Opinion
B316971 B326626
04-23-2024
Hayley Marie NORMAN, Plaintiff and Respondent, v. Tracee Ellis ROSS et al., Defendants and Appellants. Hayley Marie Norman, Plaintiff and Appellant, v. Tracee Ellis Ross et al., Defendants and Respondents.
Plonsker Law Group, Michael J. Plonsker and Rex D. Glensy for Plaintiff and Appellant and for Plaintiff and Respondent. Mitchell Silberberg & Knupp, Elaine K. Kim, Yakub Hazzard, Los Angeles, for Defendants and Appellants and for Defendants and Respondents.
APPEAL from judgments and an order of the Superior Court of Los Angeles County, Laura A. Seigle, Judge. The judgments are affirmed; the order is reversed and the matter is remanded with instructions. (Los Angeles County Super. Ct. No. 20STCV35711)
Plonsker Law Group, Michael J. Plonsker and Rex D. Glensy for Plaintiff and Appellant and for Plaintiff and Respondent.
Mitchell Silberberg & Knupp, Elaine K. Kim, Yakub Hazzard, Los Angeles, for Defendants and Appellants and for Defendants and Respondents.
COLLINS, J.
INTRODUCTION
Plaintiff Hayley Marie Norman filed a complaint alleging that her idea for a television series was stolen by defendants Tracee Ellis Ross, Artists First, Kenya Barris, Brian Dobbins, Touchstone Productions dba ABC Studios (ABC), and Big Breakfast LLC. Norman alleged her idea for a series—which she intended to star in, write for, and produce—was turned into a sitcom by defendants without her permission or involvement. Defendants contend the sitcom, a spinoff of an existing television series, was not based on Norman’s ideas.
Norman filed a complaint alleging breach of implied-in-fact contract, breach of confidence, promissory estoppel, and other claims. The defendants filed special motions to strike under Code of Civil Procedure, section 425.16, the anti-SLAPP statute. The trial court granted the motions in full as to Barris, Dobbins, and ABC; the court denied the motions in part as to Ross and Artists First. The parties cross-appealed the court’s order.
All further undesignated statutory references are to the Code of Civil Procedure. "SLAPP" stands for "strategic lawsuits against public participation." (FilmOn.com Inc v DoubleVerify Inc. (2019) 7 Cal.5th 133, 139, 246 Cal.Rptr.3d 591, 439 P.3d 1156.) Big Breakfast did not file an anti-SLAPP motion, and is not a party to this appeal.
Upon de novo review, we find that all of Norman’s claims arise from protected activity, and the trial court erred in holding that parts of Norman’s claims against Ross and Artists First did not. We further find that Norman failed to demonstrate a probability of success on her causes of action. Thus, we find that the special motions to strike should have been granted in full. As such, we reverse and remand the court’s order as it pertains to Ross and Artists First.
Defendants moved for attorney fees following the special motion to strike, and the trial court granted the motion in part, awarding defendants less than 30 percent of the fees they requested. Norman separately appealed after judgments were entered in favor of Barris, Dobbins, and ABC. She contends the trial court erred in not reducing the fee award even further. We deny defendants’ motion to dismiss this appeal, find that the award was not an abuse of discretion, and therefore affirm the judgments entered in favor of Barris, Dobbins, and ABC.
BACKGROUND
A. Factual background
This case is at the pleadings stage, and therefore the facts are not fully developed. The parties did, however, present a significant amount of evidence in support of the anti-SLAPP motions and oppositions. For purposes of this appeal, the following facts are largely undisputed.
1. Black-ish and the character of Bow
Defendant Kenya Barris created the television show Black-ish, which first aired in 2014. It is a 30-minute sitcom that portrays a family headed by father Andre (Dre) and mother Rainbow (Bow) Johnson. Bow, played by defendant Tracee Ellis Ross, is biracial, and the show includes themes relating to Bow’s experiences as a mixed-race woman. Barris stated in a declaration that the character of Bow "was inspired by my wife, Dr. Rania ‘Rainbow’ Barris, who is biracial with a black mother and a white father." Barris also stated that the character Bow’s "mother Alicia is black and her father Paul is white, and they were hippies who raised Bow, and her younger siblings Johan and Santamonica, in a commune or ‘cult’ before it got raided by the government. As a result, Bow does not share the same cultural background and experiences as her husband Dre, who grew up in an urban black neighborhood and has two black parents. Dre and his parents Pops and Ruby do not view Bow as ‘really’ black, while white people see Bow as a black woman."
The character of Bow was introduced in the pilot episode of Black-ish, which aired in September 2014. In the opening moments, Dre, in a voiceover, introduced himself and Bow, describing her as a doctor and a "pigment-challenged mixed-race woman." In the second episode, Dre commented that Bow "grew up in a house full of naked hippies."
Bow’s parents, Paul and Alicia, were introduced in season 1, episode 16, titled "Parental Guidance," which aired in March 2015. The parents were portrayed as hippies, driving an RV that "runs on vegetable oil and animal waste," encouraging Dre to warm his "heart with the light from within," and talking about their past participation in civil rights marches. Several episodes of Black-ish portray the culture clash between Bow’s hippie parents and Dre’s black family, and/or the white side of Bow’s family and Dre’s black family. Bow’s brother Johan became a regular character in season 3 of Black-ish, and their sister Santamonica appeared in one episode in season 3.
2. "Being Bow-racial"
Bow’s experiences with her racial identity were directly addressed in Black-ish season 3 episode 8, "Being Bow-racial," which aired in November 2016. In that episode, Bow and Dre’s son, Junior, came home with his new girlfriend Megan, who was white. Bow had a strong reaction to seeing Junior with a white girlfriend. In a voiceover, Bow explained the history of mixed-race children in America, including the children of slaves and white owners. She stated that Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (Loving) officially held that states could no longer prohibit interracial marriage, which resulted in skyrocketing rates of biracial births and "more people with an identity crisis who don’t even know what to call themselves, and are always asking, ‘Where do I fit in?’ "
The episode shifted back to the present, and Dre’s mother suggested to Bow that she can’t like Junior’s girlfriend "if you don’t even like yourself. And you don’t even know who you are." Later, Bow’s brother, Johan, suggested to Bow that she always had "an identity issue." The episode flashed back to Bow as a child, played by a child actor. Bow was in school, holding a pencil and looking at a registration form trying to figure out which "race" box to check. Young Bow asked the black teacher walking by, "How come there's not a box for both?" The teacher responded, "Baby, you’d better check black."
Returning to the present, Bow said to Johan, "It was confusing! Didn’t you ever struggle with which box to check? I mean if you check one, you’re denying a whole part of yourself." In a later scene Bow told Johan, "I’ve been confused most of my life. Do you remember me in high school?" The scene flashed back to teenage Bow played by Ross, looking and talking like a character from the film Clueless (Paramount Pictures 1995), walking down a school hallway with several white peers. In the present, Bow told Johan, "I couldn’t help it though! I mean, that’s who we grew up around. Those were my friends." Johan asked skeptically, "Were they?" The scene cut back to the high school flashback, where a white friend told teenage Bow, "You should like, totally audition for the theater this year. We could really use some strong black actors." Bow looked uncomfortable at the mention of her race, but agreed. The flashback then cut to a school production of The Wizard of Oz, with Bow playing the part of a flying monkey being rolled across the stage on a cart.
Back in the present, Johan asked Bow why she agreed to play a flying monkey. Bow replied, "Admittedly, mistakes were made. But if you were in that situation you just—you over-compensate. You do what you can to fit in." Bow continued, "In college, with my black friends, I went in hella hard." Again the scene flashed back, this time to Bow in college. She was wearing sunglasses, large hoop earrings, and a shirt that revealed her midriff. Bow approached a picnic table where several black friends were seated and called out, "What up y’all? Oh!" while gesturing with her arms. Bow then awkwardly danced and launched into a rap of her name.
Returning to the present, Johan told Bow it was no big deal that she "leaned into a few dumb stereotypes to try to get people’s approval. Everybody does it." Bow responded, "Yeah, but not everybody is pulled into day-to-day situations where they're forced to pick a side." The scene flashed back again, this time to Bow sitting in the middle of a couch. A group of black young adults was sitting and standing to one side of her, and a group of white young adults was on the other side. They were watching a television on which the O.J. Simpson verdict was about to be read. When the not guilty verdict was announced, Bow initially turned to the black side of the room and joined their cheers. However, she quickly turned to the white side of the room, saw their looks of shock and disappointment, and changed her expression. Back in the present, Bow said to Johan, "I’m so confused."
Bow decided to talk with her white father, Paul, at his RV. Bow told him she felt uncomfortable about Junior having a white girlfriend, and they discussed her confusion about her racial identity. Bow noted that Paul was white, and said she did not want to deny that half of herself. Paul suggested that because Bow had a black husband and a "black family," Junior choosing a white girlfriend "feels like a rejection." Bow responded, "Exactly. That’s exactly it." Paul reassured Bow, "you know who you are." Bow nodded and responded, "I know who I am. Thank you." As the scene ended with Paul and Bow hugging, Bow said in a voiceover, "So there it was—I had to go back to my past to look at my future."
