515 F.3d 1019 (9th Cir. 2008), 05-56045, Estate of Tucker ex rel. Tucker v. Interscope Records, Inc.

Docket Nº:05-56045, 06-55376.
Citation:515 F.3d 1019
Party Name:ESTATE OF C. DeLores TUCKER, by and through William TUCKER as Personal Representative; and William Tucker individually, Plaintiffs-Appellants, v. INTERSCOPE RECORDS, INC.; Death Row Records, Inc.; Charles B. Ortner; Paul, Hastings, Janofsky & Walker, LLP, Defendants-Appellees. Estate of C. DeLores Tucker, by and through William Tucker as Personal R
Case Date:February 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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515 F.3d 1019 (9th Cir. 2008)

ESTATE OF C. DeLores TUCKER, by and through William TUCKER as Personal Representative; and William Tucker individually, Plaintiffs-Appellants,


INTERSCOPE RECORDS, INC.; Death Row Records, Inc.; Charles B. Ortner; Paul, Hastings, Janofsky & Walker, LLP, Defendants-Appellees.

Estate of C. DeLores Tucker, by and through William Tucker as Personal Representative; and William Tucker individually, Plaintiffs-Appellants,


David Kenner; Geoffrey Thomas; Jack Paladino; Paul Paladino, Defendants-Appellees.

Nos. 05-56045, 06-55376.

United States Court of Appeals, Ninth Circuit

Feb. 8, 2008

Argued and Submitted May 11, 2007.

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Richard C. Angino, Harrisburg, Pennsylvania, for the appellants.

Steven A. Marenberg, Perry M. Goldberg, & Jason Linder, Los Angeles, California, for appellees David Kenner, Geoffrey Thomas, Interscope Records, Inc., Interscope Records, Charles B. Ortner, and Paul, Hastings, Janofsky & Walker LLP. Ronald L. Leibow, Los Angeles, California, for appellee Death Row Records, Inc.

Appeal from the United States District Court for the Central District of California; Robert M. Takasugi, District Judge, Presiding. D.C. Nos. CV-99-03679-RMT, CV-99-06129-RMT.



PAEZ, Circuit Judge.

In these consolidated malicious prosecution cases, 1 William Tucker and the Estate of Cynthia DeLores Tucker ("the Tuckers"), 2 appeal the district court's grant of summary judgment to all defendants in both cases. In Tucker v. Interscope, we affirm the district court's ruling as to all defendants. In Tucker v. Kenner, we affirm the district court's summary judgment as to defendant Thomas; however, as to defendant Kenner we affirm the district court's ruling in part and reverse in part, and remand for trial. We also affirm the district court's grant of summary judgment as to Mr. Tucker's loss of consortium claim in both cases.

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In the early 1990s, Cynthia DeLores Tucker, whose history as an activist dates back to the civil rights movement of the 1950s and 1960s, became concerned with the increasing popularity of the style of hip-hop music known as "gangsta rap," particularly its appeal to African-American youth. She enlisted the support of notable entertainers including Dionne Warwick and Melba Moore to engage in lobbying and media outreach, with the goal of limiting the sale of gangsta rap to young people. Her efforts brought her head-to-head with two of the genre's most successful production and distribution labels: Death Row Records, Inc. and Interscope Records, Inc. After Tucker and other members of her coalition approached Suge Knight, then-CEO of Death Row, about entering into a distribution contract with the media behemoth Time Warner, Inc., Death Row and its distributor Interscope filed separate federal court actions (the "underlying litigation") against Tucker, alleging intentional interference with their exclusive contractual relationship and other related claims.

After Death Row and Interscope successfully moved for dismissal without prejudice, the Tuckers filed separate lawsuits against the two entities and their lawyers in federal district court, invoking diversity jurisdiction and charging them with malicious prosecution. Her husband William Tucker sought damages for loss of consortium as a derivative claim. Applying California law, the district court granted summary judgment in both cases based on its conclusion that the Tuckers' evidence did not create a genuine issue of fact as to whether any of the defendants had acted with malice, a necessary element of a malicious prosecution claim. The district court also dismissed Mr. Tucker's loss of consortium claim on the grounds that Mr. Tucker failed to carry his burden of production and that without a viable claim for malicious prosecution, his derivative claim failed as a matter of law.

