Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC320759, William F. Fahey, Judge.
Freund & Brackey, Thomas A. Brackey II, Craig A. Huber and Derik S. Lemkin for Plaintiff and Appellant.
Irell & Manella, Richard B. Kendall, Philip M. Kelly and Adam A. Hime for Defendant and Respondent.
CROSKEY, J.
In this suit for breach of contract and unjust enrichment, plaintiff Fred Steiner (plaintiff) appeals from a summary judgment entered in favor of defendant CBS Broadcasting Inc. (defendant). Plaintiff contends defendant owes him royalties for defendant’s use of music plaintiff composed for some of defendant’s television programs. Specifically, plaintiff claims royalties from defendant’s sale of the television programs in home video (DVD and VHS) format.
The trial court determined as a matter of law that plaintiff’s claims are barred by the statute of limitations. It further that determined the terms of the contracts entered into by plaintiff and defendant for plaintiff’s composition of music do not support plaintiff’s breach of contract claims.
Our examination of the contracts and the record shows that plaintiff is correct when he contends there are issues of fact regarding the statute of limitations. There are also issues of fact regarding whether production of the DVDs and VHS tapes involved motion picture synchronization and the licensing of motion picture synchronization rights. However, those issues are not material issues that need to be resolved by trial because the controlling issue in this case is whether production of DVDs and VHS tapes involves licenses relating to theatrical motion picture synchronization rights. There is a provision in the subject contracts that provides that plaintiff is only entitled to royalty payments based on money received by defendant that is attributable to “licenses relating to theatrical motion picture synchronization rights.” Because the production of the home video of the television programs for which plaintiff composed music did not involve theatrical motion picture synchronization, plaintiff is not entitled to royalties from the sale of that home video. Therefore, we will affirm the summary judgment.
BACKGROUND OF THE CASE
This case was originally filed by plaintiff and another composer, Gerald Fried. Fried subsequently dismissed his suit.
Plaintiff’s first amended complaint (complaint) makes the following allegations. Plaintiff is a composer of scores for motion pictures and television. Acting as an independent contractor, he entered into contracts with defendant to compose music for various episodes of certain of defendant’s television programs, including “Gunsmoke,” “Have Gun Will Travel,” “Rawhide,” “Twilight Zone,” and “Perry Mason.” This contractual relationship between plaintiff and defendant began in the 1950’s. The parties entered into a contract for each individual episode for which plaintiff composed music.
Although the complaint alleges plaintiff also composed music for several other of defendant’s television series, that music is apparently not at issue in this case now.
While the record shows that plaintiff and defendant entered into contracts into the 1980’s, plaintiff’s suit concerns only contracts entered into before 1963.
Although the parties entered into approximately 50 contracts, each of them contains roughly the same terms.
Under the contracts, plaintiff was to be paid royalties based on certain of defendant’s uses of plaintiff’s compositions, including a royalty of fifty per cent of the net proceeds received by defendant from third parties for (1) “licenses for the manufacture of commercial phonograph records” and (2) “licenses of motion picture synchronization rights.”
Plaintiff was also paid a fee for each of his compositions. Thus, his income from each contract would be the fee plus any applicable royalties.
Plaintiff alleges that in the early 2000’s, defendant began exploiting the subject television programs on DVD and other media, but contrary to defendant’s duties under the contracts, defendant did not provide plaintiff with accountings and payments related to that exploitation, and although plaintiff demanded the remuneration due him from said exploitation, defendant has not paid it.
2. Procedural Events in the Trial Court
This case was filed on August 27, 2004. At a case management conference held in April 2005, the parties agreed to engage in private mediation, however mediation did not produce a settlement and so at the post mediation status conference, a timeline for summary judgment motions was set.
Defendant filed its motion for summary judgment on January 20, 2006. Plaintiff’s tardy opposition papers were filed on February 6, 2006. His 28-page opposition points and authorities exceeded a page limit of 20. Plaintiff stated he served an ex parte application for an order allowing him to exceed the page limit but he acknowledged that the ex parte request was not made prior to filing the opposition papers. The court indicated, in its written order on the motion for summary judgment, that it had exercised its discretion and considered all but the last eight pages of plaintiff’s opposition papers. Defendant’s motion was granted and summary judgment was entered on March 8, 2006. Thereafter, plaintiff filed this timely appeal.
