Opinion
B227368
10-27-2011
L&M OPTICAL DISC WEST, LLC, Plaintiff and Appellant, v. MOTION PICTURE ASSOCIATION OF AMERICA, INC., Defendant and Respondent.
Law Offices of James W. Spertus, James W. Spertus and Ezra D. Landes for Plaintiff and Appellant. Mitchell Silberberg & Knupp, Robert H. Rotstein and Emily F. Evitt for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LC088438)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Latin, Judge. Affirmed.
Law Offices of James W. Spertus, James W. Spertus and Ezra D. Landes for Plaintiff and Appellant.
Mitchell Silberberg & Knupp, Robert H. Rotstein and Emily F. Evitt for Defendant and Respondent.
The complaint of L&M Optical Disc West, LLC (L&M), alleging defamation and related claims against respondent Motion Picture Association of America (MPAA) and the Los Angeles County Sheriff's Department was dismissed after the trial court granted MPAA's motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute). We reject L&M's contention that the anti-SLAPP motion was erroneously granted. The challenged statements—made by sheriff's department personnel and quoted in two newspapers—were constitutionally protected, and L&M cannot show that MPAA is vicariously liable for those statements under the theory that it and the sheriff's department were engaged in a joint venture or enterprise.
The trial court had previously dismissed the action against the sheriff's department, based on L&M's failure to timely file a claim against that public entity, as required by Government Code section 911.2. The sheriff's department is not a party to this appeal.
"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order granting or denying a special motion to strike under Code of Civil Procedure section 425.16 is appealable. (Code Civ. Proc., § 904.1, subd. (a)(13).) All further statutory references are to the Code of Civil Procedure unless otherwise stated.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
Plaintiff's Allegations
L&M's complaint against MPAA and the sheriff's department alleged causes of action for defamation, along with intentional and negligent interference with prospective economic advantage. All three causes of action were based on newspaper accounts of statements by sheriff's department personnel to the effect "pirated DVDs" were discovered during a raid of L&M's business premises. As it turned out, L&M had been authorized to manufacture the discs. L&M alleged the newspaper statements were false and caused L&M to lose at least $1 million in business because existing and potential clients took their business elsewhere in the belief that L&M was engaged in criminal reproductions.
L&M is engaged in the business of replicating and packaging DVDs and CDs. It operates a facility for that purpose in Valencia, California. In early 2009, L&M received an order from International Video Innovation (IVI) to manufacture DVD copies of the motion picture Milk. Alliance Films, Inc., a Canadian company, had authorized IVI to manufacture copies of Milk for distribution in Canada. By February 2, 2010, the DVD's were in the Valencia facility, ready to be shipped. That morning, 22 deputies and two sergeants of the sheriff's department raided the facility pursuant to a search warrant as part of an investigation of undocumented workers employed by L&M. While searching the premises, sheriff's deputies became suspicious about crates of DVDs and CDs, which they thought might be unauthorized copies or "pirated" products.
Although L&M characterizes the focus of the raid as being the investigation of undocumented workers, the newspaper accounts characterized it in terms of identity theft. The investigation was based on complaints by numerous Santa Clarita residents, who reported they had received federal tax bills for unreported income earned at L&M.
Sergeant James Anderson called for an investigator from MPAA to examine the DVDs to determine whether they were lawfully produced. Investigator Larry Mauldin determined they were not, despite being repeatedly informed by L&M employees that L&M had been authorized to produce them. MPAA investigators noted that Milk was still being shown in the theaters, which made it "impossible" that it had been authorized for release on DVD. Sergeant Anderson also rebuffed the assurances from L&M principal David Lin that the Milk DVDs were authorized reproductions and that Lin could provide documentation to that effect. The sheriff's department, with the assistance of the MPAA investigator, seized the Milk DVDs, had them taken away in a truck, and provided an evidence receipt to L&M.
The following day, Lin provided Sergeant Anderson with contractual documentation and e-mail correspondence from IVI and Alliance as to L&M's authorization to produce copies of Milk. Sergeant Anderson responded by e-mail that the DVDs could not be released because they were "pirated."
