Kaplan v. NBCUniversal Media CA2/3

Filed 7/31/23 Kaplan v. NBCUniversal Media CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BEN KAPLAN, B313911
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV35842)
v.
NBCUNIVERSAL MEDIA LLC, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael P. Linfield, Judge. Affirmed.
Loeb & Loeb, David Grossman and Mary Balzer for
Defendants and Appellants.
Foley Bezek Behle & Curtis, Roger N. Behle, Jr., and Kevin
D. Gamarnik for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff brought the present action against an actor, the
actor’s manager and agent, and a film studio, among others. The
operative complaint alleges that plaintiff created a screenplay
based on the life of Winston Churchill which he shared with
defendants. Plaintiff, the actor, the agent, and the manager
agreed to make and distribute a film based on plaintiff’s
screenplay, but days before a written contract was to be signed,
the actor, manager, and agent pulled out of the project and
instead made a competing movie about Winston Churchill with
another film studio that misappropriated many of plaintiff’s
unique ideas and approaches without crediting or compensating
him. The complaint alleges that defendants’ actions gave rise to
a variety of causes of action, including for breach of express and
implied-in-fact contract, interference with contract and
prospective economic advantage, and unfair competition.
Defendants brought a special motion to strike each of
plaintiff’s causes of action pursuant to California’s anti-SLAPP
statute (Code Civ. Proc., § 425.16.)1 The trial court found that
the complaint’s allegations did not arise out of activity protected
by the statute, and thus it denied defendants’ motion.
Defendants appeal.
We affirm. Like the trial court, we conclude that
defendants did not meet their burden to establish that plaintiff’s
causes of action arise out of conduct in furtherance of defendants’
rights of free speech in connection with an issue of public
interest. The trial court thus properly denied the special motion
to strike.
1 All subsequent undesignated statutory references are to
the Code of Civil Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
Plaintiff Ben Kaplan filed the present action in
September 2020 against defendants NBCUniversal Media, LLC
(NBCUniversal), Working Title Group LLC (Working Title),
Focus Features LLC (Focus Features), Gary Oldman, Douglas
Urbanski, Douglas Management, Ltd. (Douglas Ltd.), Douglas
Management Group, LLC (Douglas LLC),2 and Jim Osborne. The
operative first amended complaint alleges as follows:
Kaplan is a teacher and screenwriter. Over many years
beginning in 1999, he wrote a movie script about Winston
Churchill initially titled Captain of the Gate, and later titled
Churchill (hereafter, Churchill). In 2011, Kaplan continued
developing his script with the help of Cameron Lamb, an
independent movie producer.3
In early April 2013, Lamb approached Jim Osborne, the
agent for actor Gary Oldman, about engaging Oldman to play the
lead role in a film based on Kaplan’s script. In May 2013, Lamb
emailed Osborne a copy of the Churchill script with offers for
Oldman to portray Winston Churchill, and for Oldman’s
manager, Douglas Urbanski, to act as executive producer.
2 Douglas Ltd. and Douglas LLC are alleged to be entities
through which Urbanski conducts his business. We will
sometimes refer to Urbanski, Douglas Ltd., and Douglas LLC
collectively as Urbanski.
3 The operative complaint alleges that Lamb conducted his
business through a limited liability company, which assigned to
Kaplan any and all rights it had to bring claims against
defendants for their conduct as alleged in the complaint.
3
In July 2013, Kaplan’s agents sent a revised draft of the
script to Lucas Webb, a development executive at Working Title,
a film production company. The script was provided to Webb in
confidence and with the understanding that it would not be
shared or used without appropriate credit and compensation to
Kaplan. The following month, Webb told Kaplan that he had
enjoyed the script, and he asked whether Kaplan and Lamb were
looking for creative or financial partners. Lamb said he had
already partnered with StudioCanal, a production and
distribution company, and Sierra/Affinity, a finance and sales
company, for financing and distribution. Webb responded that he
would like to keep in touch and have another conversation if
Lamb was interested in looking “ ‘for another home.’ ”
In September 2013, Lamb emailed a second offer to Oldman
and Urbanski and attached a revised version of the script. A few
days later, Osborne responded that after deliberating, Oldman
had concluded he would not participate in Kaplan’s project.
In November 2013, Lamb and Webb met in person, and
Webb tried to persuade Lamb to drop his partners and instead
make a film based on Kaplan’s script with Working Title. Webb
said he had always wanted to do a film about Winston Churchill,
and Kaplan had figured out a way to do it. Lamb declined.
Throughout 2014, Lamb continued to court Oldman
through his representatives. Kaplan made further revisions to
his script, which Lamb shared with Urbanski, Osborne, and
Oldman.
After reading the revised script, Urbanski and Oldman
expressed interest in making a film based on it. Urbanski,
Osborne, and Lamb met on January 15, 2015, at which time
Osborne and Urbanski said that Oldman was on board to play
4
the lead role in Churchill for $6 million, provided that Lamb
secured a suitable director. Osborne and Urbanski urged Lamb
to reengage with a director, Saul Dibb, who previously had been
attached to the Churchill project. The following month, Urbanski
and Dibb had a two-hour phone call regarding Churchill.
In February 2015, Urbanski told Lamb that he was getting
daily phone calls from Working Title urging Oldman to abandon
the Churchill project and sign on with them to play the role of
Winston Churchill in a film they were developing. Also in
February, Osborne emailed Lamb to advise that he and Urbanski
had spoken to a talent agency about representing Churchill in
North America, and Lamb and Urbanski discussed voice training
and prosthetics for Oldman.
