Blaustein v. Burton

• Decision Date: 28 May 1970
• Citation: 9 Cal.App.3d 161,88 Cal.Rptr. 319
• Court: California Court of Appeals Court of Appeals
• Parties: , 168 U.S.P.Q. 779 Julian BLAUSTEIN, Plaintiff and Appellant, v. Richard BURTON and Elizabeth Taylor Burton, Defendants and Respondents. Civ. 34751.

Page 319

88 Cal.Rptr. 319

9 Cal.App.3d 161, 168 U.S.P.Q. 779

Julian BLAUSTEIN, Plaintiff and Appellant, v. Richard BURTON and Elizabeth Taylor Burton, Defendants and Respondents.

Civ. 34751.

Court of Appeal, Second District, Division 5, California.

May 28, 1970.

Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Melville B. Nimmer, Bayard F. Berman and Sol Rosenthal, Beverly Hills, for plaintiff and appellant.

Slaff, Mosk & Rudman, George Slaff, Norman G. Rudman and Richard C. Solomon, Hollywood, for defendants and respondents.

FRAMPTON, ^* Associate Justice Pro Tem.

Statement of the Case

Plaintiff, on November 14, 1967, filed his complaint against the defendants Richard Burton, Elizabeth Taylor Burton, Franco Zeffirelli, and Does I through X, wherein he sought damages for (1) breach of contract, (2) unjust enrichment, (3) breach of confidential relationship and (4) services rendered and benefits conferred. Answer to the complaint was filed by the Burtons on January 16, 1968, and no other defendant was served or appeared in the action.

On March 20, 1968, respondents (Burtons) took appellant's (Blaustein's) deposition, and on June 18, 1968, respondents filed their notice of motion for summary judgment based solely upon appellant's deposition. The motion was noticed for hearing on July 17, 1968, but by stipulation, hearing thereon was continued first to July 31, 1968, and ultimately to October 21, 1968.

On July 29, 1968, appellant filed his own affidavit and the deposition of Martin Gang, taken on March 26, 1968, in opposition to the motion. On October 17, 1968, respondents filed the declarations of Richard McWhorter and Norman G. Rudman, and the affidavit of Kenneth L. Maidment in support of the motion.

The matter was argued and submitted and the court announced its decision granting the motion on November 19, 1968. Motion for reconsideration was denied January 10, 1969, and summary judgment was entered in favor of respondents on January 16, 1969. The appeal is from the judgment.

Statement of Facts

Appellant, in his deposition, testified that he had been in the motion picture business since 1935. After serving as a reader, a story editor, the head of a story department, and an editorial supervisor, he became a producer of motion picture films in 1949. The films he has produced include Broken Arrow; Mr. 880; Half Angel; Just One More Chance; Take Care of My Little Girl; The Day the Earth Stood Still; The Outcasts of Poker Flat; Don't Bother to Knock; Desiree; The Racers; Storm Center; Cowboy; Bell, Book and Candle; The Wreck of the Mary Deare; Two Loves; The Four Horsemen of the Apocalypse, and Khartoum. The functions of a producer of a motion picture are to (1) generate the enthusiasm of the various creative elements as well as to bring them together; (2) search out viable locations which would be proper for the artistic side of the production an would be proper from the logistic physical production side; (3) create a budget that would be acceptable from the physical point of view as well as satisfactory from the point of view of implementing the requirements of the script; (4) make arrangements with foreign governments where the photography would take place; (5) supervise the execution of the script, the implementation of it onto film; (6) supervise the editing of all the production work down through the dubbing process and the release printing process, at least through the answer print process with Technicolor in this case; (6) the obligation of consulting with the United Artists people on advertising and publicity; (8) arrange casting; (9) engage the interests of the kind of star or stars that they (the United Artists' people) would find sufficiently attractive to justify an investment, and (10) develop the interest of a proper director.

During 1964, appellant conceived an idea consisting of a number of constituent elements including the following: (a) the idea of producing a motion picture based upon William Shakespeare's play The Taming of the Shrew; (b) the idea of casting respondents Richard Burton and Elizabeth Taylor Burton as the stars of this motion picture; (c) the idea of using as the director of the motion picture Franco Zeffirelli, a stage director who at that time had never directed a motion picture and who was relatively unknown in the United States; (d) the idea of eliminating from the film version of the play the so-called 'frame' i.e., the play within a play device which Shakespeare employed), and beginning the film with the main body of the story; (e) the idea of including in the film version the two key scenes (i.e., the wedding scene and the wedding night scene) which in Shakespeare's play occur offstage and are merely described by a character on stage; (f) the idea of filming the picture in Italy, in the actual Italian settings described by Shakespeare.