The last eight pages addressed (1) the statute of limitations (an issue that the court and counsel did discuss at oral argument), (2) plaintiff’s unjust enrichment claim, (3) interpretation of the phrase “in connection with” as used in the royalties provisions in the contracts, and (4) plaintiff’s request for a continuance of the hearing on the motion for summary judgment to allow plaintiff to obtain additional evidence through his pending motions to compel further responses to his discovery and further testimony from one of defendant’s vice presidents.
DISCUSSION
1. Standard of Review
We review, on a de novo basis, the order granting defendant’s motion for summary judgment. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion. When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff’s causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
If a defendant’s presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action, or on a defense thereto, the burden shifts to the plaintiff to present evidence showing that contrary to the defendant’s presentation, a triable issue of material fact actually exists as to those elements or the defense. (Code Civ. Proc., § 437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. Thus, section 437c, subdivision (c), states that summary judgment is properly granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865-866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.
In deciding an appeal from a summary judgment, we consider all of the evidence presented to the trial court in the moving and opposition papers, including uncontradicted inferences that are reasonably deducible from the evidence, but we do not consider evidence to which objections were made and sustained. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)
2. The Royalty Provisions in the Contracts
Paragraphs 4(a) and 4(b) of the contracts provide that in exchange for payments to plaintiff, defendant would own all right, title and interest in plaintiff’s compositions, including copyrights and copyright renewals, and the right to grant licenses concerning the compositions. Defendant would also have the right to communicate the compositions, or any version of the compositions, by any means, “whether now known or hereafter devised.”
Alfred William Schlesinger stated in a declaration that he filed in support of plaintiff’s opposition to the summary judgment motion that he has “extensive experience in music licensing as a record label executive and lawyer in the entertainment industry for more than fifty years.” He reviewed some of the contracts entered into by plaintiff and defendant for the television programs at issue in this case. Regarding the provision in the contracts that states defendant would have the right to communicate plaintiff’s compositions, or any version of the compositions, by any means, “whether now known or hereafter devised,” Schlesinger stated the agreements “contemplate the development of future media and expressly grant [defendant] the right to exploit [plaintiff’s] compositions in such future media.” He stated defendant entered into agreements with third parties regarding the distribution of the subject television series on DVD and VHS.
Terms in paragraph 4(d) of the contracts address the licensing of defendant’s rights in plaintiff’s compositions, and payment to plaintiff of royalties received by defendant for such licensing. The contract states: “As additional consideration hereunder, [defendant] agrees to pay [plaintiff] as royalties, [¶] (i) sums equal to fifty (50%) per cent of the net proceeds received by [defendant] from third parties for licenses for the manufacture of commercial phonograph records and/or licenses of motion picture synchronization rights, exclusive of such motion picture synchronization rights as may be necessary to perform the music in connection with television programs produced by or on behalf of [defendant]; . . .” (Italics added.) Regarding the term “net proceeds” in that royalties provision, the contract states: “The term ‘net proceeds’ as used hereinabove, shall mean all monies actually received by [defendant] . . . which are directly attributable to licenses issued authorizing the manufacture of commercial phonograph records and/or licenses relating to theatrical motion picture synchronization rights, after the deduction of all costs, expenses, fees and commissions which are directly attributable to the exploitation of the music by way of commercial phonograph records or by way of motion picture synchronization, . . .” (Italics added.)
Paragraph 4(d) also provides that defendant assumed the responsibility for keeping track of when royalties were due plaintiff and providing plaintiff with a written accounting of them.
3. The Meaning of Certain Terms in the Contracts
When an agreement is in writing, the intent of the parties should be determined from the words alone, if that is possible, and “[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, §§ 1639, 1641.) Defendant contends the contracts at issue here are unambiguous, and defendant notes that plaintiff twice stated in his discovery responses (in December 2005) that the provisions are not ambiguous, (although plaintiff now argues there is ambiguity). We agree that when studied and read together, the pertinent provisions are not ambiguous.
The contracts provide that plaintiff would be paid royalties of fifty percent of the net proceeds received by defendant from third parties for licenses of motion picture synchronization rights. However, that would not include licenses “of such motion picture synchronization rights as may be necessary to perform the music in connection with television programs produced by or on behalf of [defendant].” Further, the net proceeds from which plaintiff can draw royalties are limited to net proceeds attributable to licenses relating to theatrical motion picture synchronization rights.