Reviewing de novo the grants of summary judgment in both cases, we conclude that, on the evidentiary record before the district court, it correctly concluded--except with regard to the claim for abuse of process included in the complaint filed by Death Row's attorney David Kenner--that the Tuckers did not present sufficient evidence to defeat the motions for summary judgment on the issue of malice. We therefore affirm the summary judgment in Tucker v. Interscope, and affirm in part and reverse in part the district court's grant of summary judgment in Tucker v. Kenner. We remand for trial the Tuckers' malicious prosecution claim against Kenner to the extent that it is predicated on the abuse of process claim that he included in Death Row v. Tucker. As we explain below, as to that one claim the Tuckers have raised a genuine triable issue of fact.


Factual and Procedural Background

To fully understand these consolidated appeals, it is necessary to set forth the history of the two cases in some detail. Because the district court did not provide an extensive recitation of undisputed facts, we rely primarily on the parties' briefs and the record for the following factual overview, noting factual disputes where they exist and construing any ambiguities in favor of the Tuckers, as the non-moving parties.

A. The Underlying Dispute

Mrs. Tucker was a prominent civil rights advocate who served as the first African-American Secretary of State of Pennsylvania,

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the first African-American chair of the National Federation of Democratic Women, and the Chair of the Democratic National Committee Black Caucus. She also cofounded and chaired the National Political Congress of Black Women, Inc. ("NPC"), a non-profit organization dedicated to promoting African-American women's education and political, economic, and cultural development.

During the early 1990s, Mrs. Tucker became troubled by the growing popularity of "gangsta rap."3 Of particular concern to Mrs. Tucker was the genre's influence on African-American youth, who she feared would adopt the music's violent and sometimes misogynist perspectives. At the NPC's biennial meeting in 1993, Mrs. Tucker enlisted the help of well-known artists Dionne Warwick, Melba Moore, and Terri Rossi, along with lobbyist Voncier Alexander, to form an Entertainment Commission for the NPC that would support African-American entertainers, and particularly women. The Entertainment Commission adopted a three-part mission: to eliminate barriers facing African-American artists and executives; to mobilize African-American entertainers to address important issues affecting African-American communities; and to "reshap[e] and maintain[ ] positive images to preserve the dignity and heritage of our youth." From 1993 to 1995, the Entertainment Commission worked with prominent individuals in entertainment and media, along with religious leaders and lobbyists, to put pressure on music producers and distributors to halt the sale of gangsta rap to minors. Among Mrs. Tucker's more high-profile efforts in pursuit of this goal were an appearance at a 1995 Time Warner shareholder's meeting, where she offered Time Warner executives $100 to read aloud gangsta rap lyrics from albums distributed under its name, and a protest against the sale of gangsta rap albums outside a Tower Records store, for which she was arrested.

Death Row is an independent record label founded in 1991 by Suge Knight and the well-known rap artist Dr. Dre. Death Row signed extremely popular gangsta rap stars including Dr. Dre, Tupac Shakur ("Tupac"), Snoop Doggy Dogg ("Snoop"), and Danny Boy, generating enormous profit, and notoriety, for the label throughout the mid-1990s. Interscope is a general partnership that records and distributes popular music. Like Death Row, it gained success and prominence during the 1990s through the distribution and sale of gangsta rap. From 1992 to 1998, Death Row maintained an exclusive contractual relationship with Interscope, whereby Interscope was the sole distributor of Death Row's music.

In 1995, Mrs. Tucker and the Entertainment Commission began to direct their anti-gangsta rap campaign at Death Row. Knight, Death Row's outside counsel David Kenner, and Omar Bradley, who was then the mayor of Compton, California, were invited to the NPC's biennial convention in July 1995, where they attended a meeting with Mrs. Tucker and other members of the Entertainment Commission. Some facts --including who initiated the meeting--are in dispute, but it is uncontested that this meeting occurred. According to Mrs. Tucker's deposition testimony, during the meeting she spoke with Knight about the influence of gangsta rap on African-American youth and asked him to change the violent and misogynist nature of the lyrics on the albums he produced.

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Mrs. Tucker testified that Knight agreed to make changes and to come back to the Entertainment Commission with a sample.

At some point shortly before or after the NPC convention, Warwick held an informal meeting with Knight, Snoop, and Danny Boy at her home in Los Angeles. According to Warwick, the group discussed removing several references to women as "bitches" and "ho's" on Dogg Food, an album by Tha Dogg Pound that Death Row would soon be releasing. Warwick testified at her deposition that she relayed this information to Mrs. Tucker, Alexander, and Michael Fuchs, then--CEO of Warner Music Group, an affiliate of Time Warner.

The summary judgment record contains a letter, dated August 7, 1995, printed on NPC letterhead. The letter appears to be from Knight, though it does not bear his...

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