Douglas Jordan-Benel v. Universal City Studios, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS JORDAN-BENEL, an No. 15-56045
individual,
Plaintiff-Appellee, D.C. No.
2:14-cv-05577-
v. MWF-MRW
UNIVERSAL CITY STUDIOS, INC., a
Delaware corporation; BLUMHOUSE OPINION
PRODUCTIONS, LLC, a Delaware
Limited Liability Company;
OVERLORD PRODUCTIONS, LLC, a
California Limited Liability
Company; PLATINUM DUNES
PRODUCTIONS, a California
Corporation; WHY NOT
PRODUCTIONS, INC., DBA Why Not
Films, a Nevada Corporation; JAMES
DEMONACO, an individual,
Defendants-Appellants,
and
UNITED TALENT AGENCY, INC., a
California corporation,
Defendant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
2 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
Argued and Submitted December 5, 2016
Pasadena, California
Filed June 20, 2017
Before: Harry Pregerson, Dorothy W. Nelson,
and John B. Owens, Circuit Judges.
Opinion by Judge Pregerson
SUMMARY *
Anti-SLAPP Motion
The panel affirmed the district court’s order denying
defendants’ anti-SLAPP motion to strike a state law claim
for breach of implied-in-fact contract in a copyright case.
The plaintiff alleged that the defendants infringed his
copyright in a screenplay and used his screenplay idea to
create films without providing him compensation as a writer.
The panel held that the breach of contract claim did not arise
from an act in furtherance of the right of free speech because
the claim was based on defendants’ failure to pay for the use
of plaintiff’s idea, not the creation, production, distribution,
or content of the films. Accordingly, the district court did
not err in denying defendants’ motion to strike the state law
claim under California’s anti-SLAPP statute.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 3
COUNSEL
Kelli L. Sager (argued), Jason Harrow, and Karen A. Henry,
Davis Wright Tremaine LLP, Los Angeles, California, for
Defendants-Appellants.
Glen Lance Kulik (argued) and Patricia Brum, Kulik
Gottesman Siegel & Ware LLP, Sherman Oaks, California,
for Plaintiff-Appellee.
OPINION
PREGERSON, Circuit Judge:
This case is about the alleged theft of a screenplay idea
that was later turned into a popular film series called The
Purge. Plaintiff-Appellee Douglas Jordan-Benel brings
copyright and state law claims, including breach of implied-
in-fact contract and declaratory relief, against several
defendants in the film industry. He alleges that the
defendants used his screenplay idea to create The Purge
films without providing him compensation or credit as a
writer.
Several defendants filed an anti-SLAPP motion to strike
Jordan-Benel’s state law claims. After dismissing the cause
of action for declaratory relief on other grounds, the district
court denied the anti-SLAPP motion. It ruled that Jordan-
Benel’s breach of contract claim does not arise from an act
in furtherance of the right of free speech because the claim
is based on Defendants’ failure to pay for the use of Jordan-
Benel’s idea, not the creation, production, distribution, or
content of the films. We affirm.
4 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
I. FACTUAL BACKGROUND 1
Plaintiff-Appellee Douglas Jordan-Benel writes
screenplays, teleplays, and comic books. Around January
2011, Jordan-Benel wrote a screenplay entitled Settler’s Day
about a family’s attempt to survive an annual, state-
sanctioned, 24-hour period in which citizens are allowed to
commit any crime without legal consequences. He
registered the screenplay with the Writers Guild of America
and the U.S. Copyright Office.
Around June 2011, Jordan-Benel’s manager, Adam
Peck, emailed David Kramer, Managing Director of Feature
Productions at United Talent Agency (“UTA”), about
Settler’s Day. Kramer responded that Peck should contact
Emerson Davis at UTA to discuss the screenplay. Peck then
spoke with Davis and asked permission to submit the
screenplay. Davis agreed and asked that Peck email the
screenplay to both Davis and Kramer. On July 8, 2011, Peck
submitted the screenplay.