The terms “motion picture” and “motion picture synchronization rights” are not defined in the subject contracts. Given that the quoted language in the preceding paragraph speaks of using motion picture synchronization rights in connection with television programs, we construe the words ‘motion picture,” as used in the term “motion picture synchronization rights,” to mean video images that move and that are captured on some tangible substance, such as television film or movie film. We do not construe “motion picture” to mean a movie such as is shown in a movie theater. Our construction is supported by the court’s analysis of “motion picture” in Bourne v. Walt Disney Co. (2d Cir. 1995) 68 F.3d 621, 630, where the court stated: “Rather than referring simply to the celluloid-film medium, we believe that the term ‘motion picture’ reasonably can be understood to refer to [‘]a broad genus whose fundamental characteristic is a series of related images that impart an impression of motion when shown in succession, including any sounds integrally conjoined with the images. Under this concept the physical form in which the motion picture is fixed—film, tape, discs, and so forth—is irrelevant. . . . [Citation.]”
For a definition of “synchronization rights,” both plaintiff and defendant refer us to Freeplay Music, Inc. v. Cox Radio, Inc (S.D.N.Y. 2005) 404 F.Supp.2d 548, 551, a copyright case where the court utilized the definition given in a second circuit case, to wit, that a synchronization right is “ ‘the right to reproduce the music onto the soundtrack of a film or a videotape in synchronization with the action.’ ” It is an aspect of the right to reproduce a composition or recording. (Ibid.) We accept that definition.
Thus, we construe the term “motion picture synchronization rights to mean the right to synchronize music with video images that move and that are captured on some tangible substance, such as television film or movie film, VHS tapes, and DVDs, rather than meaning only synchronization rights connected with movies such as are shown in movie theatres.
As for the provision that plaintiff would not be entitled to royalties for licenses “of such motion picture synchronization rights as may be necessary to perform the music in connection with television programs produced by or on behalf of [defendant],” (italics added), we construe the italicized language to refer to defendant’s use of plaintiff’s compositions with respect to television programs that defendant might produce or have produced on its behalf, and for which defendant would find it beneficial to use plaintiff’s compositions, such as taking a composition of plaintiff’s that had been performed for one “Perry Mason” episode and using it in a new “Perry Mason” episode or in a totally different television series, or in a television program such as a variety show. “Performing” one of plaintiff’s compositions is an initial giving sound to it (Freeplay Music, Inc. v. Cox Radio, Inc, supra, 404 F.Supp.2d 548), such as recording a performance of the composition for use in a new “Perry Mason” episode. Plaintiff would not receive synchronization royalties in connection with that use of his compositions. However, that process is not what plaintiff is suing on. He is suing for what he contends are net proceeds received by defendant from its licensing of motion picture synchronization rights, with respect to the already recorded performances of his compositions that were used in the episodes for which the individual contracts were entered into, for production of DVDs or VHS tapes of those previously made episodes.
4. The Synchronization, Net Proceeds and Statute of Limitations Issues
Among the papers defendant submitted in support of its motion for summary judgment were declarations from two of its employees, Roni Mueller and Cindy Badell-Slaughter. Mueller stated she is a senior vice president of business affairs at the defendant company and is “responsible for overseeing music administration and movies for television, as well as negotiating various licenses, acquisitions, and related deals.” Cindy Badell-Slaughter stated she is the director of west coast music operations for defendant and is responsible for music licensing and clearance issues for defendant’s properties.
Mueller stated defendant “did not license, nor was there any reason for [defendant] to license, the compositions composed by [plaintiff] to be synchronized with the VHS and DVD releases. The music had already been synchronized with the television program and the VHS and DVD releases are nothing more than a collection of episodes from the television program being released on home video. [¶] Accordingly, [defendant] has received no licensing income or net proceeds in connection with the release of the television series on VHS or DVD for the compositions composed by [plaintiff.] Moreover, [defendant] has not received any licensing income or ‘net proceeds’ at all in connection with theatrical motion picture synchronization rights, or even motion picture synchronization rights, for the compositions composed by [plaintiff].” Cindy Badell-Slaughter agreed that synchronization licenses were not necessary for release of the DVDs and VHS tapes.
