Davies v. Krasna

• Citation: 54 Cal.Rptr. 37,245 Cal.App.2d 535
• Court: California Court of Appeals
• Decision Date: 11 October 1966
• Parties: , 151 U.S.P.Q. 591 Elizabeth S. DAVIES, Executrix of the Estate of Valentine Davies, Deceased, Plaintiff and Appellant, v. Norman KRASNA, Defendant and Respondent. Civ. 28574. Division 3, California

Page 37

54 Cal.Rptr. 37

245 Cal.App.2d 535, 151 U.S.P.Q. 591

Elizabeth S. DAVIES, Executrix of the Estate of Valentine Davies, Deceased, Plaintiff and Appellant, v. Norman KRASNA, Defendant and Respondent.

Civ. 28574.

District Court of Appeal, Second District,

Division 3, California.

Oct. 11, 1966.

Hearing Denied Dec. 7, 1966.

Max Fink, Beverly Hills, Stanley C. Poster, Los Angeles, Jerome Janger, Richard J. Hirsh and Sidney M. Wolf, Beverly Hills, for appellant.

Mitchell, Silberberg & Knupp and Arthur Groman, Los Angeles, for respondent.

FORD, Justice.

The appellant is the executrix of the estate of Valentine Davies, deceased. Mr. Davies filed the action but died before it came to trial. He sought damages for an alleged breach of an implied contract with respect to the use by the defendant, Norman Krasna, of an idea, central theme and dramatic core of a story which Mr. Davies alleged that he had created and thereafter submitted to the defendant. In a second cause of action Mr. Davies sought damages for an alleged breach of trust or confidence with respect to the use which he claimed Mr. Krasna made of his idea.

In the joint pretrial statement, which was made a part of the pretrial conference order, it was stated that plaintiff 'contends that Valentine Davies submitted the said story 'Love Must Go On' to defendant on or about December 6, 1951 upon condition that defendant agree to pay plaintiff the reasonable value of said dramatic core or central theme in the event defendant made use thereof.' It was also stated that plaintiff 'contends further that there existed, at the time of said submission of said material by Valentine Davies to defendant, certain customs and usages with respect to the offering and sale of ideas, central themes and dramatic cores, and that there existed at the time of Valentine Davies' submission of defendant's use (sic) of the said idea, central theme and dramatic core a relationship of trust and confidence between Valentine Davies and defendant, and that defendant breached said relationship of trust and confidence by using the said idea, central theme and dramatic core of said story of Valentine Davies without compensating him therefor.'

In the first trial the defendant's motion for a nonsuit was granted as to the second cause of action and the jury was unable to reach a verdict as to the first cause of action. In the second trial the jury returned a verdict in favor of the defendant and judgment was entered accordingly.

The first question to be resolved is whether there is a final judgment of an appealable nature before this court. In the first trial, pursuant to the court's statement that it would 'grant the motion of nonsuit to the second cause of action,' an entry was made as follows in the minutes of the court for February 26, 1962: 'Defendant's motion for judgment of nonsuit or for judgment of dismissal on plaintiff's first and second causes of action is argued and granted as to the second cause of action and denied as to the first cause of action.' In the 'Judgment on Verdict in Open Court' entered on December 20, 1963, no specific reference was made to the nonsuit as to the second cause of action but, after setting forth the verdict rendered on the second trial, it was stated that 'it is ordered, adjudged, and decreed that said plaintiff take nothing by reason of her complaint' and that the defendant Norman Krasna have and recover his costs from the plaintiff. The conclusion that no final judgment was entered finds support in the reasoning of Murphy v. Fong Shuck, 151 Cal.App.2d 64, at page 69, 311 P.2d 80, at page 83: 'The document entitled 'Judgment' and filed July 13, 1955, is not a final judgment. It did not purport to embrace a final disposition of the entire cause. By its express terms, it was confined to the three counts that had been submitted to the jury. It erroneously failed to include a recital with respect to the disposition of the other counts as to which nonsuits had been granted. Being so expressly confined to mere recitals of the jury action upon the three counts submitted to the jury and not purporting to make disposition of the counts that had been subject to nonsuit it cannot be held to have affected those counts.'

The difficulty thus presented can, however, be surmounted by resort to the reasoning of Shepardson v. McLellan, 59 Cal.2d 83, 87--89, 27 Cal.Rptr. 884, 378 P.2d 108. Accordingly, on this court's own motion, in the interest of justice the judgment entered on the jury verdict should be ordered amended so as to include the order granting a nonsuit as to the second cause of action, and the premature notice of appeal should be treated as a notice of appeal from the judgment on the jury verdict as so amended. (See Kennedy v. Bank of America, 237 Ca.App.2d 637, 643, 47 Cal.Rptr. 154.)