3. Norman’s development of Tragic
Norman stated in a declaration that she began to develop a comedy television series in 2014 or 2015 "based on my own experiences growing up as a mixed-race woman in the suburbs." Initially calling the series Mixed, she developed a treatment that she filed with the Writers Guild of America in 2016. Norman’s series idea was later called Tragic and The Girl With the Hair. For ease of reference, we will refer to Norman’s proposed series as Tragic.
In August 2017, Norman approached defendant production company Big Breakfast about selling or producing Tragic. Norman worked with producer Jillian Vogel, sending Vogel information about Tragic. In some of the early pitches Norman developed for the series, she described the show as "Arrested Development meets Blackish," and an "earnest, yet un-PC comedy about a biracial woman’s fight to find acceptance in both her very White home and very Black workspace." The show was supposed to be a fictionalized version of Norman’s own life, with Norman as the star.
The series idea went through several iterations; the early versions that were never shared with defendants are not described in detail here.
Norman asserts that she sent these materials to Vogel and Big Breakfast "with the understanding that pursuant to the custom and practice of the entertainment industry, they would be kept confidential and not used without payment to me." Norman proposed Tragic as a series that she would write for, star in, produce, and "be compensated for all with appropriate credits."
Norman and Vogel continued collaborating to develop ideas for Tragic, It was suggested that a "mixed-race celebrity" could get involved as a producer, and Norman thought Ross would be a good fit. Vogel told Norman that Big Breakfast’s parent company, Electas, was a "majority stake holder" in defendant management company Artists First, and the companies sometimes worked together. Vogel told Norman that once the Tragic "deck" was done, "I’ll be sharing with our managers at [Artists First] – they know of EP [executive producer] level talent who may be interested in attaching" to the project.
In October 2017, Vogel sent the deck for Tragic to defendant Brian Dobbins, who was Ross’s manager through Artists First; Dobbins forwarded the materials to Ross. The Tragic deck Dobbins received described the series as "an honest and irreverent look at ‘post-racial America’ told by Hayley Marie Norman, a biracial comedian who unabashedly confronts her identity in everyday interactions." The character Hayley "grew up not even knowing she was black. Living in the mayonnaise-white suburb of Agoura Hills will do that to a girl. Although she’s forced to visit her parents back home in Agoura Hills often, Hayley now lives with her fiancé Sam in the newly labeled East Hollywood, a.k.a Little Armenia."
As for the "tone" of the show, the deck described Tragic as "an off-kilter comedy series that presents an unflinching, self-deprecating depiction of the minutiae of Hayley’s everyday life as a biracial woman, and the predicaments she gets herself into with her friends, family, and complete strangers." Hayley was to be a millennial "who lives in the grey area of ‘Feeling extremely self-confident,’ and ‘Waking up at 4AM to delete all the stupid shit you said on Instagram when you were feeling yourself.’ " The deck described other characters including Hayley’s white mother, black father, white half-sister, aunts, fiancé, and best friend. The deck included a meme-style picture, presumably of Norman as a child, with messy hair escaping an off-center ponytail. The picture included the words, "when ur mom is white and does ur hair for class picture day."
The deck stated that each episode of Tragic would start with a flashback to the life of "Young Hayley": "Every episode begins with a flashback into Hayley’s uniquely diverse and comically misguided coming of age (i.e.[, t]he time her elementary school teacher wouldn’t let her choose both black and white on a standardized test … )." In one plot idea, a neighbor watches Young Hayley as she enters another neighbor’s house to water the plants. In the present day, Hayley is shopping for wedding dresses and accuses a salesperson of following her because she’s black; a video about the incident goes viral. Another episode’s plot involves Christmas; in flashbacks, Young Hayley’s white family takes her to see a white Santa Claus and her black family takes her to see a black Santa Claus. In the present day, Hayley’s family gets upset when Hayley says she is not a Christian. In a third episode, Young Hayley runs for fifth grade class president, but another student tells her black girls can’t be president. In the present day, "Hayley lectures all of her white friends on the importance of boycotting the Oscars for being #SoWhite, but then gets totallyyyy FOMO when none of them invite her to their viewing parties." In a fourth episode, Young Hayley gets detention for talking even though she is not the culprit. In the present day, Hayley is arrested for trying to take down a Confederate statue, and Hayley’s sister "starts an Etsy business with ‘Free Hayley’ t-shirts." The "season arc" includes an engagement party with Hayley’s and Sam’s families; "Hayley’s too outspoken, the families clash, a fight erupts, and Hayley and Sam are forced to take opposite sides … [Hayley will] impulsively call off the wedding."
In November 2017, Norman and Big Breakfast entered into an agreement, the "Term Sheet," to develop Tragic and sell it to a broadcaster, network, distributor, or other financier. Ross then got involved to help develop the project. Norman and Ross first met in January 2018 to discuss ideas about Tragic; throughout 2018, Norman had conversations with Ross, Dobbins, and Vogel about developing Tragic. In March 2018, Ross and Big Breakfast entered into a written agreement stating that Ross would assist with the development of Tragic, and in return would be attached to the series as an executive producer if it was set up with a financier.
In November 2018, a revised version of Tragic (now titled The Girl With the Hair) was prepared to pitch to financiers. In the revised version of the deck, Norman introduced herself/her character: "I’m Hayley Marie Norman, The Girl With The Hair," and described herself as "a biracial woman in a not-so-post-racial America, torn between two very different identities, but ever hopeful that I’ll eventually discover common ground with my family, friends and, more often than you’d expect, complete strangers!" The deck stated that Hayley was raised by her single, white mother "in a conservative, homogenous Los Angeles suburb," "Nobody in Agoura Hills, or even my own house for that matter, looked like me," and "I didn’t even know I was black!" The show was to focus on "Hayley’s personal exploration of ‘belonging’ [which] will, naturally, bring up racially charged social interactions that are ripe for commentary." The show would be "driven by Hayley’s comically honest, and immensely personal, experiences. [¶] The series is Curb Your Enthusiasm if Larry David was lovable. And half-black. And larger than life."
Multiple versions of a deck are included with Norman's declaration, but it is unclear which one was the final version.
Hayley’s white mother was to be a "neurotic[] catastrophizer" who lives with a long-term boyfriend. Hayley’s black father was to be an unreliable "sweetheart" who loves gambling. Hayley’s fiancé, Sam, was to be a musician and former addict who is "very white." The deck asked, "[C]an Hayley really claim that she’s pro-black when her own fiancé is white? Even her pussy is colonized!" One episode proposal suggested that Sam, a former heroin addict, was curious about trying ayahuasca; Hayley tries it and has a bad trip. Hayley’s half-sister, who in the revised version of the deck is a black character named Jazmyn, "has a quick wit and is Black Twitter famous"; she’s "eager to date but can’t seem to find a black man she doesn’t think is a ‘fucknigga.’ " Ross was to play a fairy godmother and mentor who "materializes, Cheshire Cat style—hair first, then the rest of her fills out."
Again the deck stated that each episode would begin with a flashback to Hayley’s "comically misguided coming of age," such as "the time her elementary school teacher wouldn’t let her choose both the black and white race boxes on a standardized exam." One episode idea was described in detail. The episode would begin with a flashback in which Hayley’s white friends were shoplifting at a drug store, but Hayley was detained for it. In the present day, Hayley uses a lipstick at a store that is not a tester, and when a sales associate confronts her, Hayley says she didn’t do it and "go[es] on an epic rant … about the epidemic and dangers of not believing black women." Hayley then lies about having a medical condition in an audition in an attempt to land the part of a "real patient" in a commercial. Another episode includes the class president/Oscars idea described above, but with Hayley’s black half-sister Jazmyn stepping in to show Hayley "all the best classic black films that Hayley missed out on in her childhood (and which she’s spent her whole life pretending to have seen …)." A third episode idea includes Hayley being "forced to spend Thanksgiving with Sam’s Trump supporting Evangelical family in the corn fields of Illinois."
A written discussion portion of the pitch included a conversation-style narrative about the show, including jokes, among Ross, Norman, and others. In it, Norman stated that when she discussed the show idea with Ross, Ross "told me that she too has struggled with the same identity issues I struggle with and that every person who doesn’t fit neatly into some preconceived box struggles with…. And she too has dealt with feelings of rejection, and insecurity, and being around black people and having to secretly look around to make sure they didn’t catch her accidentally clapping off beat." Ross agreed that "[i]t is a real thing that white people clap to music on the 1 and 3 counts, where black people clap on the 2 and 4." Hayley also said, "I wanted to be cute like Cher from Clueless but people just thought I was the babysitter (or alt joke: ppl just looked at me like then unpopular unattractive [sic] black character)." Norman said she tried to fit in by "bleaching my hair and wearing green contacts to try to pass for white and then a month later, when that didn’t work, getting cornrows and speaking with an affectation to try to pass as fully black." Vogel stated that the show represents "a story that has never been told. Anywhere. On any platform. I mean, the idea has been touched on, but it’s not an identity that’s been explored in the way it deserves, reflecting all of the dimensions of a modern, mixed-race experience."