Mueller also made the following representations. Defendant licensed three of plaintiff’s compositions to a company for inclusion on a commercial phonograph record in 1998, received $588.24 and should have received, but did not, an additional $1,131. Additionally, in the early 1980’s another company used plaintiff’s music and although no license was required for that use and no license fees were received, defendant was supposed to receive $570 but was not paid. Defendant paid plaintiff 50% of the full amount it was to receive in connection with those phonograph records even though defendant did not receive most of the money it was to receive. Defendant is not aware of any other licenses used for inclusion of plaintiff’s compositions on commercial phonograph records and not aware of any other revenues it received with respect to the exploitation of plaintiff’s compositions in any media.
Plaintiff submitted evidence to contradict the assertions by Mueller and Badell-Slaughter that in making the DVDs and VHS tapes there was no need to synchronize plaintiff’s compositions with the visuals. James Lockhart stated in a declaration that as the founder and creative director of MotionDVD.com, and as the person responsible for its “DVD menu design, motion capture, still image capture, analog to digital conversion, and audio extraction and mixing for over 100 feature films and TV programs including The Matrix, Harry Potter and the Goblet of Fire, The Sopranos and The West Wing, [he] ha[s] extensive professional experience creating and authoring DVDs.” Lockhart stated that “[i]n order to create a DVD or VHS of a television show originally recorded on film, it is necessary to reproduce the audio and visual portions separately. The audio and visual portions must then be synchronized, either manually or with the assistance of video software or hardware, when the audiovisual work is transferred from its original film format to video. [¶] The audio and visual portions must also be separated and recombined in synchronization when the content is transferred from video to a digital format, such as a DCT, digibeta or DVD.” Indeed, Lockhart stated that “the process of producing and distributing copies of the Television Programs on VHS and DVD requires at least three independent steps, each of which required a separate synchronization of Plaintiffs’ music to the visual images of the Television Programs.”
Clearly there is a difference of opinion as to whether audio and visual synchronization was necessary to produce the VHS and DVD releases of the subject television programs. However we find that the “theatrical motion picture synchronization rights” provision in the net proceeds portion of the contracts renders that difference of opinion a nonmaterial issue of fact. Roni Mueller stated in her declaration that the term “theatrical motion picture” “does not include or refer to the release of a television series on home video. Accordingly, the release of episodes of the television series . . . does not constitute a theatrical motion picture. Instead, a theatrical motion picture is a movie that was released initially and primarily for exhibition in a theater.”
In his response to defendant’s separate statement, plaintiff stated his agreement to number 18 therein, to wit, that “the term ‘theatrical motion picture’ does not include an episodic television series that is released in VHS or DVD.” It is clear to us that defendant’s number 18 is connected to the fact that the royalties paragraph (on which plaintiff relies to support his breach of contract cause of action) states plaintiff has royalty rights to 50% of defendant’s net proceeds from licensing motion picture synchronization rights, but the net proceeds paragraph states that net proceeds are monies received by defendant that are attributable to licenses relating to theatrical motion picture synchronization rights.
Thus, although the basic royalties provision in the subject contracts states that plaintiff would receive a percentage of the net proceeds received by defendant from third parties for licenses of motion picture synchronization rights (exclusive of such motion picture synchronization rights as may be necessary to perform the music in connection with television programs produced by or on behalf of defendant), the contractual definition given to the term “net proceeds” limits the royalties to monies received by defendant that are attributable to licenses relating to theatrical motion picture synchronization rights.” For that reason, royalties are not due plaintiff because the DVDs and VHS tapes are not theatrical motion pictures.
This analysis also renders nonmaterial the issue of fact raised by the parties’ evidence with respect to defendant’s statute of limitations defense. According to Mueller’s declaration, defendant began to exploit the five subject television series for home video distribution in the United States and Canada in the 1980’s. VHS tapes containing series episodes were released in the 1980’s and 1990’s, and release of DVDs began in 2003. Plaintiff stated in his declaration that on or about December 1, 2002, he discovered that “Gunsmoke” was being sold on DVD and VHS. After he did some investigation he discovered that many of the other television series for which he composed music were also being marketed on DVD and VHS. These discoveries prompted him to seek royalties from defendant.
5. The Unjust Enrichment Cause of Action
California Medical Assn. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 172, holds that when there is a valid express agreement covering a particular subject matter, then a cause of action for an implied-in-law contract (quasi-contract) or an implied-in-fact-contract which covers that same subject matter will not lie. Citing that case, the trial court found plaintiff’s cause of action for unjust enrichment is “legally defective.” We find the trial court was correct. A reading of the complaint shows that both the cause of action for breach of contract and the cause of action for unjust enrichment are based on the same alleged wrong—defendant’s failure to pay plaintiff royalties for its exploitation of plaintiff’s compositions in various media forms.
