Donahue v. United Artists Corp.

• Decision Date: 18 December 1969
• Citation: 2 Cal.App.3d 794,83 Cal.Rptr. 131
• Court: California Court of Appeals Court of Appeals
• Parties: Frank DONAHUE and Richard Ross, Plaintiffs and Respondents, v. UNITED ARTISTS CORPORATION (sued as Ziv Television Programs, Inc., a New York corporation), Defendant and Appellant. Civ. 34075.

Page 131

83 Cal.Rptr. 131

2 Cal.App.3d 794

Frank DONAHUE and Richard Ross, Plaintiffs and Respondents, v. UNITED ARTISTS CORPORATION (sued as Ziv Television Programs, Inc., a New York corporation), Defendant and Appellant.

Civ. 34075.

Court of Appeal, Second District, Division 1, California.

Dec. 18, 1969.

Rehearing Denied Jan. 6, 1970.

Hearing Denied Feb. 13, 1970.

Trippet, Yoakum & Papiano and F. B. Yoakum, Jr., Los Angeles, for appellant.

Cantillon & Cantillon and James P. Cantillon, Beverly Hills, for respondents.

LILLIE, Associate Justice.

This is the second appeal in the within plagiarism action involving property consisting of television scripts, summaries or story outlines, plaintiffs having successfully challenged an earlier judgment notwithstanding the verdict (245 Cal.App.2d 593, 54 Cal.Rptr. 130, sub. nom. Donahue v. Ziv Television Programs, Inc.). Upon retrial the jury again returned a verdict for plaintiffs; the instant appeal is from the judgment based on the verdict and order denying defendant's motion for judgment notwithstanding the verdict. ¹

The second trial proceeded under changed circumstances dictated or countenanced by the opinion on the prior appeal. No other defendants remained in the cause save defendant corporation, the judgment notwithstanding the verdict as to defendant Ivan Tors having been affirmed; also, by stipulation the cause was litigated on plaintiffs' third amended complaint (substantially similar to its predecessor except as to the increased amount of damages alleged) and an amendment to the answer thereto which raised the bar of the statute of limitations (Code Civ.Proc. § 339, subd. 1) allowing two years for the commencement of an action governed thereby.

As its first point on appeal, defendant contends that plaintiffs' claims are barred by section 339, subdivision 1. It is argued that this and six other assignments of error, hereinafter discussed seriatim, singly or collectively demonstrate that the court erred in denying the motion for judgment notwithstanding the verdict; in any event, continues defendant, the judgment in plaintiffs' favor should be reversed. We can agree with neither determination.

Including corroboration of Tors' testimony, there appears to be no suggestion that evidence, substantially different in any material respect from that elicited upon the former trial, was presented to the second jury for resolution under its exclusive province as the trier of the fact. As to certain of the issues here involved, it is accordingly intimated by plaintiffs that the prior decision on appeal becomes the law of the case (Gibson v. State of California, 208 Cal.App.2d 458, 462, 25 Cal.Rptr. 284); without passing upon the point at this preliminary stage, as was done in Gibson we look to the prior opinion for certain relevant material. 'The theory of plaintiffs' case was this: before and during the year 1955 they conceived an idea for a television format which they entitled 'The Underwater Legion.' (Footnote omitted.) Sometime in 1955 they submitted the format in written form, together with twelve story outlines, one screenplay and a proposed budget to defendant Ziv Television Programs, Inc. It was expressly and impliedly agreed between the plaintiffs and Ziv that if Ziv used the plaintiffs' format, it would pay for it. At that time defendant Tors was a producer, employed by Ziv and shooting segments of a series called 'Science Fiction Theatre.' In 1956 and 1957 defendants Ziv and Tors started to produce a television program entitled 'Sea Hunt' which 'used, exploited and utilized' plaintiffs' format and story outlines. The show was first shown to the public in 1958. Plaintiffs never received any compensation.' (Donahue v. Ziv Television Programs, Inc., 245 Cal.App.2d 593, 597, 54 Cal.Rptr. 130, 131.)