In November 2018, Ross and Norman pitched Tragic to Showtime, Netflix, HBO, Hulu, Amazon, and Starz as potential financiers. All six companies eventually passed on Tragic.
4. Mixed-ish is developed as a spinoff of Black-ish
According to defendants, in August 2018, producer and director Randall Winston pitched a spinoff idea to Black-ish creator Barris. Winston’s idea was to do a retrospective, coming-of-age show in the style of The Wonder Years depicting Bow’s childhood growing up in suburbia with hippie parents of different races. Winston stated in a declaration that he did not know Norman or Ross, and he was unaware of Norman’s ideas involving Tragic. At Barris’s request, Dobbins, who also managed Barris, pitched the idea to ABC.
There was an earlier spinoff of Black-ish as well. In January 2018, a series called Grown-ish began to air; it focuses on Bow and Dre’s adult daughter, Zoey.
ABC liked the idea, and initially developed it in a script intended for season 5, episode 24 of Black-ish, titled "Becoming Bow." The episode was shot beginning in March 2019. ABC ordered a full season of Mixed-ish, and "Becoming Bow" was aired as the first episode of Mixed-ish in September 2019.
"Becoming Bow" began with the family from Black-ish (Dre, Bow, and some of their children) discussing Bow’s childhood. Bow mentioned that she lived on a "commune" and that she never would have met Dre "if the elders hadn’t gotten arrested."
The scene flashed back to show Bow as a 12-year-old child, with a voiceover by Ross, stating that her childhood was "anything but normal." Young Bow was with other people of all ages and races wearing white gowns, dancing together, and holding hands. Bow’s voiceover explained that she lived on a commune, separate from the problems of the rest of the world—a "hippie, judgment-free utopia where love ruled all." She continued, "There was no racism, no sexism, and everyone was truly equal." But the government considered them a "radicalized cult" and raided the compound. Ross’s voiceover stated, "In the summer of 1985, I was 12 years old. And my life changed forever."
Young Bow, her parents (Paul and Alicia), her younger brother Johan (age 7), and their younger sister Santamonica (age 5) moved to Paul’s father’s "rental house" in a nondescript suburb, which Bow said felt like "a whole other planet." Young Bow, Johan, and Santamonica were fascinated with things like electric lights and flush toilets. As the episode progressed, Ross’s voiceover explained that her father Paul and mother Alicia met at Berkeley law school; Paul dropped out "as a protest against the glass ceiling of classism," and Alicia graduated. Paul’s father, Harrison, was introduced as an "ambulance-chasing multimillionaire owner of a personal injury law firm" who "might’ve voted for Reagan, but he loved his brown grandkids." Later, Harrison, acting very amped up, said to Alicia, "I do cocaine."
Young Bow and her siblings began attending school, where they were "introduced to the real world." As the three children walked through a cafeteria with black kids sitting on one side and white kids sitting on the other, Ross’s voiceover stated that the siblings were faced with "a question that would follow us for the rest of our lives": what it means to be "mixed." The voiceover explained that "growing up on the commune, race wasn’t a thing." And because Loving did not legalize interracial marriage until the 1960s, Bow and her siblings "were basically the beta testers for biraciality." The voiceover said, "Imagine being the new kid when no one in the world is like you. Not even your parents." Johan and Santamonica each decided to "pick a side"—Johan began sitting with the black kids and Santamonica began sitting with the white kids. Back at home, Bow told her father she was struggling because "I feel like if I choose being white, I’m giving up on mom. And if I choose being black, I’m giving up on you." Both parents reassured Bow that together they would find a way to move forward.
The series remained set in 1985, with Bow as the main character living with her parents and siblings as they attempted to navigate the culture clashes arising from moving from a commune to an American suburb, and from being mixed-race. Ross’s voiceovers continued to narrate the episodes and explain historical context. Two extended family members regularly visited the family: Alicia’s sister Denise, and Paul’s father Harrison, who also became Alicia’s boss when she began working for his law firm. Much of the familial conflict centered around the hippie parents’ views conflicting with the more mainstream ideas of Denise and Harrison.
Additional parts of Mixed-ish are relevant to Norman’s claims, including the following. In season 1, episode 2, "The Warrior," while Bow was still torn between choosing to assimilate with the white or black kids at school, she ran through one scenario in which she chose the white side, and a disembodied voice deemed her "as white as can be; I hope you enjoy clapping on the 1 and the 3." Season 1, episode 3, "Let Your Hair Down," focused on the children’s hair as school picture day approached, and the children’s struggle between being proud of their natural hair versus changing it to fit in with peers and popular styles. Episode 5, "All She Wants to Do is Dance," involved Bow asking her crush, a white boy, to a Sadie Hawkins dance.
Barris, Ross, and Peter Saji were credited with creating Mixed-ish.
B.Complaint
Norman alleged that in February 2019, she "learned from articles in the press that ABC was in development of a new series, a spin-off of ‘Black-ish,’ created by, among others, Ross and Barris, to be produced by Artists First, the sister company of Big Breakfast and which represents both Ross and Barris. And, this supposed newly-created show was going to be about exactly what [Tragic] is about - a 30-minute sitcom that, employing flashbacks, follows the journey of a mixed race female protagonist as she grapples with her biracial identity while living [in] the suburbs surrounded by both sides of her African American and Caucasian families." Norman alleged that as she shared her ideas about Tragic, "Big Breakfast, Dobbins, and, .. Ross portrayed themselves as friends and mentors to Norman, while at the same time they were plotting and scheming to steal her show and pass it off as their own."
On September 18, 2020, Norman filed a complaint alleging eight causes of action against Big Breakfast, Ross, Barris, Dobbins, Artists First, and ABC. Her first cause of action for breach of written contract and second cause of action for breach of the implied covenant of good faith and fair dealing against only Big Breakfast are not at issue in this appeal. In short, they alleged that Big Breakfast breached its contract with Norman and acted in bad faith by allowing its sister company, Artists First, to exploit Tragic without involving or compensating Norman.
In Norman’s third cause of action for promissory estoppel against Ross, Norman alleged that Ross "made a clear and unambiguous promise to Norman that she would help guide Norman and ensure that [Tragic] would be developed with Ross’s experienced knowhow in the entertainment industry." Norman alleged that in reliance on those promises, she shared her creative ideas with Ross and "continued to work with her on the project." Norman alleged she suffered damages as a "direct and proximate result of Ross’s actions."
In her fourth cause of action for breach of implied-in-fact contract against Big Breakfast, Ross, Barris, and Artists First, Norman alleged "it was agreed, understood, conveyed by Norman, or otherwise implied, that if any of the above-mentioned parties intended to utilize any element of [Tragic, they] would obtain Norman’s consent and .. she would be duly compensated, would be a producer on the series, and would be given both an acting role and proper screen credit." Norman alleged these defendants "breach[ed] the implied contract by accepting the idea" for Tragic, "and then proceeding to write, develop, produce, distribute and exploit Norman’s submission with [sic] obtaining her consent, without compensating her for her submission of these materials, … and without giving her an acting role and screen credit."
In her fifth cause of action for breach of confidence against Big Breakfast, Ross, Barris, and Artists First, Norman alleged she provided information about her ideas for Tragic with the understanding that these defendants would "treat her ideas and work product as proprietary and confidential," and "would not disclose or otherwise utilize her ideas and work product unless such disclosure and utilization was on her behalf with compensation, an acting role, a producer role, and screen credit." Norman alleged these defendants "intentionally used Norman’s ideas and work product … to their own advantage in developing ‘Mixed-ish’ [which] constitutes a breach of the confidential relationship between Norman and Defendants."
In her sixth cause of action for intentional misrepresentation against Big Breakfast, Ross, Dobbins, and Artists First, Norman alleged, "Big Breakfast represented to Norman that should Big Breakfast be able to set up Norman’s Series with any entity for the purpose of exploiting such series, Norman would be attached to the project as executive producer, writer, and actress. Big Breakfast further represented to Norman during these negotiations and continuing during the term of the Agreement that it would use its best efforts to ensure that Norman’s position would be protected and that she would benefit from any sale of her senes." Ross and Dobbins also promised to help Norman develop Tragic, Norman contended that "[t]hese representations and omissions were false and defendants … knew them to be false and fraudulent because defendants … knew at the time of some or all of these representations and omissions that they intended to appropri- ate [Tragic] for themselves without having any intention of attaching Norman in any manner to the series ‘Mixed-ish.’ "
In her seventh cause of action for intentional interference with contract against Ross, Barris, Artists First, and ABC, Norman alleged that she and Big Breakfast had a contract (the term sheet), the named defendants knew of the contract, and they "intended to disrupt and interfere with the performance" of the contract by "engaging in a scheme to rip off" Tragic. Norman alleged that defendants knew she would be harmed, and she was in fact harmed.
