Musero v. Creative Artists Agency, LLC

Filed 12/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOHN MUSERO, B305066
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV10435)
v.
CREATIVE ARTISTS
AGENCY, LLC, et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Yolanda Orozco, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Craig Holden; Ballard
Spahr, Louis P. Petrich and Robert S. Gutierrez for Defendants
and Appellants Creative Artists Agency, LLC, Andrew Miller and
Leah Yerushalaim.
Doniger/Burroughs, Stephen M. Doniger and Kelsey M.
Schulz for Plaintiff and Respondent.
____________________
John Musero, a writer, sued his former talent agents,
Andrew Miller, Leah Yerushalaim and Creative Artists Agency,
LLC (CAA), for breach of fiduciary duty, breach of contract and
breach of the implied covenant of good faith and fair dealing,
alleging they had mishandled their representation of him in
several different ways. Miller, Yerushalaim and CAA
(collectively CAA parties) moved pursuant to Code of Civil
Procedure section 425.16 (section 425.16) to strike allegations in
the complaint, repeated in each of the three causes of action,
accusing them of having misappropriated Musero’s creative work,
a proposed television pilot titled Main Justice, and using that
material to assist in the development of a competing project, also
titled Main Justice, with another CAA client. The trial court
denied the motion, ruling, although the CAA parties’ alleged
conduct was protected speech activity that concerned a matter of
public interest, Musero had demonstrated the requisite minimal
merit of the claim.
Although we agree the challenged conduct arises from
protected speech activity, when the context and content of the
specific allegedly wrongful statements are considered, their
degree of connection to a topic of public interest is insufficient to
warrant protection under section 425.16, subdivision (e)(4).
Accordingly, we affirm the order denying the CAA parties’ special
motion to strike.
FACTUAL AND PROCEDUAL BACKGROUND
1. Musero’s Complaint
Musero filed a complaint for breach of fiduciary duty and
confidentiality, breach of contract and breach of the implied
covenant of good faith and fair dealing on March 26, 2019,
naming as defendants CAA, Miller and Yerushalaim. Musero, a
2
former prosecutor and in-house studio lawyer who had worked as
a staff writer on the third season of Aaron Sorkin’s HBO series
The Newsroom, alleged that in mid-2014 Miller and Yerushalaim,
members of CAA’s literary department, agreed to represent him.
He communicated to Miller and Yerushalaim his goals of working
as a writer on another television series and supplementing that
income by selling his original work in the form of television
pitches and pilots.
Musero alleged the CAA parties mishandled his
representation in a variety of ways, including not aggressively
shopping a pilot script he prepared titled Influence, which he
submitted to his agents in September 2014; failing to
appropriately follow-up with potential buyers for a second pilot
script he wrote titled Main Justice, a legal drama about the
Attorney General of the United States and prosecutors working
at the Department of Justice, which he submitted in September
or October 2015; not assisting in the timely payment and
collection of fees to which he was entitled for additional work in
connection with an option agreement for Main Justice he entered
with The Mark Gordon Company in April 2016; and not
submitting Musero’s name for staffing opportunities on another
television series.
Musero further alleged that CAA and Miller represented
producer Jerry Bruckheimer, his production company Jerry
Bruckheimer TV and the writer Sascha Penn and that Miller
initiated the development with Penn and Bruckheimer of a
project also titled Main Justice that, like Musero’s pilot, was
centered on the Attorney General of the United States. The
complaint continued, “Upon information and belief, Miller and
Penn created a pitch document which was used to sell
3
Bruckheimer’s Main Justice to CBS during the summer of 2017.
That pitch document was preceded by, borrowed from, and
harvested the concept, pitch, series overview and pilot created by
Musero under the same title, Main Justice, each of which was
shared with, and represented by, Miller.” Although never
ultimately broadcast, Musero alleged CBS approved production of
the Bruckheimer pilot, which was “cast and produced for millions
of dollars” and resulted in significant economic benefit to CAA.
He additionally alleged that, by selling a competing project
“under the same title about the same thing,” Miller foreclosed
any possibility of Musero’s Main Justice being sold. (The Mark
Gordon Company did not exercise its option to purchase Musero’s
project; the option expired in June 2017; and the rights reverted
to Musero.) “In so doing, Defendants advantaged its more
power[ful] client, Jerry Bruckheimer and Bruckheimer TV, at the
significant expense of its less powerful client, Musero.”
Musero’s allegations the CAA parties misappropriated
creative elements from his Main Justice project and used them to
develop the Penn-Bruckheimer project are specifically realleged
in each of the complaint’s three causes of action.
