Nbcuniversal Media, LLC v. Superior Court of L. A. Cnty.

• Decision Date: 01 April 2014
• Docket Number: B250892
• Parties: NBCUNIVERSAL MEDIA, LLC et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent, Larry Montz et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

225 Cal.App.4th 1222

171 Cal.Rptr.3d 1

NBCUNIVERSAL MEDIA, LLC et al., Petitioners,

v.The SUPERIOR COURT of Los Angeles County, Respondent,Larry Montz et al., Real Parties in Interest.

B250892

Court of Appeal,

Second District, Division 4, California.

Filed April 1, 2014

See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 493 et seq.

ORIGINAL PROCEEDINGS in mandate. Ernest M. Hiroshige, Judge. Petition granted. (Los Angeles County Super. Ct. No. BC475995)

Katten Muchin Rosenman, Gail Migdal Title, Joel R. Weiner, and Gloria C. Franke, Los Angeles, for Petitioners.

No appearance for Respondent.

Law Offices of Martin N. Buchanan, Martin N. Buchanan, Oceanside; Girardi & Keese, and Graham B. LippSmith, Los Angeles, for Real Parties in Interest.

MANELLA, J.

INTRODUCTION

Petitioners NBCUniversal Media, LLC, formally known as NBCUniversal, Inc. and Universal Television Network seek a writ of mandate directing the superior court to vacate its order denying their motion for summary judgment and to enter an order granting the motion of summary judgment against real parties in interest Larry Montz and Daena Smoller (RPIs). For the reasons stated below, we will issue a peremptory writ of mandate.

PROCEDURAL HISTORY

On December 29, 2011, RPIs filed a complaint for damages against petitioners in Los Angeles County Superior Court, alleging (1) breach of implied contract, and (2) breach of confidence. According to RPIs, from 1996 through 2001, they presented ideas and concepts for a television program, entitled Ghost Expeditions: Haunted, (referred to as “Concepts”) to petitioners, “consistent with well-established customs and practices of the entertainment industry....” RPIs' idea was a reality television series where “professional paranormal investigators” would lead a team that included “normal people with regular jobs” to investigate haunted houses throughout the country. After informing RPIs they were not interested, petitioners then teamed up with another company to “misappropriate, use and exploit Plaintiffs' Concepts by producing the hit series Ghost Hunters without Plaintiffs' permission ... and/or without compensating Plaintiffs....”¹ RPIs alleged petitioners breached an implied contractual obligation not to “disclose, use and/or exploit the Concepts without Plaintiffs' permission and/or without compensating Plaintiffs in the form of payments, credit and other consideration....” RPIs further alleged that as a result of their conduct, a confidential relationship formed between petitioners and them, and that petitioners “breached the confidential relationship by, among other actions, teaming up with and using [another company] to disclose, misappropriate, use and exploit Plaintiffs' Concepts by disclosing Plaintiffs' Concepts and producing the hit series Ghost Hunters, repackaged as Defendants' own projects without Plaintiffs' permission and/or without compensating Plaintiffs....” RPIs sought injunctive and other equitable relief, petitioners' profits, and punitive damages.

Petitioners filed an answer, generally denying the allegations. They also asserted 20 affirmative defenses, including the defense that each of the causes of action was barred by the applicable two-year statute of limitations set forth in Code of Civil Procedure section 339.²

On December 13, 2012, petitioners filed a motion for summary judgment, asserting (1) that RPIs' claims were time-barred by the applicable two-year statute of limitations, and (2) that the undisputed evidence demonstrated that Ghost Hunters was created independent of petitioners' Concepts. In their separate statement of undisputed material facts in support of the motion for summary judgment, petitioners asserted—and RPIs did not dispute: (1) that petitioners approved the Ghost Hunters show in April 2004; (2) that the show premiered on the Syfy cable channel on October 6, 2004; (3) that RPIs first filed a lawsuit based upon the purported misappropriation of their ideas more than two years later in federal court on November 8, 2006; and (4) that after a series of court proceedings (including voluntary dismissal of their copyright infringement claim), RPIs re-filed the remaining state law claims in superior court on December 29, 2011.