The latter portion of the foregoing bears upon the first of defendant's contentions, the bar of the statute of limitations. In connection with the 'Sea Hunt' program two pilot films were produced by defendant--in 1956 and 1957 respectively. There was evidence that on three occasions in the latter part of 1956 defendant's vice-president showed or 'auditioned' the first of such films to certain national advertising agencies who had clients as possible sponsors. In May of 1957, shortly after its production, the second pilot film was viewed by a similar agency with the same end in view. All these events took place more than two years before the filing of plaintiffs' complaint in June of 1959. It is held in Thompson v. California Brewing Co., 150 Cal.App.2d 469, 477, 310 P.2d 436, that the two-year statute (Code Civ.Proc. § 339, subd. 1, Supra) governs an action alleging the use or appropriation of an 'idea' in violation of an agreement to pay for the reasonable value thereof; and plaintiffs do not dispute that the holding in the cited case also governs the causes of action alleged in the instant proceeding. What is disputed, however, is the applicability here of the determination in the second Thompson appeal (191 Cal.App.2d 506, 12 Cal.Rptr. 783) in which a judgment of nonsuit was affirmed; the affirmance followed a showing that the contract to pay the value of a 'new and novel idea' was breached more than two years prior to commencement of suit. The 'idea' being one for the sale and promotion of the sale of beer, the breach in Thompson consisted of rather extensive newspaper advertising following plaintiffs' format, and called 'tests,' in two metropolitan markets (Sacramento and San Diego). Said the court: 'Such a 'test' use as was here made of plaintiff's idea immediately disclosed the idea to a substantial segment of the public in two metropolitan centers in this state, and a disclosure of that kind would certainly destroy any further marketability of the idea. Thus, absent some evidence of a contrary understanding between the parties, the law implies that the agreement to pay, if any, then became effective.' (P. 510, 12 Cal.Rptr. p. 786.)

With respect to the use of plaintiffs' property, defendant argues that the several auditions of the pilot films to the agencies in question were the equivalent of the 'tests' occurring in the cited case. According to plaintiffs, however, some 15 months elapsed from the creation of the two films to their first eventual broadcast to the television public; under such circumstances, they continue, the entire statutory period could have elapsed before they were made aware of defendant's use of their property. The point is not well taken since a cause of action for breach of contract ordinarily accrues at the time of breach even though the injured party is unaware of his right to sue (Witkin, Cal. Procedure (1954) p. 624). In our view, nevertheless, there is merit to plaintiffs' further argument that the use contemplated by the second Thompson case is not the private or quasi-private use found in the within action. While not precisely so saying, defendant would equate the private auditioning of a film to national advertising agencies with the 'sneak preview' of years gone by. It bears emphasis that the cited case turned on the exhibition of the idea to 'a substantial segment of the public in two metropolitan centers in this state,' which exhibition 'would certainly destroy any further marketability of the idea.' (P. 510, 12 Cal.Rptr. p. 786 Supra.) Implicit in the above observations is the idea's Public marketability and not, as defendant urges, its asserted diminution in value after rejection by so-called advertising experts after a private showing. Certainly it may not be said as a matter of law and under the conceded facts that the foregoing circumstances should be considered a use of plaintiffs' property for the purpose of the running of the statute.

Next defendant contends that there is no substantial evidence that plaintiffs' property had any market value, and even if it did have some value, the sum awarded ($200,000) was grossly excessive and resulted from the erroneous admission of evidence. Plaintiff Ross, a co-owner of the property, testified on direct examination that the value of the property at the time of its first syndication in January of 1958 was 'In excess of a million dollars.' His opinion was uncontradicted, defendant electing not to call any experts concerning value. California courts have consistently held that an owner of literary property may properly testify as to its value even if he is not an expert in such matters. (Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 700--701, 221 P.2d 95, and cases cited therein.) ² Here, however, coupled with ownership was Ross' considerable experience in the field of television production. Ross had spent some 39 weeks assisting in the production of a television series called 'Sally,' and was also engaged as a consultant on a series entitled 'My Favorite Husband.' Defendant advances several reasons for rejecting his valuation as lacking in 'ponderable legal significance' which is not 'deemed synonymous with 'any' evidence.' (Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54, 58.) Isolated excerpts from Ross' testimony, detracting from its weight, are cited; it is also argued that the witness (Ross) gave no credible reasons for the valuation fixed.

Defendant does not challenge the qualifications of the witness--nor could he properly do so in view of the rule above mentioned; in addition to his owner's status, there also would appear to be no contention that Ross was not without experience in appraising the worth of properties in the television field since stories were submitted to him by various agents for approval of rejection over a period of years (1949 to 1955). It was his experience in such field that presumably formed the basis or reason for the valuation he gave, partisan though it might have been. ³ Pertinent here are certain statements in Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 regarding opinion...