2. The CAA Parties’ Special Motion To Strike
On May 21, 2019 the CAA parties filed a special motion to
strike the allegations in Musero’s complaint that they had
misappropriated his Main Justice pilot script and used his
creative ideas to develop the Penn-Bruckheimer Main Justice
1
project. They cited case law holding the creation of a television
1
Concurrently with their special motion to strike, the CAA
parties demurred to the complaint. The trial court sustained the
demurrer to Musero’s causes of action for breach of contract and
breach of the implied covenant of good faith and fair dealing with
4
program is constitutionally protected speech activity and argued,
as widely disseminated expressive works, such programs are
matters of public interest. They also explained the topics
addressed in the Penn-Bruckheimer project involved real-world
social and cultural issues.
As to the merits of Musero’s claim of misappropriation, the
CAA parties explained that ideas are not subject to common law
or statutory copyright protection. Under Desny v. Wilder (1956)
46 Cal.2d 715, however, 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: “‘The policy that
precludes protection of an abstract idea by copyright does not
prevent its protection by contract. Even 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
leave to amend and overruled the demurrer to the cause of action
for breach of fiduciary duty. The court explained as to the
contract claim, “While Plaintiff has alleged the general nature of
Plaintiff’s relationship with Defendants, the allegations as they
stand do not indicate that Plaintiff ‘clearly conditioned’ his
disclosure of the Main Justice script upon Defendants’ agreement
to pay for it if used. . . . Nothing indicates that Defendants’
actions, communications, and history of representing [Musero]
made it so that an implied in fact agreement was created wherein
[Musero] clearly conditioned his disclosure of the Main Justice
script upon Defendants’ agreement to pay for it if used.”
The trial court permitted Musero to file his first amended
complaint prior to ruling on the special motion to strike.
However, when considering the CAA parties’ motion, the court
ignored the allegations in the amended pleading, relying for this
hybrid approach on dictum from Dickinson v. Cosby (2017)
17 Cal.App.5th 655, 677-678.
5
disclosure may therefore be consideration for a promise to
pay . . . . Even though the idea disclosed may be “widely known
and generally understood” [citation], it may be protected by an
express contract providing that it will be paid for regardless of its
lack of novelty.’” (Id. at p. 733; see Spinner v. American
Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184
(Spinner) [Desny claim may be based on implied, as well as
express, contract].) The CAA parties argued Musero could not
provide any evidence his talent agents had agreed to pay for the
2
use of his idea, an essential element of a Desny claim.
Beyond that threshold issue, citing Spinner, supra,
215 Cal.App.4th 172 and Hollywood Screentest of America, Inc. v.
NBC Universal, Inc. (2007) 151 Cal.App.4th 631, the CAA parties
asserted Musero could not prove misappropriation. Although
under established case law actual use may be inferred from
3
evidence of access and substantial similarity (Spinner, at p. 185;
2
As noted, the trial court agreed with this argument in
sustaining the CAA parties’ demurrer (with leave to amend) to
Musero’s breach of contract cause of action.
3
“Access means that the [writer of the allegedly offending
work] had an opportunity to view or copy the plaintiffs’ work.
[Citation.] More than a ‘“bare possibility”’ of access is required,
however. [Citations.] When there is no direct evidence of access,
the [writer] must have had a ‘“reasonable possibility”’ to view the
plaintiffs’ work, which must be based on more than mere
speculation.” (Spinner, supra, 215 Cal.App.4th at p. 186.) The
CAA parties argued under Spinner, when, as here, access
allegedly occurred through an intermediary, “[a] reasonable
possibility of access requires a sufficiently strong nexus between
the intermediary to whom the plaintiffs submitted their work and
the creator of the allegedly offending work. . . . In other words,
6
Hollywood Screentest, at p. 646), the CAA parties argued, “the
defendants may dispel that inference with evidence that
conclusively demonstrates the defendants independently created
their product. [Citation.] When the defendants produce evidence
of independent creation that is ‘“clear, positive, uncontradicted
and of such a nature that it cannot rationally be disbelieved,”’ the
inference of use is dispelled as a matter of law.” (Spinner, at
p. 185.)
Relying on this authority, the CAA parties contended
Musero could not prove Penn or others who may have contributed
to the creation of his Main Justice pilot had access to Musero’s
Main Justice materials. To the contrary, the evidence
conclusively established the Penn-Bruckheimer Main Justice
pilot was independently created. Miller and Yerushalaim
submitted declarations in support of the motion denying they had
provided any of Musero’s ideas, concepts or writings to Penn or
had directed anyone else to do so. Miller also declared that Penn
approached him with the idea for Main Justice; Miller did not
initiate the idea.
