Desny v. Wilder

• Citation: 299 P.2d 257,46 Cal.2d 715
• Court: United States State Supreme Court (California)
• Decision Date: 28 June 1956
• Parties: , 110 U.S.P.Q. 433 Victor DESNY, Plaintiff and Appellant, v. Billy WILDER, Paramount Pictures Corporation, a corporation, and Paramount Film Distributing Corporation, a corporation, Defendants and Respondents. L. A. 23892.

Page 257

299 P.2d 257

46 Cal.2d 715, 110 U.S.P.Q. 433

Victor DESNY, Plaintiff and Appellant, v. Billy WILDER, Paramount Pictures Corporation, a corporation, and Paramount Film Distributing Corporation, a corporation, Defendants and Respondents.

L. A. 23892.

Supreme Court of California, In Bank.

June 28, 1956.

Opinion, 286 P.2d 55, vacated.

Milo V. Olson and Frank DeMarco, Jr., Los Angeles, for appellant.

Pacht, Ross, Warne & Bernhard, Isaac Pacht and Gordon Stulberg, Los Angeles, as amici curiae, on behalf of appellant.

O'Melveny & Myers, W. B. Carman, William W. Alsup, Everett B. Clary, Philip F. Westbrook, Jr., Louis W. Myers, Sidney Justin and Melville B. Nimmer, Los Angeles, for respondents.

Loeb & Loeb, Mitchell, Silberverg & Knupp, Los Angeles, Cruikshank, Jones & Gershon, Herman F. Selvin and Harry L. Gershon, Beverly Hills, as amici curiae on behalf of respondents.

SCHAUER, Justice.

Plaintiff appeals from a summary judgment rendered against him in this action to recover the reasonable value of a literary composition, or of an idea for a photoplay, a synopsis of which composition, embodying the idea, he asserts he submitted to defendants for sale, and which synopsis and idea, plaintiff alleges, were accepted and used by defendants in producing a photoplay.

The case as presented to us is perplexed by manifold problems, some of which appear only upon a composite view of the pleadings, the evidence, and the briefs on appeal. Among the questions are these: 'Is the plaintiff seeking to recover for (a) the conveyance ¹ of an abstract idea or (b) the sale of a literary property? Or (c) is he clutching at both theories? (d) Does plaintiff's evidence tend to show an express or implied contract or (e) faces from which the law might impose a so-called quasi-contractual obligation, as to either the idea or the synopsis? The ultimate question is (f), Does the record permit the conclusion that there is no triable issue of material fact pertinent to any tenable theory available to plaintiff?

To answer the above listed questions with any substantial degree of confidence requires statement of the factual substance of the record, explanation of the nature of the judgment appealed from and the rules governing our consideration of it, together also with some discussion of the law of ideas, the law of literary property, and the law of contracts as it relates to transactions concerning ideas and literary property, with definitive recognition of the somewhat differing situations to which, as descriptive of the 'contract' or obligation, some authorities apply the terms 'express,' 'inferred,' 'implied in fact,' 'implied-in-law' or 'quasi-contractual,' and the significance of the subjective and objective tests in determining contractual existence under the several possibly pertinent theories.

After threading the maze, we have concluded, for reasons hereinafter stated, that the summary judgment in favor of defendants was erroneously granted and should be reversed.

The Pleadings. The complaint ² alleges (Count I) that 'Plaintiff conceived, originated and completed a certain untitled literary and dramatic composition (hereinafter called 'Plaintiff's Property') based upon the life of Floyd Collins. Plaintiff has, at all times * * * been, and now is, the sole * * * owner of Plaintiff's Property, * * * Plaintiff submitted Plaintiff's Property to the Defendant's * * * In making said submission, Plaintiff stated * * * that it was made for the purpose of sale of Plaintiff's Property to Defendants to be used * * * only if Defendants paid to Plaintiff the reasonable value thereof. Defendants accepted submission of Plaintiff's Property * * * (Shortly after accepting submission of plaintiff's property defendants) commenced the preparation of and * * * actually photographed a motion picture photoplay entitled 'Ace In The Hole,' ³ (and have exhibited the same) * * * At all times (concerned) * * * the Defendants knew * * *that the Plaintiff expected them to pay him the reasonable value of Plaintiff's Property if used by them. With such knowledge * * * the Defendants did copy and use Plaintiff's Property in and in connection with said motion picture photoplay.' That the reasonable value of plaintiff's property at the time of use was $150,000, 'no part * * * of which has been paid.' We do not consider Counts II and III, as plaintiff concedes that as to them the judgment should be affirmed.