On Monday, February 9, 2009, the Daily News of Los Angeles published an article about the raid, containing the following false statements, which the paper attributed to Sergeant Anderson: "Investigators also found pirated DVDs of movies, including multiple Academy Award nominee 'Milk,' at L&M Optical, [Sergeant] Anderson said. [¶] 'That particular movie has not been released to anyone,' [Sergeant] Anderson said."
As it does throughout the complaint, L&M in its briefing attributes the statements to both defendants jointly by using the defined term, "LASD-MPAA." As the quoted material makes plain and the copy of the newspaper article itself confirms, the actionable statements were attributed to Sergeant Anderson of the sheriff's department.
As of February 12, 2009, however, defendants acknowledged that L&M lawfully replicated the Milk DVDs and ordered them released to IVI. On March 8, The Signal of Santa Clarita Valley published an article containing the following false statements: "'The investigation is under way and will take several months,' [Sergeant Steve Low] said." On March 20, an article in The Signal stated: "[The sheriff's station also] launched an investigation into piracy at L&M, Sgt. Steve Low said. [¶] 'The investigation is under way and will take several months,' he said." L&M alleged those statements were false because the investigation as to the DVDs had already concluded with the determination that L&M had not engaged in piracy.
As a result of those statements, L&M suffered lost profits. Among other things, current customers "pulled work" from L&M upon hearing the reports; past customers did not place new orders; and competing vendors no longer sent "spillover or overflow work to L&M."
MPAA's Anti-SLAPP Motion
MPAA's motion to strike was supported by various declarations. Sergeant Anderson stated that in the interest of preventing intellectual property theft, the sheriff's department typically works with representatives of the intellectual property industry having expertise in identifying counterfeit products. At the February 5, 2009 raid, a search warrant was served at the L&M facility in Valencia based on information that many L&M employees had fraudulently used Social Security numbers. The sheriff's department arrested 55 persons pursuant to the search warrant. During the raid, deputies found 123 boxes of the film Milk, which they found suspicious. They contacted MPAA to assist in the investigation. Based on the MPAA investigator's determination that there was no record that L&M was licensed to manufacture or distribute the Milk DVDs, the sheriff's department seized the boxes of DVDs. "Any statements made to the press by [sheriff's department] personnel regarding the investigations of suspected counterfeit products are made in their official capacity as Sheriff's Personnel."
MPAA investigator Michael Radziewicz had no prior knowledge of the raid. On February 5, Sergeant Anderson called him from the L&M premises and told him they had uncovered suspicious looking CDs and DVDs. Radziewicz sent Investigator Larry Mauldin to the scene. Mauldin telephoned Radziewicz, saying that he suspected the Milk DVDs were counterfeit. Radiewicz, in turn, requested another MPAA employee, Linda Krems, to contact the copyright owner to determine if L&M was an authorized licensee. Upon receiving word from Krems that the studio that owned Milk had no record of L&M being authorized to manufacture or distribute the film on DVD, Radziewicz passed that information on to Mauldin. The Milk DVDs seized during the raid were stored by another private entity, Investigative Consultants, "on behalf of the MPAA for the [sheriff's department]." On February 11, 2009, the sheriff's department authorized the release of the Milk DVDs to IVI. The following day, Radziewicz transported the DVDs to IVI. Radziewicz never received documentation establishing that L&M had a license to manufacture or distribute the Milk DVDs.
Krems also provided a declaration explaining her efforts to verify whether L&M was authorized to manufacture or distribute the Milk DVDs, which corroborated the testimony by Radziewicz.
Mauldin declared that when he arrived at the L&M premises, he met with Sergeant Anderson and personnel from Investigative Consultants, a company that investigates music piracy for the Recording Industry Association of America, Inc. (RIAA). Mauldin examined the Milk DVDs and found a variety of factors indicating that they were counterfeit. Upon hearing from Radziewicz that L&M lacked a license to manufacture or distribute the DVDs, he confirmed to Sergeant Anderson that they were counterfeit. The sheriff's department seized the Milk DVDs. Mauldin arranged for Investigative Consultants to store the seized DVDs because that entity was preparing to store counterfeit CDs seized during the raid.