3. Musero’s Opposition and the Parties’ Supplemental
Papers
After the CAA parties filed their motion, the trial court
granted Musero’s request to take limited discovery (the
depositions of Miller and Penn and production of documents,
including a copy of Penn’s pilot script). Musero thereafter filed
an opposition memorandum and supporting materials in which
he argued there was substantial evidence that Penn had access to
the intermediary and the alleged copier occupy positions such
that it is natural for one to impart information to the other.”
(Id. at pp. 186-187.)
7
Musero’s script through Miller and there were overwhelming
similarities between the two works.
As to access, Musero submitted evidence Miller had acted
as Musero’s agent in discussions regarding Musero’s option
agreement with The Mark Gordon Company in 2016; Miller and
Penn in May 2017 discussed the idea of a show about the
Attorney General; Miller was in regular communication with
Penn from conception through pitch meetings at CBS; and CAA
assisted Penn in writing the pilot by providing him a large
volume of reference materials. Musero also provided the
declaration of a former agent and entertainment industry
executive who opined CAA had a significant financial incentive to
market Penn’s Main Justice rather than Musero’s because of
packaging fees that would be available on the Penn-Bruckheimer
project. A different industry expert described similarities
between the scripts for the two projects, both of which involved a
newly appointed Attorney General (Musero’s was a woman;
Penn’s was young and Black and based on former Attorney
General Eric Holder, who participated in Penn’s project); both
included a car crash as an opening teaser scene followed by a
basketball-related scene with a discussion regarding foul calls;
and each ended with a cliff-hanger assassination attempt. He
concluded there were “just too many unique story similarities” for
the CAA parties to credibly claim the Penn-Bruckheimer Main
Justice had been created independently of Musero’s work.
The CAA parties filed a reply memorandum with additional
evidence regarding the development of Penn’s Main Justice.
Following oral argument on the motion on October 1, 2019 and
with the matter under submission, Musero filed an ex parte
application to stay the court’s ruling and allow further discovery.
8
The court granted the application; set a new hearing date; and
allowed Musero to depose two CAA witnesses who had submitted
declarations with the CAA parties’ reply papers, to re-depose
Miller regarding packaging deals and to propound another
document request for correspondence CAA exchanged with
Bruckheimer employees and Penn relating to Main Justice. The
4
court also permitted the parties to file supplemental briefs.
By the time the trial court held its second hearing on the
CAA parties’ motion, Musero had presented additional evidence
that Miller and Penn had been personal friends for many years,
not just business associates, and that CAA had a packaging fee
arrangement with CBS Studies that would have (in Musero’s
characterization) effectively made CAA a partner with an
independent equity interest in Main Justice had CBS picked up
the Penn-Bruckheimer pilot as a series for network broadcast. In
addition, Musero’s evidence established that Miller had received
drafts of Penn’s pitch, outline and pilot script during their
development and provided ongoing feedback to Penn regarding
the project.
The CAA parties’ evidence included Penn’s and Miller’s
deposition testimony that Penn began working on an idea for a
Department of Justice television series involving stories about
hate crimes in 2004, more than 10 years before Musero submitted
his Main Justice overview and pilot script to Miller and
Yerushalaim. (Penn had written a treatment for his idea with
the working title Hate Crimes.) In 2010 Penn, who was
considering story ideas for a series with a female lead, suggested
4
The trial court denied a subsequent request by Musero for
yet more discovery.
9
several career possibilities for the character in an email to Miller,
including having her be a newly appointed Attorney General. In
2016 Penn pitched his hate crimes idea, now titled DOJ: Special
Section, to producers, and in August 2016 to NBC as The Untitled
Department of Justice Project. One of the industry executives
who reviewed the pitch advised Penn he needed to focus more on
lawyers for a Department of Justice series. In a spring 2017
telephone call with Miller, Penn shared his idea for a series about
the Attorney General and suggested they try to attach former
Attorney General Holder to the project. By July 2017 Penn had
met with Holder, who responded positively to the proposal.
According to Penn, his pilot was built around Holder and the
complexities of being a Black Attorney General: “That’s what the
show was about.” “‘[I]f Eric Holder didn’t come on board, there
was no show.’”
4. The Trial Court’s Ruling Denying the Motion
The trial court again heard argument on January 17, 2020,
took the matter under submission and later denied the motion in
a 23-page order.5
The court ruled the CAA parties had satisfied the first step
of the two-step analysis for a special motion to strike under
section 425.16, agreeing the alleged communications with Penn
and Bruckheimer in connection with the creation, development
and sale of the Penn-Bruckheimer Main Justice television project
constituted protected speech or conduct in furtherance of
protected speech and the production of Main Justice was a matter
5
The trial court ruled on the multiple evidentiary objections
filed by the CAA parties, sustaining some and overruling others.
