centered around
the hippie parents’ views conflicting with the more mainstream
ideas of Denise and Harrison.
Additional parts of Mixed-ish are relevant to Norman’s
claims, including the following. In season 1, episode 2, “The
Warrior,” while Bow was still torn between choosing to assimilate
with the white or black kids at school, she ran through one
scenario in which she chose the white side, and a disembodied
voice deemed her “as white as can be; I hope you enjoy clapping
on the 1 and the 3.” Season 1, episode 3, “Let Your Hair Down,”
focused on the children’s hair as school picture day approached,
and the children’s struggle between being proud of their natural
hair versus changing it to fit in with peers and popular styles.
Episode 5, “All She Wants to Do is Dance,” involved Bow asking
her crush, a white boy, to a Sadie Hawkins dance.
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Barris, Ross, and Peter Saji were credited with creating
Mixed-ish.
B. Complaint
Norman alleged that in February 2019, she “learned from
articles in the press that ABC was in development of a new
series, a spin-off of ‘Black-ish,’ created by, among others, Ross
and Barris, to be produced by Artists First, the sister company of
Big Breakfast and which represents both Ross and Barris. And,
this supposed newly-created show was going to be about exactly
what [Tragic] is about – a 30-minute sitcom that, employing
flashbacks, follows the journey of a mixed race female protagonist
as she grapples with her biracial identity while living [in] the
suburbs surrounded by both sides of her African American and
Caucasian families.” Norman alleged that as she shared her
ideas about Tragic, “Big Breakfast, Dobbins, and, . . . Ross
portrayed themselves as friends and mentors to Norman, while at
the same time they were plotting and scheming to steal her show
and pass it off as their own.”
On September 18, 2020, Norman filed a complaint alleging
eight causes of action against Big Breakfast, Ross, Barris,
Dobbins, Artists First, and ABC. Her first cause of action for
breach of written contract and second cause of action for breach
of the implied covenant of good faith and fair dealing against only
Big Breakfast are not at issue in this appeal. In short, they
alleged that Big Breakfast breached its contract with Norman
and acted in bad faith by allowing its sister company, Artists
First, to exploit Tragic without involving or compensating
Norman.
In Norman’s third cause of action for promissory estoppel
against Ross, Norman alleged that Ross “made a clear and
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unambiguous promise to Norman that she would help guide
Norman and ensure that [Tragic] would be developed with Ross’s
experienced knowhow in the entertainment industry.” Norman
alleged that in reliance on those promises, she shared her
creative ideas with Ross and “continued to work with her on the
project.” Norman alleged she suffered damages as a “direct and
proximate result of Ross’s actions.”
In her fourth cause of action for breach of implied-in-fact
contract against Big Breakfast, Ross, Barris, and Artists First,
Norman alleged “it was agreed, understood, conveyed by Norman,
or otherwise implied, that if any of the above-mentioned parties
intended to utilize any element of [Tragic, they] would obtain
Norman’s consent and . . . she would be duly compensated, would
be a producer on the series, and would be given both an acting
role and proper screen credit.” Norman alleged these defendants
“breach[ed] the implied contract by accepting the idea” for Tragic,
“and then proceeding to write, develop, produce, distribute and
exploit Norman’s submission with [sic] obtaining her consent,
without compensating her for her submission of these materials, .
. . and without giving her an acting role and screen credit.”
In her fifth cause of action for breach of confidence against
Big Breakfast, Ross, Barris, and Artists First, Norman alleged
she provided information about her ideas for Tragic with the
understanding that these defendants would “treat her ideas and
work product as proprietary and confidential,” and “would not
disclose or otherwise utilize her ideas and work product . . .
unless such disclosure and utilization was on her behalf with
compensation, an acting role, a producer role, and screen credit.”
Norman alleged these defendants “intentionally used Norman’s
ideas and work product . . . to their own advantage in developing
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‘Mixed-ish’ [which] constitutes a breach of the confidential
relationship between Norman and Defendants.”
In her sixth cause of action for intentional
misrepresentation against Big Breakfast, Ross, Dobbins, and
Artists First, Norman alleged, “Big Breakfast represented to
Norman that should Big Breakfast be able to set up Norman’s
Series with any entity for the purpose of exploiting such series,
Norman would be attached to the project as executive producer,
writer, and actress. Big Breakfast further represented to
Norman during these negotiations and continuing during the
term of the Agreement that it would use its best efforts to ensure
that Norman’s position would be protected and that she would
benefit from any sale of her series.” Ross and Dobbins also
promised to help Norman develop Tragic. Norman contended
that “[t]hese representations and omissions were false and
defendants . . . knew them to be false and fraudulent because
defendants . . . knew at the time of some or all of these
representations and omissions that they intended to appropriate
[Tragic] for themselves without having any intention of attaching
Norman in any manner to the series ‘Mixed-ish.’”
In her seventh cause of action for intentional interference
with contract against Ross, Barris, Artists First, and ABC,
Norman alleged that she and Big Breakfast had a contract (the
term sheet), the named defendants knew of the contract, and
they “intended to disrupt and interfere with the performance” of
the contract by “engaging in a scheme to rip off” Tragic. Norman
alleged that defendants knew she would be harmed, and she was
in fact harmed.
In her eighth cause of action for inducing breach of contract
against Ross, Barris, Artists First, and ABC, Norman alleged the
19
defendants knew about her contract with Big Breakfast, “induced
Big Breakfast, and its representatives, not to perform under the
terms of the Agreement and to deny Norman all of her benefits
outlined by said Agreement.” She asserted that the defendants
“intended to influence, direct, or cause Big Breakfast to commit
the above-described breaches because they knew that each of
them would benefit from such breaches. Among other benefits,
Ross and Barris are credited as creators of ‘Mixed-ish,’ Ross is the
on-screen narrator of ‘Mixed-ish,’ Artists First is credited as a
producer of ‘Mixed-ish,’ and ABC is the network on which ‘Mixed-
ish’ airs. Defendants . . . receive revenue from the production and
distribution of ‘Mixed-ish,- thereby enriching themselves at the
expense of Norman.”
For each cause of action, Norman asserted she had been
damaged “in an amount equal to at least $5,000,000.” She also
asserted punitive damages allegations. Norman requested
restitution of “all monies made pursuant to defendants’ unjust
enrichment,” as well as costs, attorney fees, interest, and any
other damages the court deemed appropriate.
C. Special motions to strike
All defendants except Big Breakfast filed three special
motions to strike under the anti-SLAPP statute, section 425.16:
one by ABC, one by Barris, and one by Ross, Dobbins, and Artists
First. “Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral).) “The court does not weigh evidence or resolve
20
conflicting factual claims. Its inquiry is limited to whether the
plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment.
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.’” (Id. at pp. 384-385.) When “claims
are stricken from the pleadings for lack of merit, [the plaintiff]
may no longer seek to impose liability on defendants for having
engaged in these protected acts.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1019 (Bonni).)
Section 425.16, subdivision (e) describes four categories of
protected activities “in furtherance of a person’s right of petition
or free speech,” including “(3) any written or oral statement or
writing made in a place open to the public or a public forum in
connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).)
1. Step one: Arising from protected activity
Regarding the first step of the anti-SLAPP analysis, the
moving defendants 5 asserted that the gravamen of Norman’s
claims was that the defendants stole Tragic and used it to create
5 The moving defendants are represented by the same
counsel, they each incorporated the other motions, and their
arguments overlap. We refer to them hereinafter as
“defendants.” With their motions, defendants filed over 800
pages of supporting documents, and a USB drive containing four
full seasons of Black-ish and one full season of Mixed-ish.
21
Mixed-ish. They argued that Norman’s claims therefore arose
from protected activity because Mixed-ish was a “written or oral
statement . . . made in a place open to the public or a public
forum in connection with an issue of public interest” under
section 425.16, subdivision (e)(3). Defendants also asserted that
all parts of developing and creating the show, including its
casting and any broadcast, constituted conduct in furtherance of
free speech in connection with an issue of public interest under
section 425.16, subdivision (e)(4).
Defendants noted that the causes of action for promissory
estoppel and intentional misrepresentation were based on
defendants’ actions in collaborating with Norman for purposes of
developing Tragic, which was protected activity. Defendants
argued that Norman’s causes of action for breach of implied-in-
fact contract and breach of confidence arose from these
defendants’ purported use and disclosure of Tragic materials in
the making of Mixed-ish, which was also protected activity.
Finally, they argued that the causes of action for intentional
interference with a contract and inducing breach of contract arose
from the alleged scheme to “rip off” Tragic and in producing
Mixed-ish, which was protected activity.
2. Step two: Probability of success
Moving to the second step of the anti-SLAPP analysis,
defendants asserted that Norman did not have a probability of
prevailing on any of her causes of action.
Barris submitted a declaration stating that he never
received the materials for Tragic, and that Mixed-ish was created
from characters and themes that had been central to Black-ish
for years: “We developed Bow as a character over many episodes
and seasons of Black-ish.” Dobbins stated in a declaration that
22
he “never pitched or discussed Tragic/The Girl With The Hair
with Mr. Barris, and I never sent any of the materials to him.”
Producer and director Randall Winston submitted a
declaration that he worked with ABC from about June 2018 to
June 2020. He stated that he had long wanted to do a television
series about “growing up as an African-American in a largely
white suburb during the 1970s and ‘80s.” Winston said he
“conceived the idea of producing a television comedy series that
would draw upon those experiences, using a Wonder Years
format,” a coming-of-age show narrated retrospectively by an
adult looking back on childhood experiences. He “realized that
the ‘Black Wonder Years’ idea could be done through ABC’s
current television series, Black-ish,” focusing on Bow’s
background.
Winston stated that he pitched the idea to Barris the week
of August 12, 2018. Winston stated that “Peter Saji, a writer and
producer on Black-ish, later came on board to co-write the script
for the episode that eventually became titled ‘Becoming Bow.’
The plan was for the episode to be aired as part of Black-ish (the
final episode of the season then airing), and that based on that
episode, ABC network would decide whether or not to order
additional episodes or a series.” Winston stated that he had
never heard of Norman, he had never received Norman’s ideas,
and he was not aware of any materials relating to Tragic. 6
Syndee Rimes, Vice President of Current Programming for
ABC, stated in a declaration that Black-ish season 5, episode 24
was titled “Becoming Bow” and was shot starting in March 2019.
Rimes stated, “In May 2019, after viewing the episode, ABC
6 Winston’s assistant, Daniel Samiljan, submitted a
declaration supporting Winston’s version of events.
23
Network ordered it to series, and ABC Network decided to air the
‘Becoming Bow’ episode as the first episode of” Mixed-ish. Rimes
also stated, “Big Breakfast was not and has never been involved
in the production or distribution of ‘Becoming Bow’ or Mixed-ish.
Mixed-ish is a spin-off of Black-ish, not a television series project
called ‘Tragic’ or ‘The Girl With The Hair’ relating to Plaintiff or
Big Breakfast.”
Ross submitted a declaration stating that she had played
Dr. Rainbow “Bow” Johnson on Black-ish since 2014, and the
“fact that Bow is mixed and not completely black has been a
running theme starting with the Black-ish pilot.” Ross stated
that like the character Bow, she is also biracial. Ross also noted
that she “founded a natural hair product company called Pattern
Beauty for people with curly hair,” and “[t]he Pattern Beauty
product line has been a huge success and well received by many
curly/coil/textured-haired consumers.”
Ross also stated in her declaration that she was approached
about helping to develop Tragic, and “[i]n return for contributing
to the development, I would be attached to the Tragic Series as
an executive producer, conditioned on Big Breakfast being able to
set up the series with a Financier (e.g., broadcaster, online
streaming platform or studio) and on me reaching an agreement
about such attachment with the Financier.” Dobbins stated that
in late 2017, he received the Tragic materials with a request that
he send them to Ross. Dobbins did so.
Ross stated that in 2018 she entered into an agreement
with Big Breakfast to help develop Tragic, and “[o]ver the course
of 2018, I contributed my ideas, input, experience, and knowhow
to develop Tragic/The Girl With The Hair.” Ross stated, “On
November 12 and 13, 2018, I participated in two days of pitches
24
of The Girl With The Hair to Showtime, Netflix, HBO, Hulu,
Amazon, and Starz as potential Financiers. I did my best to try
to persuade these companies to accept Tragic/The Girl With The
Hair. However, I later learned that all of them had passed.” She
continued, “I did not disclose any of the materials, elements, or
ideas from Tragic/The Girl With The Hair or anything about Ms.
Norman to Kenya Barris, Randall Winston, or Peter Saji. Nor
did I use any of the materials, elements, or ideas from Tragic/The
Girl With The Hair or Ms. Norman to create Mixed-ish.”
Luke Kelly-Clyne, president of Big Breakfast, submitted a
declaration stating that for certain projects, “Big Breakfast
acquires the exclusive rights to creative projects and content . . .
for Big Breakfast to then develop and shop to distributors or
other financiers (‘Financiers’). . . . That was the case with the
television series project that relates to Plaintiff Hayley Marie
Norman, which was initially called ‘Tragic.’” Kelly-Clyne
continued, “Big Breakfast had no agreement or understanding
with Ms. Norman that Big Breakfast could not, without Ms.