Based on custom and practice in the industry and prior
dealings between UTA and Peck, UTA understood that the
submission was not gratuitous and was made for the purpose
of selling the screenplay to a UTA client. Around July 13,
2011, Davis emailed Peck to confirm that he had read the
screenplay but that he was going to “pass.” Nonetheless,
someone at UTA sent the screenplay to UTA client James
DeMonaco. DeMonaco and his partner, Sebastian
Lemercier (also a UTA client), wrote a script entitled The
1
The facts recited here are as alleged in Jordan-Benel’s Second
Amended Complaint.
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 5
Purge, which allegedly copies Jordan-Benel’s ideas from
Settler’s Day.
Around June 7, 2013, a film entitled The Purge was
released. The film was produced by Universal City Studios,
LLC, Blumhouse Productions LLC, Overlord Productions
LLC, Platinum Dunes Productions, and Lemercier’s
company, Why Not Productions, Inc. (collectively,
“Production Defendants”). A sequel was released on July
18, 2014 and a third film was planned for release. UTA
packaged the film and its sequels.
II. PROCEDURAL HISTORY
On February 27, 2015, Jordan-Benel filed the operative
complaint in this action. He alleged copyright infringement
against UTA and the Production Defendants. He asserted a
state law cause of action for breach of implied-in-fact
contract against UTA, DeMonaco, and Why Not
Productions based on his submission of his script, which led
to The Purge. He also asserted a cause of action for
declaratory relief against DeMonaco and the Production
Defendants, seeking a determination and declaration of his
rights to credit and payment for the production and sale of
The Purge.
On March 13, 2015, DeMonaco and the Production
Defendants (collectively, “Defendants”) filed an anti-
SLAPP motion to strike the state law claims on grounds that
they arise from the exercise of Defendants’ right of free
speech. After briefing and argument, the district court issued
an order denying the motion. The district court ruled that
Defendants failed to show that Jordan-Benel’s breach of
contract claim arises from an act in furtherance of
Defendants’ rights of petition or free speech because the
claim is based on the failure to pay for the use of Jordan
6 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
Benel’s idea, not the creation, production, distribution, or
content of the films. 2 Because the district court held that
anti-SLAPP does not apply, the district court did not address
whether Jordan-Benel met his burden of establishing a
probability of prevailing on the claim.
Defendants timely appealed the district court’s denial of
their anti-SLAPP motion to strike.
III. JURISDICTION AND STANDARD OF REVIEW
A district court’s denial of an anti-SLAPP motion is
appealable under the collateral order doctrine and is
reviewed de novo. DC Comics v. Pac. Pictures Corp.,
706 F.3d 1009, 1015–16 (9th Cir. 2013); Doe v. Gangland
Prods., Inc., 730 F.3d 946, 951 (9th Cir. 2013).
IV. DISCUSSION
California’s anti-SLAPP statute provides:
A cause of action against a person arising
from any act of that person in furtherance of
the person’s 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 plaintiff will prevail on
the claim.
2
In the same order in which the district court ruled on the anti-
SLAPP motion, it also ruled on a separate motion to strike and dismissed
with prejudice Jordan-Benel’s cause of action for declaratory relief.
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 7
Cal. Civ. Proc. Code § 425.16(b)(1). The purpose of the
anti-SLAPP statute is to deter lawsuits “brought primarily to
chill the valid exercise of the constitutional rights of freedom
of speech.” Cal. Civ. Proc. Code § 425.16(a); see also
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.
2001) (explaining that the anti-SLAPP statute “was enacted
to allow early dismissal of meritless first amendment cases
aimed at chilling expression through costly, time-consuming
litigation”); Club Members for an Honest Election v. Sierra
Club, 196 P.3d 1094, 1098 (Cal. 2008) (stating that the anti-
SLAPP statute provides for the “early dismissal of
unmeritorious claims” that “interfere with the valid exercise
of the constitutional rights of freedom of speech and
petition”).
To prevail on an anti-SLAPP motion to strike, the
defendant must first make a prima facie showing that the
plaintiff’s suit arises from an act in furtherance of the
defendant’s rights of petition or free speech. Mindys
Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010).
An “act in furtherance” includes, among other things,
“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.”