Neither side challenges any of those rulings.
10
of public interest. “[T]he asserted public interest here is the
‘general topic’ of the Attorney General, and more specifically, Eric
Holder. The Court finds that the topic itself is a matter of public
interest, as the Attorney General, and Eric Holder are public
figures regularly in the public eye. . . . Defendants participated
in, or furthered, the discourse that makes the topic of the first
[B]lack Attorney General, one of public interest by creating a
show that was ‘built around the notion of the complexities of
being a [B]lack Attorney General’ with story lines that can be
said to be ‘ripped [from] the headlines’ of national news. Such a
show would undeniably contribute to the public debate and
discourse that makes the Attorney General and Eric Holder
topics of public interest.”
As to the second step of the analysis, the court ruled
Musero had carried his burden of showing a reasonable
probability of success on the merits. The court found Musero had
presented evidence of access by Penn through Miller to Musero’s
Main Justice script or elements of it and substantial similarity
between the two scripts sufficient to raise an inference of use.
Although acknowledging the CAA parties had presented evidence
that Penn’s process in developing his script was entirely
independent of Musero’s ideas and work product, quoting
Spinner, supra, 215 Cal.App.4th at pages 184 to185, the court
concluded the evidence was not “‘clear, positive, uncontradicted
and of such nature that it cannot rationally be disbelieved’”:
“[G]iven Plaintiff’s evidence that points to access and the
substantial similarity between the two scripts, a reasonable jury
could find that Penn’s Main Justice was not independently
created.”
11
The CAA parties filed a timely notice of appeal. (Code Civ.
Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13).)
DISCUSSION
1. Governing Law and Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “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.”
(§ 425.16, subd. (b)(1); see Rand Resources, LLC. v. City of Carson
(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of
action only if the cause of action (1) arises from an act in
furtherance of the right of petition or free speech ‘in connection
with a public issue,’ and (2) the plaintiff has not established ‘a
probability’ of prevailing on the claim”].)
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection
12
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.”
In ruling on a special motion to strike under section 425.16,
the trial court engages in a two-step process. “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);
accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1009 (Bonni); Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).) To make its
determination the court must consider the parties’ pleadings and
affidavits or declarations describing the facts on which liability or
defenses are predicated. (§ 425.16, subd. (b)(2).)
As to the first step of the analysis, “[a] claim arises from
protected activity when that activity underlies or forms the basis
for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063.) Thus,
“[t]he 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. A ‘claim may be struck
only if the speech or petitioning activity itself is the wrong
complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted.’” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson);
see Bonni, supra, 11 Cal.5th at p. 1009 [“[t]he defendant’s burden
is to identify what acts each challenged claim rests on and to
13
show how those acts are protected under a statutorily defined
category of protected activity”]; see Park, at p. 1060.)
A motion pursuant to section 425.16 need not challenge an
entire cause of action as pleaded in the complaint. (Bonni, supra,
11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather,
“courts should analyze each claim for relief—each act or set of
acts supplying a basis for relief, of which there may be several in
a single pleaded cause of action—to determine whether the acts
are protected and, if so, whether the claim they give rise to has
the requisite degree of merit to survive the motion.” (Bonni, at
p. 1010; accord, Baral, at p. 395.)
When, as here, the special motion to strike is based on
section 425.16, subdivision (e)(4), “plaintiffs’ causes of action
must arise from defendants’ conduct ‘in connection with a public
issue or an issue of public interest.’” (Rand Resources, LLC v.
City of Carson, supra, 6 Cal.5th at p. 620; see Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-
1118.) “In articulating what constitutes a matter of public
interest, courts look to certain specific considerations, such as
whether the subject of the speech or activity ‘was a person or
entity in the public eye’ or ‘could affect large numbers of people
beyond the direct participants’ [citation]; and whether the
activity ‘occur[red] in the context of an ongoing controversy,
dispute or discussion’ [citation], or ‘affect[ed] a community in a
manner similar to that of a governmental entity.’” (FilmOn.com
Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146 (FilmOn).)
“As to the second step inquiry, a plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.’” (Sweetwater Union High School
14
6
Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940; accord,
Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “‘We
have described this second step as 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.’” (Monster
Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714
[the court should grant the section 425.16 motion “‘if, as a matter
of law, the defendant’s evidence supporting the motion defeats
the plaintiff’s attempt to establish evidentiary support for the
claim’”].)