Norman’s consent, develop or become involved with another
project that used elements or ideas also in or relating to Tragic.”
Kelly-Clyne discussed reaching out to Ross regarding Tragic, and
stated, “As Big Breakfast had the exclusive rights to Tragic and
owned the development, we did not communicate to Ms. Ross or
her manager Brian Dobbins at [Artists First] that the Tragic
project or ideas were Ms. Norman’s proprietary and confidential
information.” He stated that no one at Big Breakfast spoke with
Barris or Saji about Tragic or sent them any materials regarding
Tragic. He also stated, “Big Breakfast did not set up Tragic/The
Girl With The Hair, under any title, with ABC Studios or ABC
network, either directly or through Artists First, Brian Dobbins,
25
or any other entity or person.” Kelly-Clyne stated that Big
Breakfast had no role in developing Mixed-ish or any Black-ish
episodes.
In their special motions to strike, defendants argued that in
light of this evidence, Norman could not demonstrate a
probability of success. For the promissory estoppel cause of
action, defendants asserted that Ross’s alleged promises to “help
guide” Norman and “develop” Tragic were far from the “clear and
unambiguous” promises required for a promissory estoppel claim.
They also asserted that Norman could not show detrimental
reliance, because the Tragic materials were sent to Ross before
Ross and Norman spoke, and “Ross’s purported promise did not
induce ‘a change of position.’”
As to Norman’s cause of action for breach of implied-in-fact
contract, defendants asserted that Norman could not establish
that she conveyed her ideas to defendants based on an agreement
to pay for those ideas if used. Defendants argued that based on
Norman’s agreement with Big Breakfast (BB), she “granted the
exclusive rights to all pre-existing materials to BB and agreed to
develop Tragic for BB, which BB would own,” which undermined
Norman’s claims that she offered to provide her ideas to
defendants for compensation.
Defendants also argued that Norman could not prove
defendants used Tragic because she could not demonstrate that
the two series were substantially similar. They relied in part on
Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th
1064, 1072-1073 (Ryder), which states that when a plaintiff
alleges the defendants used the plaintiff’s ideas without
permission, such a claim “requires proof that defendants used his
[or her] ideas,” and “‘use’ of an idea can be inferred from evidence
26
showing the defendant had access to the plaintiff’s idea and the
parties’ ideas are similar.” Ryder also requires works to be
“substantially similar.” (Id at p. 1073.)
Defendants asserted that Norman could not make such a
showing, and pointed out several differences between the two
series. For example, while Tragic was intended to be set in the
present day, focused on the life of adult Hayley, and include
flashbacks to Hayley’s past, Mixed-ish was entirely set in 1985
and proceeded linearly from the time Bow’s family moved from
the commune to the suburbs. Another example was that “Mixed-
ish presents a cohesive nuclear family as the place where identity
can safely develop. Tragic is the opposite: It stresses dysfunction,
familial and personal. Themes about identity and belonging were
in Black-ish, but in any case, such a broad similarity is not
actionable.”
Defendants also noted that Mixed-ish was based on
characters that had been created and developed years before
Norman created Tragic. Defendants noted that Bow’s mixed race
and issues of her fitting in with Dre’s black family due to her
unique background were running themes in Black-ish.
Defendants argued that certain elements of Tragic—such as the
mixed-race protagonist addressing issues of belonging, not fitting
in, and not knowing which “race” box to pick on a school form—
had specifically been explored in the “Being Bow-racial” episode
of Black-ish. Defendants also noted that Black-ish was about a
black family living in a majority white suburb.
As to Norman’s breach of confidence cause of action,
defendants asserted that Norman “cannot show that the Tragic
elements allegedly used in Mixed-ish were her confidential and
novel information, including because Barris had already created
27
Bow and her backstory in Black-ish. The Norman/BB Agreement
also gave BB the exclusive rights without an obligation of
confidentiality, and BB did not give actual notice to [Artists First]
and Ross that the idea of a mixed-race woman grappling with her
biracial identity or other ideas were Plaintiff’s confidential
property.”
Regarding Norman’s cause of action for intentional
misrepresentation, defendants asserted that Norman could not
show misrepresentation, detrimental reliance, or damages.
Defendants argued that Ross and Dobbins did assist in
developing Tragic, so any alleged promises to help develop Tragic
could not be misrepresentations. Defendants further asserted
that “[t]here was no detrimental reliance, because BB disclosed
Tragic to Ross, Dobbins, and AF before they allegedly made any
promise, and BB already controlled Tragic” at the time.
Regarding intentional interference with contract and
inducing breach of contract, defendants asserted that none of the
defendants knew the terms of the contract between Norman and
Big Breakfast. They also asserted that Norman could not prove
that defendants’ actions actually disrupted the contract.
Defendants further asserted that all of Norman’s claims
were preempted by the Copyright Act.
D. Norman’s motion seeking discovery
Norman moved for an order allowing discovery regarding
the creation of Mixed-ish; the timing of when defendants were
apprised of the existence of the contract between Big Breakfast
and Norman; and the relationship between Big Breakfast, Artists
First, and their parent company, Electus. Norman asserted that
because defendants claimed to have no knowledge of Norman’s
agreement with Big Breakfast, she should be able to conduct
28
discovery as to what defendants knew and when they knew it.
She also asserted that Big Breakfast “is part of a family of
companies owned by Electus, LLC, to which Defendant Artists
First (also owned by Electus) also belongs, and who Norman
alleges were all acting on behalf of one another on the Norman
Series.” Norman proposed 16 categories of document requests
and asked to depose 11 witnesses, including Ross, Dobbins,
Barris, and Winston.
Defendants opposed Norman’s motion, characterizing it as
“fishing-expedition requests for unspecific, sweeping, and highly
burdensome discovery.” According to a minute order, the court
granted the motion for limited discovery, and denied the
remainder. There is no clear court order in the record detailing
which parts of the motion were granted and which were denied.
E. Norman’s oppositions to the special motions to strike
1. Step one: Arising from protected activity
In her oppositions to defendants’ motions, Norman asserted
that the anti-SLAPP statute did not apply to any of her causes of
action. She argued that the “gravamen of each cause of action in
[the] Complaint is each of the Defendants’ failure to compensate
her,” which “does not implicate the anti-SLAPP statute.” She
also asserted, “All of Norman’s claims arise from Defendants’
failure to compensate Plaintiff for use of her ideas. . . . Had
Defendants compensated Norman, there would not have been a
lawsuit.”
Relying heavily on an unpublished case from the Central
District of California, Jordan-Benel v. Universal City Studios,
Inc. (C.D. Cal., June 24, 2015, No. CV-14-5577-MWF MRWX)
aff’d (9th Cir. 2017) 859 F.3d 1184, Norman argued, “The failure
to compensate Norman pursuant to private interactions between
29
the parties (whether in contracts or tort) is not activity that
implicates the anti-SLAPP statute.” She also asserted, “it is not
the act of making Mixed-ish that is the ‘principal thrust’ of the
Complaint, but Defendants’ failure to pay for the use of her
ideas.”
2. Step two: Probability of success
In support of her opposition, Norman submitted a
declaration discussing her creation of Tragic, and her work with
Big Breakfast and Vogel, and eventually Ross, to develop it. She
attached various communications with Vogel and Ross, multiple
versions of the Tragic deck, and her agreement with Big
Breakfast.
Norman argued that none of her claims was preempted by
copyright law. She also disagreed with defendants’ argument
about prior creation, asserting, “Mixed-ish was not created in a
2016 episode of Black-ish merely because a Mixed-ish character
appeared in a single episode of Black-ish.”
Norman acknowledged that a substantial similarity finding
was required to show use of an idea, but asserted that “finding
one substantially similar element is enough.” In her declaration,
Norman asserted that Tragic and Mixed-ish included numerous
similar elements, including, “The macro-element contained in all
of the materials regarding [Tragic] . . . includes the ‘way in’ to the
show—meaning flashbacks (Mixed-ish is one big flashback) and
telling this story from a mixed-race female’s viewpoint and
having her conflicting black and white backgrounds portrayed by
both sides of her white and black family.” Norman also included
a 30-point detailed list of items that she alleged were similar in
the two series, including “the protagonist’s desire to fit in and not
knowing where she belonged”; “[Tragic] opens with a flashback of
30
the main character at 12 years old—Mixed-ish begins with the
Rainbow character being 12 years old”; interracial dating
generally, and specifically 12-year-old Bow asking a white boy to
a dance and Hayley’s fiancé being white; Mixed-ish’s episode
about hair on school picture day and Norman’s meme about hair
on school picture day; “[t]he idea of belonging”; a joke about
clapping on the 1 and the 3; the protagonist experiencing self-
doubt; not understanding black friends’ references; the setting of
Mixed-ish is suburban and Hayley of Tragic grew up in the
suburbs; conservative in-laws; grandparents who suffer from
addiction; “[t]he whole idea of not being aware of your race is
lifted from [Tragic]”; feeling like one is forced to “choose sides” or
choose a parent; and trying to fit in with racial stereotypes.
Norman asserted in her declaration that when she sent the
Tragic materials to Vogel at Big Breakfast, she did so “with the
understanding that pursuant to the custom and practice of the
entertainment industry, they would be kept confidential and not
used without payment to me.” She stated that according to her
November 2017 agreement with Big Breakfast, “I granted BB the
right to use the Pre-Existing Materials for the sole purpose of
bringing [Tragic] to air. Any materials developed during the term
of the Agreement (the ‘Pitch Materials’) were the property of BB
subject to a reversionary right in my favor.” Norman stated that
all rights to the materials had since reverted to her.
Norman stated that after Ross had received the Tragic
materials, Norman’s “goal was to sell the series to Ross by . . .
sharing ideas, concepts, and stories about [Tragic] directly with
her. I understood like I did for my disclosures to BB, that my
sharing of my materials was done on a confidential basis and that
none of these materials would be used without me being paid
31
pursuant to the custom in the entertainment industry.” Norman
argued in her opposition that “Ross knew or should have known
that Norman’s disclosures were confidential and that Ross could
not use the materials disclosed without including and
compensating Norman, thus establishing an implied contract.”
She also argued that her agreement with Big Breakfast had no
effect on her ability to contract with defendants.
Norman further contended that she had established her
cause of action for breach of confidentiality, because defendants
knew the disclosures were confidential. She relied in part on a
declaration from an expert witness, Richard Marks, who stated
that such materials are typically considered confidential.
Norman asserted that she showed a probability of
prevailing on her promissory estoppel and intentional
misrepresentation causes of action because “Ross stated, among
other things, that she would ensure that Norman would be
‘attached’ to the production of” Tragic but “Norman was not.”
Norman also asserted that Ross used parts of Tragic as creator
and executive producer of Mixed-ish. Norman further contended
that she demonstrated a probability of success on her
interference with contract and inducing breach of contract claims
because “The interference and the breach are that [Tragic], in the
disguise of Mixed-ish, was made without Norman being
compensated.”
Norman objected to some of defendants’ evidence.
Defendants filed replies and supplemental declarations, and also
objected to some of Norman’s evidence.
F. Court ruling
Following a hearing, the trial court issued a written ruling
granting the motions in part. The court began with the first step
32
of determining whether the claims arose from protected activity.
The court interpreted Norman’s fourth cause of action for breach
of implied-in-fact contract as a mixed cause of action. It relied on
Jordan-Benel v. Universal City Studios, Inc. (9th Cir. 2017) 859
F.3d 1184 (Jordan-Benel), the Ninth Circuit case affirming the
district court case Norman cited. The court agreed with Norman
that “[t]he alleged harm is the defendants’ failure to pay for the
use of the idea. The claim that the defendants failed to pay ‘does
not challenge the activity of filmmaking at all,’” and therefore did
not constitute protected activity under section 425.16. The court
concluded that the remainder of Norman’s allegations in that
cause of action, “the alleged wrongful acts of using the ideas
[from Tragic] without [Norman’s] consent and failing to give
[Norman] an acting role, a producing role and screen credit”
constituted protected activity under section 425.16.
The court noted that Norman’s fifth cause of action for
breach of confidence did not include a failure-to-pay element, and
therefore did not fall under the Jordan-Benel exception. It stated
however, that if Norman “intends this cause of action to allege as
the wrongful acts a failure to pay and give her an acting role,
producer role, and screen credit, then it is duplicative of the
fourth cause of action, and the conclusions above apply.” The
court did not state a clear finding as to whether the step one
burden was met for the breach of confidence cause of action. The
court also held that Norman’s remaining causes of action arose
from protected activity, and therefore that defendants met their
burden under the first step of the anti-SLAPP analysis.
Turning to the second step, the court held Norman had
demonstrated a probability of success on her causes of action for
breach of implied-in-fact contract and breach of confidence. The
33
court stated that Norman’s “evidence of the communication and
collaboration among [Norman], Ross, and Dobbin[s] allows an
inference that Ross and Dobbins accepted the disclosure of her
ideas and materials with the understanding [Norman] expected
to be involved in the series and paid if they were used. [Citation.]
Plaintiff also submitted evidence her ideas were used in ‘Mixed-
ish.’” However, Norman “did not show she had any
communications of any kind with Barris,” and “did not show
Dobbins was involved in the conversations with her on behalf of
Barris.” Thus, the court held that Norman demonstrated a
probability of prevailing against only Ross and Artists First.