In her eighth cause of action for inducing breach of contract against Ross, Barris, Artists First, and ABC, Norman alleged the defendants knew about her contract with Big Breakfast, "induced Big Breakfast, and its representatives, not to perform under the terms of the Agreement and to deny Norman all of her benefits outlined by said Agreement." She asserted that the defendants "intended to influence, direct, or cause Big Breakfast to commit the above-described breaches because they knew that each of them would benefit from such breaches. Among other benefits, Ross and Barris are credited as creators of ‘Mixed-ish,’ Ross is the on-screen narrator of ‘Mixed-ish,’ Artists First is credited as a producer of ‘Mixed-ish,’ and ABC is the network on which ‘Mixed-ish’ airs. Defendants receive revenue from the production and distribution of ‘Mixed-ish, thereby enriching themselves at the expense of Norman."
For each cause of action, Norman asserted she had been damaged "in an amount equal to at least $5,000,000." She also asserted punitive damages allegations. Norman requested restitution of "all monies made pursuant to defendants’ unjust enrichment," as well as costs, attorney fees, interest, and any other damages the court deemed appropriate.
C. Special motions to strike
[1–6] All defendants except Big Breakfast filed three special motions to strike under the anti-SLAPP statute, section 425.16: one by ABC, one by Barris, and one by Ross, Dobbins, and Artists First. "Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, 205 Cal.Rptr.3d 475, 376 P.3d 604 (Baral).) "The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ " (Id. at pp. 384-385, 205 Cal.Rptr.3d 475, 376 P.3d 604.) When "claims are stricken from the pleadings for lack of merit, [the plaintiff] may no longer seek to impose liability on defendants for having engaged in these protected acts." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1019, 281 Cal.Rptr.3d 678, 491 P.3d 1058 (Bonni).)
Section 425.16, subdivision (e) describes four categories of protected activities "in furtherance of a person’s right of petition or free speech," including "(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public inter- est, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
1. Step one: Arising from protected activity
Regarding the first step of the anti-SLAPP analysis, the moving defendants asserted that the gravamen of Norman’s claims was that the defendants stole Tragic and used it to create Mixed-ish. They argued that Norman’s claims therefore arose from protected activity because Mixed-ish was a "written or oral statement … made in a place open to the public or a public forum in connection with an issue of public interest" under section 425.16, subdivision (e)(3). Defendants also asserted that all parts of developing and creating the show, including its casting and any broadcast, constituted conduct in furtherance of free speech in connection with an issue of public interest under section 425.16, subdivision (e)(4).
The moving defendants are represented by the same counsel, they each incorporated the other motions, and their arguments overlap. We refer to them hereinafter as "defendants." With their motions, defendants filed over 800 pages of supporting documents, and a USB drive containing four full seasons of Black-ish and one full season of Mixed-ish.
Defendants noted that the causes of action for promissory estoppel and intentional misrepresentation were based on defendants’ actions in collaborating with Norman for purposes of developing Tragic, which was protected activity. Defendants argued that Norman’s causes of action for breach of implied-in-fact contract and breach of confidence arose from these defendants’ purported use and disclosure of Tragic materials in the making of Mixed-ish, which was also protected activity. Finally, they argued that the causes of action for intentional interference with a contract and inducing breach of contract arose from the alleged scheme to "rip off’ Tragic and in producing Mixed-ish, which was protected activity.
2. Step two: Probability of success
Moving to the second step of the anti-SLAPP analysis, defendants asserted that Norman did not have a probability of prevailing on any of her causes of action.
Barris submitted a declaration stating that he never received the materials for Tragic, and that Mixed-ish was created from characters and themes that had been central to Black-ish for years: "We developed Bow as a character over many episodes and seasons of Black-ish." Dobbins stated in a declaration that he "never pitched or discussed Tragic/The Girl With The Hair with Mr. Barris, and I never sent any of the materials to him."
Producer and director Randall Winston submitted a declaration that he worked with ABC from about June 2018 to June 2020. He stated that he had long wanted to do a television series about "growing up as an African-American in a largely white suburb during the 1970s and ‘80s." Winston said he "conceived the idea of producing a television comedy series that would draw upon those experiences, using a Wonder Years format," a coming-of-age show narrated retrospectively by an adult looking back on childhood experiences. He "realized that the ‘Black Wonder Years’ idea could be done through ABC’s current television series, Black-ish," focusing on Bow’s background.
Winston stated that he pitched the idea to Barris the week of August 12, 2018. Winston stated that "Peter Saji, a writer and producer on Black-ish, later came on board to co-write the script for the episode that eventually became titled ‘Becoming Bow.’ The plan was for the episode to be aired as part of Black-ish (the final episode of the season then ailing), and that based on that episode, ABC network would decide whether or not to order additional episodes or a series." Winston stated that he had never heard of Norman, he had never received Norman’s ideas, and he was not aware of any materials relating to Tragic.
Winston’s assistant, Daniel Samiljan, submitted a declaration supporting Winston’s version of events.
Syndee Rimes, Vice President of Current Programming for ABC, stated in a declaration that Black-ish season 5, episode 24 was titled "Becoming Bow" and was shot starting in March 2019. Rimes stated, "In May 2019, after viewing the episode, ABC Network ordered it to series, and ABC Network decided to air the ‘Becoming Bow’ episode as the first episode of’ Mixed-ish, Rimes also stated, "Big Breakfast was not and has never been involved in the production or distribution of ‘Becoming Bow’ or Mixed-ish. Mixed-ish is a spin-off of Black-ish, not a television series project called ‘Tragic’ or ‘The Girl With The Hair’ relating to Plaintiff or Big Breakfast."
Ross submitted a declaration stating that she had played Dr. Rainbow "Bow" Johnson on Black-ish since 2014, and the "fact that Bow is mixed and not completely black has been a running theme starting with the Black-ish pilot." Ross stated that like the character Bow, she is also biracial. Ross also noted that she "founded a natural hair product company called Pattern Beauty for people with curly hair," and "[t]he Pattern Beauty product line has been a huge success and well received by many curly/coil/textured-haired consumers."
Ross also stated in her declaration that she was approached about helping to develop Tragic, and "[i]n return for contributing to the development, I would be attached to the Tragic Series as an executive producer, conditioned on Big Breakfast being able to set up the series with a Financier (e.g., broadcaster, online streaming platform or studio) and on me reaching an agreement about such attachment with the Financier." Dobbins stated that in late 2017, he received the Tragic materials with a request that he send them to Ross. Dobbins did so.
Ross stated that in 2018 she entered into an agreement with Big Breakfast to help develop Tragic, and "[o]ver the course of 2018, I contributed my ideas, input, experience, and knowhow to develop Tragic/The Girl With The Hair." Ross stated, "On November 12 and 13, 2018, I participated in two days of pitches of The Girl With The Hair to Showtime, Netflix, HBO, Hulu, Amazon, and Starz as potential Financiers. I did my best to try to persuade these companies to accept Tragic/The Girl With The Hair, However, I later learned that all of them had passed." She continued, "I did not disclose any of the materials, elements, or ideas from Tragic/The Girl With The Hair or anything about Ms. Norman to Kenya Barris, Randall Winston, or Peter Saji. Nor did I use any of the materials, elements, or ideas from Tragic/The Girl With The Hair or Ms. Norman to create Mixed-ish."
Luke Kelly-Clyne, president of Big Breakfast, submitted a declaration stating that for certain projects, "Big Breakfast acquires the exclusive rights to creative projects and content … for Big Breakfast to then develop and shop to distributors or other financiers (‘Financiers’)…. That was the case with the television series project that relates to Plaintiff Hayley Marie Norman, which was initially called ‘Tragic.’ " Kelly-Clyne continued, "Big Breakfast had no agreement or understanding with Ms. Norman that Big Breakfast could not, without Ms. Norman’s consent, develop or become involved with another project that used elements or ideas also in or relating to Tragic." Kelly-Clyne discussed reaching out to Ross regarding Tragic, and stated, "As Big Breakfast had the exclusive rights to Tragic and owned the development, we did not communicate to Ms. Ross or her manager Brian Dobbins at [Artists First] that the Tragic project or ideas were Ms. Norman’s proprietary and confidential information." He stated that no one at Big Breakfast spoke with Barris or Saji about Tragic or sent them any materials regarding Tragic. He also stated, "Big Breakfast did not set up Tragic/The Girl With The Hair, under any title, with ABC Studios or ABC network, either directly or through Artists First, Brian Dobbins, or any other entity or person." Kelly-Clyne stated that Big Breakfast had no role in developing Mixed-ish or any Black-ish episodes.