6
Although the Supreme Court in Sweetwater Union High
School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931referred generally to “competent admissible evidence,” the Court
held evidence that is potentially admissible at trial, but not
presented in admissible form, could be considered in determining
whether the plaintiff had demonstrated a probability of success
on the merits: “[A]t the second stage of an anti-SLAPP hearing,
the court may consider affidavits, declarations, and their
equivalents if it is reasonably possible the proffered evidence set
out in those statements will be admissible at trial. Conversely, if
the evidence relied upon cannot be admitted at trial, because it is
categorically barred or undisputed factual circumstances show
inadmissibility, the court may not consider it in the face of an
objection. If an evidentiary objection is made, the plaintiff may
attempt to cure the asserted defect or demonstrate the defect is
curable.” (Id. at p. 949.)
15
We review de novo an order granting or denying a special
motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th
at p. 884; Park, supra, 2 Cal.5th at p. 1067.)
2. The Challenged Conduct Is in Furtherance of Protected
Speech Activity
Creating a television show is an exercise of constitutionally
protected expression. (Hunter v. CBS Broadcasting, Inc. (2013)
221 Cal.App.4th 1510, 1521; Tamkin v. CBS Broadcasting, Inc.
(2011) 193 Cal.App.4th 133, 143; see 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’”].) Steps taken to
advance such constitutionally protected expression are properly
considered “conduct in furtherance of” the exercise of the right of
free speech within the meaning of section 425.16,
subdivision (e)(4). (See Ojjeh v. Brown (2019) 43 Cal.App.5th
1027, 1039-1040 [“defendants’ hiring and use of a
cinematographer to obtain on-location footage and their
maintaining an online journal of refugees’ stories to gather ideas
for the production are reasonably viewed as conduct ‘in
furtherance’ of the documentary”]; Lieberman v. KCOP
Television, Inc. (2003) 110 Cal.App.4th 156, 166 [newsgathering
is conduct in furtherance of the news media’s exercise of their
right of free speech]; see also Symmonds v. Mahoney (2019)
31 Cal.App.5th 1096, 1106 [musician’s selection of supporting
band members is conduct preliminary to, and in furtherance of,
protected activity of performing or recording music]; Hunter, at
16
p. 1522 [selection of weather anchor is conduct in furtherance of
protected activity of reporting the weather].)
The alleged wrong acts underlying Musero’s
misappropriation claim, challenged by the CAA parties in their
special motion to strike, fall squarely within this category of
conduct in furtherance of protected expression. As discussed,
Musero alleged that Miller and Penn “created a pitch document
which was used to sell Bruckheimer’s Main Justice to CBS during
the summer of 2017. That pitch document was preceded by,
borrowed from, and harvested the concept, pitch, series overview
and pilot created by Musero.” A claim of misappropriation is
central to each of the three causes of action in Musero’s
complaint. He alleged in paragraph 63, part of his first cause of
action, “Defendants breached their fiduciary duties to Plaintiff
by, inter alia, [¶] . . . [¶] (f) misappropriating Plaintiff’s original
and creative work in Main Justice, developing it with producer
Jerry Bruckheimer, production company Bruckheimer TV and
writer Penn, selling it to, and getting it made at CBS, thereby
conferring a significant economic benefit to CAA, Miller and
Yerushalaim.” An identical subparagraph is alleged as one of the
seven bases for his cause of action for breach of the implied
covenant of good faith and fair dealing and in slightly truncated
form as a basis for his breach of contract cause of action.
Musero disputes his lawsuit, or any claim within it, arises
from conduct in furtherance of the right to free speech, asserting
“the gravamen of Musero’s complaint is his agents’ breaches of
their contract and fiduciary duties which resulted in Musero’s
work being used to make that show [the Penn-Bruckheimer Main
Justice] without compensation or credit to him.” By relying on
the now-disfavored gravamen test to determine whether the anti-
17
SLAPP statute applies, Musero mistakes the proper first-step
analysis. (See Bonni, supra, 11 Cal.5th at p. 1011 [“[t]he attempt
to reduce a multifaceted cause of action into a singular ‘essence’
would predictably yield overinclusive and underinclusive results
that would impair significant legislative policies”]; Baral, supra,
1 Cal.5th at pp. 393, 396 [“courts may rule on plaintiffs’ specific
claims of protected activity, rather than reward artful pleading
by ignoring such claims if they are mixed with assertions of
unprotected activity”; as long as a “court determines that relief is
sought based on allegations arising from activity protected by the
statute, the second step is reached” with respect to these claims].)