Regarding substantial similarity, the court stated, “The
core of both works focus on a mixed-race character trying to
figure out how she fits in, dealing with parents of different races,
and navigating in white and black worlds. Some of the plot
points, such as involving hair and dating a white person, are
similar. Both use the ‘gimmick’ of flashbacks. . . . [H]aving a
main character of mixed-race with the theme of the series
focusing on what it means to be mixed-race was unusual. . . .
There are enough similarities that a jury could [find] the
defendants used at least some of [Norman’s] ideas, and so the
Court cannot conclude as a matter of law that the works are not
similar enough.” The court cited Norman’s declaration in support
of this ruling. The court also held that Norman’s claims were not
preempted by copyright law. For the cause of action for breach of
implied-in-fact contract, therefore, the court denied the motion as
to Ross and Artists First, and granted the motion as to Barris.
Turning to the cause of action for breach of confidence, the
court stated, “To prove a cause of action for breach of confidence,
the plaintiff must show she offered an idea to the defendant in
34
confidence, and the defendant voluntarily received the idea in
confidence with the understanding that it was not to be disclosed
to others and not to be used by the offeree for purposes beyond
the limits of the confidence without the offeror’s permission.” The
court stated that Norman “did not show the existence of an
implied-in-fact contract to keep the material confidential, because
she did not submit evidence that she requested her ideas be kept
confidential when she disclosed them to Ross and Dobbins.” The
court also stated that Norman did not establish that “custom and
practice creates a duty of confidentiality,” or that any special
relationship between her and the defendants gave rise to a duty
of confidentiality.
Although these statements would seem to suggest that
Norman could not succeed on her breach of confidence cause of
action, the court nevertheless stated that Norman “satisfied her
minimal burden as to Ross and Artists First, but not as to Barris
for the reasons stated above.”
The court then turned to the causes of action for promissory
estoppel against Ross, and intentional misrepresentation against
Ross, Dobbins, and Artists First. The court held that although
Norman said in her declaration that Ross made certain promises
about guiding her through the process of developing Tragic,
Norman did not say that she relied on Ross’s statements to her
detriment. In addition, Norman offered no evidence of
misrepresentations by Dobbins. Thus, the court held that
Norman failed to show a probability of prevailing on these causes
of action.
Turning to the causes of action for intentional interference
with contract and inducing breach of contract against Ross,
Barris, Artists First, and ABC, the court stated that Norman “did
35
not submit evidence that Big Breakfast failed to perform or
breached its contractual relationship as a result of the
defendants’ actions.” Norman also “did not submit evidence that
Big Breakfast would have successfully placed [Tragic] with a
network or production company if the defendants had not started
working on ‘Mixed-ish’ or that Big Breakfast abandoned her
contract because of ‘Mixed-ish’ or any actions by the defendants.”
The court therefore granted the motions as to these causes of
action.
Ross and Artists First timely appealed the court’s order
denying their motion as to the causes of action for breach of
implied-in-fact contract and breach of confidence. Norman timely
cross-appealed the court’s order granting the remainder of the
motions. The remaining defendants then cross-appealed the
court’s rulings on their evidentiary objections and Norman’s
discovery motion.
G. Motion for attorney fees
Defendants filed motions for attorney fees, which are
discussed more fully below. (See § 425.16, subd. (c)(1).) In short,
defendants requested a total of $436,196.88 in attorney fees.
Norman opposed the motions. In a written ruling, the trial court
granted defendants’ motions for fees in part. The court awarded
defendants a total of $125,000 in attorney fees, and stated,
“Because defense counsel did not maintain separate billing
records for each Defendant, defense counsel is in a better position
to determine how to allocate that award among Defendants.”
Judgment was entered in favor of Barris, including
$35,714.29 in attorney fees; ABC, including $17,857.14 in
attorney fees; and Dobbins, including $8,928.57 in attorney fees.
36
Norman filed a notice of appeal following the judgments. We
consolidated the appeals.
DISCUSSION
A. Legal standards and standards of review
“A cause of action arising from a person’s act in
furtherance of the ‘right of petition or free speech under the
United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability’ that the claim will
prevail.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788 (Monster Energy), citing § 425.16, subd. (b)(1).) Thus, anti-
SLAPP motions under section 425.16 “are evaluated through a
two-step process. Initially, the moving defendant bears the
burden of establishing that the challenged allegations or claims
‘aris[e] from’ protected activity in which the defendant has
engaged.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).) “If the defendant
carries its burden, the plaintiff must then demonstrate its claims
have at least ‘minimal merit.’” (Ibid.)
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] 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. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law.” (Park, supra, 2 Cal.5th at p. 1067.)
37
B. Step one: Arising from protected activity
In their appeal, Ross and Artists First contend the trial
court erred in finding that they failed to meet their step one
burden as to parts of Norman’s cause of action for breach of
implied-in-fact contract. In Norman’s cross-appeal, she contends
the trial court also should have included Barris in this finding.
Norman further contends the trial court erred in finding that the
defendants met their step one burden as to her causes of action
for breach of confidence, promissory estoppel, intentional
misrepresentation, intentional interference with contract, and
inducing breach of contract.
The parties agree that making a television series
constitutes protected activity. 7 (See, e.g. Musero, supra, 72
Cal.App.5th at p. 816 [“Creating a television show is an exercise
of constitutionally protected expression”]; Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [“The creation
of a television show is an exercise of free speech”]; Hunter v. CBS
Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1521 [casting
decisions are protected activity]; De Havilland v. FX Networks,
LLC (2018) 21 Cal.App.5th 845, 860 [“‘the First Amendment . . .
safeguards the storytellers and artists who take the raw
materials of life—including the stories of real individuals,
ordinary or extraordinary—and transform them into art, be it
articles, books, movies, or plays.’”].) Thus, to the extent
7 Notably, Norman has not challenged whether the speech at
issue implicated an issue of public interest. (See, e.g.,
FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at p. 149;
Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th
802, 820-823 (Musero).)
38
Norman’s claims rest upon communications about developing
Tragic or the making of Mixed-ish, that activity is protected.
1. Breach of implied-in-fact contract
Norman contends that portions of her claims rely on
unprotected activity—that defendants failed to pay her for their
use of her ideas. This is the basis upon which the court partially
denied Ross’s and Artists First’s motion below. This type of
theory is sometimes referred to as a “Desny claim,” after Desny v.
Wilder (1956) 46 Cal.2d 715 (Desny). There, the Supreme Court
said, “An idea is usually not regarded as property.” (Desny, 46
Cal.2d at p. 731.) However, “‘[e]ven though an idea is not
property subject to exclusive ownership, its disclosure may be of
substantial benefit to the person to whom it is disclosed. That
disclosure may therefore be consideration for a promise to pay.’”
(Id. at p. 733.) Thus, “[t]he person who can and does convey a
valuable idea to a producer who commercially solicits the service
or who voluntarily accepts it knowing that it is tendered for a
price should likewise be entitled to recover.” (Id. at p. 734; see
also Spinner v. American Broadcasting Companies, Inc. (2013)
215 Cal.App.4th 172, 184 (Spinner) [“Plaintiffs may therefore
have a cause of action in contract for disclosing an idea to a
defendant that uses that idea without compensation”]; Musero,
supra, 72 Cal.App.5th at p. 810 [“state law protection for ideas as
property rights may exist if there was an express or implied-in-
fact contract to pay for the disclosure of an idea”].)
For a Desny claim based on an idea submission, “to prevail
on a cause of action for breach of implied-in-fact contract,
plaintiffs must show (1) they clearly conditioned the submission
of their ideas on an obligation to pay for any use of their ideas; (2)
the defendants, knowing this condition before the plaintiffs
39
disclosed the ideas, voluntarily accepted the submission of the
ideas; and (3) the defendants found the ideas valuable and
actually used them—that is, the defendants based their work
substantially on the plaintiffs’ ideas, rather than on their own
ideas or ideas from other sources.” (Spinner, supra, 215
Cal.App.4th at p. 184; see also Esplanade Productions, Inc. v. The
Walt Disney Co. (2023) 93 Cal.App.5th 793, 805 (Esplanade
Productions).)
The trial court found that Norman had alleged such a
claim, in that Norman “wanted her idea to be made into a series.
The complaint details the efforts she made shopping it around.
[Record citation.] The alleged harm is the defendants’ failure to
pay for the idea,” which was not protected activity. The court
continued, “The failure to pay [Norman] was not an act in and of
itself in furtherance of free speech rights. [The] speech (the
making and distribution of ‘Mixed-ish’) was a step before or led to
the failure to pay. . . .” Thus, “[t]he defendants did not carry
their burden of showing that the failure to pay alleged in the
fourth cause of action implicates the speech concerns of the anti-
SLAPP statute.”
In support of its conclusion, the trial court relied on
Jordan-Benel, supra, 859 F.3d 1184. There, plaintiff Jordan-
Benel wrote a screenplay for a film and sent it to United Talent
Agency (UTA); “the submission was not gratuitous and was
made for the purpose of selling the screenplay to a UTA client.”
(Id. at p. 1187.) Someone at UTA sent the screenplay to another
UTA client, who then wrote a script titled The Purge. A film of
the same name was made, a sequel was made, and another
sequel was in the works at the time of the lawsuit. Jordan-Benel
asserted that The Purge was based on the ideas in his
40
screenplay. He sued UTA and others for copyright infringement,
breach of implied-in-fact contract, and declaratory relief seeking
a determination regarding his rights to credits and payment.
(Ibid.) The defendants in Jordan-Benel filed an anti-SLAPP
motion, arguing “that Jordan-Benel’s claims arise from the
creation, production, distribution, and content of expressive
works (The Purge films) and that such conduct falls squarely
within the ambit of anti-SLAPP.” (Id. at p. 1189.) The district
court denied the motion.
On appeal, the Ninth Circuit noted that Jordan-Benel had
significantly limited his claims, and therefore “we only address
whether anti-SLAPP applies to Jordan-Benel’s implied-in-fact
contract claim in which Defendants’ failure to pay is the alleged
breach.” (Jordan-Benel, supra, 859 F.3d at p. 1189.) In
considering the first step of the anti-SLAPP analysis, the court
stated, “Whereas the creation of a film might be the basis for a
copyright infringement claim, that act alone will not support an
‘idea theft’ breach of contract claim because the breach is not the
defendant’s use of the idea. [Citation.] The breach is captured in
that ‘extra element’—the failure to pay for the use of an idea
after having made an implied promise to pay.” (Id. at p. 1191.)
The court found that “the conduct or act underlying Jordan-
Benel’s breach of implied-in-fact contract claim is Defendants’
failure to pay for the use of the screenplay idea” because “the
failure to pay was the specific act of wrongdoing alleged by
Jordan-Benel to give rise to a legal claim.” (Ibid.) The court
continued, “Jordan-Benel’s claim does not challenge the activity
of filmmaking at all. In fact, he desperately wanted the film to be
made. Because the ‘overall thrust of the complaint’ challenges
Defendants’ failure to pay for the use of his idea, we hold that the
41
failure to pay is the conduct from which the claim arises.” (Ibid.)
The court held that because failure to pay is not protected
activity under section 425.16 (id. at p. 1193), the defendants’
motion was properly denied.
Jordan-Benel was decided without our Supreme Court’s
guidance in Park or Bonni 8; the Ninth Circuit noted that at the
time, “the anti-SLAPP statute and the California Supreme Court
do not definitively answer the question of how to pinpoint the
conduct from which a claim arises.” (Jordan-Benel, supra, 859
F.3d at p. 1190.) We join our colleagues in Division Seven of this
district in concluding that the reasoning of Jordan-Benel is no
longer persuasive in light of that subsequent guidance. (See
Musero, supra, 72 Cal.App.5th at p. 818.)
The Jordan-Benel court considered the essence of the
plaintiff’s claim to be failure to pay on a contract, based on the
court’s understanding that it was required to determine which
“specific act of wrongdoing [was] challenged by the plaintiff.”
(Jordan-Benel, supra, 859 F.3d at p. 1191.) In Park and
subsequent cases, however, the Supreme Court has clarified that
in a first step anti-SLAPP analysis, “courts should consider the
elements of the challenged claim and what actions by the
defendant supply those elements.” (Park, supra, 2 Cal.5th at p.
1063; see also Bonni, supra, 11 Cal.5th at p. 1015 [“Courts
deciding an anti-SLAPP motion . . . must consider the claim’s
elements, the actions alleged to establish those elements, and
whether those actions are protected”].)
8 The Supreme Court’s opinion in Park was issued on May 4,
2017, several weeks before the Ninth Circuit issued the opinion
in Jordan-Benel on June 20, 2017. However, the Park opinion is
not cited in Jordan-Benel.
