Jordan-Benel v. Universal City Studios, Inc., 15-56045

• Citation: 859 F.3d 1184
• Decision Date: 20 June 2017
• Docket Number: No. 15-56045,15-56045
• Parties: Douglas JORDAN-BENEL, an individual, Plaintiff-Appellee, v. UNIVERSAL CITY STUDIOS, INC., a Delaware corporation; Blumhouse Productions, LLC, a Delaware Limited Liability Company; Overlord Productions, LLC, a California Limited Liability Company; Platinum Dunes Productions, a California Corporation; Why Not Productions, Inc., DBA Why Not Films, a Nevada Corporation; James DeMonaco, an individual, Defendants-Appellants, and United Talent Agency, Inc., a California corporation, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

859 F.3d 1184

Douglas JORDAN-BENEL, an individual, Plaintiff-Appellee,

v. UNIVERSAL CITY STUDIOS, INC., a Delaware corporation; Blumhouse Productions, LLC, a Delaware Limited Liability Company; Overlord Productions, LLC, a California Limited Liability Company; Platinum Dunes Productions, a California Corporation; Why Not Productions, Inc., DBA Why Not Films, a Nevada Corporation; James DeMonaco, an individual, Defendants-Appellants,andUnited Talent Agency, Inc., a California corporation, Defendant.

No. 15-56045

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2016 Pasadena, California

Filed June 20, 2017

Kelli L. Sager (argued), Jason Harrow, and Karen A. Henry, Davis Wright Tremaine LLP, Los Angeles, California, for Defendants-Appellants.

Glen Lance Kulik (argued) and Patricia Brum, Kulik Gottesman Siegel & Ware LLP, Sherman Oaks, California, for Plaintiff-Appellee.

Before: Harry Pregerson, Dorothy W. Nelson, and John B. Owens, Circuit Judges.

OPINION

PREGERSON, Circuit Judge:

This case is about the alleged theft of a screenplay idea that was later turned into a popular film series called The Purge . Plaintiff-Appellee Douglas Jordan-Benel brings copyright and state law claims, including breach of implied-in-fact contract and declaratory relief, against several defendants in the film industry. He alleges that the defendants used his screenplay idea to create The Purge films without providing him compensation or credit as a writer.

Several defendants filed an anti-SLAPP motion to strike Jordan-Benel's state law claims. After dismissing the cause of action for declaratory relief on other grounds, the district court denied the anti-SLAPP motion. It ruled that Jordan-Benel's breach of contract claim does not arise from an act in furtherance of the right of free speech because the claim is based on Defendants' failure to pay for the use of Jordan-Benel's idea, not the creation, production, distribution, or content of the films. We affirm.

I. FACTUAL BACKGROUND¹

Plaintiff-Appellee Douglas Jordan-Benel writes screenplays, teleplays, and comic books. Around January 2011, Jordan-Benel wrote a screenplay entitled Settler's Day about a family's attempt to survive an annual, state-sanctioned, 24-hour period in which citizens are allowed to commit any crime without legal consequences. He registered the screenplay with the Writers Guild of America and the U.S. Copyright Office.

Around June 2011, Jordan-Benel's manager, Adam Peck, emailed David Kramer, Managing Director of Feature Productions at United Talent Agency ("UTA"), about Settler's Day . Kramer responded that Peck should contact Emerson Davis at UTA to discuss the screenplay. Peck then spoke with Davis and asked permission to submit the screenplay. Davis agreed and asked that Peck email the screenplay to both Davis and Kramer. On July 8, 2011, Peck submitted the screenplay.

Based on custom and practice in the industry and prior dealings between UTA and Peck, UTA understood that the submission was not gratuitous and was made for the purpose of selling the screenplay to a UTA client. Around July 13, 2011, Davis emailed Peck to confirm that he had read the screenplay but that he was going to "pass." Nonetheless, someone at UTA sent the screenplay to UTA client James DeMonaco. DeMonaco and his partner, Sebastian Lemercier (also a UTA client), wrote a script entitled ThePurge , which allegedly copies Jordan-Benel's ideas from Settler's Day .

Around June 7, 2013, a film entitled The Purge was released. The film was produced by Universal City Studios, LLC, Blumhouse Productions LLC, Overlord Productions LLC, Platinum Dunes Productions, and Lemercier's company, Why Not Productions, Inc. (collectively, "Production Defendants"). A sequel was released on July 18, 2014 and a third film was planned for release. UTA packaged the film and its sequels.