Musero alleged Miller and CAA actively assisted in the
development of the Penn-Bruckheimer Main Justice project by
misappropriating his original material. Although each of his
three causes of action is also supported by allegations of
nonprotected activity, that claim of misappropriation—that
Musero’s creative ideas were improperly conveyed to Penn as
part of, or preliminary to, the creation of a television program—
supplies an element of all three causes of action, regardless of
what the Bonni Court referred to as the metaphysical essence of
those causes of action. (See Bonni, supra, 11 Cal.5th at p. 1011.)
The Ninth Circuit’s decision in Jordan-Benel v. Universal
City Studios, Inc. (9th Cir. 2017) 859 F.3d 1184, on which Musero
primarily relies, does not support a different result. The plaintiff
in that case, a writer, sued a talent agency, one of its writer
clients, a film production company and a motion picture studio
for copyright infringement and breach of an implied contract,
alleging they had stolen his idea for a screenplay and used it to
make two successful motion pictures. The state law contract
claim alleged the defendants had failed to compensate plaintiff
18
for the use of his idea (id. at p. 1186)—a Desny idea theft claim.
The district court denied the defendants’ special motion to strike
the implied-in-fact contract claim, ruling the claim was based on
the defendants’ failure to pay, not their creation, production or
distribution of the motion pictures. (Ibid.) The court of appeals
affirmed, agreeing with the district court “the conduct or act
underlying [plaintiff’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 [plaintiff] to give rise to a
legal claim. . . . 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.” (Id. at p. 1191.)
Rejecting the argument the plaintiff would have no claim
for payment but for the defendants’ production and release of the
films and, therefore, his claim necessarily arose from that
expressive activity, the Ninth Circuit explained, “Because the
target of [the plaintiff’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.” (Jordan-Benel v.
Universal City Studios, Inc., supra, 859 F.3d at p. 1192.) “The
California courts,” the Ninth Circuit continued, “have said
nothing to suggest that the State intended its anti-SLAPP law to
apply when protected activity is not the target of a claim.” (Id. at
p. 1193.)
We need not parse the difference between a Desny claim
challenging the failure to pay for an idea, as in Jordan-Benel, and
19
a claim alleging liability for the actual use of the idea, as here—a
distinction the CAA parties urge us to make—to decline to apply
the Ninth Circuit’s reasoning. As the quoted language makes
clear, the Ninth Circuit’s Jordan-Benel opinion, like Musero’s
argument in this court, is based on a pre-Baral “principal thrust
or gravamen” approach to determining whether an entire cause
of action arises from protected activity, and is inconsistent with
Baral, as well as the Supreme Court’s recent reiteration of the
7
proper first step analysis in Bonni, supra, 11 Cal.5th 995. As
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.
Unquestionably in the case at bar, Miller’s alleged participation
in the creation and development of Penn’s version of Main
Justice, protected activity, is “not just evidence of liability or a
step leading to some different act for which liability is asserted”
(Park, supra, 2 Cal.5th at p. 1060), but provides an element of
Musero’s breach of fiduciary duty and breach of contract causes of
action.
7
In a footnote the Ninth Circuit recognized the Supreme
Court in its then-recent decision in Baral, supra, 1 Cal.5th 376“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.” Although the court did not explain why
it failed to apply the Baral analysis, it advised the district court
to be aware of Baral “[s]hould the district court re-visit anti-
SLAPP on remand.” (Jordan-Benel v. Universal City Studios,
Inc., supra, 859 F.3d at p. 1189, fn. 4.)
20
Musero’s additional argument that section 425.16 does not
apply because his complaint was filed after CBS elected not to
pursue the proposed Main Justice series and the Main Justice
pilot was never broadcast is equally flawed. It has been clear for
nearly two decades that a defendant moving under section 425.16
need not demonstrate the challenged claim was brought with the
intent of chilling his or her exercise of constitutionally protected
speech (Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 58) or prove the cause of action complained of has
had, or will have, the actual effect of chilling the defendant’s
exercise of speech or petition rights. (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 75.) That Musero’s lawsuit was filed after
the expressive activity in this case, therefore, is immaterial.
Nor is it significant in determining whether an element of
the misappropriation claim is conduct in furtherance of
constitutionally protected speech that the creative efforts in this
case did not result in a public airing of the Penn-Bruckheimer
pilot: “[C]onduct can assist and help to advance the exercise of
the right of free speech, even if that assistance did not result in a
completed exercise of free speech at the time the lawsuit is filed.”
(Ojjeh v. Brown, supra, 43 Cal.App.5th at p. 1042; see San
Diegans for Open Government v. San Diego State University
Research Foundation (2017) 13 Cal.App.5th 76, 106 [lawsuit that
sought to void contracts between radio station and investigative
organization that shaped the way news would be gathered and
reported arose from protected activity].)