On March 9, 2015, Sierra/Infinity advised Oldman’s
counsel, and Lamb advised Osborne, that Oldman’s counsel
would soon receive a long form contract formally documenting
their agreement with Oldman. The following day, however,
Oldman pulled out of the Churchill project. It was later
announced that Oldman was in talks with, and then engaged, to
play the role of Winston Churchill in Darkest Hour, which was
produced by Working Title and distributed by Focus Features
and Universal Pictures, both subsidiaries of NBCUniversal.
Urbanski was a producer on the film.
Darkest Hour misappropriated many scenes and story lines
from Kaplan’s script, including many ahistorical/fictional ideas
conceived by Kaplan. For example, Darkest Hour “introduces the
audience to a disheveled and dyspeptic Winston Churchill in bed.
Shortly thereafter, he casually exposes himself to a young female
staffer, who reacts with embarrassment; this was Mr. Kaplan’s
idea.” Similarly, Darkest Hour “depicts Churchill—faced with
5
imminent and massive disaster—creatively conceiving a strategy
to assemble a civilian armada of small vessels to bolster the
rescue mission at Dunkirk and initiating the order to summon
the civilian fleet. Attributing to Churchill the idea of the civilian
armada and the order that it be mustered was an ahistorical,
fictional invention of Mr. Kaplan. This idea was taken by
Defendants and used in Darkest Hour.”
The operative complaint alleges seven causes of action, as
follows:
Breach of joint venture agreement (against Urbanski and
Osborne): Through the conduct alleged, the parties entered into
a joint agreement to turn the Churchill script into a feature film
with Oldman playing the lead role and Urbanski acting as a
director. Kaplan performed everything required of him under the
terms and conditions of the joint venture, but defendants
breached the joint venture agreement by abandoning the joint
venture to work with competitors, including appropriating
Kaplan’s script for Darkest Hour and assisting in Darkest Hour’s
creation, development, and production.
Breach of implied-in-fact contract (against Urbanski,
Osborne, Oldman, and Working Title): Kaplan shared his ideas
and approaches to telling Winston Churchill’s story with
defendants with their promise that, if his ideas and approaches
were used, he would be compensated. Kaplan clearly conditioned
his offer to disclose his scripts on defendants’ agreement to pay
for them if they were used. Accordingly, an implied-in-fact
contract arose between Kaplan, on the one hand, and defendants,
on the other. Defendants breached this contract by taking
specific ideas from Kaplan’s script to make Darkest Hour,
without crediting or compensating Kaplan.
6
Unfair Business Practices (against all defendants):
Defendants’ alleged actions constituted unlawful and unfair
business practices in violation of California’s Unfair Competition
Law (Bus. & Prof. Code, § 17200).
Intentional interference with contract and intentional
interference with prospective economic advantage (against
Working Title): Kaplan entered into an agreement for Oldman to
star in a feature film based on the Churchill script, and for
Urbanski to receive a producer credit in exchange for his help in
developing and realizing the Churchill film. Working Title knew
of the agreement between Kaplan, on the one hand, and Oldman
and Urbanski, on the other. Working Title’s intentional acts
were designed to induce, and did induce, a breach or disruption of
these contractual relationships and/or prospective economic
relationships.
Breach of fiduciary duty (against Urbanski and Osborne):
By virtue of the joint venture described above, a fiduciary
relationship arose between Kaplan, on the one hand, and
Urbanski and Osborne, on the other. Urbanski and Osborne
breached their fiduciary duties by abandoning the joint venture
to work with competitors, appropriating ideas from Kaplan’s
script for Darkest Hour, and assisting in the creation,
development, and/or production of Darkest Hour.
Aiding and abetting breach of fiduciary duty (against
Working Title): Working Title knew of Urbanki’s and Osborne’s
fiduciary duties to Kaplan and assisted and/or encouraged
Urbanki and Osborne to breach those fiduciary duties by
poaching Oldman from the Churchill project and
misappropriating ideas from Kaplan’s script.
7
II. Special motion to strike (§ 425.16).
Defendants filed a special motion to strike each cause of
action (except for the second cause of action as against Working
Title) pursuant to section 425.16. Defendants asserted that
under California law, the creation of entertainment content, such
as a film, constitutes an act in furtherance of the exercise of the
right to free speech and thus is protected activity under the anti-
SLAPP statute. According to defendants, each of Kaplan’s causes
of action was based on the production and distribution of Darkest
Hour, and thus each arose from protected activity. Further,
Darkest Hour concerned an issue of public interest—namely, the
life of Winston Churchill and the Allied forces’ response to
Nazi Germany in World War II. Finally, defendants asserted
that Kaplan could not demonstrate that he was likely to prevail
on any of his causes of action. In support, defendants submitted
the declarations of Osborne, Urbanski, and attorney Nigel
Pearson, each of whom stated that defendants never entered into
any agreement with Kaplan or Lamb regarding the production of
Churchill.
Kaplan opposed the special motion to strike. He asserted
that defendants had not shown that any cause of action arose
from protected activity—that is, that protected activity was the
alleged injury-producing act that formed the basis for the claims.