Cal. Code Civ. Proc. § 425.16(e)(4). If the defendant makes
the required showing, the plaintiff must then demonstrate a
probability of prevailing on the challenged claim. Mindys
Cosmetics, Inc., 611 F.3d at 595. If the plaintiff cannot meet
the minimal burden of “stat[ing] and substantiat[ing] a
legally sufficient claim,” the claim is stricken pursuant to the
statute. Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002).
Defendants contend that Jordan-Benel’s claims arise
from the creation, production, distribution, and content of
expressive works (The Purge films) and that such conduct
8 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
falls squarely within the ambit of anti-SLAPP. Jordan-Benel
argues, and the district court held, that although The Purge
films relate to Jordan-Benel’s breach of implied-in-fact
contract claim, it is Defendants’ failure to pay that gives rise
to the claim, and the failure to pay is not an act in furtherance
of free speech, so anti-SLAPP does not apply. We agree.
A. The Claim at Issue
At the outset, it is important to determine the precise
claim at issue. In his Second Amended Complaint, Jordan-
Benel alleges a cause of action for breach of contract based
on Defendants’ implied agreement to compensate and credit
him as a writer/creator should his screenplay idea be used.
He alleges that Defendants breached this agreement by
“utilizing and profiting from Plaintiff’s ideas without
compensation or credit to Plaintiff.” He also prays for
compensation and credit as a writer in his cause of action for
declaratory relief. In sum, Jordan-Benel appears to allege
two theories of breach of an implied-in-fact contract (failure
to pay and failure to credit) and two controversies for
declaratory relief (right to compensation and right to credit
for future Purge films).
However, during oral argument before this court,
counsel for Jordan-Benel and counsel for Defendants
represented that Jordan-Benel’s claims for credit are no
longer part of this case. The district court apparently
understood as much, as it did not explicitly address Jordan-
Benel’s “failure to credit” claims in its order denying
Defendants’ anti-SLAPP motion, and it dismissed on other
grounds Jordan-Benel’s cause of action for declaratory
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 9
relief. 3 Accordingly, 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. 4
Having identified the claim at issue, we now address
whether the district court properly concluded that it does not
arise from protected free speech activity.
3
The district court’s order repeatedly refers to Jordan-Benel’s
“claim,” but concludes that Jordan-Benel’s “claims” are not subject to
anti-SLAPP. We interpret the district court’s reference to “claims” to
mean that Jordan-Benel’s breach of contract claim and corresponding
declaratory relief claim seeking payment are not subject to anti-SLAPP,
but the district court can clarify this issue on remand.
4
We note, though, that the application of anti-SLAPP to any
abandoned claims may still be relevant on remand—for example, in the
case of a motion for attorney’s fees. See Pfeiffer Venice Props. v.
Bernard, 123 Cal. Rptr. 2d 647, 652 (Cal. Ct. App. 2002) (“[B]ecause a
defendant who has been sued in violation of his or her free speech rights
is entitled to an award of attorney fees, the trial court must, upon
defendant’s motion for a fee award, rule on the merits of the SLAPP
motion even if the matter has been dismissed prior to the hearing on that
motion.”). In ruling on a separate motion to strike, the district court
dismissed with prejudice Jordan-Benel’s cause of action for declaratory
relief after Jordan-Benel conceded it was foreclosed by Dastar Corp. v.
Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). Defendants
contend that although the cause of action for declaratory relief was
dismissed with prejudice on other grounds, they would have succeeded
in striking it under anti-SLAPP, so they should be deemed to have
“prevailed” within the meaning of the statute, entitling them to attorney’s
fees and costs. We leave consideration of that issue to the district court
on remand. Should the district court re-visit anti-SLAPP on remand, it
should be aware of the California Supreme Court’s recent decision in
Baral v. Schnitt, 376 P.3d 604, 613-14 (Cal. 2016), which explained that
an anti-SLAPP motion may strike distinct claims within a cause of
action, even if the entire cause of action is not subject to anti-SLAPP.