3. The Challenged Conduct Does Not Concern an Issue of
Public Interest
As the Supreme Court instructed in FilmOn, supra,
7 Cal.5th at pages 144 to 145, “In protecting ‘any other conduct’
21
that meets the requirements laid out in its text (§ 425.16, subd.
(e)(4), italics added), subdivision (e)(4) proves both broader in
scope than the other subdivisions, and less firmly anchored to
any particular context. [Citations.] This provision consequently
suggests that courts should engage in a relatively careful
analysis of whether a particular statement falls within the ambit
of ‘other conduct’ encompassed by subdivision (e)(4).” More
specifically, “within the framework of section 425.16,
subdivision (e)(4), a court must consider the context as well as the
content of a statement in determining whether that statement
furthers the exercise of constitutional speech rights in connection
with a matter of public interest.” (Id. at p. 149; accord, Serova v.
Sony Music Entertainment (2020) 44 Cal.App.5th 103, 117,
review granted Apr. 22, 2020, S260736.)
The FilmOn Court explained the appropriate analysis for
determining whether challenged speech has a sufficient
connection to a public issue to warrant anti-SLAPP protection.
“First, we ask what ‘public issue or . . . issue of public interest’
the speech in question implicates—a question we answer by
looking to the content of the speech. [Citation.] Second, we ask
what functional relationship exists between the speech and the
public conversation about some matter of public interest. It is at
the latter stage that context proves useful.” (FilmOn, supra,
7 Cal.5th at pp. 149-150.) Context includes the identity of the
speaker, the audience and the purpose of the speech. (Id. at
pp. 142-143, 145.) As our colleagues in Division Eight of this
court held in Jeppson v. Ley (2020) 44 Cal.App.5th 845, under
FilmOn, connecting a broad and amorphous public interest to a
specific dispute is not enough. “The proper focus of the inquiry
instead must be on ‘the specific nature of the speech,’ not on
22
‘generalities that might be abstracted from it.’” (Jeppson, at
p. 856; see FilmOn, at p. 152 [“[d]efendants cannot merely offer a
‘synecdoche theory’ of public interest, defining their narrow
dispute by its slight reference to the broader public issue”]; Rand
Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 625 [“[a]t
a sufficiently high level of generalization, any conduct can appear
rationally related to a broader issue of public importance”].)
As discussed, the trial court, applying FilmOn, found the
creation and production of the Penn-Bruckheimer Main Justice
pilot was a matter of public interest, reasoning that the Attorney
General and, more specifically, Eric Holder are public figures
regularly in the public eye and that the CAA parties “participated
in, or furthered, the discourse that makes the topic of the first
[B]lack Attorney General, one of public interest.” “Such a show,”
the court concluded, “would undeniably contribute to the public
debate and discourse that makes the Attorney General and Eric
Holder topics of public interest.” The CAA parties echo this
argument on appeal, contending there is a direct and close
connection between the creation and production of Main Justice
and the public interest topic of the Attorney General.
It is undoubtedly correct that a proposed television series
not only based on the life of former Attorney General Holder but
also apparently created in part by him would be a topic of
widespread public interest. (See FilmOn, supra, 7 Cal.5th at
p. 145 [a public issue is generally implicated if the subject of the
statement or activity was a person or entity in the public eye];
Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254 [same].)
But when the context and content of the specific, allegedly
wrongful statements at issue here are considered, the degree of
connection between those statements and that topic of public
23
interest is insufficient to warrant protection under
section 425.16, subdivision (e)(4), as construed in FilmOn.
As to context, the alleged misappropriation of Musero’s
ideas was done privately and, according to Musero’s theory, from
Miller to Penn during the many telephone conversations that
took place between them while Penn was developing
Main Justice. Although communications between private
individuals may qualify as protected activity in some
circumstances (see FilmOn, supra, 7 Cal.5th at p. 146; Navellier
v. Sletten (2002) 29 Cal.4th 82, 91), the private nature of the
communications “makes heavier [a defendant’s] burden of
showing that, notwithstanding the private context, the alleged
statements nevertheless contributed to discussion or resolution of
a public issue for purposes of subdivision (e)(4).” (Wilson, supra,
7 Cal.5th at p. 903; see FilmOn, at pp. 146, 150-151.)
As to content, significantly, Musero’s creative work that
Miller allegedly misappropriated and conveyed to Penn did not
relate in any way to Eric Holder or to the first Black Attorney
General of the United States; Musero’s pilot script protagonist
was an entirely fictional female Attorney General.