He further asserted that each cause of action had, at least,
minimal merit. In support, he filed his own declaration and the
declarations of Lamb and attorney Jordan Liebman, which
8
discussed, among other things, the alleged course of negotiations
between the parties.4
After a June 18, 2021 hearing, the trial court denied the
special motion to strike, finding that defendants failed to meet
their initial burden to show that Kaplan’s complaint was based
on conduct protected by the anti-SLAPP statute. The court
explained: “Contrary to Defendants’ assertion, the gravamen of
Plaintiff’s claims is not based on the creation of Darkest Hour
itself . . . . Instead, the gravamen of Plaintiff’s claims against
Defendants stem from allegations that Defendants took
Plaintiff’s ideas without paying him and caus[ed] the collapse of
his movie project resulting from the loss of his movie project’s
team members.”
Defendants timely appealed from the order denying the
special motion to strike.5
DISCUSSION
I. General legal principles and standard of review.
“Enacted by the Legislature in 1992, the anti-SLAPP
statute is designed to protect defendants from meritless lawsuits
4 The parties filed evidentiary objections to each other’s
declarations. The court declined to rule on these objections,
finding them immaterial to its disposition of the motion to strike.
Because the evidentiary objections are not relevant to our
analysis, we do not detail them.
5 Kaplan cross-appealed from the trial court’s order denying
his motion to conduct discovery prior to filing an opposition to the
special motion to strike (§ 425.16, subd. (g)). Because we
conclude that the trial court properly denied the special motion to
strike, we need not address Kaplan’s cross-appeal.
9
that might chill the exercise of their rights to speak and petition
on matters of public concern. (See § 425.16, subd. (a); Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619
[(Rand)]; Varian Medical Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 192.)” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 883–884 (Wilson).) To that end, section 425.16,
subdivision (b)(1) 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.”
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 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).)
The analysis of an anti-SLAPP motion involves two steps.
“Initially, the moving defendant bears the burden of establishing
10
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).) A claim arises from protected activity “when that
activity underlies or forms the basis for the claim.” (Id. at
p. 1062.) Accordingly, “in ruling on an anti-SLAPP motion,
courts should consider the elements of the challenged claim and
what actions by the defendant supply those elements and
consequently form the basis for liability.” (Id. at p. 1063; see also
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1015
(Bonni) [“[A] claim is subject to an anti-SLAPP motion to strike if
its elements arise from protected activity”].)
An anti-SLAPP motion can be brought in response to “a
‘ “mixed cause of action” ’—that is, a cause of action that rests on
allegations of multiple acts, some of which constitute protected
activity and some of which do not.” (Bonni, supra, 11 Cal.5th at
p. 1010; see also Baral v. Schnitt (2016) 1 Cal.5th 376, 393
(Baral) [“an anti-SLAPP motion, like a conventional motion to
strike, may be used to attack parts of a count as pleaded”].) In
that event, “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.)
If the defendant carries its burden to demonstrate that
plaintiff’s claims arise from protected activity, the plaintiff must
then demonstrate its claims have at least “ ‘minimal merit.’ ”
(Wilson, supra, 7 Cal.5th at p. 884.) To do so, “plaintiff must
show the complaint is legally sufficient and ‘ “ ‘supported by a
11
sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is
credited.’ . . .” ’ ” (Taheri Law Group v. Evans (2008)
160 Cal.App.4th 482, 488.)
An order granting or denying a special motion to strike is
appealable. (§ 425.16, subd. (i); § 904.1, subd. (a)(13).) Our
review is de novo. (Park, supra, 2 Cal.5th at p. 1067.)
II. Kaplan’s claims do not arise from acts in furtherance
of defendants’ rights of free speech.
As noted above, a defendant’s initial burden under the anti-
SLAPP statute is to “identify the acts alleged in the complaint
that it asserts are protected and what claims for relief are
predicated on them.” (Bonni, supra, 11 Cal.5th at p. 1010.)
Thus, the defendant must “identify the activities 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.’ (Park, supra, 2
Cal.5th at p. 1060.)” (Wilson, supra, 7 Cal.5th 884.)
To determine whether a claim arises from protected
activity, “courts must ‘consider the elements of the challenged
claim and what actions by the defendant supply those elements
and consequently form the basis for liability.’ (Id. at p. 1063.)
Courts then must evaluate whether the defendant has shown any
of these actions fall within one or more of the four categories of
‘ “act[s]” ’ protected by the anti-SLAPP statute.” (Wilson, supra,
7 Cal.5th at p. 884.)
Critically, “ ‘the defendant[s’] act underlying the plaintiff’s
cause of action must itself have been an act in furtherance of the
12
right of petition or free speech.” [Citations.] ‘[T]he mere fact that
an action was filed after protected activity took place does not
mean the action arose from that activity for the purposes of the
anti-SLAPP statute.’ [Citations.] Instead, the focus is on
determining what ‘the defendant’s activity [is] that gives rise to
his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’ [Citation.] ‘The only
means specified in section 425.16 by which a moving defendant
can satisfy the [“arising from”] requirement is to demonstrate
that the defendant’s conduct by which plaintiff claims to have
been injured falls within one of the four categories described in
subdivision (e). . . .’ ” (Park, supra, 2 Cal.5th at p. 1063.)
Courts have noted that “[t]here is a ‘distinction between
activities that form the basis for a claim and those that merely
lead to the liability-creating activity or provide evidentiary
support for the claim.’ ” (Crossroads Investors, L.P. v. Federal
National Mortgage Assn. (2017) 13 Cal.App.5th 757, 776.) In
other words, “[a]ssertions that are ‘merely incidental’ or
‘collateral’ are not subject to section 425.16. [Citations.]