42
As the Jordan-Benel court recognized, the elements of a
Desny claim require use of the allegedly stolen ideas. (See
Jordan-Benel, supra, 859 F.3d at p. 1191 [“To state a claim for
breach of an implied-in-fact contract based on the submission of a
screenplay, a plaintiff must allege that: (1) he submitted the
screenplay for sale to the defendants; (2) he conditioned the use
of the screenplay on payment; (3) the defendants knew or should
have known of the condition; (4) the defendants voluntarily
accepted the screenplay; (5) the defendants actually used the
screenplay; and (6) the screenplay had value.”].) Thus, any duty
to pay Jordan-Benel necessarily arose because the defendants
allegedly used his ideas in making The Purge films, which
constituted protected activity. If there was no use of the ideas,
there was no duty to pay; the two actions are inextricably
intertwined within the theory of liability. The Ninth Circuit’s
focus on one of these elements—duty to pay—to the exclusion of
the other—use—does not comply with the Supreme Court’s
guidance on first-step anti-SLAPP analysis.
The Jordan-Benel court also focused on the failure-to-pay
aspect of the plaintiff’s claim because that “extra element” set it
apart from a copyright claim. (Jordan-Benel, supra, 859 F.3d at
p. 1191.) In essence, the court concluded that because a single
element of the plaintiff’s claim involved non-protected activity,
the defendants could not meet their step one burden. However,
“[a]s Bonni and Baral instruct, whatever the purported ‘target’ of
a cause of action, if protected speech activity supplies an element
of the claim, the burden shifts to the plaintiff to demonstrate a
reasonable probability of prevailing on the merits.” (Musero,
supra, 72 Cal.App.5th at p. 819; see also Baral, supra, 1 Cal.5th
at p. 396 [“When relief is sought based on allegations of both
43
protected and unprotected activity, the unprotected activity is
disregarded at this stage”].) Thus, if a single element of a claim
does not involve protected activity, but the remaining elements of
that claim do, the step one burden has been met.
Here, the trial court followed the reasoning of Jordan-
Benel, finding that the protected activity—the making and
distribution of Mixed-ish by allegedly using Norman’s ideas—
”was a step before or led to the failure to pay,” and did not
“transform the wrongful failure to pay into an act in furtherance
of free speech.” This was error. Assuming that Norman
sufficiently alleged a Desny claim, the elements of that claim
include that “the defendants found the ideas valuable and
actually used them—that is, the defendants based their work
substantially on the plaintiffs’ ideas, rather than on their own
ideas or ideas from other sources.” (Spinner, supra, 215
Cal.App.4th at p. 184.) Use of those ideas allegedly occurred in
the production of Mixed-ish, which was protected activity.
“The defendant’s first-step burden is to identify the activity
each challenged claim rests on and demonstrate that that activity
is protected by the anti-SLAPP statute.” (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 884.) Because defendants did
so here, the trial court erred in finding that Ross and Artists
First did not meet their first-step burden as to a portion of the
cause of action for breach of implied-in-fact contract. We also
reject Norman’s contention that Barris failed to meet his first-
step burden as to this cause of action.
2. Breach of confidence
In her breach of confidence cause of action against Big
Breakfast, Ross, Artists First, and Barris, Norman alleged she
disclosed her ideas about Tragic to defendants with an
44
understanding that they would “treat her ideas and work product
as proprietary and confidential and to be utilized by Defendants .
. . to evaluate her ideas or to otherwise develop her proposed
project with her.” Norman further alleged, “The fact that
Defendants . . . intentionally used Norman’s ideas and work
product . . . to their own advantage in developing ‘Mixed-ish’
constitutes a breach of the confidential relationship between
Norman and Defendants.” Notably, there is no communication
alleged in the breach of confidence cause of action that does not
involve the development of Tragic or the making of Mixed-ish.
The trial court found that “the use of [Norman’s] ideas is the
wrongful act in this cause of action, and that act was in
furtherance of speech rights—the making of ‘Mixed-ish.’”
Norman argues the court’s finding was error, because “the
use of Norman’s materials to make Mixed-ish forms no part of the
elements necessary to form a claim for breach of confidence.” 9
This contention contradicts her complaint, which stated that
making Mixed-ish constituted the alleged breach. Norman also
cites no authority for this argument, which contradicts case law
holding that “a cause of action for ‘breach of confidence’ requires
a finding that [the defendants] actually used [the plaintiff’s]
confidential information to their benefit.” (Hollywood Screentest
of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th
631, 651 (Hollywood Screentest); see also Esplanade Productions,
supra, 93 Cal.App.5th at p. 805 [a plaintiff’s breach of confidence
claim required a showing that the defendant “actually used [the
plaintiff’s] ideas.” As discussed above, the making of Mixed-ish
constitutes protected activity.
9 Norman does not challenge the court’s grant of the motion
for this cause of action as it pertains to Barris.
45
Norman further contends the disclosure of Tragic materials
is not protected because “the act of disclosing a confidence does
not implicate free speech rights.” She likens such communication
to “incitement or yelling ‘fire’ in a crowded theater”—
communications that may fall outside the protections of the First
Amendment. We are not persuaded. First, the defendants’
communications regarding the development of Tragic are not
comparable to inciting violence or creating panic by shouting
“fire” in a crowded theater, which are entitled to only limited
First Amendment protection due to their immediate effect on
public safety. Second, even allegedly wrongful speech is entitled
to the protection of section 425.16. (See, e.g., Collier v. Harris
(2015) 240 Cal.App.4th 41, 54 [“courts have consistently held acts
a plaintiff alleges are unlawful or illegal are nonetheless
protected activity under the anti-SLAPP statute if the acts assist
or facilitate the defendant’s free speech rights”].) Thus,
defendants met their first-step anti-SLAPP burden as to the
cause of action for breach of confidence.
3. Intentional misrepresentation and promissory
estoppel
Norman argues the trial court erred in finding that her
causes of action for intentional misrepresentation and promissory
estoppel against Ross arose from protected activity. 10 She
asserts these causes of action “do not arise from the making and
distribution of Mixed-ish, but from the broken promises and
fraudulent misrepresentations [Ross] made to Norman” that
Norman “would be paid.”
10 Although Norman also asserted her cause of action for
intentional misrepresentation against Dobbins and Artists First,
she challenges the ruling only as it pertains to Ross.
46
All communications alleged in the intentional
misrepresentation and promissory estoppel causes of action
involve the development of Tragic. Norman alleged that Ross
agreed to mentor her and promised to help Norman develop and
pitch Tragic. Norman did not allege any communications aside
from those involving the development of Tragic and Mixed-ish,
which the parties agree constitutes protected activity.
Norman contends that “[f]ailure to act on promises and
misrepresentations cannot implicate the anti-SLAPP statute as a
matter of law.” Again, Norman’s argument contradicts legal
authority. (See, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 93
[“fraud claims are not categorically excluded from the operation
of the anti-SLAPP statute”]; Bonni, supra, 11 Cal.5th at p. 1025
[an allegation that communications involved fraud “does not
remove them from the definition of protected activity”]; Suarez v.
Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 124
[“Misrepresentation or failure to disclose can be protected
petitioning activity for purposes of section 425.16”].) Ross
therefore met her first-step burden as to the causes of action for
intentional misrepresentation and promissory estoppel.
4. Intentional interference with contract and inducing
breach of contract
Finally, Norman asserts that her causes of action for
intentional interference with contract and inducing breach of
contract against Ross, Artists First, and ABC did not arise out of
protected activity. 11 In the cause of action for intentional
interference with contract in her complaint, Norman alleged that
11 Although Norman also asserted these causes of action
against Barris, she challenges the ruling only as it pertains to
Ross, Artists First, and ABC.
47
she and Big Breakfast had a contract/agreement, and the other
defendants “intended to disrupt and interfere with the
performance of the Agreement, and did in fact disrupt and
interfere with such performance, by, among other things,
engaging in a scheme to rip off [Tragic] which is the subject
matter of the Agreement.” In her cause of action for inducing
breach of contract, Norman alleged the defendants “induced Big
Breakfast, and its representatives, not to perform under the
terms of the Agreement and to deny Norman all of her benefits
outlined by said Agreement.” She further alleged that the
defendants “cause[d] Big Breakfast to commit the above-
described breaches because they knew that each of them would
benefit from such breaches. Among other benefits, Ross and
Barris are credited as creators of ‘Mixed-ish,’ Ross is the on-
screen narrator of ‘Mixed-ish,’ Artists First is credited as a
producer of ‘Mixed-ish,’ and ABC is the network on which ‘Mixed-
ish’ airs. Defendants, and each of them, receive revenue from the
production and distribution of ‘Mixed-ish,’ thereby enriching
themselves at the expense of Norman.”
On appeal, again relying on Jordan-Benel, Norman asserts
it is “the failure to pay, and only the failure to pay, that is alleged
as the damage to Norman in these causes of action,” and “[a]s
such, the anti-SLAPP statute is not implicated.” For the reasons
discussed above regarding Norman’s breach of implied-in-fact
contract, we are not persuaded by the reasoning of Jordan-Benel.
Moreover, the defendants’ activities upon which these causes of
action are based involve the alleged use of Norman’s ideas in the
making of Mixed-ish, which is protected activity. Defendants
therefore met their step one burden as to the causes of action for
48
intentional interference with contract and inducing breach of
contract.
Finding that defendants met their burden on the first step
of the anti-SLAPP analysis as to all six of the challenged causes
of action, we turn to step two.
C. Step two: Probability of success
Under section 425.16, after a defendant meets its first-step
burden, “‘the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success. [T]his
second step [is] a “summary-judgment-like procedure.”
[Citation.] The court does not weigh evidence or resolve
conflicting factual claims. Its inquiry is limited to whether the
plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment.
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, supra, 7 Cal.5th
at p. 788, quoting Baral, supra, 1 Cal.5th at pp. 384-385.)
Norman contends she demonstrated a probability of success
for each cause of action, and therefore the trial court should have
denied defendants’ special motions to strike.
1. Breach of implied-in-fact contract
a. Existence of a contract
Defendants assert that Norman failed to demonstrate a
probability of prevailing on her cause of action for breach of
implied-in-fact contract because she cannot demonstrate that the
parties had an agreement. They assert Norman did not offer her
ideas to defendants for sale, nor did defendants accept her ideas
on the condition that Ross or Artists First were expected to pay
49
Norman for them. We agree the evidence does not establish an
implied-in-fact contract.
A breach of implied-in-fact contract cause of action requires
the plaintiff to demonstrate that she “clearly conditioned the
submission of [her] ideas on an obligation to pay for any use of
[her] ideas,” and “the defendants, knowing this condition before
the plaintiff[ ] disclosed the ideas, voluntarily accepted the
submission of the ideas.” (Esplanade Productions, supra, 93
Cal.App.5th at p. 805; see also Mann v. Columbia Pictures, Inc.
(1982) 128 Cal.App.3d 628, 647 fn. 6 [a breach of implied-in-fact
cause of action requires a plaintiff to show “[t]hat before plaintiff
submitted her ideas to the defendants, she clearly conditioned
her disclosure upon defendants’ agreement to pay for those ideas
of plaintiff’s which the defendants used, if any”].) “The law will
not in any event, from demands stated subsequent to the
unconditioned disclosure of an abstract idea, imply a promise to
pay for the idea, for its use, or for its previous disclosure.”
(Desny, supra, 46 Cal.2d at p. 739.) Moreover, “the creation of an
implied-in-fact contract between an author, on the one hand, and
an agent, producer, or director, on the other hand, is of such a
personal nature that it is effective only between the contracting
parties.” (Rokos v. Peck (1986) 182 Cal.App.3d 604, 617.)
The evidence shows that Norman entered into a written
contract with Big Breakfast, which gave Big Breakfast exclusive
rights to Tragic at the times relevant here. Big Breakfast then
shared Tragic with Artists First and Ross months before Norman
ever spoke to Ross. Dobbins stated in his declaration that he was
not told of any conditions relating to the Tragic materials, and
Kelly-Clyne stated in his declaration that he did not tell Dobbins
the Tragic materials were Norman’s proprietary property. Ross
50
entered into a written agreement with Big Breakfast to help
develop Tragic and pitch it to financiers, which she did. This
evidence does not support a finding that Ross and Artists First
agreed to receive Tragic pursuant to an agreement that they
were expected to pay Norman for her ideas. 12 (See Gunther-Wahl
Productions, Inc. v. Mattel, Inc. (2002) 104 Cal.App.4th 27, 43
[“the particular facts in the case at bench must be part of the
consideration in deciding whether there is an implied-in-fact
contract”]; Donahue v. Ziv Television Programs, Inc. (1966) 245
Cal.App.2d 593, 606 [“‘the circumstances preceding and attending
disclosure’” are relevant to whether there is a contract, quoting
Desny, supra, 46 Cal. 2d at p. 739].)
Moreover, Norman asserted that Tragic could be used only
upon her express consent and involvement, further suggesting
that she was not offering Tragic under the condition of obligation
for payment from defendants. In her complaint, Norman alleged
that when she shared the Tragic materials, it was “understood . .
. that if any of the [defendants] intended to utilize any element of
[Tragic] . . . in writing, developing, producing, distributing,
12 Norman contends that “the custom and practice of the
entertainment industry” can be relied upon to conclude that
defendants knew or should have known that Norman expected to
be paid. We have not found legal authority directly supporting
this proposition, and Nimmer on Copyright rejects the
contention: “[I]nsofar as creating an implied contract from whole
cloth is concerned, the better view is that industry custom does
not do it. It would seem that no other viewpoint could pass
muster under Desny v. Wilder.” (5 Nimmer on Copyright § 19D.05
(2024).) Even if industry custom could be relied upon in certain
circumstances, it would not preempt the evidence here that Ross
and Artists First did not accept the submission of Tragic based on
any condition of payment.