Communicating the general idea of a legal drama (a “procedural,”
in television industry parlance) involving the Attorney General
and prosecutors in the Department of Justice is not significantly
different from the second 30 minutes of each episode of the Law
& Order franchise that ran on NBC for 20 years, which focused
on the Manhattan District Attorney’s Office and its prosecutors,
and is not closely linked to any ongoing public interest that might
exist with respect to former Attorney General Holder or even to
the Penn-Bruckheimer series itself. Indeed, the CAA parties
essentially make that very point, albeit for an entirely different
24
reason, arguing the two projects are not substantially similar
because the “defining element of Penn’s script” was that it was
“built around the complexities of being a [Black] Attorney
General.” As the CAA parties emphasize in their reply brief,
“[T]he undeniable fact remains that Musero’s MAIN JUSTICE
lacks the defining focus of Penn’s script, which is inspired and
influenced by the creative input of Eric Holder himself. Musero
also cannot change the fact that the Attorney General in his work
was a female.”
The other creative elements allegedly misappropriated by
Miller and CAA for Penn’s benefit are even further removed from
any public interest in the professional and personal life of former
Attorney General Holder or, indeed, any nonfictional individual
who actually held the office. The title of the two pilots,
Main Justice, for example, is simply the frequently used
nickname for the Department of Justice’s headquarters in
Washington, D.C. (as well as the title of a book published in 1996
concerning the Department’s criminal division and one of the
six episodes of The Newsroom on which Musero worked as a staff
writer). Car crashes, assassination attempts, cliffhanger endings
and analogies—direct or subtle—between the justice system and
the rules of basketball, whatever they may indicate about the
similarity between the two pilot scripts, contribute nothing to the
discussion of the issue of public interest identified by the CAA
parties or the trial court.
In sum, the creative aspects of his work that Musero claims
Miller misappropriated, privately communicated to a targeted
audience of one, whatever its purported impact on Penn’s work,
did not contribute to the public conversation about a matter of
public interest. (See Rand Resources, LLC v. City of Carson,
25
supra, 6 Cal.5th at p. 625 [“we reject the proposition that any
connection at all—however fleeting or tangential—between the
challenged conduct and an issue of public interest would suffice
to satisfy the requirements of section 425.16, subdivision (e)(4)”;
“[w]hat a court scrutinizing the nature of speech in the anti-
SLAPP context must focus on is the speech at hand, rather than
the prospects that such speech may conceivably have indirect
consequences for an issue of public concern”].) The public
interest requirement of section 425.16, subdivision (e)(4), has not
8
been met.
8
At oral argument the CAA parties, quoting the statement
in Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
1042 that an issue of public interest “is any issue in which the
public is interested” (italics omitted), expanded their argument
and asserted, because of television’s broad appeal, any statement
regarding television programming is in the public interest within
the meaning of subdivision (e)(4). Nygard’s sweeping
pronouncement, made 11 years before FilmOn, is at odds with
the Supreme Court’s caution that determining whether the
subject of speech or other conduct constitutes a matter of public
interest requires an evaluation of specific contextual
considerations, such as whether a person or entity was in the
public eye or whether the activity occurred in the context of an
ongoing controversy, dispute or discussion. (FilmOn, supra,
7 Cal.5th at p. 145; see, e.g., Bernstein v. LaBeouf (2019)
43 Cal.App.5th 15, 22 [“‘“[p]ublic interest” does not equate with
mere curiosity’”]; D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226
[“[n]o authority supports the [defendant’s] broad proposition that
anything said or written about a public figure or limited public
figure in a public forum involves a public issue”]; see also Seelig
v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807
[finding comments on an on-air radio broadcast were in the
public interest because they concerned “a television show [Who
26
Because the CAA parties did not carry their threshold
burden under section 425.16, we need not consider whether
Musero demonstrated a probability of prevailing on the merits of
any of his claims based on allegations of the misappropriation of
his work. (See City of Cotati v. Cashman, supra, 29 Cal.4th at
pp. 80-81; Shahbazian v. City of Rancho Palos Verdes (2017)
17 Cal.App.5th 823, 830.)
DISPOSITION
The January 17, 2020 order denying the CAA parties’
special motion to strike is affirmed. Musero is to recover his costs
on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
*
IBARRA, J.
Wants to Marry a Multimillionaire] of significant interest to the
public and the media”].) As discussed, Miller’s private
conversations with Penn in which Miller allegedly communicated
Musero’s ideas for a legal drama centered on the Attorney
General is only tangentially connected to any topic that can
properly be considered to be of public interest.
*
Judge of the Santa Clara Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
27