Allegations of protected activity that merely provide context,
without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.)
Phrased another way, the relevant question for anti-SLAPP
purposes is whether “the ‘ “core injury-producing conduct upon
which the claim is premised” ’ arise[s] out of protected activity?
(Area 51 Productions, Inc. v. City of Alameda (2018)
20 Cal.App.5th 581, 594 [Area 51 Productions].)” (Starr v.
Ashbrook (2023) 87 Cal.App.5th 999, 1020.)
As relevant to the present case, the parties agree that
artistic expression is protected free speech activity under the
13
anti-SLAPP statute. They disagree, however, about whether any
of Kaplan’s causes of action “aris[e] from” acts in furtherance of
defendants’ rights of free speech within the meaning of the anti-
SLAPP statute. Defendants urge that each of plaintiff’s causes of
action is subject to the anti-SLAPP statute because each is based
on the making of Darkest Hour—that is, from the creation of a
film—which defendants urge is quintessential free speech
activity. Plaintiff contends to the contrary, urging that the
injury-producing activity was not defendants’ making of Darkest
Hour. Instead, plaintiff says, each cause of action alleges injury
resulting from “(a) the failure to pay [plaintiff] for the use of [his]
ideas; and (b) Osborne, Urbanski, and Oldman leaving the
Churchill project. For the reasons that follow, plaintiff is correct.
A. Breach of implied-in-fact contract (second
cause of action).
In Desny v. Wilder (1956) 46 Cal.2d 715 (Desny), the
California Supreme Court held that an idea can be the subject of
an express or implied contract, and its disclosure and submission
can be consideration for a promise to pay compensation.
A plaintiff therefore may have a cause of action in contract for
disclosing an idea to a defendant who uses it without
compensation. (Id. at pp. 738, 744; Spinner v. American
Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184
(Spinner).)
To prevail on a cause of action for breach of implied-in-fact
contract in an idea submission case, a plaintiff must show that
“(1) [he] clearly conditioned the submission of [his] ideas on an
obligation to pay for any use of [his] ideas; (2) the defendants,
knowing this condition before the plaintiff[ ] disclosed the ideas,
voluntarily accepted the submission of the ideas; and (3) the
14
defendants found the ideas valuable and actually used them—
that is, the defendants based their work substantially on the
plaintiff’[s] ideas, rather than on their own ideas or ideas from
other sources.” (Spinner, supra, 215 Cal.App.4th at p. 184.)
Here, the second cause of action for breach of implied-in-
fact contract alleges that Kaplan “clearly conditioned his offer to
disclose his scripts, and reveal his unique ideas and approaches
on an obligation for Defendants to pay for them if they were used
by Defendants,” but defendants “breached this contract by . . .
taking specific ideas from Mr. Kaplan and using those ideas to
make Darkest Hour” without crediting or compensating him. As
a result, Kaplan allegedly was harmed “by the failure of
Defendants to credit and compensate him for the use of his ideas
in Darkest Hour.”6
6 Defendants contend that there is no credible claim that
Urbanski, Osborne, or Oldman are being sued for using Kaplan’s
ideas without compensating him because Kaplan’s and Lamb’s
declarations “are absolutely clear” that “Oldman was never asked
to ‘pay’ for anything.” Not so. The operative complaint alleges
that Kaplan “shared his ideas and approaches [to] the telling of
the story of Winston Churchill with [Urbanski, Osborne, and
Oldman] with their promise that, to the extent that Mr. Kaplan’s
ideas and approaches were used, he would be compensated.”
(Italics added.) Kaplan’s declaration is similar; he asserts: “The
sharing of my script in conjunction with the May 13, 2013 offer
was not to simply share my movie ideas with Messrs. Oldman,
Osborne, and Urbanski. The sharing of my script was always
done with the expectation that it would lead to me earning
income and/or credit from the use of my ideas in that script.”
Webb’s declaration does not address the issue of compensation at
all, and thus it is not inconsistent with Kaplan’s declaration or
with the allegations of the complaint.
15
There are two ways to characterize this allegation.
According to defendants, the breaching conduct—that is, the
conduct on which the cause of action is based—was the making of
Darkest Hour. Kaplan urges otherwise, contending that the
breaching conduct was not the making of Darkest Hour, but the
failure to pay him for his script. We agree with Kaplan that the
breaching conduct—that is, the “ ‘core injury-producing conduct
upon which the plaintiff’s claim is premised’ ” (Area 51
Productions, supra, 20 Cal.App.5th at p. 594)—was using the
Churchill script without compensation, not making Darkest
Hour. This is clear from the complaint, which alleges that
Kaplan shared his scripts with defendants for the express
purpose of making a film; that Kaplan conditioned his disclosure
of his scripts on defendants’ promise to pay for the scripts if they
used them; and that defendants made a film based on Kaplan’s
script but did not compensate him. In other words, Kaplan does
not allege that defendants did not have the right to make a film
based on his scripts, but instead that, having done so, they were
contractually required to pay him for their use.
Our conclusion is consistent with that of the Ninth Circuit
in Jordan-Benel v. Universal City Studios, Inc. (9th Cir. 2017)
859 F.3d 1184 (Jordan-Benel). There, the plaintiff’s manager
submitted a screenplay written by the plaintiff to a talent agency,
which indicated it would “ ‘pass’ ” on it. (Id. at p. 1187.)