In their special motions to strike, defendants argued that in light of this evidence, Norman could not demonstrate a probability of success. For the promissory estoppel cause of action, defendants asserted that Ross’s alleged promises to "help guide" Norman and "develop" Tragic were far from the "clear and unambiguous" promises required for a promissory estoppel claim. They also asserted that Norman could not show detrimental reliance, because the Tragic materials were sent to Ross before Ross and Norman spoke, and "Ross’s purported promise did not induce ‘a change of position.’ "
As to Norman’s cause of action for breach of implied-in-fact contract, defendants asserted that Norman could not establish that she conveyed her ideas to defendants based on an agreement to pay for those ideas if used. Defendants argued that based on Norman’s agreement with Big Breakfast (BB), she "granted the exclusive rights to all pre-existing materials to BB and agreed to develop Tragic for BB, which BB would own," which undermined Norman’s claims that she offered to provide her ideas to defendants for compensation.
Defendants also argued that Norman could not prove defendants used Tragic because she could not demonstrate that the two series were substantially similar. They relied in part on Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal. App.4th 1064, 1072-1073, 201 Cal.Rptr.3d 110 (Ryder), which states that when a plaintiff alleges the defendants used the plaintiff’s ideas without permission, such a claim "requires proof that defendants used his [or her] ideas," and "‘use’ of an idea can be inferred from evidence showing the defendant had access to the plaintiff’s idea and the parties’ ideas are similar." Ryder also requires works to be "substantially similar." (Id at p. 1073, 201 Cal.Rptr.3d 110.)
Defendants asserted that Norman could not make such a showing, and pointed out several differences between the two series. For example, while Tragic was intended to be set in the present day, focused on the life of adult Hayley, and include flashbacks to Hayley’s past, Mixed-ish was entirely set in 1985 and proceeded linearly from the time Bow’s family moved from the commune to the suburbs. Another example was that "Mixed-ish presents a cohesive nuclear family as the place where identity can safely develop. Tragic is the opposite: It stresses dysfunction, familial and per- sonal. Themes about identity and belonging were in Black-ish, but in any case, such a broad similarity is not actionable."
Defendants also noted that Mixed-ish was based on characters that had been created and developed years before Norman created Tragic. Defendants noted that Bow’s mixed race and issues of her fitting in with Dre’s black family due to her unique background were running themes in Black-ish. Defendants argued that certain elements of Tragic—such as the mixed-race protagonist addressing issues of belonging, not fitting in, and not knowing which "race" box to pick on a school form—had specifically been explored in the "Being Bow-racial" episode of Black-ish. Defendants also noted that Black-ish was about a black family living in a majority white suburb.
As to Norman’s breach of confidence cause of action, defendants asserted that Norman "cannot show that the Tragic elements allegedly used in Mixed-ish were her confidential and novel information, including because Barris had already created Bow and her backstory in Black-ish. The Norman/BB Agreement also gave BB the exclusive rights without an obligation of confidentiality, and BB did not give actual notice to [Artists First] and Ross that the idea of a mixed-race woman grappling with her biracial identity or other ideas were Plaintiff’s confidential property."
Regarding Norman’s cause of action for intentional misrepresentation, defendants asserted that Norman could not show misrepresentation, detrimental reliance, or damages. Defendants argued that Ross and Dobbins did assist in developing Tragic, so any alleged promises to help develop Tragic could not be misrepresentations. Defendants further asserted that "[t]here was no detrimental reliance, because BB disclosed Tragic to Ross, Dobbins, and AF before they allegedly made any promise, and BB already controlled Tragic" at the time.
Regarding intentional interference with contract and inducing breach of contract, defendants asserted that none of the defendants knew the terms of the contract between Norman and Big Breakfast. They also asserted that Norman could not prove that defendants’ actions actually disrupted the contract.
Defendants further asserted that all of Norman’s claims were preempted by the Copyright Act.
D. Norman’s motion seeking discovery
Norman moved for an order allowing discovery regarding the creation of Mixed-ish; the timing of when defendants were apprised of the existence of the contract between Big Breakfast and Norman; and the relationship between Big Breakfast, Artists First, and their parent company, Electus. Norman asserted that because defendants claimed to have no knowledge of Norman’s agreement with Big Breakfast, she should be able to conduct discovery as to what defendants knew and when they knew it. She also asserted that Big Breakfast "is part of a family of companies owned by Electus, LLC, to which Defendant Artists First (also owned by Electus) also belongs, and who Norman alleges were all acting on behalf of one another on the Norman Series." Norman proposed 16 categories of document requests and asked to depose 11 witnesses, including Ross, Dobbins, Barris, and Winston.
Defendants opposed Norman’s motion, characterizing it as "fishing-expedition requests for unspecific, sweeping, and highly burdensome discovery." According to a minute order, the court granted the motion for limited discovery, and denied the remainder. There is no clear court order in the record detailing which parts of the motion were granted and which were denied.
E. Norman’s oppositions to the special motions to strike
1. Step one: Arising from protected activity
In her oppositions to defendants’ motions, Norman asserted that the anti-SLAPP statute did not apply to any of her causes of action. She argued that the "gravamen of each cause of action in [the] Complaint is each of the Defendants’ failure to compensate her," which "does not implicate the anti-SLAPP statute." She also asserted, "All of Norman’s claims arise from Defendants’ failure to compensate Plaintiff for use of her ideas…. Had Defendants compensated Norman, there would not have been a lawsuit."
Relying heavily on an unpublished case from the Central District of California, Jordan-Benel v. Universal City Studios, Inc. (C.D. Cal., June 24, 2015, No. CV-14-5577-MWF MRWX) 2015 WL 3888149 aff’d (9th Cir. 2017) 859 F.3d 1184, Norman argued, "The failure to compensate Norman pursuant to private interactions between the parties (whether in contracts or tort) is not activity that implicates the anti-SLAPP statute." She also asserted, "it is not the act of making Mixed-ish that is the ‘principal thrust’ of the Complaint, but Defendants’ failure to pay for the use of her ideas."
2. Step two: Probability of success
In support of her opposition, Norman submitted a declaration discussing her creation of Tragic, and her work with Big Breakfast and Vogel, and eventually Ross, to develop it. She attached various communications with Vogel and Ross, multiple versions of the Tragic deck, and her agreement with Big Breakfast.
Norman argued that none of her claims was preempted by copyright law. She also disagreed with defendants’ argument about prior creation, asserting, "Mixed-ish was not created in a 2016 episode of Blackish merely because a Mixed-ish character appeared in a single episode of Black-ish."
Norman acknowledged that a substantial similarity finding was required to show use of an idea, but asserted that "finding one substantially similar element is enough." In her declaration, Norman asserted that Tragic and Mixed-ish included numerous similar elements, including, "The macroelement contained in all of the materials regarding [Tragic] … includes the ‘way in’ to the show-meaning flashbacks (Mixed-ish is one big flashback) and telling this story from a mixed-race female’s viewpoint and having her conflicting black and white backgrounds portrayed by both sides of her white and black family." Norman also included a 30-point detailed list of items that she alleged were similar in the two series, including "the protagonist’s desire to fit in and not knowing where she belonged"; "[Tragic] opens with a flashback of the main character at 12 years old—Mixed-ish begins with the Rainbow character being 12 years old"; interracial dating generally, and specifically 12-year-old Bow asking a white boy to a dance and Hayley’s fiance being white; Mixed-ish’s episode about hair on school picture day and Norman’s meme about hair on school picture day; "[t]he idea of belonging"; a joke about clapping on the 1 and the 3; the protagonist experiencing self-doubt; not understanding black friends’ references; the setting of Mixed-ish is suburban and Hayley of Tragic grew up in the suburbs; conservative in-laws; grandparents who suffer from addiction; "[t]he whole idea of not being aware of your race is lifted from [Tragic]"; feeling like one is forced to "choose sides" or choose a parent; and trying to fit in with racial stereotypes.
Norman asserted in her declaration that when she sent the Tragic materials to Vogel at Big Breakfast, she did so "with the understanding that pursuant to the custom and practice of the entertainment industry, they would be kept confidential and not used without payment to me." She stated that according to her November 2017 agreement with Big Breakfast, "I granted BB the right to use the Pre-Existing Materials for the sole purpose of bringing [Tragic] to air. Any materials developed during the term of the Agreement (the ‘Pitch Materials’) were the property of BB subject to a reversionary right in my favor." Norman stated that all rights to the materials had since reverted to her.
Norman stated that after Ross had received the Tragic materials, Norman’s "goal was to sell the series to Ross by … sharing ideas, concepts, and stories about [Tragic] directly with her. I understood like I did for my disclosures to BB, that my sharing of my materials was done on a confidential basis and that none of these materials would be used without me being paid pursuant to the custom in the entertainment industry," Norman argued in her opposition that "Ross knew or should have known that Norman’s disclosures were confidential and that Ross could not use the materials disclosed without including and compensating Norman, thus establishing an implied contract." She also argued that her agreement with Big Breakfast had no effect on her ability to contract with defendants.