On April 6, 1964, appellant met with Hugh French, an established motion picture agent who was then, and was at the time of the taking of the deposition (March 20, 1968), the agent for respondent Richard Burton. Prior to such meeting, appellant knew that Mr. French was Mr. Burton's agent and Mr. French knew that appellant was a motion picture producer, as appellant and Mr. French had been involved in business dealings together in the past. At such meeting, appellant first asked Mr. French 'if he could tell me anything about the availability of Mr. and Mrs. Burton.' Mr. French replied: 'Well, they have many commitments; but, as you know, they are always interested in good ideas or good scripts or good projects.' Appellant then replied: 'Well, I have a thought about a picture for the Burtons, but it makes no sense to discuss it unless you would be interested in it or unless you tell me that they would be available to consider a production beyond their current commitments.' Mr. French responded: 'No, indeed, I would like to hear what you have in mind.' Appellant then said that he thought there would be something uniquely attractive at that time to do a film based on Shakespeare's Taming of the Shrew with respondents as the stars of the picture. Mr. French's reaction was 'instantaneous and affirmative.' Appellant then asked Mr. French if the idea had ever been previously discussed, and Mr. French replied no, that to his knowledge it had not been. Mr. French further stated that he would discuss appellant's idea with Mr. Burton, and would try to arrange a meeting in New York between appellant and the Burtons.

Thereafter, at Mr. French's suggestion and with tickets arranged for by Mr. French, appellant attended the opening of Mr. Burton's stage production of Hamlet in New York City of April 9, 1964. At that time, Mr. French introduced appellant to Mr. Burton as 'the man who had been talking about Taming of the Shrew.' Because of Mr. Burton's preoccupation with his stage production, it was not possible at that time for appellant to have a private meeting with the Burtons, so appellant proceeded on to London, where he was engaged in production work on another motion picture.

Upon arriving in London, appellant decided to explore the possibility of using the services of Franco Zeffirelli as the director of The Taming of the Shrew motion picture. Accordingly, on May 11, 1964, appellant met with John Van Eyssen, Mr. Zeffirelli's agent, in London. Appellant related his idea to Mr. Van Eyssen, and his disclosure thereof to Mr. French. To appellant's inquiry as to the possible availability of Mr. Zeffirelli, Mr. Van Eyssen replied 'that he thought it was just a splendid idea, that he was absolutely certain that his client would agree with his reaction, but that he would telephone him in France and discuss it with him as quickly as he could reach him. * * *' Thereafter, appellant, together with Mr. Van Eyssen, met with Mr. Zeffirelli in Paris on May 22, 1964. Appellant there related his idea in some detail to Mr. Zeffirelli, and Mr. Zeffirelli's response was: 'I can't tell you how much I would like to do it, but why would the Burtons accept me?' Appellant replied '* * * that is my job, to generate their enthusiasm for you, * * * (and) I think there is a very good chance of my persuading them to accept you.'

On May 25, 1964, appellant, while still in London, telephoned to Mr. French in Los Angeles, suggested the idea of Mr. Zeffirelli acting as director of the proposed motion picture, told of the meeting with Zeffirelli, and suggested that this information be communicated to Mr. and Mrs. Burton. The possibility of a meeting between appellant and Mr. and Mrs. Burton was also discussed in this telephone conversation. On May 27, 1964, appellant sent the following cable to Mr. French: 'Leaving in few days. Please cable about Burton meeting so can plan New York stopover. Julian Blaustein.' On May 30, 1964, Mr. French cabled the following reply: 'Sorry for delay reply but as cannot give you definite answer suggest you return California most convenient route. If this via New York, will try to arrange meeting. Hugh.' On May 31, 1964, Mr. French sent the following cable to appellant: 'Now have definite reaction, Richard delighted meet you New York. Yet me know when you except arrive. Will try be there if you feel can help. Hugh.' En route from London to Los Angeles, appellant stopped over in New York City until June 3, 1964. He was unable during this time to meet with Mr. and Mrs. Burton.

Upon his return to Los Angeles, appellant met with Martin Gang on June 25, 1964. Mr. Gang at that time was appellant's lawyer. Mr. Gang's firm was also the attorneys for respondents Richard Burton and Elizabeth Taylor Burton. Aaron Frosch, a New York lawyer, acted as general counsel for Mr. and Mrs. Burton. At the meeting between appellant and Mr. Gang, appellant disclosed his above described idea, and related his dealings up to that point with Mr. French. Appellant told Mr. Gang that 'Mr. French has so far been unable to arrange a meeting' with Mr. and...