However, someone at the talent agency allegedly sent the
screenplay to another screenwriter, who then wrote a script that
copied ideas from the plaintiff’s script. A film (The Purge) based
on the plaintiff’s script was made and released. (Ibid.) The
plaintiff filed an action against the talent agency and production
companies for copyright infringement, implied-in-fact contract,
16
and declaratory relief, seeking a declaration of the plaintiff’s
right to credit and payment for the production and sale of the
film and its sequels. (Ibid.) The defendants filed a special
motion to strike the contract and declaratory relief claims, which
the district court denied. The defendants appealed. (Id. at
p. 1188.)
The Ninth Circuit affirmed. It explained that to determine
whether the defendants had met their step one burden under the
anti-SLAPP statute, it asked 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?” (Jordan-
Benel, supra, 859 F.3d at p. 1190.) In the case before it, the
defendants argued that the relevant conduct was “the creation,
production, distribution, and content of the films” because the
plaintiff would not have a claim but for that activity. The
plaintiff, in contrast, urged that his claims did not arise from the
making and distribution of the films because those were not the
wrongful acts that gave rise to his claims; instead, plaintiff’s
claims arose out of defendants’ failure to pay him for using his
script. (Ibid.) The Ninth Circuit agreed with the plaintiff,
concluding that the conduct underlying the breach of implied-in-
fact contract claim was the defendants’ failure to pay for the use
of the plaintiff’s screenplay. It explained: “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
17
hold that the failure to pay is the conduct from which the claim
arises.” (Id. at p. 1191.)
In so concluding, the Ninth Circuit acknowledged that the
plaintiff would have no claim but for the production and release
of The Purge films. Nonetheless, it said, “the target of Jordan-
Benel’s claim is not actually the expressive works (The Purge
films).” (Jordan-Benel, supra, 859 F.3d at p. 1192.) Accordingly,
applying a but for analysis “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.”
(Ibid.)
The Court of Appeal reached a contrary result in Musero v.
Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802 (Musero).
There, the plaintiff, a writer, sued his former talent agents for
breach of fiduciary duty, breach of contract, and breach of the
implied covenant of good faith and fair dealing, asserting that the
agents had misappropriated the writer’s proposed television pilot
and used that material to develop a competing project of the same
name with another client, producer Jerry Bruckheimer. (Id. at
p. 807.) Specifically, the plaintiff alleged that after he provided
the agents with a script for a television pilot titled Main Justice,
which was based loosely on the Department of Justice and
Attorney General Eric Holder, the agents created a pitch
document for Bruckheimer and his associates that “was preceded
by, borrowed from, and harvested the concept, pitch, series
overview and pilot created by [the writer] under the same title.”
(Id. at p. 809.) The agents filed a special motion to strike the
complaint’s allegations that they had misappropriated the
plaintiff’s Main Justice pilot script, urging that those allegations
arose out of free speech on a matter of public importance. The
18
trial court denied the motion, concluding the agents had
demonstrated that the plaintiff’s allegations arose out of
protected speech, but the plaintiff had carried his burden of
demonstrating a reasonable probability of success on the merits.
(Id. at p. 813.)
The Court of Appeal affirmed, although for different
reasons than those articulated by the trial court. The appellate
court found that creating a television show was an exercise of
constitutionally protected expression, and steps taken to advance
such 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). (Musero, supra, 72 Cal.App.5th
at p. 817.) However, the court concluded that the challenged
conduct did not concern an issue of public interest. (Id. at p.
820.) It explained: “[W]hen 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 interest is insufficient to warrant
protection under section 425.16, subdivision (e)(4).” (Id. at
p. 821.)
In concluding that the plaintiff’s claims arose out of
protected speech, the court expressly rejected the Ninth Circuit’s
reasoning in Jordan-Benel. It explained: “[T]he 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 proper first step
analysis in Bonni, supra, 11 Cal.5th 995. [Fn. omitted.] As
Bonni and Baral instruct, whatever the purported ‘target’ of a
19
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, [the defendants’] alleged
participation in the creation and development of [Bruckheimer’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.” (Musero, supra, 72 Cal.App.5th at
p. 819.)
We do not agree with Musero that Jordan-Benel’s analysis
is inconsistent with Baral and Bonni. While those cases
disavowed a “gravamen” approach where a single cause of action
is based on more than one alleged wrongful acts—a so-called
“ ‘mixed’ causes of action” (Baral, supra, 1 Cal.5th 384)—neither
case suggested that it was error for a court to consider, as
Jordan-Benel did, whether expressive conduct was a “target” of a
plaintiff’s claim. (Jordan-Benel, supra, 859, F.3d at p. 1192.) To
the contrary, Bonni provided the following guidance for lower
courts: “To be clear, we do not suggest that every court that has
continued to label its approach a gravamen test even after Baral
has erred. Some courts have invoked the term not in the way
Bonni suggests—to determine the essence or gist of a so-called
mixed cause of action—but instead to determine whether
particular acts alleged within the cause of action supply the
elements of a claim (see Park, supra, 2 Cal.5th at p. 1063) or
instead are incidental background (see Optional Capital, Inc. v.
Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95,
111 [‘The “gravamen is defined by the acts on which liability is
20
based, not some philosophical thrust or legal essence of the cause
of action” ’]; accord, Area 51 Productions, [supra,] 20 Cal.App.5th
[at pp.] 594–601; Gaynor v. Bulen (2018) 19 Cal.App.5th 864,
885–886). This approach is consistent with Baral, which
reaffirmed that ‘[a]ssertions that are “merely incidental” or
“collateral” are not subject to section 425.16. [Citations.]