L. Carlos Linares, Jr., a vice-president of the RIAA, declared that as of April 27, 2010, the RIAA had not received any evidence that L&M was authorized to manufacture or distribute certain CDs seized during the raid as being counterfeit.
Michael Robinson, a principal of MPAA, explained the organization's structure, purpose, and relationship with the sheriff's department. MPAA is a nonprofit trade association comprised of six major motion picture studios. As producers and distributors of motion pictures, they have an interest in preventing the unauthorized sale and distribution of their products. To further that interest, MPAA "assists numerous law enforcement agencies that investigate and prosecute counterfeiters and pirates of intellectual property," including the sheriff's department, by "providing expertise on whether movie and television products are counterfeit."
Robinson declared MPAA had no control over the February 5, 2009 raid of the L&M premises, having provided "no input into the timing, location, or scope" of the raid. MPAA did not have any control over the sheriff's department's statements to the press concerning L&M and the raid. It did not authorize or provide any input as to those statements. "MPAA did not even know about the Statements until after they occurred." Finally, Robinson declared that MPAA never entered into a joint venture agreement with the Sheriff's Department.
The Newspaper Reports
The Daily News article was primarily focused on the identify theft aspect of the raid: "It began with a handful of local residents getting unexpected tax bills. [¶] It culminated in the arrests of 55 employees at one Valencia company—all on suspicion of identify theft." Those employees "said they used fraudulent documents" to gain employment. Their immigration status "was not immediately known." The article named L&M as the site of the raid and the employer of those arrested. The two sources quoted in the article were Sergeant Anderson and Detective Robert Morris, both of the sheriff's department. Sergeant Anderson was quoted as saying, "'It definitely is the biggest arrest that I have been a part of.'" After that statement, toward the end of the article, Sergeant Anderson made the statements that L&M alleges to be false: "Investigators also found pirated DVDs of movies, including multiple Academy Award nominee 'Milk,' at L&M Optical. [Sergeant] Anderson said. [¶] 'That particular movie has not been released to anyone,' [Sergeant] Anderson said."
The March 8, 2009 article in The Signal was entitled, "Deputies Investigate Piracy Allegations." It began, "Santa Clarita sheriff's deputies are investigating whether L&M . . . engaged in DVD and CD piracy." The article described the raid as being geared to the investigation of whether L&M employees had used Social Security numbers from Santa Clarita residents. "Fifty-four suspects nabbed in the raid were charged with identity theft. [¶] The scrutiny of sheriff's investigators has turned to L&M's role in the ID theft and piracy allegations, [Sergeant] Low said. [¶] 'The investigation is under way and will take several months.'" The balance of the article detailed prior instances in which L&M had "faced piracy allegations."
The Signal's article on March 20, 2009, focused almost entirely on the Mexican Consulate's efforts to "forc[e] the District Attorney to offer misdemeanor plea deals to suspects in the L&M . . . ID theft case." Toward the end of the article, after discussing the nature of that case and the circumstances of the arrests and detentions, there was short reference to piracy: "At the same time deputies sought a search warrant against the alleged ID thieves, the Sheriff's Station also launched an investigation into piracy at L&M, Sgt. Steve Low said. [¶] 'The investigation is under way and will take several months,' he said." L&M's Opposition
We refer only to L&M's evidentiary showing to the extent it bears on the critical issues of whether the challenged statements are entitled to protection under the anti-SLAPP statute and whether there is substantial evidence of a joint venture or enterprise between the sheriff's department and MPAA.
L&M presented newspaper articles referring to the substantial assistance given to police by MPAA in conducting raids and investigations of pirating. For instance, in an unrelated matter, the LAPD Blog stated on August 24, 2009, that MPAA "worked with the officers in seizing the [illegally manufactured] DVDs. MPAA investigators will hold the evidence, pending trial, then destroy the DVDs when the case is over." A Daily News article from 2006 referred to a raid conducted as "the culmination of a joint investigation between sheriff's deputies, the MPAA and the Recording Industry Association of America. 'We have many common enemies so we are sharing information and working together,' [John G. Malcolm, MPAA executive vice-president and director of worldwide anti-piracy] said. 'Any investigation we do together is a good thing.'"