10 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
B. Jordan-Benel’s Implied-in-Fact Contract Claim
Does Not Arise From Protected Free Speech
Activity
As discussed, a defendant’s initial burden on an anti-
SLAPP motion is to show that the plaintiff’s suit arises from
an act in furtherance of the defendant’s rights of petition or
free speech. Mindys Cosmetics, Inc., 611 F.3d at 595. We
determine whether a defendant has met this burden by asking
two questions: (1) From what conduct does the claim arise?
and (2) Is that conduct in furtherance of the rights of petition
or free speech? The key dispute in this case involves the first
question.
Defendants argue that Jordan-Benel’s implied-in-fact
contract claim arises from the creation, production,
distribution, and content of the films because Jordan-Benel
would not have a claim but for that activity. Jordan-Benel,
on the other hand, argues that even if producing a popular
film series were protected free speech activity, his claim
does not arise from that activity because it was not the
specific wrongful act that gives rise to his claim. Rather, he
claims that the failure to pay was the wrongful act. We agree
with Jordan-Benel.
i. “Arising From” Protected Activity
In interpreting the anti-SLAPP statute, we “must begin
with the pronouncements of the state’s highest court.” See
Hilton v. Hallmark Cards, 599 F.3d 894, 905 (9th Cir. 2010).
As the California Supreme Court has explained, “that a cause
of action arguably may have been ‘triggered’ by protected
activity does not entail that it is one arising from such . . . .
[T]he critical consideration is whether the cause of action is
based on the defendant’s protected free speech or petitioning
activity.” Navellier, 52 P.3d at 709; see also City of Cotati
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 11
v. Cashman, 52 P.3d 695, 700 (Cal. 2002) (“[T]he mere fact
an action was filed after protected activity took place does
not mean it arose from that activity.”). These cases suggest
that even if a defendant engages in free speech activity that
is relevant to a claim, that does not necessarily mean such
activity is the basis for the claim.
Because 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, we
turn to guidance from the California Court of Appeal. See
Hilton, 599 F.3d at 906. The California Court of Appeal has
interpreted the anti-SLAPP statute’s “arising from”
language to mean that a claim is based on whatever conduct
constitutes the “specific act[] of wrongdoing” that gives rise
to the claim. Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP, 35 Cal. Rptr. 3d 31, 39, 41–42
(Cal. Ct. App. 2005); see also Renewable Res. Coal., Inc. v.
Pebble Mines Corp., 159 Cal. Rptr. 3d 901, 909–10 (Cal. Ct.
App. 2013) (explaining that “the gravamen of an action is
the allegedly wrongful and injury-producing conduct that
provides the foundation for the claims”). Put another way, a
court focuses its anti-SLAPP analysis on the specific
conduct that the claim is challenging. See Wang v. Wal-Mart
Real Estate Bus. Trust, 63 Cal. Rptr. 3d 575, 591 (Cal. Ct.
App. 2007) (holding that anti-SLAPP did not apply to a
claim for breach of contract because “[t]he overall thrust of
the complaint challenge[d] the manner in which the parties
privately dealt with one another, on both contractual and tort
theories, and d[id] not principally challenge the collateral
activity of pursuing governmental approvals.”).
In sum, for purposes of anti-SLAPP, the conduct from
which a claim arises is the conduct that constitutes the
specific act of wrongdoing challenged by the plaintiff. We
12 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
must now examine what conduct gives rise to a breach of
implied-in-fact contract claim like the one alleged here.
ii. Breach of Implied-in-Fact Contract
A breach of implied-in-fact contract claim like the one
alleged here is known as an “idea theft” claim. The general
rule is that ideas are not subject to protection as property.
Desny v. Wilder, 299 P.2d 257, 265 (Cal. 1956). However,
the California Supreme Court has held that contract law may
provide protection to a person who submits an idea to others
with the understanding that the idea is submitted in
consideration for a promise of payment for its use. Id. at
268–69.
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. Benay v. Warner Bros.
Entm’t, Inc., 607 F.3d 620, 629 (9th Cir. 2010) (citing Mann
v. Columbia Pictures, Inc., 180 Cal. Rptr. 522, 533 n.6 (Cal.
Ct. App. 1982)). California law therefore recognizes an
“idea theft” cause of action based on the “implied promise
to pay the reasonable value of the material disclosed.”