Allegations of protected activity that merely provide context,
without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.’ (Baral, supra, 1 Cal.5th at p. 394.) [¶]
Here, too, we may consider whether Bonni’s various allegations
supply the elements of a retaliation claim or merely provide
context.” (Bonni, supra, 11 Cal.5th at p. 1012.)
Under Baral, Park, and Bonni, therefore, the question for
us is what act or acts supply the elements of Kaplan’s Desny
claim. Like the Jordan-Benel court, we conclude the relevant
act—or, in the language of Area 51 Productions, the “core injury-
producing conduct upon which the plaintiff’s claim is premised”
(20 Cal.App.5th at p. 594)—is using Kaplan’s script without
compensation. While defendants’ production of Darkest Hour
was a necessary predicate for the claim, it did not itself support a
claim for recovery because it was the failure to pay—not the
making of the movie—that is alleged to have caused Kaplan
harm. And, because a failure to pay is not alleged to be an act in
furtherance of free speech, Kaplan’s Desny claims do not arise out
of protected activity within the meaning of the anti-SLAPP
statute. (See Zacchini v. Scripps-Howard Broadcasting Co.
(1977) 433 U.S. 562, 578–579 [First Amendment not violated by
allowing entertainer to sue newscaster for unauthorized
broadcast of his performance: “There is no doubt that
entertainment, as well as news, enjoys First Amendment
21
protection. But it is important to note that neither the public nor
respondent will be deprived of the benefit of petitioner’s
performance as long as his commercial stake in his act is
appropriately recognized. Petitioner does not seek to enjoin the
broadcast of his performance; he simply wants to be paid for it.”],
italics added; Dallas Cowboys Cheerleaders, Inc. v. Scoreboard
Posters, Inc. (5th Cir. 1979) 600 F.2d 1184, 1188 [First
Amendment not a license to trammel intellectual property
rights].)
B. Breach of express contract and breach of
fiduciary duty (first and sixth causes of action).
The elements of breach of contract are “(1) the existence of
the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting
damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 821.) The elements of breach of fiduciary
duty are “ ‘ (1) the existence of a fiduciary duty; (2) the breach of
that duty; and (3) damage proximately caused by that breach.’ ”
(IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.)
Kaplan’s first cause of action alleges that Kaplan,
Urbanski, and Osborne entered into a contract to “develop,
produce, film, and release a feature film based on [the Churchill
script] with Gary Oldman playing the titular role.” Kaplan
“performed all the conditions, covenants, and promises required
by him to be performed in accordance with the terms and
conditions of the joint venture,” but Urbanski and Osborne
“breached the parties’ joint venture agreement by abandoning the
joint venture to work with competitors, appropriating Mr.
Kaplan’s script for Darkest Hour, and assisting in the creation,
development, and/or production of Darkest Hour,” causing Kaplan
22
harm. The sixth cause of action alleges that a fiduciary duty
existed between Kaplan, Urbanski, and Osborne as a result of
this contract, and Urbanski and Osborne breached their fiduciary
duties by “abandoning the joint venture to work with competitors,
appropriating ideas from Mr. Kaplan’s script for Darkest Hour,
and assisting in the creation, development, and/or production of
Darkest Hour.”
Defendants contend that the breach of contract and breach
of fiduciary duty claims arise from protected activity because
they allege that defendants “violated legal obligations to [Kaplan]
by working with other writers and producers in connection with
the creation of a protected work”—that is, by making Darkest
Hour. We do not agree. Urbanski’s and Osborne’s contractual
obligations as alleged in the first cause of action were to assist in
the development, production, and release of a feature film based
on Kaplan’s script. As such, the contract or defendants’ fiduciary
duties thereunder were allegedly breached by Urbanski’s and
Osborne’s failure to assist in the film’s development, production,
and/or release. But since the complaint does not allege that
defendants also entered into a binding agreement with Kaplan to
refrain from producing other films, the making of Darkest Hour
is not an independent basis for liability, but merely explains why
defendants abandoned the Churchill project. In other words,
under the Baral/Bonni rubric, the reference to the making of
Darkest Hour “merely provide[s] context, without supporting a
claim for recovery.” (Bonni, supra, 11 Cal.5th at p. 1012.)
Because this assertion thus is “ ‘merely incidental’ or ‘collateral’ ”
to the first cause of action, it “ ‘cannot be stricken under the anti-
SLAPP statute.’ ” (Ibid.)
23
In support of their contention that Kaplan’s breach of
contract and breach of fiduciary duty claims arise out of protected
activity, defendants cite Ojjeh v. Brown (2019) 43 Cal.App.5th
1027 (Ojjeh). The complaint in Ojjeh alleged that defendant
Brown solicited $180,000 from the plaintiff to produce a
documentary on the Syrian refugee crisis but defendant used the
plaintiff’s investment for purposes unrelated to the film and did
not make substantial progress towards completing the film. The
defendant filed a special motion to strike, which the trial court
denied. (Id. at p. 1032.) The Court of Appeal reversed. It noted
that the complaint did not allege that defendant performed no
work on the documentary, but instead acknowledged that the
defendant had hired a cinematographer who shot some footage
for the documentary. (Id. at p. 1038.) This allegation was
“reasonably viewed as . . . ‘in furtherance’ of the documentary”
because “[i]t goes without saying that in order to produce a
documentary, a filmmaker must obtain footage and collect
information on the subject matter.” (Id. at pp. 1139–1040.) The
court similarly concluded that the complaint’s allegations that
the defendant solicited funds and then used those funds for
purposes unrelated to the documentary was reasonably viewed as
conduct in furtherance of the documentary’s production because
“there appears no dispute that application of such funding
towards the documentary would have furthered or helped
advance the project.” (Id. at p. 1040.) Thus, the court concluded,
“defendants’ alleged conduct of soliciting investment funds and
performing partial work on the documentary was, for anti-SLAPP
purposes, in furtherance of producing the documentary in the
exercise of the right of free speech.” (Id. at p. 1042.)