II. PROCEDURAL HISTORY

On February 27, 2015, Jordan-Benel filed the operative complaint in this action. He alleged copyright infringement against UTA and the Production Defendants. He asserted a state law cause of action for breach of implied-in-fact contract against UTA, DeMonaco, and Why Not Productions based on his submission of his script, which led to The Purge . He also asserted a cause of action for declaratory relief against DeMonaco and the Production Defendants, seeking a determination and declaration of his rights to credit and payment for the production and sale of The Purge .

On March 13, 2015, DeMonaco and the Production Defendants (collectively, "Defendants") filed an anti-SLAPP motion to strike the state law claims on grounds that they arise from the exercise of Defendants' right of free speech. After briefing and argument, the district court issued an order denying the motion. The district court ruled that Defendants failed to show that Jordan-Benel's breach of contract claim arises from an act in furtherance of Defendants' rights of petition or free speech because the claim is based on the failure to pay for the use of Jordan Benel's idea, not the creation, production, distribution, or content of the films.² Because the district court held that anti-SLAPP does not apply, the district court did not address whether Jordan-Benel met his burden of establishing a probability of prevailing on the claim.

Defendants timely appealed the district court's denial of their anti-SLAPP motion to strike.

III. JURISDICTION AND STANDARD OF REVIEW

A district court's denial of an anti-SLAPP motion is appealable under the collateral order doctrine and is reviewed de novo. DC Comics v. Pac. Pictures Corp. , 706 F.3d 1009, 1015–16 (9th Cir. 2013) ; Doe v. Gangland Prods., Inc. , 730 F.3d 946, 951 (9th Cir. 2013).

IV. DISCUSSION

California's anti-SLAPP statute provides:

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Cal. Civ. Proc. Code § 425.16(b)(1). The purpose of the anti-SLAPP statute is to deter lawsuits "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech." Cal. Civ. Proc. Code § 425.16(a) ; see also Metabolife Int'l, Inc. v. Wornick , 264 F.3d 832, 839 (9th Cir. 2001) (explaining that the anti-SLAPP statute "was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation"); Club Members for an Honest Election v. Sierra Club , 45 Cal.4th 309, 86 Cal.Rptr.3d 288, 196 P.3d 1094, 1098 (2008) (stating that the anti-SLAPP statute provides for the "early dismissal of unmeritorious claims" that "interfere with the valid exercise of the constitutional rights of freedom of speech and petition").

To prevail on an anti-SLAPP motion to strike, the defendant must first make a prima facie showing that the plaintiff's suit arises from an act in furtherance of the defendant's rights of petition or free speech. Mindys Cosmetics, Inc. v. Dakar , 611 F.3d 590, 595 (9th Cir. 2010). An "act in furtherance" includes, among other things, "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Cal. Code Civ. Proc. § 425.16(e)(4). If the defendant makes the required showing, the plaintiff must then demonstrate a probability of prevailing on the challenged claim. Mindys Cosmetics, Inc. , 611 F.3d at 595. If the plaintiff cannot meet the minimal burden of "stat[ing] and substantiat[ing] a legally sufficient claim," the claim is stricken pursuant to the statute. Navellier v. Sletten , 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, 708 (2002).

Defendants contend that Jordan-Benel's claims arise from the creation, production, distribution, and content of expressive works (The Purge films) and that such conduct falls squarely within the ambit of anti-SLAPP. Jordan-Benel argues, and the district court held, that although The Purge films relate to Jordan-Benel's breach of implied-in-fact contract claim, it is Defendants' failure to pay that gives rise to the claim, and the failure to pay is not an act in furtherance of free speech, so anti-SLAPP does not apply. We agree.

A. The Claim at Issue

At the outset, it is important to determine the precise claim at issue. In his Second Amended Complaint, Jordan-Benel alleges a cause of action for breach of contract based on Defendants' implied agreement to compensate and credit him as a writer/creator should his screenplay idea be used. He alleges that Defendants breached this agreement by "utilizing and profiting from Plaintiff's ideas without compensation or credit to Plaintiff." He also prays for compensation and credit as a writer in his cause of action for declaratory relief. In sum, Jordan-Benel appears to allege two theories of breach of an implied-in-fact contract (failure to pay and failure to credit) and two controversies for declaratory relief (right to compensation and right to credit for future Purge films).

However, during oral argument before this court, counsel for Jordan-Benel and counsel for Defendants represented that Jordan-Benel's claims for credit are no longer part of this case. The district court apparently understood as much, as it did not explicitly address Jordan-Benel's "failure to credit" claims in its order denying Defendants' anti-SLAPP motion, and it dismissed on other grounds Jordan-Benel's cause of action for declaratory relief.³ Accordingly, we only address whether anti-SLAPP applies to Jordan-Benel's implied-in-fact contract claim in which Defendants' failure to pay is the alleged breach.⁴

Having identified the claim at issue, we now address whether the...