Grosso v. Miramax Film Corp., 383 F.3d 965, 968 (9th Cir.
2004) (quoting Landsberg v. Scrabble Crossword Game
Players, Inc., 802 F.2d 1193, 1196 (9th Cir. 1986)), opinion
amended on denial of reh’g, 400 F.3d 658 (9th Cir. 2005).
This “implied promise to pay” is an “extra element that
transforms the action from one arising under the ambit of the
[Copyright Act] to one sounding in contract.” Id.JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 13
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. See id. 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.We agree with the district court 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. This conclusion is compelled by the fact
that the failure to pay was the specific act of wrongdoing
alleged by Jordan-Benel to give rise to a legal claim.
Defendants are correct that the creation of The Purge films
was not collateral to the principal purpose of the transaction
between Jordan-Benel and Defendants. But 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 failure
to pay is the conduct from which the claim arises. See Wang,
63 Cal. Rptr. 3d at 591.
iii. Defendants’ “But for” Approach is Overbroad
Defendants assert that regardless of their alleged failure
to pay, Jordan-Benel would have no claim “but for” the
production and release of the films, so his claim necessarily
arises from that activity. Defendants’ interpretation of
“arising from” is based, in part, on our use of the phrase “but
for” in previous anti-SLAPP cases. See Doe, 730 F.3d at
955; see also Mindys Cosmetics, 611 F.3d at 598. However,
Defendants ignore an important difference between those
cases and this one.
14 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
In Doe, the plaintiff, a gang informant, alleged that he
agreed to be interviewed for a television program on the
condition that his face and other identifying features would
be concealed. 730 F.3d at 950. The broadcast ultimately
failed to conceal his identity, so the plaintiff brought suit for
false promise, among other claims. Id. at 952. The district
court denied an anti-SLAPP motion. Id. at 953. We reversed
and ruled that anti-SLAPP applied because “[b]ut for the
broadcast and Defendants’ actions in connection with that
broadcast, Plaintiff would have no reason to sue
Defendants.” Id. at 955.
Doe does not stand for the proposition that a claim arises
from any and all conduct that is the “but for” cause of the
claim. When we used the phrase “but for” in Doe, we were
referring to the specific wrongful act that gave rise to the
claim: the broadcast of the plaintiff’s identity. See id.
(“Plaintiff’s lawsuit arises directly from Defendants’ act of
broadcasting Gangland.”). Similarly, in Mindys Cosmetics,
a case involving malpractice and breach of fiduciary duty
claims against the plaintiff’s attorney, we were referring to
the specific wrongful act that gave rise to the claims when
we said, “But for the trademark application, Mindys would
have no reason to sue Kamran.” 611 F.3d at 598. Here,
unlike in Doe and Mindys Cosmetics, the alleged protected
free speech activity—creation and distribution of major
motion pictures—was not the specific wrongful act that gave
rise to the claim.
Because the target of Jordan-Benel’s claim is not
actually the expressive works (The Purge films), applying a
“but for” analysis in this case would threaten to subject
plaintiffs to the burden and expense of litigating anti-SLAPP
motions in cases where protected free speech activity is not
the focus of the claim. By way of example, the district court
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 15
considered a hypothetical newspaper company that agreed to
pay a columnist a fee for each article published by the
newspaper. If the newspaper company went on to publish
one of the columnist’s articles without paying her, and the
columnist brought suit seeking payment of her fee, the
newspaper company could subject the columnist to an anti-
SLAPP motion, relying on Defendants’ theory to argue that
anti-SLAPP applies because “but for” the newspaper’s
publication of the article, the columnist would have no
claim. Similarly, if a recording artist’s pay was tied to the
number of records sold, and the artist sued the record label
for breach of contract for non-payment, the record label
could argue that “but for” the creation and distribution of the
record, the artist would have no claim.