24
To the extent that Ojjeh stands for the proposition that any
conduct preliminary or related to the making of a film arises out
of protected speech, we disagree. As we have discussed, our
Supreme Court has held that a cause of action is subject to a
special motion to strike only if a defendant’s alleged act
underlying a plaintiff’s cause of action is “ ‘itself . . . an act in
furtherance of the right of petition or free speech.’ ” (Park, supra,
2 Cal.5th at p. 1063.) In other words, “ ‘[t]he only means
specified in section 425.16 by which a moving defendant can
satisfy the [“arising from”] requirement is to demonstrate that
the defendant’s conduct by which plaintiff claims to have been
injured falls within one of the four categories described in [section
425.16,] subdivision (e). . . .’ ” (Ibid., quoting Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66, italics omitted.)
Plainly, not all injurious conduct that occurs preliminary to, or in
connection with, the making of a film raises free speech
concerns—for example, we would be hard pressed to conclude
that a claim alleging that a caterer breached a contract to provide
lunch to the cast and crew on a movie set raised free speech
concerns, even though the meals to be provided unquestionably
would have “furthered or helped advance” the making of the film.
(Ojjeh, supra, 43 Cal.App.5th at p. 1040.) We similarly would
find no free speech concerns in connection with a claim that a
vendor breached a contract to deliver paint to be used to make a
movie set, or that a property owner breached an agreement to
allow his property to be used for filming a movie, even if these
alleged breaches had the effect of delaying the movie’s
production.
It is true, as defendants contend, that many acts that
“ ‘advance or assist’ the creation and performance of artistic
25
works are acts in furtherance of the right of free speech for anti-
SLAPP purposes.” (See Symmonds v. Mahoney (2019)
31 Cal.App.5th 1096, 1106.) But expanding that principle as far
as defendants would have us do here would have the effect of
allowing the anti-SLAPP mechanism to be used to strike claims
for relief in contexts that raise no First Amendment concerns.
And while we acknowledge that freedom of expression requires
some “ ‘breathing space’ ” to survive (New York Times Co. v.
Sullivan (1964) 376 U.S. 254, 271–272), a construction of the
anti-SLAPP statute that defines protected conduct as any
conduct preliminary to, or in connection with, the making of a
film simply goes too far. (See Wilson, supra, 7 Cal.5th at pp. 893–
894 [“A news organization’s hiring or firing of employees—like
virtually everything a news organization does—facilitates the
organization’s speech to some degree. But it does not follow that
everything the news organization does qualifies as protected
activity under the anti-SLAPP statute. The First Amendment
does not immunize news organizations from laws of general
applicability ‘simply because their enforcement . . . has incidental
effects on [the press’s] ability to gather and report the news’ ”],
italics added.)
Defendants also contend that if the first and sixth causes of
action are based on failing to make a film based on Kaplan’s
script, rather than on making and distributing Darkest Hour in
2017, then Kaplan’s claims are barred by the statute of
limitations. Perhaps so, but that fact does not support
defendants’ contention that their special motion to strike should
have been granted. As we have said, a plaintiff is required to
demonstrate arguable merit in opposition to an anti-SLAPP
motion only as to claims based on protected conduct. (See Wilson,
26
supra, 7 Cal.5th at p. 884 [“ ‘If the defendant carries its [first-
step] burden, the plaintiff must then demonstrate its claims have
at least “minimal merit” ’ ”].) Thus, to the extent that Kaplan’s
claims are time-barred, they may be subject to demurrer or
summary disposition, but they are not a proper subject of a
special motion to strike. (See Bonni, supra, 11 Cal.5th at p. 1004
[under anti-SLAPP statute, plaintiff need not demonstrate
arguable merit as to causes of action that do not arise out of
protected activity].)
C. Intentional interference with contract,
intentional interference with prospective
economic advantage, and aiding and abetting
breach of fiduciary duty (fourth, fifth, and
seventh causes of action).
The elements of intentional interference with contract are
(1) a valid contract between the plaintiff and a third party; (2) the
defendant’s knowledge of this 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. (Mintz v.
Blue Cross of California (2009) 172 Cal.App.4th 1594, 1603.) The
elements of intentional interference with prospective economic
advantage are “(1) an economic relationship between the plaintiff
and some third party, with the probability of future economic
benefit to the plaintiff; (2) the defendant’s knowledge of the
relationship; (3) intentional acts on the part of the defendant
designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm to the plaintiff proximately
caused by the acts of the defendant.” (Youst v. Longo (1987)
43 Cal.3d 64, 71, fn. 6.) The elements of a claim for aiding and
27
abetting an alleged breach of fiduciary duty are “ ‘(1) a third
party’s breach of fiduciary duties owed to plaintiff; (2) defendant’s
actual knowledge of that breach of fiduciary duties;
(3) substantial assistance or encouragement by defendant to the
third party’s breach; and (4) defendant’s conduct was a
substantial factor in causing harm to plaintiff.’ ” (George v. eBay,
Inc. (2021) 71 Cal.App.5th 620, 641.)