Similarly, in 2005, a lieutenant from the sheriff's department testified before the United States Senate's Committee on Homeland Security and Governmental Affairs that "there should be a task force commitment in order to combat" intellectual property crimes. Private sector entities such as Investigative Consultants "play[] a vital role in our enforcement efforts. Without this cooperative public/private sector relationship, the Sheriff's Department, because of limited personnel resources, would quickly be overwhelmed and would not be able to maintain our investigative pace."
MPAA's website states that it is engaged in efforts to protect creative works that include "aggressively pursuing those who illegally engage in the mass production and distribution of copyrighted film and TV shows" by "working with many partners including . . . the law enforcement community."
L&M also sought to prove a joint enterprise by citing to MPAA's evidence showing that many MPAA employees had previously worked for law enforcement entities, that the seized DVDs were stored by Investigative Consultants "on behalf of the MPAA for the" sheriff's department, and that it was MPAA that transported the DVDs to IVI upon release.
Trial Court Ruling
The trial court granted MPAA's anti-SLAPP motion, finding the subject statements to the press were made by the sheriff's department and arose from protected activity as defined by section 425.16, subdivision (b)(1). Specifically, the statements were "made in a public forum in connection with an issue of public interest," pursuant to section 425.16, subdivision (e)(3). The court also concluded that L&M failed to sustain its burden of establishing a probability of prevailing on its claims, finding L&M failed to show the statements were made by, or attributable to, MPAA. The court specifically found no evidence of a joint venture between the sheriff's department and MPAA, "despite the fact that the parties worked closely on the confiscation of [L&M's] property and combating piracy." The two entities "remained distinct," and there was no evidence of an agreement to create a joint venture or of MPAA's control of the sheriff's department.
DISCUSSION
L&M contends the trial court erred in finding its claims were subject to the anti-SLAPP statute because the newspaper statements were not constitutionally protected, and even if they were, L&M presented enough evidence of a joint enterprise between the sheriff's department and MPAA to satisfy its burden of showing a probability of succeeding on the merits. We disagree. The challenged statements were paradigmatic examples of protected activity under the anti-SLAPP statute—statements "made in a . . . public forum in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) Further, evidence that MPAA worked closely with the sheriff's department in the piracy investigation and property seizure, even combined with evidence of a shared interest in suppressing such crimes, does not support a reasonable inference of the existence of a joint enterprise.
"'In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Under . . . section 425.16 "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech . . . shall be subject to a special motion to strike. . . ." ([Id.,] subd. (b)(1).)' (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) 'If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) "In order to establish a probability of prevailing on the claim (. . . § 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must '"state[] and substantiate[] a legally sufficient claim."' [Citations.] Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)' (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)" (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1435-1436 (Morrow).) We independently review both aspects of this test, whether L&M's causes of action arise from protected activity and whether it has shown a probability of prevailing on the merits. (Id. at p. 1436.)
"The Code of Civil Procedure provides that for purposes of an anti-SLAPP motion, '"an act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes . . . any written or oral statement or writing made in . . . a public forum in connection with an issue of public interest . . . ."' (. . . § 425.16, subd. (e).)" (Morrow, supra, 149 Cal.App.4th at p. 1436.) It is well established that "newspapers and magazines are public fora within the meaning of section 425.16, subdivision (e)(3)." (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1038 (Nygard); Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1086 ["A local newspaper that is a vehicle for public discussion constitutes a forum for public communication. (Annette F. [v. Sharon S. (2004)] 119 Cal.App.4th [1146,] 1161.)"].)
As the challenged statements were all published in newspapers, we turn to the second aspect of the inquiry—whether the matter discussed was "an issue of public interest" within the meaning of section 425.16, subdivision (e)(3). As the Nygard court explained, this provision is subject to the legislative directive that it "'shall be construed broadly' to safeguard 'the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' (§ 425.16, subd. (a).)" (Nygard, supra, 159 Cal.App.4th at p. 1039; Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716 ["We construe the term 'issue of public interest' broadly."].) Simply put, an issue of public interest "is any issue in which the public is interested. In other words, the issue need not be 'significant' to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest." (Nygard, supra, at p. 1042.) "The most commonly articulated definitions of 'statements made in connection with a public issue' focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest. [Citations.]" (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks).)