While this sort of parade of horribles argument was inapt
in Doe, it is a valid concern here. In Doe, the plaintiff argued
that if anti-SLAPP applied to his claim, every contract claim
involving television would be subject to dismissal. 730 F.3d
at 955 n.3. We disagreed because even if anti-SLAPP
applies, a plaintiff may still proceed with claims that
challenge free speech activity if the claims possess minimal
merit. Id. But that does not address the potential
consequences of Defendants’ position in this case, where
Defendants purport to apply anti-SLAPP to claims in which
protected activity is not actually the challenged conduct. Id.
Unlike in Doe, our acceptance of Defendants’ “but for”
theory in this case would lead to an unprincipled expansion
of anti-SLAPP.
We recognize that the anti-SLAPP statute is to be
construed broadly. Safari Club Int’l v. Rudolph, 845 F.3d
1250, 1260 (9th Cir. 2017) (citing Cal. Civ. Proc. Code
§ 424.16(a)). But, as discussed, the California courts have
said nothing to suggest that the State intended its anti-
16 JORDAN-BENEL V. UNIVERSAL CITY STUDIOS
SLAPP law to apply when protected activity is not the target
of a claim. We further note that limiting the application of
anti-SLAPP to claims that actually challenge free speech
activity does not create an impermissible intent-to-chill
requirement. Cf. Equilon Enterprises v. Consumer Cause,
Inc., 42 P.3d 685, 690 (Cal. 2002) (rejecting attempt to
impose an intent-to-chill requirement). Assessing whether
the specific wrongful act giving rise to a claim is protected
activity is different from inquiring into the plaintiff’s
subjective motivations for bringing a claim. Cf. id. at 688.
C. Defendants’ Failure to Pay Was Not Conduct in
Furtherance of the Right of Free Speech
Because we have determined that Jordan-Benel’s claim
arises from Defendants’ failure to pay, our final point of
inquiry is whether that conduct was in furtherance of the
right of free speech. We hold that it was not. Notably,
Defendants do not even argue that their failure to pay Jordan-
Benel was free speech activity, and they cannot cite a single
case in which the anti-SLAPP statute has been applied to an
“idea theft” claim in which failure to pay is the alleged
breach. Defendants’ citation to Wilder v. CBS Corp., No.
2:12-cv-8961-SVW-RZ, 2016 WL 693070 (C.D. Cal. Feb.
13, 2016), is of no help.
In Wilder, the plaintiff wrote a treatment for a television
show and pitched it to a representative of Sony. Id. at *1–2.
The representative told the plaintiff that Sony was not going
to use the idea. Id. at *2. Less than two years later, CBS
aired a show almost exactly like the one the plaintiff had
pitched. Id. The plaintiff alleged that Sony’s representative
had “very close ties” with a representative from CBS, giving
CBS “direct and easy access” to the treatment. Id. The
plaintiff brought claims for breach of implied contract
against Sony and tortious interference against CBS. Id. at
JORDAN-BENEL V. UNIVERSAL CITY STUDIOS 17
*1. The district court granted CBS’s anti-SLAPP motion to
strike the tortious interference claims. Id. at *11.
While the facts of Wilder are very similar to this case,
there is a key difference. The anti-SLAPP motion in Wilder
was brought by CBS against the tortious interference claims.
Sony did not bring an anti-SLAPP motion to strike the
breach of implied contract claim. Thus, while the Wilder
case did involve a traditional “idea theft” breach of implied-
in-fact contract claim, that claim was not the subject of an
anti-SLAPP motion.
The anti-SLAPP motion in Wilder was successful
because the activities underlying the plaintiff’s tortious
interference claims against CBS were the development,
production, and distribution of the television show. See id.
at *10. As the plaintiff alleged, it was those actions that were
intended to, and did, induce Sony to breach its implied
contract with Wilder. Id. Here, there is no such tortious
interference claim, and Jordan-Benel does not allege that any
activity involved in creating the films was a breach of his
implied contract for compensation with Defendants.
Accordingly, Wilder is inapposite.
V. CONCLUSION
As to the breach of implied-in-fact contract claim based
on Defendants’ failure to pay Jordan-Benel, the district
court’s order is AFFIRMED. We decline to consider, in the
first instance, the application of anti-SLAPP to any claims
based on Defendants’ failure to credit Jordan-Benel as a
writer/creator of The Purge.