The material allegations of the complaint were denied by defendants in their answer. Thereafter defendants filed notice of notion for summary judgment. The motion was heard upon affidavits filed by defendants and upon plaintiff's deposition, which is treated as an affidavit in opposition to the motion. The judgment entered upon the granting of such motion is the subject of this appeal.

Inasmuch as the contentions of the parties are largely related, directly or indirectly, to the significance and sufficiency of the evidence, and as all evidential contentions must be resolved in the light of the rules governing summary judgment proceedings it is desirable, before undertaking discussion of the principal problems, to indicate the pertinent rules concerning summary judgments.

The Law of Summary Judgments. Motions for summary judgment are provided for in section 437c of the Code of Civil Procedure. The principles to be observed in proceeding under that section are stated as follows in Eagle Oil & Refining Co. v. Prentice (1942), 19 Cal.2d 553, 555-556, 122 P.2d 264: The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion 'has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. (Citations.) * * * (T)he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts. (Citation.)' (See also Gardner v. Jonathan Club (1950), 35 Cal.2d 343, 347, 217 P.2d 961; Hardy v. Hardy (1943), 23 Cal.2d 244, 245, 143 P.2d 701; Walsh v. Walsh (1941), 18 Cal.2d 439, 441, 116 P.2d 62.) A summary judgment is proper only if the affidavits in support of the moving party 'would be sufficient to sustain judgment in his favor, and * * * (his opponent) does not 'by affidavit or affidavits * * * show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' (Citations.)' (Coyne v. Krempels (1950), 36 Cal.2d 257, 261, 223 P.2d 244.) In other words, the affidavits are to be construed with all intendments in favor of the party opposing the motion here, plaintiff.

The Facts upon Which the Claim of Contract is Based. Construed agreeably to the rules above stated, it appears from the present record that defendant Wilder at the times here involved was employed by defendant Paramount Pictures Corporation (sometimes hereinafter referred to as Paramount) either as a writer, producer or director, or a combination of the three. In November, 1949, plaintiff telephoned Wilder's office. Wilder's secretary, who was also employed by Paramont, answered, and plaintiff stated that he wished to see Wilder. At the secretary's insistence that plaintiff explain his purpose, plaintiff 'told her about this fantastic unusual story. * * * I described to her the story in a few words. * * * I told her that it was the life story of Floyd Collins who was trapped and made sensational news for two weeks * * * and I told her the plot. * * * I described tio her the entrapment and the death, in ten minutes, probably. She seemed very much interested and she liked it. * * * The main emphasis was the central idea, which was the entrapment, this boy who was trapped in a cave eighty-some feet deep. I also told her the picture had never been made with a cave background before.' Plaintiff sought to send Wilder a copy of the story but when the secretary learned of its length of some 65 pages she stated that Wilder would not read it, that he wanted stories in synopsis form, that the story would first be sent to the script department, and 'in case they think it is fantastic and wonderful, they will abbreviate it and condense it in about three or four pages, and the producers and directors get to see it.' Plaintiff protested that he preferred to do the abbreviating of the story himself, and the secretary suggested that he do so. Two days later plaintiff, after preparing a three or four page outline of the story, telephoned Wilder's office a second time and told the secretary the synopsis was ready. The secretary requested plaintiff to read the synopsis to her over the telephone so that she could take it down in shorthand, and plaintiff did so. During the conversation the secretary told plaintiff that the story seemed interesting and that she liked it. 'She said that she would talk it over with Billy Wilder and she would let me know.' Plaintiff on his part told the secretary that defendants could use the story only if they paid him 'the reasonable value of it * * * I made it clear toi her that I wrote the story and that I wanted to sell it. * * * I naturally mentioned again that this story was my story which has taken me so much effort and research and time, and therefore it anybody used it they will have to pay for it * * * She said that if Billy Wilder of Paramount uses the story, 'naturally we will pay you for it. '' Plaintiff did not remember whether in his first telephone conversation with the secretary anything was said concerning his purpose of selling the story to defendants. ⁴ He did not at any time speak with defendant Wilder. It seems clear, however, that one of the authorized functions of the secretary was to receive and deliver messages to Wilder and hence, as is developed infra, that on this...