As our summary of the newspaper articles makes plain, the challenged statements all concerned matters in which the public had a strong interest. All aspects of the Wilbanks tests were satisfied. The statements all concerned L&M, which was in the public eye because of the raid. The identity thefts that led to the raid, not to mention the immigration consequences thereof, were obviously matters of interest well beyond those Santa Clarita residents directly affected. In the Daily News article, Sergeant Anderson was quoted as saying, "'It definitely is the biggest arrest that I have been a part of.'" And it was just after that statement that Sergeant Anderson made the statements that L&M alleges to be false: "Investigators also found pirated DVDs of movies, including multiple Academy Award nominee 'Milk,' at L & M Optical. [Sergeant] Anderson said. [¶] 'That particular movie has not been released to anyone,' [Sergeant] Anderson said." It is untenable to suggest that the references to the pirating of DVDs fell outside the public interest because the Daily News article was primarily concerned with the identity theft arrests. The discovery of the Milk DVDs was an important aspect of the raid and would have aroused public interest. Whatever else the definition of "public interest" might include within the meaning of the anti-SLAPP statute, it certainly pertains to legislative and governmental activities. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115.) As the raid was a large-scale police operation, involving numerous arrests, not to mention the seizure of products thought to be counterfeits, it was a matter of public interest. We therefore agree with the trial court that police discovery of a cache of DVDs believed to be counterfeit during that raid would certainly interest the public, especially given that the movie at issue was being shown in theaters and had received Academy Award nominations. As MPAA points out, if a website's listing of credits for motion pictures such as My Big Fat Greek Wedding was "a topic of widespread public interest," certainly a police investigation into pirating of Milk DVDs would be even more so. (Kronemyer v. Internet Movie Database, Inc. (2007) 150 Cal.App.4th 941, 949.)
Contrary to L&M's assertions, the newspaper statements did not amount to "'the assertion of a broad and amorphous public interest'" which has been found insufficient in the anti-SLAPP context. (E.g., Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547 (Terry); All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1201-1202.) The statements at issue here cannot be plausibly characterized as concerning essentially private matters without any appreciable "'degree of closeness between the challenged statements and the asserted public interest.'" (Terry, supra, at p. 1547.) The raid on the L&M facilities and the seizure of DVDs was itself a matter of public concern.
As the actionable statements for all L&M's claims are protected speech, we turn to the question of whether L&M demonstrated a probability of prevailing on the merits. "'"In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (. . . § 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th [at p.] 821.)' (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317-318; see also Jarrow Formulas, Inc. v. LaMarche [(2003)] 31 Cal.4th [728], 741, fn. 10.)" (Morrow, supra, 149 Cal.App.4th at p. 1439.)
As the trial court found, there is no evidence that the actionable statements were made by, or are attributable to, MPAA. The newspaper articles themselves attribute the statements to Sergeants Anderson and Low of the sheriff's department, and nothing in the record casts doubt on the testimony by Robinson that MPAA did not authorize or provide any input as to those statements. Therefore, in order to establish MPAA's vicarious liability for the sheriff's department's statements, L&M relied on the theory of joint venture or joint enterprise liability.
"'A joint venture . . . is an undertaking by two or more persons jointly to carry out a single business enterprise for profit.' (Nelson v. Abraham (1947) 29 Cal.2d 745, 749.) 'There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise. [Citation.]' (Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666 (Orosco).)" (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 370 (Unruh-Haxton); Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 193 (Ramirez) ["A joint venture . . . requires an agreement under which the parties have (1) a joint interest in a common business, (2) an understanding that profits and losses will be shared, and (3) a right to joint control."].)
"'Whether a joint venture actually exists depends on the intention of the parties. [Citations.] [¶] . . . [¶] . . . [W]here evidence is in dispute the existence or nonexistence of a joint venture is a question of fact to be determined by the jury. [Citation.]' (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 819-820.)" (Unruh-Haxton, supra, 162 Cal.App.4th at p. 370.) Here, as in Ramirez, there was no joint venture because "[t]he facts before us do not involve a for profit enterprise." (Ramirez, supra, 105 Cal.App.4th at p. 193.)