Norman further contended that she had established her cause of action for breach of confidentiality, because defendants knew the disclosures were confidential. She relied in part on a declaration from an expert witness, Richard Marks, who stated that such materials are typically considered confidential.
Norman asserted that she showed a probability of prevailing on her promissory estoppel and intentional misrepresentation causes of action because "Ross stated, among other things, that she would ensure that Norman would be ‘attached’ to the production of’ Tragic but "Norman was not." Norman also asserted that Ross used parts of Tragic as creator and executive producer of Mixed-ish. Norman further contended that she demonstrated a probability of success on her interference with contract and inducing breach of contract claims because "The interference and the breach are that [Tragic], in the disguise of Mixed-ish, was made without Norman being compensated."
Norman objected to some of defendants’ evidence. Defendants filed replies and supplemental declarations, and also objected to some of Norman’s evidence.
F. Court ruling
Following a hearing, the trial court issued a written ruling granting the motions in part. The court began with the first step of determining whether the claims arose from protected activity. The court interpreted Norman’s fourth cause of action for breach of implied-in-fact contract as a mixed cause of action. It relied on Jordan-Benel v. Universal City Studios, Inc. (9th Cir. 2017) 859 F.3d 1184 (Jordan-Benel), the Ninth Circuit case affirming the district court case Norman cited. The court agreed with Norman that "[t]he alleged harm is the defendants’ failure to pay for the use of the idea. The claim that the defendants failed to pay ‘does not challenge the activity of filmmaking at all,’ " and therefore did not constitute protected activity under section 425.16. The court concluded that the remainder of Norman’s allegations in that cause of action, "the alleged wrongful acts of using the ideas [from Tragic] without [Norman’s] consent and failing to give [Norman] an acting role, a producing role and screen credit" constituted protected activity under section 425.16.
The court noted that Norman’s fifth cause of action for breach of confidence did not include a failure-to-pay element, and therefore did not fall under the Jordan-Benel exception. It stated however, that if Norman "intends this cause of action to allege as the wrongful acts a failure to pay and give her an acting role, producer role, and screen credit, then it is duplicative of the fourth cause of action, and the conclusions above apply." The court did not state a clear finding as to whether the step one burden was met for the breach of confidence cause of action. The court also held that Norman’s remaining causes of action arose from protected activity, and therefore that defendants met their burden under the first step of the anti-SLAPP analysis.
Turning to the second step, the court held Norman had demonstrated a probability of success on her causes of action for breach of implied-in-fact contract and breach of confidence. The court stated that Norman’s "evidence of the communication and collaboration among [Norman], Ross, and Dobbin[s] allows an inference that Ross and Dobbins accepted the disclosure of her ideas and materials with the understanding [Norman] expected to be involved in the series and paid if they were used. [Citation.] Plaintiff also submitted evidence her ideas were used in ‘Mixed-ish.’ " However, Norman "did not show she had any communications of any kind with Barris," and "did not show Dobbins was involved in the conversations with her on behalf of Barris." Thus, the court held that Norman demonstrated a probability of prevailing against only Ross and Artists First.
Regarding substantial similarity, the court stated, "The core of both works focus on a mixed-race character trying to figure out how she fits in, dealing with parents of different races, and navigating in white and black worlds. Some of the plot points, such as involving hair and dating a white person, are similar. Both use the ‘gimmick’ of flashbacks…. [H]aving a main character of mixed-race with the theme of the series focusing on what it means to be mixed-race was unusual… There are enough similarities that a jury could [find] the defendants used at least some of [Norman’s] ideas, and so the Court cannot conclude as a matter of law that the works are not similar enough." The court cited Norman’s declaration in support of this ruling. The court also held that Norman’s claims were not preempted by copyright law. For the cause of action for breach of implied-in-fact contract, therefore, the court denied the motion as to Ross and Artists First, and granted the motion as to Barris.
Turning to the cause of action for breach of confidence, the court stated, "To prove a cause of action for breach of confidence, the plaintiff must show she offered an idea to the defendant in confidence, and the defendant voluntarily received the idea in confidence with the understanding that it was not to be disclosed to others and not to be used by the offeree for purposes beyond the limits of the confidence without the offeror’s permission." The court stated that Norman "did not show the existence of an implied-in-fact contract to keep the material confidential, because she did not submit evidence that she requested her ideas be kept confidential when she disclosed them to Ross and Dobbins." The court also stated that Norman did not establish that "custom and practice creates a duty of confidentiality," or that any special relationship between her and the de- fendants gave rise to a duty of confidentiality.
Although these statements would seem to suggest that Norman could not succeed on her breach of confidence cause of action, the court nevertheless stated that Norman "satisfied her minimal burden as to Ross and Artists First, but not as to Barris for the reasons stated above."
The court then turned to the causes of action for promissory estoppel against Ross, and intentional misrepresentation against Ross, Dobbins, and Artists First. The court held that although Norman said in her declaration that Ross made certain promises about guiding her through the process of developing Tragic, Norman did not say that she relied on Ross’s statements to her detriment. In addition, Norman offered no evidence of misrepresentations by Dobbins. Thus, the court held that Norman failed to show a probability of prevailing on these causes of action.
Turning to the causes of action for intentional interference with contract and inducing breach of contract against Ross, Barris, Artists First, and ABC, the court stated that Norman "did not submit evidence that Big Breakfast failed to perform or breached its contractual relationship as a result of the defendants’ actions." Norman also "did not submit evidence that Big Breakfast would have successfully placed [Tragic] with a network or production company if the defendants had not started working on ‘Mixed-ish’ or that Big Breakfast abandoned her contract because of ‘Mixed-ish’ or any actions by the defendants." The court therefore granted the motions as to these causes of action.
Ross and Artists First timely appealed the court’s order denying their motion as to the causes of action for breach of implied-in-fact contract and breach of confidence. Norman timely cross-appealed the court’s order granting the remainder of the motions. The remaining defendants then cross-appealed the court’s rulings on their evidentiary objections and Norman’s discovery motion.
G. Motion for attorney fees
Defendants filed motions for attorney fees, which are discussed more fully below. (See § 425.16, subd. (c)(1).) In short, defendants requested a total of $436,196.88 in attorney fees. Norman opposed the motions. In a written ruling, the trial court granted defendants’ motions for fees in part. The court awarded defendants a total of $125,000 in attorney fees, and stated, "Because defense counsel did not maintain separate billing records for each Defendant, defense counsel is in a better position to determine how to allocate that award among Defendants."
Judgment was entered in favor of Barris, including $35,714.29 in attorney fees; ABC, including $17,857.14 in attorney fees; and Dobbins, including $8,928.57 in attorney fees. Norman filed a notice of appeal following the judgments. We consolidated the appeals.
DISCUSSION
A. Legal standards and standards of review
"A cause of action arising from a person’s act in furtherance of the ‘right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability’ that the claim will prevail." (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788, 249 Cal.Rptr.3d 295, 444 P.3d 97 (Monster Energy), citing § 425.16, subd. (b)(1).) Thus, anti-SLAPP motions under section 425.16 "are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061, 217 Cal.Rptr.3d 130, 393 P.3d 905 (Park).) "If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.’ " (Ibid.)
[7–10] "We review de novo the grant or denial of an anti-SLAPP motion. [Citation.] We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. [Citations.] In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. [Citations.] We do not, however, weigh the evidence, but accept plaintiff’s submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park, supra, 2 Cal.5th at p. 1067, 217 Cal.Rptr.3d 130, 393 P.3d 905.)
B. Step one: Arising from protected activity
In their appeal, Ross and Artists First contend the trial court erred in finding that they failed to meet their step one burden as to parts of Norman’s cause of action for breach of implied-in-fact contract. In Norman’s cross-appeal, she contends the trial court also should have included Barris in this finding. Norman further contends the trial court erred in finding that the defendants met their step one burden as to her causes of action for breach of confidence, promissory estoppel, intentional misrepresentation, intentional interference with contract, and inducing breach of contract.
[11] The parties agree that making a television series constitutes protected activity. (See, e.g. Musero, supra, 72 Cal. App.5th at p. 816, 287 Cal.Rptr.3d 625 ["Creating a television show is an exercise of constitutionally protected expression"]; Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143, 122 Cal.Rptr.3d 264 ["The creation of a television show is an exercise of free speech"]; Hunter v. CBS Broadcasting Inc. (2013) 221 Cal. App.4th 1510, 1521, 165 Cal.Rptr.3d 123 [casting decisions are protected activity]; De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 860, 230 Cal.Rptr.3d 625 [" ‘the First Amendment … safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays.’"].) Thus, to the extent Norman’s claims rest upon communications about developing Tragic or the making of Mixed-ish, that activity is protected.