We reject plaintiff’s contention that the cause of action for unjust enrichment is different in that the contracts do not have an express provision that governs the use of his compositions in VHS or DVD format. Plaintiff’s own evidence shows otherwise. He submitted the declaration of Alfred William Schlesinger who stated he reviewed some of the subject contracts and they “contemplate the development of future media and expressly grant [defendant] the right to exploit [plaintiff’s] compositions in such future media.” Plaintiff acknowledges that all of the subject agreements contain basically the same provisions. Thus, the fact that VHS tapes and DVDs are media that did not exist when the contracts were entered into is of no consequence to the trial court’s ruling on the issue of unjust enrichment.
DISPOSITION
The summary judgment is affirmed. Costs on appeal to defendant.
We Concur: KLEIN, P. J., ALDRICH, J.
We address the first three of those matters infra. Regarding plaintiff’s Code of Civil Procedure section 437c, subdivision (h) request for a continuance, the request states that the additional evidence plaintiff sought to obtain pertains to defendant’s financial records, specifically “the monies [defendant] received from the exploitation of the television programs on media other than television,” which plaintiff contended would show that defendant charged third parties fees for the right to exploit the televisions programs on DVD and other media, whether the fees were called synchronization license fees or some other name. Given our determination, set out below, that plaintiff is only entitled to royalties coming from licenses relating to theatrical motion picture synchronization, not from licensing of synchronization rights to produce home video, the question whether the trial court erred or abused its discretion when it denied plaintiff a continuance (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715-716) is moot.
However, if the party who propounded evidence to which objections were made and sustained by the trial court challenges, in its appellate brief, the trial court’s adverse evidentiary rulings, we will examine those rulings using an abuse of discretion standard. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) The same is true for evidentiary objections that were overruled. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 739.) If no such challenge is made, we consider the issue of the correctness of the trial court’s evidentiary rulings to have been waived by the party whose evidence was excluded, or by the party whose evidentiary objections were overruled. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
To avoid a finding by a reviewing court that a challenge to a trial court’s evidentiary ruling has been waived, the evidentiary ruling must be affirmatively challenged on appeal. That is, the asserted erroneous evidentiary rulings must be identified “as a distinct assignment of error” and be supported by distinct analysis. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.) In the instant case, plaintiff supplies no distinct analysis for the various evidentiary rulings made by the trial court. Rather, he simply argues we are not bound by the trial court’s evidentiary rulings and we should examine the parties’ respective evidentiary objections on a de novo basis, an argument for which he cites Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 1110-1111. Molko did not address the standard for review on appeal of a trial court’s rulings on evidentiary objections made in connection with motions for summary judgment.
Plaintiff also admitted, in his response to defendant’s request for admissions, that “the term ‘net proceeds’ in the AGREEMENTS when used in connection with synchronization licenses refers to ‘licenses relating to theatrical motion picture synchronization rights.”
All of the DVDs were released within four years of when this case was filed and so there is no statute of limitations defense with respect to those releases, given the four-year limitations period for written contracts. (Code Civ. Proc., § 337.) Moreover, although defendant presented evidence that “episodes” of the series in VHS format began being marketed in 1988-1994, that is not the same as saying that all of the VHS episodes that contain plaintiff’s compositions were first released more than four years before this suit was filed. The contracts under which plaintiff is suing were each for a different episode. Plaintiff sued on each individual contract, and each individual contract presents the potential for a breach of contract. Because each of plaintiff’s compositions has a corresponding contract, the breaches are not properly lumped together by defendant into a “Gunsmoke” series VHS breach or a “Perry Mason” series VHS breach. Defendant’s evidence is not directed to when the VHS marketing for each individual episode commenced and thus the evidence does not rule out that VHS marketing of some, or even one, of the episodes began within four year prior to this suit being filed.
Also rendered nonmaterial is the issue of fact regarding whether the delayed discovery rule applies with respect to defendants’ early sales of VHS tapes. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 822, 826 [cited with approval in Samuels v. Mix (1999) 22 Cal.4th 1, 9, 10, 18; Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 5-7.) We do, however, agree with defendant that the “continuing duty/breach” cases cited by defendant have no application here. (Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427; Mezey v. State of California (1984) 161 Cal.App.3d 1060.)