Alternatively, L&M argues there was a joint enterprise in a nonprofit undertaking for the mutual benefit of the parties. (See Ramirez, supra, 105 Cal.App.4th at p. 193.) "The term 'joint enterprise' is sometimes used interchangeably with 'joint venture' and sometimes to describe a nonprofit undertaking for the mutual benefit or pleasure of the parties. [Citations.]" (Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 863, fn. 6.)
L&M argues it presented sufficient evidence to raise a factual issue as to the existence of an anti-piracy joint venture between the sheriff's department and MPAA. The argument fails because there was no evidence of any agreement between those parties, much less one providing for a right of joint control in the supposed anti-piracy enterprise. MPAA presented testimony as to the absence of any such agreement or of any shared control in piracy investigations and prosecutions. In response, L&M merely pointed to evidence that MPAA worked closely with the law enforcement organizations including the sheriff's department to assist in the discovery, seizure, and prosecution of pirated DVDs. However, the sheriff's department's reliance on MPAA to help determine whether the DVDs had been pirated is essentially different from delegating to MPAA the authority to decide to seize the products or otherwise control the investigation. Assistance and control are different things. Nothing in the record supports a reasonable inference that MPAA had authority to control any significant aspect of those investigations.
L&M mistakenly relied on Shook v. Beals (1950) 96 Cal.App.2d 963, 970 (Shook)for the proposition that one party's assistance in the other's conduct in the operation of an enterprise can be parlayed into a finding of control. As the Ramirez court explained, "In Shook, the defendants were collectively liable for damage to a plane they had leased for a fishing trip. Liability was imposed because the defendants jointly paid and hired the plane and each had the right to control it." (Ramirez, supra, 105 Cal.App.4th at p. 193.) Here the record lacks any evidence MPAA was delegated the authority to control the anti-piracy aspect of the raid.
As MPAA points out, Ramirez is highly instructive, if not dispositive. The plaintiff sued the school district for the death of her son, who died at a nonprofit camp the school board recommended and convinced the boy to attend. "The School District, through its administrators and faculty, identified potential candidates for the Camp, advertised, recruited, encouraged, and convinced students and parents to participate in the program. On behalf of the Camp, the School District provided participants and their parents with applications and other documentation, such as medical forms. The School District opened its campuses to host meetings with parents and the Camp. The School District personnel were present at such meetings, promoted the program, and made statements about its safety." (Ramirez, supra, 105 Cal.App.4th at p. 185.) In response to plaintiff's safety concerns, "School District officials told plaintiff that she 'did not have to worry, everything would be O.K. because the camp was safe.' A School District employee stated, 'Don't worry, we are going to take care of them and I will give them a ride to the camp bus on the 19th of August.'" (Id. at p. 186.)
Nevertheless, in affirming the dismissal of the action against the school board, the Ramirez court determined "there are no facts demonstrating the School District had any right to control the Camp, its employees, or its counselors," and held "[t]he School District and the Camp were not participants in a joint venture or a joint adventure." (Ramirez, supra, 105 Cal.App.4th at pp. 193-194.) In similar fashion, evidence that MPAA provided important assistance to the sheriff's department's anti-piracy efforts does not support a reasonable inference of an agreement providing MPAA with a right to control those efforts.
L&M's reliance on Unruh-Haxton, supra, 162 Cal.App.4th 343 is similarly misplaced. In Unruh-Haxton, the appellate court found strong evidence of a joint venture to operate a medical clinic, including a written agreement between the parties: "The complaint pleads, and defendants concede, two elements [of the test]: There was an agreement for them to finance the Fertility Clinic and they expected a profit in return for their respective ownership interests. The requisite joint control is supplied by the complaints' allegations the doctors, the Regents and the Medical Center 'entered into a written joint venture agreement. The joint venture then operated the clinic . . . . The joint venture included the operation and management of the [Medical Center] Garden Grove building itself.' Certainly, a written joint venture agreement strongly indicates an intention to enter into a joint venture." (Id. at pp. 370-371.) In contrast, L&M presented no evidence of an agreement between the sheriff's department and MPAA to exercise joint control over anti-piracy investigations.
DISPOSITION
The judgment is affirmed. Motion Picture Association of America is to recover its costs on appeal.
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.