Notably, Norman has not challenged whether the speech at issue implicated an issue of public interest. (See, e.g, FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at p. 149, 246 Cal.Rptr.3d 591, 439 P.3d 1156; Musero v. Creative Artists Agency, LLC (2021) 72 Cal. App.5th 802, 820-823, 287 Cal.Rptr.3d 625 (Musero).)
1. Breach of implied-in-fact contract
[12, 13] Norman contends that portions of her claims rely on unprotected activity—that defendants failed to pay her for their use of her ideas. This is the basis upon which the court partially denied Ross’s and Artists First’s motion below. This type of theory is sometimes referred to as a "Desny claim," after Desny v. Wilder (1956) 46 Cal.2d 715, 299 P.2d 257 (Desny). There, the Supreme Court said, "An idea is usually not regarded as property." (Desny, 46 Cal.2d at p. 731, 299 P.2d 257.) However, " ‘[e]ven though an idea is not property subject to exclusive ownership, its disclosure may be of substantial benefit to the person to whom it is disclosed. That disclosure may therefore be consideration for a promise to pay.’ " (Id. at p. 733, 299 P.2d 257.) Thus, "[t]he person who can and does convey a valuable idea to a producer who commercially solicits the service or who voluntarily accepts it knowing that it is tendered for a price should likewise be entitled to recover." (Id. at p. 734, 299 P.2d 257; see also Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184, 155 Cal. Rptr.3d 32 (Spinner) ["Plaintiff’s may therefore have a cause of action in contract for disclosing an idea to a defendant that uses that idea without compensation"]; Musero, supra, 72 Cal.App.5th at p. 810, 287 Cal.Rptr.3d 625 ["state law protection for ideas as property rights may exist if there was an express or implied-in-fact contract to pay for the disclosure of an idea"].)
[14] For a Desny claim based on an idea submission, "to prevail on a cause of action for breach of implied-in-fact contract, plaintiffs must show (1) they clearly conditioned the submission of their ideas on an obligation to pay for any use of their ideas; (2) the defendants, knowing this condition before the plaintiffs disclosed the ideas, voluntarily accepted the submission of the ideas; and (3) the defendants found the ideas valuable and actually used them—that is, the defendants based them work substantially on the plaintiffs’ ideas, rather than on their own ideas or ideas from other sources." (Spinner, supra, 215 Cal.App.4th at p. 184, 155 Cal.Rptr.3d 32; see also Esplanade Productions, Inc. v. The Walt Disney Co. (2023) 93 Cal.App.5th 793, 805, 311 Cal.Rptr.3d 350 (Esplanade Productions).)
The trial court found that Norman had alleged such a claim, in that Norman "wanted her idea to be made into a series. The complaint details the efforts she made shopping it around. [Record citation.] The alleged harm is the defendants’ failure to pay for the idea," which was not protected activity. The court continued, "The failure to pay [Norman] was not an act in and of itself in furtherance of free speech rights. [The] speech (the making and distribution of ‘Mixed-ish’) was a step before or led to the failure to pay…." Thus, "[t]he defendants did not carry their burden of showing that the failure to pay alleged in the fourth cause of action implicates the speech concerns of the anti-SLAPP statute."
In support of its conclusion, the trial court relied on Jordan-Benel, supra, 859 F.3d 1184. There, plaintiff Jordan-Benel wrote a screenplay for a film and sent it to United Talent Agency (UTA); "the submission was not gratuitous and was made for the purpose of selling the screenplay to a UTA client." (Id. at p. 1187.) Someone at UTA sent the screenplay to another UTA client, who then wrote a script titled The Purge. A film of the same name was made, a sequel was made, and another sequel was in the works at the time of the lawsuit. Jordan-Benel asserted that The Purge was based on the ideas in his screenplay. He sued UTA and others for copyright infringement, breach of implied-in-fact contract, and declaratory relief seeking a determination regarding his rights to credits and payment. (Ibid.) The defendants in Jordan-Benel filed an anti-SLAPP motion, arguing "that Jordan-Benel’s claims arise from the creation, production, distribution, and content of expressive works (The Purge films) and that such conduct falls squarely within the ambit of anti-SLAPP." (Id. at p. 1189.) The district court denied the motion. On appeal, the Ninth Circuit noted that Jordan-Benel had significantly limited his claims, and therefore "we only address whether anti-SLAPP applies to Jordan-Benel’s implied-in-fact contract claim in which Defendants’ failure to pay is the alleged breach." (Jordan-Benel, supra, 859 F.3d at p. 1189.) In considering the first step of the anti-SLAPP analysis, the court stated, "Whereas the creation of a film might be the basis for a copyright infringement claim, that act alone will not support an ‘idea theft’ breach of contract claim because the breach is not the defendant’s use of the idea. [Citation.] The breach is captured in that ‘extra element’—the failure to pay for the use of an idea after having made an implied promise to pay." (Id. at p. 1191.) The court found that "the conduct or act underlying Jordan-Benel’s breach of implied-in-fact contract claim is Defendants’ failure to pay for the use of the screenplay idea" because "the failure to pay was the specific act of wrongdoing alleged by Jordan-Benel to give rise to a legal claim." (Ibid.) The court continued, "Jordan-Benel’s claim does not challenge the activity of filmmaking at all. In fact, he desperately wanted the film to be made. Because the ‘overall thrust of the complaint’ challenges Defendants’ failure to pay for the use of his idea, we hold that the failure to pay is the conduct from which the claim arises." (Ibid.) The court held that because failure to pay is not protected activity under section 425.16 (id. at p. 1193), the defendants’ motion was properly denied.
Jordan-Benel was decided without our Supreme Court’s guidance in Park or Bonni ; the Ninth Circuit noted that at the time, "the anti-SLAPP statute and the California Supreme Court do not definitively answer the question of how to pinpoint the conduct from which a claim arises." (Jordan-Benel, supra, 859 F.3d at p. 1190.) We join our colleagues in Division Seven of this district in concluding that the reasoning of Jordan-Benel is no longer persuasive in light of that subsequent guidance. (See Musero, supra, 72 Cal. App.5th at p. 818, 287 Cal.Rptr.3d 625.)
The Supreme Court’s opinion in Park was issued on May 4, 2017, several weeks before the Ninth Circuit issued the opinion in Jordan-Benel on June 20, 2017. However, the Park opinion is not cited in Jordan-Benel.
The Jordan-Benel court considered the essence of the plaintiff’s claim to be failure to pay on a contract, based on the court’s understanding that it was required to determine which "specific act of wrongdoing [was] challenged by the plaintiff." (Jordan-Benel, supra, 859 F.3d at p. 1191.) In Park and subsequent cases, however, the Supreme Court has clarified that in a first step anti-SLAPP analysis, "courts should consider the elements of the challenged claim and what actions by the defendant supply those elements." (Park, supra, 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905; see also Bonni, supra, 11 Cal.5th at p. 1015, 281 Cal.Rptr.3d 678, 491 P.3d 1058 ["Courts deciding an anti-SLAPP motion … must consider the claim’s elements, the actions alleged to establish those elements, and whether those actions are protected"].)
As the Jordan-Benel court recognized, the elements of a Desny claim require use of the allegedly stolen ideas. (See Jordan-Benel, supra, 859 F.3d at p. 1191 ["To state a claim for breach of an implied-in-fact contract based on the submission of a screenplay, a plaintiff must allege that: (1) he submitted the screenplay for sale to the defendants; (2) he conditioned the use of the screenplay on payment; (3) the defendants knew or should have known of the condition; (4) the defendants voluntarily accepted the screenplay; (5) the defen- dants actually used the screenplay; and (6) the screenplay had value."].) Thus, any duty to pay Jordan-Benel necessarily arose because the defendants allegedly used his ideas in making The Purge films, which constituted protected activity. If there was no use of the ideas, there was no duty to pay; the two actions are inextricably intertwined within the theory of liability. The Ninth Circuit’s focus on one of these elements—duty to pay—to the exclusion of the other—use—does not comply with the Supreme Court’s guidance on first-step anti-SLAPP analysis.
The Jordan-Benel court also focused on the failure-to-pay aspect of the plaintiff’s claim because that "extra element" set it apart from a copyright claim. (Jordan-Benel, supra, 859 F.3d at p. 1191.) In essence, the court concluded that because a single element of the plaintiff’s claim involved non-protected activity, the defendants could not meet their step one burden. However, "[a]s Bonni and Baral instruct, whatever the purported ‘target’ of a cause of action, if protected speech activity supplies an element of the claim, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing on the merits." (Musero, supra, 72 Cal.App.5th at p. 819, 287 Cal.Rptr.3d 625; see also Baral, supra, 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475, 376 P.3d 604 ["When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage"].) Thus, if a single element of a claim does not involve protected activity, but the remaining elements of that claim do, the step one burden has been met.