51
broadcasting another television program, that they . . . would
obtain Norman’s consent and in the event that they . . . did so,
she would be duly compensated, would be a producer on the
series, and would be given both an acting role and proper screen
credit.” Norman reiterated this position in a declaration filed in
support of her discovery motion: “On January 5, 2018, I met with
Ross for the first time. I told Ross that under my Agreement with
BB, I was attached to the project as an Executive Producer,
writer and actor, and that [Tragic] could not be made without
me.”
Defendants assert this case is therefore similar to Faris v.
Enberg (1979) 97 Cal.App.3d 309 (Faris), in which the plaintiff,
Faris, conceived of a sports quiz show that he wanted to produce,
and approached defendant Enberg, a local sports announcer,
about participating in the show as a “master of ceremonies.” (Id.
at pp. 314-315.) After the defendant appeared as part of a
similar show, plaintiff sued him for breach of implied-in-fact
contract and breach of confidence. (Id. at p. 316.) The Court of
Appeal affirmed summary judgment for the defendant, stating,
“[Faris] never thought of selling his sports quiz show idea to
anyone including Enberg. He appears at all times to have
intended to produce it himself, and sought out Enberg, as a
master of ceremonies. . . . Plaintiff never intended to submit the
property for sale and did not tell Enberg that he was submitting
it for sale.” (Id. at pp. 318-319; see also Aliotti v. R. Dakin & Co.
(9th Cir. 1987) 831 F.2d 898, 902 [under California law regarding
implied-in-fact contract, “no contract may be implied where an
idea has been disclosed not to gain compensation for that idea but
for the sole purpose of inducing the defendant to enter a future
business relationship.”].)
52
Norman’s claim is similar to the one in Faris in that the
evidence does not show she offered Tragic to Ross and Artists
First based on an expectation that those defendants would pay
her, nor is there any evidence that the defendants accepted the
Tragic materials on that basis. Instead, the evidence shows that
Tragic was submitted to Ross and Artists First for the purpose of
collaborating and seeking a financier. Norman therefore has not
demonstrated the existence of an implied-in-fact contract
between her and Ross or Artists First.
b. Defendants’ use of plaintiff’s idea
Defendants also contend the trial court erred in finding
that Norman demonstrated that Tragic and Mixed-ish were
substantially similar. The trial court found that Norman
“submitted evidence her ideas were used in ‘Mixed-ish.’” The
court stated that the “similarities includ[e] the basic theme
(mixed-race woman using her past experiences as a 12-year-old to
confront her current life), use of flashbacks, plots (dating outside
one’s race, hair, microaggressions, not fitting in), supporting
characters (extremely conservative in-laws), and the desire of the
main character to fit in as she feels she does not know where she
belongs.” The court also rejected defendants’ contention that
most of the alleged similarities in the two shows already existed
in Black-ish. The court therefore found that Norman met her
second-step burden, and denied defendants’ motion as to Ross
and Artists First. Defendants contend this holding was
erroneous. We agree.
As noted above, “to prevail on a cause of action for breach of
implied-in-fact contract, plaintiffs must show . . . the defendants
found the ideas valuable and actually used them—that is, the
53
defendants based their work substantially on the plaintiffs’ ideas,
rather than on their own ideas or ideas from other sources.”
(Spinner, supra, 215 Cal.App.4th at p. 184; see also Esplanade
Productions, supra, 93 Cal.App.5th at p. 805.) “Regardless of the
legal theory used to impose an obligation on the idea-recipient,
the recipient is legally obligated to pay only if the idea that the
recipient used was the one actually received from plaintiff.”
(5 Nimmer on Copyright § 19D.07 (2023).)
In the absence of direct evidence, use of an idea “can be
inferred from evidence showing the defendant had access to the
plaintiff’s idea and the parties’ ideas are similar.” (Ryder, supra,
246 Cal.App.4th at p. 1073.) Because it is undisputed that Ross
and Artists First had access to Norman’s ideas, the focus here is
on similarity.
To raise an inference of use, “the works must be
substantially similar.” (Ryder, supra, 246 Cal.App.4th at p.
1073.) “[T]he common knowledge of the average reader, observer,
spectator or listener is the standard of judgment which must be
used. [Citations.] For purposes of comparison therefore the
works must be viewed as a whole ‘without dissection and without
expert or elaborate analysis.’” (Klekas v. EMI Films, Inc. (1984)
150 Cal.App.3d 1102, 1111.) If the court finds that “no rational
jury could conclude the actionable elements” are similar, such a
finding “defeats an inference of use as a matter of law.” (Ryder,
supra, 246 Cal.App.4th at p. 1073; see also Spinner, supra, 215
Cal.App.4th at p. 185-186 [“The framework for proving use in an
idea submission claim is parallel to the framework for showing
copying in a copyright claim. . . . We . . . look to analogous
copyright cases for guidance, in addition to idea submission
cases”].)
54
Norman urges us to employ the “inverse ratio” standard.
Under that rule, “Where there is strong evidence of access, less
proof of similarity may suffice. Conversely, if the evidence of
access is uncertain, strong proof of similarity should be shown
before the inference of copying may be indulged.” (Golding v.
R.K.O. Pictures (1950) 35 Cal.2d 690, 695.) Norman then relies
on Fink v. Goodson-Todman Enterprises, Ltd. (1970) 9
Cal.App.3d 996 (Fink) to argue that she only “need[s] one
similarity” to prevail, and that “finding one substantially similar
element is enough.”
Fink does not support Norman’s contention. In that case,
the plaintiff alleged contract and copyright causes of actions
arising from alleged idea theft. The case reached the Court of
Appeal following a demurrer, so the court was considering
whether the causes of action had been adequately pled. The
court considered “whether, as a matter of law, it cannot be said
that defendants have appropriated and used[ ] a qualitatively
important part of plaintiff’s material in such a way that features
discernible in defendants’ work are substantially similar thereto.”
(Fink, supra, 9 Cal.App.3d at p. 1007.) The court looked at the
“basic theme” of the works, the “ detailed exposition (through the
combination of the presentation and pilot script) of the back
story,” “the plots for 15 of an estimated 39 weekly episodes” of the
relevant television series, and certain “portrayal techniques” such
as a dream sequences, use of flashbacks, “use of the signature
and talisman devices,” interactions between episode plots and
back story, and use of music to create atmosphere. (Id. at p.
1011.) The court did not, as Norman suggests, hold that evidence
of substantial similarity was not required in an idea theft case, or
55
that a single similar element was sufficient to support an
inference of use.
Moreover, legal authority developed in the five decades
since Fink was decided does not support Norman’s position.
Indeed, in idea theft cases “[c]ourts have specifically rejected the
contention that liability could be imposed on defendants on the
basis of less than substantial similarities.” (5 Nimmer on
Copyright § 19D.08 (2023).) The Ninth Circuit recently rejected
the inverse ratio rule in a copyright case, finding that it created
the type of uncertainty underlying Norman’s arguments here.
The Ninth Circuit stated that the inverse ratio rule “is not part of
the copyright statute, defies logic, and creates uncertainty for the
courts and the parties.” (Skidmore as Trustee for Randy Craig
Wolfe Trust v. Led Zeppelin (9th Cir. 2020) 952 F.3d 1051, 1066.)
The court found that the inverse ratio rule was unhelpful to a
copyright analysis, because “[a]ccess does not obviate the
requirement that the plaintiff must demonstrate that the
defendant actually copied the work.” (Id. at p. 1069.) The court
noted, “[W]e are not suggesting that access cannot serve as
circumstantial evidence of actual copying in all cases; access,
however, in no way can prove substantial similarity.” (Id. at p.
1069.)
We need not address the applicability of the inverse ratio
rule generally. Under the circumstances here, although it is
undisputed that some defendants had access to Norman’s work,
that access does not obviate the substantial similarity
requirement. We therefore follow the many cases holding that in
an idea theft case, a plaintiff may raise an inference of use by
proving access to the plaintiff’s ideas and that the defendant’s
work is substantially similar to the plaintiff’s ideas. (See, e.g.,
56
Esplanade Productions, supra, 93 Cal.App.5th at pp. 805-806;
Spinner, supra, 215 Cal.App.4th at pp. 184-185; Ryder, supra,
246 Cal.App.4th at p. 1073; Hollywood Screentest, supra, 151
Cal.App.4th at p. 646; Sutton v. Walt Disney Productions (1953)
118 Cal.App.2d 598, 603.)
The trial court found that Tragic and Mixed-ish were
substantially similar because “the core of both works focuses on a
mixed-race character trying to figure out how she fits in, dealing
with parents of different races, and navigating in black and white
worlds. Some of the plot points, such as involving hair and
dating a white person, are similar. Both use the ‘gimmick’ of
flashbacks.” 13
Defendants note that the mixed-race character of Bow, her
family, and her struggles to fit in were developed in Black-ish
generally and in the Black-ish episode “Being Bow-racial”
specifically. They argue that because these elements existed
before Tragic, they should be “filtered out” of the substantial
similarity analysis, as the Court of Appeal did in Ryder, supra,
246 Cal.App.4th at p. 1074.
13 Norman’s declaration was the only evidence the trial court
cited in its finding regarding substantial similarity. Defendants
argue the trial court erred in overruling their objections to
Norman’s declaration, and in relying on Norman’s
characterizations of the evidence rather than the evidence itself.
The admissibility of Norman’s statements does not affect our
findings, and therefore we need not address defendants’
evidentiary objections here. However, we do agree that the court
was obligated to consider the works themselves, not only
Norman’s characterization of them. It is unclear whether the
court did so.
57
In Ryder, writer and director James Cameron created the
story that eventually became the film Avatar (20th Century Fox
2009). In 1995, Cameron recorded his ideas in “a detailed 102-
page ‘scriptment,’ which he describes as a ‘highly detailed script-
length treatment that, like a treatment, was in a narrative rather
than dialogue form, and laid out the story, characters, setting
and many of the visual images for Avatar in great detail.’” (Id. at
p. 1068.) Between 1996 and 1998, plaintiff Eric Ryder wrote a
science fiction short story called “KRZ 2068” (KRZ). Ryder shared
the story with people at Lightstorm Entertainment, and they
worked on revising and preparing the story for a pitch; ultimately
Lightstorm passed on the project. (Ryder, supra, 246 Cal.App.4th
at pp. 1069-1070.) Ryder later sued Cameron and Lightstorm,
alleging that they “fraudulently expressed interest in developing .
. . KRZ and used parts of that story in Cameron’s 2009 film
Avatar.” (Id. at p. 1067.) The trial court granted the defendants’
motion for summary judgment.
On appeal, in considering substantial similarity between
Avatar and KRZ, the court stated, “The preexisting elements in
the Avatar scriptment are not actionable because defendants
would not have ‘used’ those same elements from Ryder’s later-
created KRZ. Thus, we ‘filter out’ those preexisting elements in
assessing the similarity of the works.” (Ryder, supra, 246
Cal.App.4th at p. 1074.) The court relied on a copyright case,
Murray Hill Publications, Inc. v. Twentieth Century Fox Film
Corp. (6th Cir. 2004) 361 F.3d 312, 326, which stated, “[W]here
defendant owns a prior work containing the same elements, he
has no reason . . . to copy wrongfully from another what he could
legally copy from himself. Therefore, where an element occurs
both in the defendant’s prior work and the plaintiff’s prior work,
58
no inference of copying can be drawn.” (Ryder, supra, 246
Cal.App.4th at pp. 1074-1075.)
Although Ryder was not a copyright case, Norman argues
its reasoning has no place outside of copyright law, because
parties may contract for anything—even the development of non-
original ideas. (See, e.g., Chandler v. Roach (1957) 156
Cal.App.2d 435, 442 [“The producer and the writer should be free
to make any contract they desire to make with reference to the
buying of the ideas of the writer”]; Weitzenkorn v. Lesser (1953)
40 Cal.2d 778, 791 [a plaintiff may prove the defendants agreed
“to pay for [the plaintiff’s] composition if they used it, or any
portion of it, regardless of its originality”].) Nevertheless, in an
idea theft case the plaintiff must show that “‘the defendants
based their work substantially on the plaintiffs’ ideas, rather
than on their own ideas or ideas from other sources.’” (Esplanade
Productions, supra, 93 Cal.App.5th at p. 805, quoting Spinner,
supra, 215 Cal.App.4th at p. 184 [emphasis added].) The
recipient of an idea “is legally obligated to pay only if the idea
that the recipient used was the one actually received from
plaintiff.” (5 Nimmer on Copyright § 19D.07 (2023).)
Thus, in a case like Ryder or this one, where there is
evidence that the defendants created certain characters and story
lines before the plaintiff created or shared her ideas, filtering out
those preexisting elements is appropriate. 14 If the defendants had
14 The trial court found that there were “differences between
the highly detailed scriptment in Ryder and the preexisting
general concepts at issue here.” We agree that as a practical
matter, preexisting elements must be developed to a certain level
of detail to allow a court to determine which factors to filter out.