We turn to the question of the propriety of the granting of a nonsuit as to the second cause of action and, for that purpose, make reference to pertinent portions of the evidence introduced at the first trial. Mr. Davies' story entitled 'Love Must Go On' was registered with the Screen Writers Guild on November 28, 1951. The earlier version entitled 'The Language of Love' was registered with the guild on December 30, 1941. Each story was read to the jury. Mr. Krasna's play entitled 'Who Was That Lady I Saw You With?' was also read to the jury. ¹ Mr. Gordean, a motion picture agent affiliated with Famous Artists Corporation, testified that Ned Marin had been connected with that agency for a number of years prior to his death in 1955. Mr. Marin handled the affairs of Valentine Davies. The records of the agency showed that it received the story entitled 'Love Must Go On' on December 3, 1951, and that a copy thereof was sent to Jerry Wald on February 14, 1952. That copy was not returned to the agency. The files of the agency contained a copy of a letter addressed to Mr. Wald under the date of December 6, 1951. ² Apparently another copy of the story was submitted to Mr. Wald on March 27, 1952, and not thereafter returned.

Mr. Gordean further testified that in approximately November of 1954 Mr. Krasna, the defendant, talked to him concerning a story that he had which was entitled either 'Jack of Spades' or 'Who Was That Lady?' and was about a man who became involved with the F.B.I. But Mr. Krasna did not show him anything in writing with respect to the particular theme. On cross-examination Mr. Gordean stated that he had never read Mr. Davies' story entitled 'Love Must Go On.' He did mail a letter dated December 14, 1954, to Bob Hope's representative in which he stated: 'Here is a copy of the Norman Krasna treatment.'

William Ludwig, a screen writer who was called as a witness on behalf of the plaintiff, was asked whether there was 'a custom or tradition amongst writers with respect to the revealing of their ideas or themes or central cores or themes or ideas to one another.' The defendant's objection was sustained. Thereupon counsel for the plaintiff made an offer of proof that there was a custom in the motion picture business whereby, when stories and their central themes and dramatic cores were submitted to producers, there was an understanding and agreement that such submission was for a limited and confidential purpose and that use would not be made thereof unless there was appropriate payment by the producer. A similar question was asked of the witness George Seaton, a writer, director and producer of motion pictures, and, upon an objection thereto being sustained, a similar offer of proof was made.

The testimony of Lester Townes Hope, also known as Bob Hope, was introduced by means of his deposition which had been taken on June 17, 1961. He had known both Mr. Davies and Mr. Krasna for some years. About two years before the date of his deposition he discussed the story 'Who Was That Lady I Saw You With?' with Mr. Krasna. He did not remember having had any discussions about the story in approximately 1954 with Jack Gordean or Bob Burns or anyone else. He did not recall that he ever talked to Louis Shurr about the story. He did not remember whether he had a meeting with Mr. Krasna in 1940 concerning the story which was 'generally' contained in the play called 'Who Was That Lady?'

Jerry Wald's testimony was given at the trial by means of his deposition which had been taken on November 16, 1960. In 1948 he formed a business association with Mr. Krasna, Wald-Krasna, which was a corporation. They were the controlling stockholders. Mr. Wald described their respective functions as follows: 'A. Well, my general operation was to run the show and Krasna's operation was to follow up on scripts, work with the writers on the scripts, so that I was really carrying the ball. That is, on all future projections. He was taking the actuals, whatever we had in work. If it was a picture like the 'Blue Veil' or 'Behave Yourself' his major job was to concentrate on the work that was in progress, in work. I handled most of the projections. Q. Did both of you evaluate proposed story materials? A. No. Q. Did Mr. Krasna evaluate proposed story materials? A. No. Q. Did you discuss with Mr. Krasna story materials which were submitted to you? A. If I liked them, * * *'

Mr. Wald further testified that during the existence of Wald-Krasna hundreds of 'properties' were submitted to him for his appraisal as potential motion pictures, the submission being made sometimes directly by writers but '99 per cent of the time they were submitted by agents.' If he liked a particular property submitted and 'saw ways of casting it,' he would give it to Mr. Krasna to read and then ask him what he thought could be done with it. Mr. Wald had been a writer prior to becoming a producer in 1940.

Another portion of Mr. Wald's testimony was as follows: 'Q. Do you recall during the existence of Wald-Krasna that a story by Valentine Davies entitled 'Love Must Go On' was submitted to you through his...