The fourth and fifth causes of action reallege the existence
of an express contract and/or economic relationship between
Kaplan, Urbanski, and Osborne to make a film based on Kaplan’s
script, and they allege that Working Title engaged in intentional
acts designed to induce a breach or disruption of that
relationship—specifically, Working Title “sought to, and in fact
did, poach Mr. Oldman from Mr. Kaplan’s Churchill project so
that Mr. Oldman could, and in fact did, star in Darkest Hour,
produced by Working Title.” The seventh cause of action alleges
that Working Title was aware that a fiduciary relationship had
arisen between Kaplan, Urbanski, and Osborne as a result of the
express contract and “substantially assisted and/or encouraged
[Urbanski and Osborne] to breach their fiduciary duties” by
“poach[ing] Mr. Oldman” and “misappropriate[ing] ideas from
Mr. Kaplan’s script and utiliz[ing] those ideas in Darkest Hour.”
As a result, Kaplan was harmed “because the purpose of the joint
venture was not fulfilled and his script was wrongfully
appropriated for another film, [for] which he received no credit or
compensation.”
Defendants assert that “it is firmly established that casting
decisions . . . constitute protected activity,” and thus because
Working Title is alleged to have “ ‘poached’ ” Oldman for the
purpose of making Darkest Hour, these causes of action arise out
28
of protected activity. We do not agree. The injury-producing act
alleged in the fourth, fifth, and seventh causes of action was
persuading Oldman not to star in Kaplan’s film, as a result of
which “Mr. Kaplan’s project did not move forward and was not
developed into a feature film.” That Oldman went on to make
Darkest Hour explains why Working Title induced Oldman not to
participate in Kaplan’s film, but was not itself an element of
Kaplan’s injury—Kaplan would have suffered the same harm
whether Oldman left Kaplan’s project to make Darkest Hour or
for a reason wholly unconnected with filmmaking. As such, the
assertion in these causes of action that Oldman starred in
Darkest Hour is “ ‘ “merely incidental” ’ ” to these causes of
action. (Bonni, supra, 11 Cal.5th at p. 1012.)7
Defendants also assert that these causes of action arise out
of protected activity because they allege that Working Title
misappropriated portions of Kaplan’s script and used them in
Darkest Hour. But as we have said, the injury-producing conduct
on which this claim is based is failing to pay Kaplan for the use of
his script, not making Darkest Hour. (See section A, ante.) Thus,
this claim does not arise out of protected activity.
7 For this reason, the present case is distinguishable from
the cases on which defendants rely, both of which specifically
arise out of the defendants’ hiring decisions. (See Hunter v. CBS
Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1515
[discrimination complaint alleging that defendants refused to
hire plaintiff because of his gender and age]; Taylor v. Viacom
Inc. (C.D. Cal., June 5, 2018, No. CV173247DMGAFMX)
2018 WL 4959821, at *2 [tort action alleging defendant
negligently cast reality television contestant].)
29
D. Third cause of action for unfair competition.
The third cause of action alleges a violation of the Unfair
Competition Law (UCL), Business and Professions Code
section 17200. “The UCL defines ‘unfair competition’ as ‘any
unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising.’ (Bus. &
Prof. Code, § 17200.) By proscribing ‘any unlawful’ business act
or practice (ibid.), the UCL ‘ “borrows” ’ rules set out in other
laws and makes violations of those rules independently
actionable.” (Zhang v. Superior Court (2013) 57 Cal.4th 364,
370.)
As defendants concede, the UCL claim “does not involve
any stand-alone misconduct, and instead borrows from Kaplan’s
many other causes of action.” Specifically, the third cause of
action alleges that “[d]efendants’ conduct, as alleged herein,
constitutes an unlawful business practice because [defendants]
misappropriated Mr. Kaplan’s ideas and approaches from
Churchill, tortiously interfered with Mr. Kaplan’s business and
the development and production of Churchill as a feature film,
and/or breached their duties to Mr. Kaplan.” These claims do not
arise out of protected conduct for all the reasons discussed above.
Defendants also urge that, at a minimum, the special
motion to strike should have been granted as to NBCUniversal
and Focus Features, who are named in only the third cause of
action and “are not alleged to have engaged in any misconduct.”
Further, defendants assert, the complaint “is bereft of any factual
allegations relating to any relationship between Kaplan (or any of
his associates) and these named parties.” Not so. As suggested
above, while the absence of substantive allegations against
NBCUniversal and Focus Features may render the UCL claim
30
vulnerable to a demurrer or summary adjudication, it is not a
proper subject of a motion to strike. (See Bonni, supra,
11 Cal.5th at p. 1004 [under anti-SLAPP statute, plaintiff need
not demonstrate arguable merit as to causes of action that do not
arise out of protected activity].)
For all of the above reasons, we conclude that none of
Kaplan’s causes of action arise out of protected activity within the
meaning of the anti-SLAPP statute. We thus will affirm the trial
court’s order without considering whether the causes of action
concern matters of public interest or have arguable merit.
31
DISPOSITION
The order denying the special motion to strike is affirmed.
Kaplan is awarded his appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
ADAMS, J.
32