But we disagree that characters whose existence, background,
59
already begun to develop those ideas before receiving them from
the plaintiff, there can be no liability for the alleged theft of such
ideas. 15
Thus, we filter out elements that defendants had already
created and used in Black-ish before Norman shared her ideas
about Tragic. 16 Black-ish developed the character of Bow, a
mixed-race woman with a black parent and a white parent. The
black parent and white parent are in an interracial relationship;
the episode “Being Bow-racial” also specifically addressed
interracial dating. That episode further showed that, while
growing up, Bow grappled with fitting in and what it means to be
half-black and half-white in America, including not knowing
which race box to check on a school form. She experienced
microaggressions and misunderstandings from others. We
and family relationships had been developed over several seasons
of a series, as well as a completed and aired episode specifically
addressing Bow’s background, were somehow too general or
undeveloped to allow the court to filter out these preexisting
elements.
15 Conceivably, there could be liability despite preexisting
elements where, for example, the defendants created characters
and a general story line, asked the plaintiff to further develop
those specific ideas, and then used the plaintiff’s work without
compensation. Such a scenario has not been alleged here.
16 We are not employing the independent creation doctrine,
which holds that inference of use can be dispelled by evidence of
independent creation. (See, e.g., Hollywood Screentest, supra,151 Cal.App.4th at p. 646; Teich v. General Mills, Inc. (1959) 170
Cal.App.2d 791, 799-800.) Although defendants presented
evidence that Mixed-ish was created independently by Winston
and Barris, who both stated that they never saw the Tragic
materials, defendants acknowledged to the trial court that they
had not fully developed this defense.
60
therefore reject Norman’s argument that the following elements
support a substantial similarity finding: involvement of “a mixed-
race woman who grew up in the suburbs,” “dating outside your
race,” undefined “microaggressions felt by the main role,” “the
challenges of a mixed-race person such as not fitting in [and] not
knowing what box to check when asked one’s race,” the main
characters’ “desire to fit in and not knowing where she belongs.”
Notably, these are very general, high-level elements. Even
if they were not filtered out as preexisting elements, they would
be of limited use in a substantial similarity analysis. (See, e.g.,
Ryder, supra, 246 Cal.App.4th at pp. 1077-1078 [certain elements
are “too obvious and insubstantial to be an actionable
similarity”]; Klekas v. EMI Films, Inc. (1984) 150 Cal.App.3d
1102, 1112-1113 [“the subjects of friendship, courage, honor and
the effect of war on the human spirit” were general and “not
protectible material in and of themselves”]; Corbello v. Valli (9th
Cir. 2020) 974 F.3d 965, 975 [in the copyright context, “[n]on-
protectable elements include . . . scenes-a-faire (that is, ‘situations
and incidents that flow necessarily or naturally from a basic plot
premise’ or generic plot line) and ‘[f]amiliar stock scenes and
themes that are staples of literature’”].)
Norman asserts that touching on these themes as a small
part of Black-ish is not the same as developing an entire series
out of these elements. We agree that the depth of treatment in
each of the works is a relevant consideration. Thus, we examine
how Norman and defendants built upon these basic themes in
Tragic and Mixed-ish to determine whether Norman has
presented evidence upon which a rational jury could conclude
that the two works are substantially similar. (See Ryder, supra,
61
246 Cal.App.4th at p. 1073; Spinner, supra, 215 Cal.App.4th at p.
185.).
Although there are no bright-line rules for determining
substantial similarity, we rely on guidance from previous cases
that made substantial similarity findings. (See, e.g., Weitzenkorn
v. Lesser, supra, 40 Cal.2d at p.791 [comparing the “form and
manner of expression”; “the ‘basic dramatic core’”; the
“combination of characters, locale and myth”; and the
“characterizations, descriptions, and events”]; Henried v. Four
Star Television (1968) 266 Cal.App.2d 435, 436 [reviewing for
commonalities in “plot, motivation, subject matter, milieu, and
characterization”]; Minniear v. Tors (1968) 266 Cal.App.2d 495,
505 [examining whether there were “similarities in basic plot
ideas, themes, sequences and dramatic ‘gimmicks’”]; Ryder,
supra, 246 Cal.App.4th at pp. 1076-1079 [comparing in the two
works the role of the main characters, characters’ motivations,
interactions between characters, “significant plot point[s],”
specific scenes, and use of technology].)
We begin by considering the basic themes and tones of the
two series. The basic theme of Tragic centered around adult
main character Hayley’s life in the present day, starring Norman
as a fictionalized version of herself. Different pitches/decks listed
Hayley’s job as a journalist or an actor. Tragic was to be “[a]n
unflinching, self-deprecating depiction of the minutiae of Hayley’s
everyday life.” Tragic included many references to current issues
such as Hayley’s half-sister Jazmyn being “Black Twitter
famous,” videos going viral, Hayley’s future in-laws being Trump
supporters, Black Lives Matter, and #OscarsSoWhite. The show
was intended to be edgy and adult, with the pilot episode focusing
on Hayley getting caught lying and stealing. The deck included
62
jokes such as, “[C]an Hayley really claim that she’s pro-black
when her own fiancé is white? Even her pussy is colonized!” and
Jazmyn being “eager to date but can’t seem to find a black man
she doesn’t think is a ‘fucknigga.’” One episode proposal
suggested that Sam, a former heroin addict, was curious about
trying ayahuasca; Hayley tries it and has a bad trip.
Mixed-ish, on the other hand, centered around Bow as a 12-
year-old child in 1985. She was innocent and naïve after growing
up on the utopian commune, and was learning about the “real
world” while attending elementary/middle school for the first
time. 17 The series was wholesome and family friendly. Bow was
kind to others and a peacemaker. In the second episode, for
example, Bow tried to employ conflict resolution skills to help
other students at school get along, and she dragged a new table
into the cafeteria so she and a Latina friend could sit together
without choosing the black or white side. Conversation around
the family dinner table focused on how each family member made
the world a better place that day. Plots included whether the
children would be able to go trick-or-treating like their friends,
and the children not knowing about Christmas because the
commune celebrated winter solstice instead. Because the series
was set in the mid-1980’s, there were no cell phones, no social
media, and no references to current events. Historical concepts
such as affirmative action were explained via voiceover, and
events of the time—the Challenger disaster, ozone layer
depletion—were addressed.
17 In the first season of Mixed-ish, Bow is in seventh grade
and attends the same school as Johan, age 7, and Santamonica,
age 5.
63
Both shows focused on family relationships, but the
relationships were not similar. In Tragic, Hayley “tries to bridge
her two disparate families, but in doing so usually creates more
unrest and confusion. In every scenario, she’ll be the odd person
out, seeking a way to deal with otherness.” Hayley’s white
mother was portrayed as neurotic and living with her
codependent and clueless white boyfriend/husband. Hayley did
not grow up with her father or Jazmyn. Jazmyn was “image
conscious to the extreme” and played to her social media
following. Hayley lived with her white fiancé, Sam; he was from
a “Trump supporting Evangelical family in the corn fields of
Illinois.” The season arc showed the couple planning their
wedding, but experiencing increasing strain in their relationship
and calling off the wedding when their “families clash, a fight
erupts, and Hayley and Sam are forced to take opposite sides.”
In Mixed-ish, on the other hand, the family was cohesive
and supportive. Bow lived with her black mother, Alicia, an
attorney; her white father, Paul, a stay-at-home parent; and her
two siblings. Alicia and Paul retained their hippie values from
the commune. Bow had no issues finding belonging within her
family; the lack of belonging came almost exclusively from
outside the family (e.g., at school). Two extended family
members regularly visited the family: Alicia’s sister Denise, and
Paul’s father Harrison, who was also Alicia’s boss. Much of the
familial conflict centered around the hippie parents’ views
conflicting with the more mainstream ideas of Denise and
Harrison. For example, Alicia and Paul told the children that
race does not matter, but Denise argued that their commune-
style, race-blind thinking would not work in the real world. And
when Harrison criticized Paul for being a stay-at-home parent in
64
the same episode in which Bow was struggling to navigate the
black/white divide at school, Paul and Bow had a conversation
about why it is hard for both of them to be “different.” 18
Norman contends both shows involve “an uplifting tone of
self-affirmation.” However, Tragic was not pitched as such.
Rather, it was pitched as “honest and irreverent,” “unflinching,”
and “off-kilter”; Hayley “isn’t afraid to speak up” or “force the
conversation”; and plots revolved around her “faux pas and her
issues with society and other people’s behavior.” Hayley’s
upbringing was “misguided,” and her efforts to connect with
family and friends “usually creates more unrest and confusion.”
Plots and jokes included adult topics such as sex and drug use, as
opposed to Bow and her siblings’ experiences growing up in a
supportive family and attending elementary/middle school.
While there is some overlap in theme—mixed-race protagonists
navigating a race-conscious world—the differences in theme far
outweigh the similarities.
We next consider the series’ plot devices. Norman argues
that “[b]oth series take place in the present day,” and that
“[e]very episode of both series includes the ‘way in’ to the back
story through the use of flashbacks.” This is incorrect.
Flashbacks were to be used in every episode of Tragic, but they
were not used regularly in Mixed-ish, which was not set in the
18 In Tragic, Hayley’s father was portrayed as a gambling
addict and her mother’s parents were “Russian alcoholics.”
Pointing to the line in Mixed-ish, episode 1 in which an amped-up
Harrison says, “I do cocaine,” Norman argues the family
dynamics of the shows were similar because “both series also
have a relative with addiction.” Other than the single line in
episode 1 of Mixed-ish, however, the series did not address
addiction.
65
present day. The pilot episode of Mixed-ish began in the present
day and used a flashback to set up the story of Bow’s life
changing at age 12. However, the remainder of Mixed-ish was set
in the 1980’s, with some retrospective narration by Bow’s
character as an adult. Thus, no rational jury would find the use
of flashbacks support a finding of substantial similarity.
Norman also asserts that the settings of the shows were
similar. Tragic was set in the city; Hayley lived with her fiancé in
“East Hollywood (a.k.a. Little Armenia).” In Mixed-ish, Bow and
her family lived in a house owned by Paul’s father in a
nondescript suburb, and many of Bow’s interactions occurred in
her racially diverse school. Norman contends that because young
Hayley also grew up in the suburbs, this element is substantially
similar. This detail does not demonstrate that the settings of the
shows are similar. Moreover, the suburbs in the two series had
opposite meanings: in Tragic, Hayley’s white, suburban
background was referenced as the reason she did not understand
black culture, while the racially diverse suburb and school in
Mixed-ish represented the harsh realities of the mainstream
world compared to the commune.
Norman also contends that some of the jokes or plots of
Mixed-ish came from the Tragic pitch. She points to the joke in
Mixed-ish about white people clapping on the 1 and the 3 beats,
for example, but this joke is common fodder for comedians and
musicians. 19 Moreover, it made up mere seconds of a single
Mixed-ish episode. Norman also argues that Mixed-ish is similar
to Tragic because both had “conservative” in-laws. This is not a
19 Defendants point out that in Black-ish, season 2 episode 11,
which aired in 2016, Bow and Dre’s daughter Diane criticizes her
twin brother Jack for clapping on the 1 and the 3.
66
major plot point in Mixed-ish, and in-laws having different
political views than the main characters is a common family
sitcom trope, which was also used in Black-ish with Dre’s
parents. These minor details do not support a finding of
substantial similarity.
Norman also points to the plot about the children’s hair for
school picture day in episode 3 of Mixed-ish, comparing it to the
meme about her childhood hair in the Tragic deck. In Norman’s
meme, however, her messy hair was shown as an indicator that
her white mother did not know how to do black hair. In Mixed-
ish, the conflict was whether the children should embrace their
natural hair or conform to styles that were more mainstream at
the time. Therefore, while both the Tragic meme and the Mixed-
ish episode addressed children’s hair, no reasonable jury would
find them to be substantially similar.
Thus, the differences in general theme, tone, characters,
relationships, settings, and plots demonstrate that the two series
are not substantially similar. If “no rational jury could conclude
the actionable elements” are similar, there is no inference of use
as a matter of law. (Ryder, supra, 246 Cal.App.4th at p. 1073; see
also Spinner, supra, 215 Cal.App.4th at p. 185.) Here, Norman
has failed to meet her burden to show substantial similarity. The
trial court’s holding to the contrary was erroneous.
2. Breach of confidence
The trial court found that Norman did not meet her second
step anti-SLAPP burden for this cause of action because “she did
not submit evidence that she requested her ideas be kept
confidential when she disclosed them to Ross and Dobbins. She
states she ‘understood . . . that my sharing of my materials was
done on a confidential basis (Norman Decl. ¶ 12), but she does not
67
state she told Ross and Dobbins that she was offering the
materials to them in confidence.” The court also noted that
Norman did not claim that any special relationship between her
and any defendant created a duty of confidentiality, and she cited
no “legal authority holding that in Hollywood, custom and
practice creates a duty of confidentiality whenever a person
discloses an idea even if there is no communication of the
confidentiality of the submission.” Nevertheless, for reasons not
explained in the court’s order, the court denied the special motion
to strike as to Ross and Artists First, and granted it as to Barris.