Petitioners also produced evidence that on July 22, 2004, Robyn Lattaker–Johnson, petitioners' director of development for alternative programming at Syfy, sent an e-mail to Eric Mofford, RPIs' producer, informing him about the Ghost Hunters show. The e-mail described the show as a “docu soap about a group of plumbers-by-day/ghost-hunters-by-night that set out on missions to disprove ghosts or paranormal activity.” Mofford immediately forwarded the e-mail to Montz. In his deposition, Montz admitted speaking with Mofford about the e-mail: “I[ ] asked him if he had found out if this was our show that was stolen or not, and he replied by saying that Robyn says it's not our show, that it's a docu-soap.” Montz stated that he did not know what a “docu-soap” was; he asked Mofford, but was not enlightened. Montz also admitted that at that time it seemed possible that the show Ghost Hunters was an improper use of his idea for a television show. Montz and Mofford continued to discuss Ghost Hunters on two subsequent occasions, and at one point, Mofford told Montz that “he had pitched the show directly to [petitioners], as well as others ..., and it looked like our show had been lifted from us.”

Petitioners argued that the statute of limitations on RPIs' claims began to run, at the latest, when the Ghost Hunters series premiered on the Syfy channel on October 6, 2004 (more than two years before RPIs filed suit), and that RPIs were on inquiry notice months before that date.

RPIs opposed the motion for summary judgment, arguing that their claims were not precluded by the statute of limitations, and that there were triable issues of material fact regarding petitioners' independent creation defense. As to the statute of limitations, RPIs contended that they were entitled to delayed accrual of their claims under discovery rule, as they did not discover their claims until sometime in 2005, when Smoller saw “an episode of the show ... upon which she realized that Ghost Hunters was not a fictional show.” They noted that Montz could not recall the exact date “he was made aware of Defendants' Ghost Hunters series when [ sic ] he believed Plaintiffs' concepts [were] being used improperly.” RPIs further asserted that they were not put on inquiry notice by the July 22, 2004 e-mail from Lattaker–Johnson, as they did not know the meaning of the term “docu-soap.”

In support of their opposition, RPIs produced transcript excerpts from the depositions of Montz and Smoller. Montz testified that he “believe[d]” he saw two episodes of Ghost Hunters after the lawsuit was filed. Before the lawsuit was filed, he saw “segments” while he was “changing channels, [when he] stopped on that show for like a minute and a half, and that was it.” Montz stated he did not watch more because he was not interested in seeing a show “stolen from me” that “duplicated our treatment.” He knew the show had copied his idea from “reading the review or a few of their shows on the Internet and in watching the promos and a few segments.” Smoller testified that after she first saw an episode of Ghost Hunters in 2005, she discussed the show with Montz. The substance of their discussion was that the show “apparently ... wasn't a soap opera, and it wasn't portrayed as something fictional, and it seemed shockingly similar to what we had been pitching.”

Petitioners' reply argued that RPIs had filed their claims more than a month after the statute of limitations had expired. Petitioners asserted that RPIs were not entitled to delayed accrual under the discovery rule. They contended that delayed discovery was inapplicable because the offending work— Ghost Hunters—had been publicly televised. Moreover, even if the discovery rule applied, RPIs were on inquiry notice before the show premiered on Syfy.

In a tentative ruling, the trial court found that RPIs had met their burden to show a triable issue of fact as to whether they should have suspected a factual basis for their claims prior to November 8, 2004. The court noted that RPIs had submitted evidence: (1) that they were informed in July 2004 that Ghost Hunters was a “docu soap,” but that they did not know the meaning of the term “docu soap”; (2) that Montz could not recall that date he was made aware that RPIs' Concepts were being used improperly; and (3) that Smoller did not see an episode of the show until 2005. On July 31, 2013, the trial court denied petitioners' motion for summary judgment. Regarding the statute of limitations, the court ruled:

“In this case, Plaintiffs originally filed their action on November 8, 2006, only a month after the two-year statute of limitations would have expired based on the public release date of October 6, 2004. As discussed in the tentative ruling and in Plaintiffs' papers, there is evidence to explain that one-month delay that must be considered by the trier of fact. The cases cited by Defendants generally involved public release of a movie in theaters, which would draw more attention than release of a television series on a cable television network. Those cases also generally involved much longer delays in filing suit after public release of the defendant's work.”

On August 27, 2013, petitioners filed a verified petition for writ of mandate, seeking a peremptory writ of mandate directing the superior court to set aside and vacate its order denying petitioner's motion for summary judgment and enter a new order granting the motion in its entirety. On November 21, 2013, this court issued a request for a preliminary response from RPIs and a reply from petitioners, on the sole issue of the statute of limitations. After considering the preliminary response and reply, on January 24, 2014, this court issued an...