Defendants assert that the court’s findings were correct,
and its failure to strike the breach of confidence cause of action
was error. Norman argues “that she explicitly requested
confidentiality at the time of disclosure.” She points to
paragraph 4 of her declaration, but this paragraph discusses
Norman’s disclosure to Vogel at Big Breakfast—not to any
defendants. Norman also points to paragraph 12 of her
declaration, in which she states that when she met with Ross in
January 2018, after Ross had already received the initial Tragic
materials, Norman “understood like I did for my disclosures to
BB, that my sharing of my materials was done on a confidential
basis.” Norman also relies on the declaration of her expert
witness, Richard Marks, who stated that it is the custom and
practice within the entertainment industry to keep pitch
materials confidential.
This evidence does not demonstrate any understanding on
the part of defendants of a confidential relationship, which is a
necessary element of the claim. “An actionable breach of
confidence will arise when an idea . . . is offered to another in
confidence, and is voluntarily received by the offeree in
68
confidence with the understanding that it is not to be disclosed to
others . . . There must exist evidence of the communication of the
confidentiality of the submission or evidence from which a
confidential relationship can be inferred.” (Faris, supra, 97
Cal.App.3d at p. 323.) Because such a claim is based on an
implied obligation or contract between the parties, “the gravamen
of the tort is an understanding between the parties that an idea
is offered upon a condition of confidence.” (Tele-Count Engineers,
Inc. v. Pacific Tel. & Tel. Co. (1985) 168 Cal.App.3d 455, 464
(Tele-Count Engineers).) It is therefore essential “that the
plaintiff in a breach of confidence action must demonstrate the
defendant’s actual knowledge of the condition of confidentiality.”
(Ibid., citing Mann v. Columbia Pictures, Inc., supra, 128
Cal.App.3d at p. 646; see also Faris, supra, 97 Cal.App.3d at p.
324 [“evidence of knowledge of confidence or from which a
confidential relationship can be implied is a minimum
prerequisite”].)
Norman’s “understanding” that her communication was
confidential, and her expert’s opinion that pitches are typically
considered confidential, do not meet this standard. There is no
suggestion in the evidence that defendants received the Tragic
materials under an agreement of confidentiality. To the contrary,
Dobbins stated in his declaration that he was not told that the
materials were confidential. Kelly-Clyne stated in his declaration
that he did not tell Dobbins or Ross that the information was
confidential: “As Big Breakfast had the exclusive rights to Tragic
and owned the development, we did not communicate to Ms. Ross
or her manager Brian Dobbins at [Artists First] that the Tragic
project or ideas were Ms. Norman’s proprietary and confidential
information.”
69
Moreover, as noted above, “a cause of action for ‘breach of
confidence’ requires a finding that [the defendants] actually used
[the plaintiff’s] confidential information to their benefit.”
(Hollywood Screentest, supra, 151 Cal.App.4th at p. 651; see also
Esplanade Productions, supra, 93 Cal.App.5th at p. 805.) For the
reasons discussed above, Norman cannot make that showing
here. Thus, Norman has not demonstrated a probability of
success as to her breach of confidence cause of action as to any
defendant, so the motion should have been granted for this
claim. 20
3. Promissory estoppel and intentional
misrepresentation
The elements of a promissory estoppel claim are: (1) a
promise that is clear and unambiguous in its terms; (2) reliance
by the party to whom the promise is made; (3) the reliance was
both reasonable and foreseeable; and (4) the party asserting the
estoppel must be injured by the reliance. (Flintco Pacific, Inc. v.
TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727,
20 Norman contends the trial court erred in denying her
motion seeking discovery regarding whether the relationship
among the defendants may have constituted a joint venture due
to the fact that Artists First and Big Breakfast shared a parent
company, Electus. She contends that with respect to the breach
of implied-in-fact contract and breach of confidence causes of
action, “should this court find that Norman has not met her
Prong Two burden without establishing the existence of a [joint
venture], then it is clear that the Superior Court abused its
discretion” in denying Norman’s request for discovery on this
topic. Because this is not the basis for our holding that Norman
failed to demonstrate a probability of success, Norman has not
demonstrated the court erred in denying her motion for discovery
on this topic.
70
734.) “The essential elements of a count for intentional
misrepresentation are (1) a misrepresentation, (2) knowledge of
falsity, (3) intent to induce reliance, (4) actual and justifiable
reliance, and (5) resulting damage.” (Chapman v. Skype Inc.
(2013) 220 Cal.App.4th 217, 230-231.)
The trial court held that Norman presented no evidence
that she altered her actions in reliance on Ross’s promises, or
that Ross had no intent to perform when she made such
promises. Norman argues the court erred, and points to
paragraphs 13 and 14 of her declaration, which describe some of
her early conversations with Ross. Norman asserts these
paragraphs show that Norman “changed her position by deciding
to move forward with Ross on [Tragic] and by disclosing all her
materials to her.”
However, the evidence showed that Norman wanted Ross
to be involved in developing Tragic. Dobbins therefore sent the
Tragic materials to Ross months before Ross and Norman talked.
Norman said in her declaration that when she first spoke with
Ross in January 2018, “my goal was to sell the series to Ross by .
. . sharing ideas, concepts, and stories about [Tragic] directly
with her” and “I told Ross that I would love to work with her.”
Norman and Ross did work together, and together they pitched
Tragic to financiers. The evidence does not suggest that Norman
changed her position in reliance on any promises made by Ross.
Moreover, Norman’s damages for these causes of action
arise from the allegation that defendants used material from
Tragic to make Mixed-ish without compensating Norman. With
respect to her promissory estoppel cause of action, for example,
Norman argues in her appellate briefing, “It was Ross’s full
access to [Tragic] that enabled her to use it, or parts of it, as
71
‘creator’ and ‘executive producer’ of Mixed-ish.” And in her cause
of action for intentional misrepresentation, she asserts that
defendants “knew at the time of [their misrepresentations] that
they intended to appropriate [Tragic] for themselves without
having any intention of attaching Norman in any manner to the
series ‘Mixed-ish.’” As discussed above, the evidence does not
support a finding that Mixed-ish was substantially similar to
Tragic, and there is no evidence supporting a finding that at the
time Norman shared Tragic with defendants, they intended to
steal her material. Norman therefore has not met her burden to
show a probability of success as to these causes of action.
4. Intentional interference with contract and inducing
breach of contract
“To prevail on a cause of action for intentional interference
with contractual relations, a plaintiff must plead and prove (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.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) The
plaintiff also “must show the defendant’s knowledge that the
interference was certain or substantially certain to occur as a
result of his or her action.” (Ibid.) To prevail on a cause of action
for inducing breach of contract, a plaintiff must prove (1) the
existence of a valid contract with a third party; (2) the defendant
had knowledge of the contract and intended to induce its breach;
(3) the contract was in fact breached; (4) the breach was caused
by defendant’s unjustified or wrongful conduct; and (5) the
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plaintiff suffered damages as a result. (Little v. Amber Hotel Co.
(2011) 202 Cal.App.4th 280, 291.)
The trial court found that Norman had not demonstrated a
probability of success for these causes of action because she “did
not submit evidence that Big Breakfast failed to perform or
breached its contractual relationship as a result of the
defendants’ actions.” The court noted that Big Breakfast worked
with Norman, Ross, and others to develop Tragic, and pitched it
to six potential financiers. The court stated that Norman “did not
submit evidence that Big Breakfast would have successfully
placed Plaintiff’s series with a network or production company if
the defendants had not started working on ‘Mixed-ish’ or that Big
Breakfast abandoned her contract because of ‘Mixed-ish’ or any
actions by the defendants.”
The evidence supports this finding. Norman’s agreement
with Big Breakfast was to help develop Tragic and pitch it to
financiers. The evidence shows that Big Breakfast did so.
Norman does not directly address this on appeal. Rather,
Norman contends that “within one month of Mixed-ish being
publicly announced, BB terminated its relationship with
Norman.” The evidence shows, however, that Norman’s
agreement with Big Breakfast expired according to its own terms
in March 2019—a date the parties agreed upon in October 2018,
when they extended the term sheet originally signed in
November 2017. Norman has not presented any evidence that
defendants’ actions affected the expiration of the agreement.
Norman also contends Big Breakfast breached the agreement by
“giv[ing] away the confidential elements of” Tragic. Assuming for
the sake of argument this occurred and could be considered a
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breach of contract, the evidence does not suggest the moving
defendants induced that breach.
In addition, Norman asserts on appeal that the
“contractual provision that Defendants are alleged to have
interfered with and/or induced the breach of is Norman’s right to
receive compensation,” and the “interference and breach are that
[Tragic], in the disguise of Mixed-ish, was made without Norman
being compensated.” As discussed above, the two series are not
substantially similar. Thus, Norman has not demonstrated a
probability of prevailing on her causes of action for intentional
interference with contract or inducing breach of contract.
We therefore find that Norman failed to meet her second-
step burden of demonstrating a probability of success.
Defendants’ anti-SLAPP motions should have been granted in
full. We therefore reverse the trial court’s ruling as it pertains to
Ross and Artists First, and remand the matter with instructions
to the trial court to grant the motion as to them.
D. Attorney fees
1. Background
Section 425.16, subdivision (c)(1) states in part, “[A]
prevailing defendant on a special motion to strike shall be
entitled to recover that defendant’s attorney’s fees and costs.”
Following the trial court’s order on the anti-SLAPP motions,
Barris, Dobbins, and ABC filed a single motion seeking separate
attorney fee amounts: ABC requested $168,845.93, Barris
requested $126,114.27, and Dobbins requested $52,330.34. They
asserted that the trial court had granted their motions in full,
and therefore they were entitled to recover their full attorney
fees. Ross and Artists First filed a separate fee motion; Ross
requested $52,594.87 and Artists First requested $36,311.47.
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They noted that they had partially prevailed on their claims,
because the trial court struck four of the six causes of action
asserted against Ross, and three of the five causes of action
asserted against Artists First. 21 In total, defendants requested
$436,196.88 in attorney fees.
Norman opposed defendants’ motions. She called
defendants’ requests “astronomically unreasonable” and
suggested that the court strike them altogether. Norman also
argued that the work was duplicative among all the defendants,
and that fees were not recoverable for the portions of the motions
that were not successful. Defendants filed replies in support of
their motions.
In a written ruling dated May 27, 2022, the trial court
granted defendants’ motions for fees in part. The court noted
that the parties agreed defendants were the prevailing parties,
but disagreed as to the reasonableness of the fees requested and
the allocation of those fees.
The court stated that the “legal issues were not particularly
novel or difficult,” because “well-established law governed most of
the issues.” The court also noted that Norman’s “many causes of
action and many claims asserted within the causes of action, as
well as the multiple defendants, made these three anti-SLAPP
motions more difficult than a typical anti-SLAPP motion. Also,
[Norman’s] requests to take discovery related to the anti-SLAPP
motions added to the motion practice, expense, and timeline for
deciding the motions.”
21 Defendants also filed memoranda of costs, which Norman
moved to tax. The court partially granted the motion to tax. The
costs are not at issue in this appeal.
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The court noted that the “attorneys on both sides presented
their arguments more skillfully than the average attorney.” It
continued, “That being said, Defendants took a maximalist
approach to this litigation.” The court noted that while a client
may demand top-notch work, “that does not mean the adversary
in the litigation is required to pay for such an all-out effort.” The
court therefore found that not all of the time billed by defendants’
counsel was “reasonable and necessary.”
The court discussed defendants’ motions and “deluge of
evidence,” and noted that “[t]he bulk of the evidence supported
Defendants’ arguments that [Tragic] and Mixed-ish were
different, Mixed-ish was created independently and the allegedly
stolen ideas pre-existed in Black-ish. . . . Defendants did not
prevail on these fact-intensive arguments. In granting the
motions, the court did not rely on much of the factual evidence
presented.” Out of the approximately 934 hours of work billed by
defense counsel, the court held that “500 hours was more than
enough time in connection with the anti-SLAPP motions,
including the discovery and fee motions.”
Turning to the allocation of fees, the court found that the
allocations defendants stated in their motions were not supported
by the evidence. The court stated, for example, “Even though the
one cause of action against Dobbins was a small part of the
complaint and the anti-SLAPP motion requiring little evidence,
Defendants allocated to him one-third of the time spent on
drafting the anti-SLAPP motion.” The court also noted that the
amount allocated to Ross was relatively low, even though “Ross is
at the center of this case” and she “moved to strike six causes of
action” which were “fact-intensive.” The court noted that “most
of the factual issues concerning the creation and development of
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[Tragic] . . . and the alleged used of [Tragic] in Mixed-ish remain
to be litigated and decided.” The court concluded, “Having
conducted a thorough analysis, the Court awards fees of $125,000
in total in favor of Defendants. Because defense counsel did not
maintain separate billing records for each Defendant, defense
counsel is in a better position to determine how to allocate that
award among Defendants.”
The court mailed the ruling to the parties on May 27, 2022.
Norman served defendants a notice of the ruling on June 2, and
defendants served Norman notice of the ruling on June 3.
Defendants submitted proposed judgments, and the court
entered the following judgments on November 14, 2022:
judgment in favor of Barris, including $35,714.29 in attorney
fees; judgment in favor of Dobbins, including $8,928.57 in
attorney fees; and judgment in favor of ABC, including
$17,857.14 in attorney fees. The judgments therefore included
$62,500.00—half of the total $125,000 the court allowed for
attorney fees.
On December 7, 2022, Norman filed a notice of appeal,
stating that she was appealing from the November 14 judgments.
2. Motion to dismiss
Defendants moved to dismiss Norman’s appeal, asserting
that the trial court’s May 27, 2022 order awarding attorneys’ fees
was directly appealable as a collateral order, and therefore
Norman’s December 7, 2022 notice of appeal was untimely.
Defendants argue, “At the latest, Appellant had 60 days after
service of Respondents’ June 3, 2022 ‘Notice of Entry’ of the May
27, 2022 Order to appeal. (Cal. Rules of Court, rule
8.104(a)(1)(B).)”
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Norman opposes the motion to dismiss. She argues that
the May 27 attorney fee order “was not and could not be final
(and thus appealable) . . . because the Order itself provided
Respondents were to allocate the amount of fees awarded by the
Superior Court between themselves – (one of the primary bases
for this Appeal) and, thus, the Order did not dispose of all issues
raised by the Attorney Fee Motion” She argued in the
alternative that the appeal was timely as to Barris, Dobbins, and
ABC, but not yet ripe as to Ross and Artists First, under the
reasoning of Doe v. Luster (2006) 145 Cal.App.4th 139 (Doe),
which held that an attorney fee ruling following an anti-SLAPP
ruling is not an appealable order under section 425.16 and 904.1.
We deny defendants’ motion to dismiss. “The right to
appeal in California is generally governed by the ‘one final
judgment’ rule, under which most interlocutory orders are not
appealable.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 754
(In re Baycol Cases), citing § 904.1.) Courts are “reluctant to
depart from its principles and endorse broad exceptions that
might entail multiple appeals absent compelling justification. . . .
Accordingly, ‘exceptions to the one final judgment rule should not
be allowed unless clearly mandated.’” (Id. at p. 757.)
The ruling on an anti-SLAPP motion falls under an
exception to the one final judgment rule pursuant to statute.
Section 425.16, subdivision (i) states, “An order granting or
denying a special motion to strike shall be appealable under
Section 904.1.” And section 904.1, subdivision (a)(13) allows an
appeal “[f]rom an order granting or denying a special motion to
strike under Sections 425.16.”
Some cases have found that this statutory exception does
not extend to rulings on attorney fee motions following an anti-
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SLAPP motion. In Doe, supra, 145 Cal.App.4th at p. 150, for
example, the court held, “If the motion for fees under section
425.16, subdivision (c), is filed after the trial court rules on the
special motion to strike—as it was in the case at bar—the order
awarding or denying those fees is not an ‘order granting or
denying a special motion to strike’; and no plausible argument
can be made that such an order is immediately appealable under
section 425.16, subdivision (i).” (See also Baharian-Mehr v.
Smith (2010) 189 Cal.App.4th 265, 274 (Baharian-Mehr) [“we
agree with the holding in Doe that a separate attorney fee order
should not be heard on interlocutory appeal”].)
The court in City of Colton v. Singletary (2012) 206
Cal.App.4th 751, 781 (City of Colton), another anti-SLAPP case,
agreed that the “plain language of section 904.1 does not include
an award of attorney’s fees among the exceptions to the one final
judgment rule.” However, City of Colton held that “since the
attorney fee order is (1) independent of the main causes of action,
and (2) involves the payment of money by the appellant, we
conclude it qualifies for the collateral order exception, and is
directly appealable.” (206 Cal.App.4th at p. 782.)
The collateral order exception “allows an appeal to be taken
‘[w]hen a court renders an interlocutory order collateral to the
main issue, dispositive of the rights of the parties in relation to
the collateral matter, and directing payment of money or
performance of an act.’” (Longobardo v. Avco Corp. (2023) 93
Cal.App.5th 429, 432, quoting In re Marriage of Skelley (1976) 18
Cal.3d 365, 368.) “To qualify as appealable, the interlocutory
order must be a final determination of a matter that is
collateral—i.e., distinct and severable—from the general subject
of the litigation. [Citations.] The order is deemed final if further
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judicial action is not required on the matters dealt with by the
order.” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545.)
Here, defendants argue that because the fee order can be
deemed a collateral order, under the “one shot rule” Norman was
obligated to appeal directly from that order rather than waiting
for a judgment. As explained by the Supreme Court, “California
follows a ‘one shot’ rule under which, if an order is appealable,
appeal must be taken or the right to appellate review is forfeited.
(See § 906 [the powers of a reviewing court do not include the
power to ‘review any decision or order from which an appeal
might have been taken’ but was not] . . . .) If [an] order was
appealable, it follows that it had to be timely appealed or the
right to challenge its particulars be forever lost.” (In re Baycol
Cases, supra, 51 Cal.4th at p. 762 fn. 8.) Defendants argue that
because Norman did not timely appeal from the order, and
instead waited until judgments were entered, Norman missed her
“one shot.”
We decline to find that the collateral order doctrine and the
one shot rule together bar Norman’s appeal. First, some case
authority, including Doe quoted above, specifically states that a
fee order such as this one is not appealable under section 425.16.
As a matter of fairness, we decline to dismiss Norman’s appeal as
untimely while case law on the issue is in conflict. In the absence
of clear authority to the contrary, Norman and her counsel were
entitled to rely on Doe’s reasoning that an appeal directly from
the attorney fee order was not permitted under section 425.16.
Second, defendants cite no cases in which the collateral
order doctrine and the one shot rule have been combined to
render untimely an appeal filed after entry of judgment. Rather,
the court in City of Colton—which defendants assert is “directly
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on point”—used the collateral order rule to find that the court did
have jurisdiction to decide the fee award ruling. (See City of
Colton, supra, 206 Cal.App.4th at p. 782.) Similarly, the court in
Baharian-Mehr, although not relying on the collateral order
doctrine, stated that when “the issue of whether the anti-SLAPP
motion should have been granted is properly before the appellate
court, it would be absurd to defer the issue of attorney fees until
a future date, resulting in the probable waste of judicial
resources. When the first issue is properly raised, appellate
jurisdiction over both issues under section 425.16, subdivision (i)
is proper.” (Baharian-Mehr, supra, 189 Cal.App.4th at p. 275.)
Another case cited by defendants, Apex LLC v. Korusfood.com
(2013) 222 Cal.App.4th 1010, 1016, also held that jurisdiction
was proper under the collateral order doctrine. These cases do
not employ the collateral order doctrine to bar appellants from
appealing following a final judgment.
These cases do not support a finding that the collateral
order doctrine, combined with the one shot rule, supports a
motion to dismiss an appeal filed after entry of judgment under
the circumstances here. We therefore deny defendants’ motion to
dismiss Norman’s appeal of the judgments entered against
Barris, Dobbins, and ABC. 22
3. Analysis
Turning to the substance of Norman’s challenge to the fee
award, she asserts that defendants’ fee requests were so
22 To the extent Norman’s notice of appeal was intended to
challenge the fee award as it pertains to Ross and Artists First, it
was either untimely (based on the date of the court’s fee award
order) or not yet ripe (because the fee awards had not been
reduced to judgments).
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excessive that they should have been reduced to zero, and that
this court should further reduce the award based on an allocation
formula Norman proposes. We find no error, and affirm.
An award of attorney fees under section 425.16 is reviewed
for abuse of discretion. (Frym v. 601 Main Street LLC (2022) 82
Cal.App.5th 613, 619; Ketchum v. Moses (2001) 24 Cal.4th 1122,
1130.) When reviewing an attorney fee award, the appellate
court indulges all inferences in favor of the trial court’s order and
presumes the trial court’s attorney fee award is correct. (569
East County Boulevard LLC v. Backcountry Against the Dump,
Inc. (2016) 6 Cal.App.5th 426, 433-434 (569 East County).) “‘Fees
approved by the trial court are presumed to be reasonable . . . .’”
(Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.)
First, Norman contends the trial court “should not have
awarded any fees because defendants’ request is grossly
exorbitant.” She argues that defendants were not entitled to any
fees due to the “breathtaking amount of their requested fees” as
well as their “blatant attempt to shift the fees from the main
Partially-Prevailing Defendants (Ross and AF) to the peripheral
Prevailing Defendants (Barris, Dobbins, and ABC).”
Norman relies on Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315 (Christian Research Institute), and
argues that defendants “should face the consequences outlined in
Christian Research Institute: rejection of the entire request.” The
case does not support her argument. There, the appellate court
affirmed the trial court’s award of attorney fees that represented
“25 hours for the motion, 40 hours for the appeal, and 6 hours of
attorney time for the fee motion.” (Id. at p. 1320.) Moreover,
nothing in Christian Research Institute suggests that a trial court
abuses its discretion by awarding fees under section 425.16 if
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defendants’ fee request is excessive. In cases such as Christian
Research Institute and 569 East County, supra, 6 Cal.App.5th
426, which Norman also cites, when courts find a fee request to
be excessive, they award less than the requested amount of
attorney fees—which is exactly what the trial court did here.
Norman has not demonstrated that the trial court abused its
discretion in doing so.
Second, Norman asserts that the trial court abused its
discretion by allowing defendants to apportion the fee award
among themselves. She argues that the way defendants
apportioned the fees—with half represented in the judgments in
favor of Barris, Dobbins, and ABC—was unfair. Norman asserts
that defendants were entitled to attorney fees of “no more than
$50,000” among them. 23 She urges this court to reduce the
award and reapportion the fees using her own complicated
formula and six-step analysis, which involve determining which
party prevailed on which “issues,” and eliminating fees for any
duplicative work on those issues.
Norman’s arguments have become moot. She relies on
Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th
328, 344-345 (Mann), which states, “[A] defendant should not be
entitled to obtain as a matter of right his or her entire attorney
fees incurred on successful and unsuccessful claims merely
because the attorney work on those claims was overlapping.
23 Defendants correctly point out that Norman provides no
basis for this amount in her opening brief. In her reply brief,
Norman argues it constitutes a reduction in fees similar to the
percentages of reduction in Christian Research Institute, supra,
165 Cal.App.4th 1315 and 569 East County, supra, 6 Cal.App.5th
426.
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Instead, the court should first determine the lodestar amount for
the hours expended on the successful claims, and, if the work on
the successful and unsuccessful causes of action was overlapping,
the court should then consider the defendant’s relative success on
the motion in achieving his or her objective, and reduce the
amount if appropriate.” Following this appeal, however,
defendants are fully successful—there are neither unsuccessful
defendants nor unsuccessful causes of action, and therefore no
basis for apportioning fees based on the defendants’ relative
success. The reasoning of Mann does not apply.
Moreover, Norman’s argument is not supported by any
other statute or case law. She cites no authority suggesting that
on a special motion to strike, when counsel works simultaneously
for multiple clients on overlapping legal issues, the trial court is
required to apportion fees in any particular manner. In other
contexts, apportionment is not necessarily required. (See, e.g.,
Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 830
[“allocation among jointly represented parties ‘is not required
when the liability of the parties is “so factually interrelated that
it would have been impossible to separate the activities . . . into
compensable and noncompensable time units”‘“]; Calvo Fisher &
Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 625 [attorney
fees need not be allocated where the “claims were so intertwined
as to make it impracticable, if not impossible, to separate the
attorneys’ time”].) Thus, Norman has not met her burden to
demonstrate that the trial court abused its discretion in its fee
award to Barris, Dobbins, and ABC. 24
24 Defendants have not challenged the fee ruling, and
therefore we address the court’s ruling only as it pertains to the
arguments Norman asserts on appeal.
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Finally, we note that Norman’s opening brief in this appeal
was correctly characterized by defendants as “bombastic,” and
filled with “ad homimem attacks.” Norman, represented by her
counsel, Plonsker Law LLP, engaged in a heated tirade against
defendants’ billing practices, referring to defendants’ requests,
evidence, and arguments as “exorbitant,” “incredible,”
“audacious,” misguided,” “confusing,” “incomprehensible,”
“unbelievabl[e],” “haphazard,” “flagrant,” “false and evidence-
free,” “shenanigans,” “based on whole-cloth inventions,” an
“abuse[ of] trust,” and lacking in “logic, reason, or support.” The
brief opines that defendants’ counsel submitted evidence in the
manner they did because they were “[o]bviously embarrassed to
reveal how much they actually charged their clients,” trying to
“pretend there is some deep logic” for the way fees were
apportioned, and intended to improperly “shift the padded fees”
to certain defendants. The brief suggests the trial court was
“unimpressed” and “all but accused [defendants] of dishonesty.”
These quotes constitute a mere sampling; there are many more
instances of similar derogatory phrasing scattered throughout
Norman’s 60-page opening brief.
We find the unnecessary commentary in Norman’s brief
lacking in professionalism. We expect civility and decorum from
counsel who appear in this court, and this brief falls short of that
expectation. We trust counsel will meet these standards in the
future.
DISPOSITION
The judgments in favor of Barris, Dobbins, and ABC are
affirmed. The trial court’s order denying the special motion to
strike under section 425.16 as to Ross and Artists First is
reversed. The matter is remanded to the trial court with
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instructions to grant the special motions to strike in full as to
Ross and Artists First. Defendants are entitled to their costs on
appeal.
CERTIFIED FOR PARTIAL PUBLICATION
COLLINS, J.
We concur:
CURREY, P. J.
MORI, J.
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