[15] Here, the trial court followed the reasoning of Jordan-Benel, finding that the protected activity—the making and distribution of Mixed-ish by allegedly using Norman’s ideas—"was a step before or led to the failure to pay," and did not "transform the wrongful failure to pay into an act in furtherance of free speech." This was error. Assuming that Norman sufficiently alleged a Desny claim, the elements of that claim include that "the defendants found the ideas valuable and actually used them—that is, the defendants based their work substantially on the plaintiffs’ ideas, rather than on their own ideas or ideas from other sources." (Spinner, supra, 215 CalA.pp.4th at p. 184, 155 Cal.Rptr.3d 32.) Use of those ideas allegedly occurred in the production of Mixed-ish, which was protected activity.
"The defendant’s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884, 249 Cal.Rptr.3d 569, 444 P.3d 706.) Because defendants did so here, the trial court erred in finding that Ross and Artists First did not meet their first-step burden as to a portion of the cause of action for breach of implied-in-fact contract. We also reject Norman’s contention that Barris failed to meet his first-step burden as to this cause of action.
2. Breach of confidence
[16] In her breach of confidence cause of action against Big Breakfast, Ross, Artists First, and Barris, Norman alleged she disclosed her ideas about Tragic to defendants with an understanding that they would "treat her ideas and work product as proprietary and confidential and to be utilized by Defendants … to evaluate her ideas or to otherwise develop her proposed project with her." Norman further alleged, "The fact that Defendants … intentionally used Norman’s ideas and work product … to their own advantage in developing ‘Mixed-ish’ constitutes a breach of the confidential relationship between Norman and Defendants." Notably, there is no commu- nication alleged in the breach of confidence cause of action that does not involve the development of Tragic or the making of Mixed-ish, The trial court found that "the use of [Norman’s] ideas is the wrongful act in this cause of action, and that act was in furtherance of speech rights—the making of ‘Mixed-ish.’ "
Norman argues the court’s finding was error, because "the use of Norman’s materials to make Mixed-ish forms no part of the elements necessary to form a claim for breach of confidence." This contention contradicts her complaint, which stated that making Mixed-ish constituted the alleged breach. Norman also cites no authority for this argument, which contradicts case law holding that "a cause of action for ‘breach of confidence’ requires a finding that [the defendants] actually used [the plaintiff’s] confidential information to their benefit." (Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 651, 60 Cal.Rptr.3d 279 (Hollywood Screentest); see also Esplanade Productions, supra, 93 Cal.App.5th at p. 805, 311 Cal.Rptr.3d 350 [a plaintiff’s breach of confidence claim required a showing that the defendant "actually used [the plaintiff’s] ideas." As discussed above, the making of Mixed-ish constitutes protected activity.
Norman does not challenge the court’s grant of the motion for this cause of action as it pertains to Barris.
[17] Norman further contends the disclosure of Tragic materials is not protected because "the act of disclosing a confidence does not implicate free speech rights." She likens such communication to "incitement or yelling ‘fire’ in a crowded theater"—communications that may fall outside the protections of the First Amendment. We are not persuaded. First, the defendants’ communications regarding the development of Tragic are not comparable to inciting violence or creating panic by shouting "fire" in a crowded theater, which are entitled to only limited First Amendment protection due to their immediate effect on public safety. Second, even allegedly wrongful speech is entitled to the protection of section 425.16. (See, e.g., Collier v. Harris (2015) 240 Cal.App.4th 41, 54, 192 Cal.Rptr.3d 31 ["courts have consistently held acts a plaintiff alleges are unlawful or illegal are nonetheless protected activity under the anti-SLAPP statute if the acts assist or facilitate the defendant’s free speech rights"].) Thus, defendants met their first-step anti-SLAPP burden as to the cause of action for breach of confidence.
3. Intentional misrepresentation and promissory estoppel
[18] Norman argues the trial court erred in finding that her causes of action for intentional misrepresentation and promissory estoppel against Ross arose from protected activity. She asserts these causes of action "do not arise from the making and distribution of Mixed-ish, but from the broken promises and fraudulent misrepresentations [Ross] made to Norman" that Norman "would be paid."
Although Norman also asserted her cause of action for intentional misrepresentation against Dobbins and Artists First, she challenges the ruling only as it pertains to Ross.
All communications alleged in the intentional misrepresentation and promissory estoppel causes of action involve the development of Tragic. Norman alleged that Ross agreed to mentor her and promised to help Norman develop and pitch Tragic. Norman did not allege any communications aside from those involving the development of Tragic and Mixed-ish, which the parties agree constitutes protected activity.
Norman contends that "[f]ailure to act on promises and misrepresentations cannot implicate the anti-SLAPP statute as a matter of law." Again, Norman’s argument contradicts legal authority. (See, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 93, 124 Cal.Rptr.2d 530, 52 P.3d 703 ["fraud claims are not categorically excluded from the operation of the anti-SLAPP statute"]; Bonni, supra, 11 Cal.5th at p. 1025, 281 Cal.Rptr.3d 678, 491 P.3d 1058 [an allegation that communications involved fraud "does not remove them from the definition of protected activity"]; Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 124, 207 Cal.Rptr.3d 411 ["Misrepresentation or failure to disclose can be protected petitioning activity for purposes of section 425.16"].) Ross therefore met her first-step burden as to the causes of action for intentional misrepresentation and promissory estoppel.
4. Intentional interference with contract and inducing breach of contract
[19] Finally, Norman asserts that her causes of action for intentional interference with contract and inducing breach of contract against Ross, Artists First, and ABC did not arise out of protected activity. In the cause of action for intentional interference with contract in her complaint, Norman alleged that she and Big Breakfast had a contract/agreement, and the other defendants "intended to disrupt and interfere with the performance of the Agreement, and did in fact disrupt and interfere with such performance, by, among other things, engaging in a scheme to rip off [Tragic] which is the subject matter of the Agreement." In her cause of action for inducing breach of contract, Norman alleged the defendants "induced Big Breakfast, and its representatives, not to perform under the terms of the Agreement and to deny Norman all of her benefits outlined by said Agreement." She further alleged that the defendants "cause[d] Big Breakfast to commit the above-described breaches because they knew that each of them would benefit from such breaches. Among other benefits, Ross and Barris are credited as creators of ‘Mixed-ish,’ Ross is the on-screen narrator of ‘Mixed-ish,’ Artists First is credited as a producer of ‘Mixed-ish,’ and ABC is the network on which ‘Mixed-ish’ airs. Defendants, and each of them, receive revenue from the production and distribution of ‘Mixed-ish,’ thereby enriching themselves at the expense of Norman."
Although Norman also asserted these causes of action against Barris, she challenges the ruling only as it pertains to Ross, Artists First, and ABC.
On appeal, again relying on Jordan-Benel, Norman asserts it is "the failure to pay, and only the failure to pay, that is alleged as the damage to Norman in these causes of action," and "[a]s such, the anti-SLAPP statute is not implicated." For the reasons discussed above regarding Norman’s breach of implied-in-fact contract, we are not persuaded by the reasoning of Jordan-Benel. Moreover, the defendants’ activities upon which these causes of action are based Involve the alleged use of Norman’s ideas in the making of Mixed-ish, which is protected activity. Defendants therefore met their step one burden as to the causes of action for intentional interference with contract and inducing breach of contract.
Finding that defendants met their burden on the first step of the anti-SLAPP analysis as to all six of the challenged causes of action, we turn to step two. C. Step two: Probability of success
Under section 425.16, after a defendant meets its first-step burden, " ‘the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. [T]his second step [is] a "summary-judgment-like procedure." [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] "[C]laims with the requisite minimal merit may proceed.’ " " (Monster Energy, supra, 7 Cal.5th at p. 788, 249 Cal.Rptr.3d 295, 444 P.3d 97, quoting Baral, supra, 1 Cal.5th at pp. 384-385, 205 Cal.Rptr.3d 475, 376 P.3d 604.)
Norman contends she demonstrated a probability of success for each cause of action, and therefore the trial court should have denied defendants’ special motions to strike.
1. Breach of implied-in-fact contract
a. Existence of a contract
[20] Defendants assert that Norman failed to demonstrate a probability of prevailing on her cause of action for breach of implied-in-fact contract because she cannot demonstrate that the parties had an agreement. They assert Norman did not offer her ideas to defendants for sale, nor did defendants accept her ideas on the condition that Ross or Artists First were expected to pay Norman for them. We agree the evidence does not establish an implied-in-fact contract.
[21, 22] A breach of implied-in-fact contract cause of action requires the plaintiff to demonstrate that she "clearly conditioned the submission of [her] ideas on an obligation to pay for any use of [her] ideas," and "the defendants, knowing this condition before the plaintiff[] disclosed the ideas, voluntarily accepted the submission of the ideas." (Esplanade Productions, supra, 93 Cal.App.5th at p. 805, 311 Cal.Rptr.3d 350; see also Mann v. Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 647 fn. 6, 180 Cal.Rptr. 522 [a breach of implied-in-fact cause of action requires a plaintiff to show "[t]hat before plaintiff submitted her ideas to the defendants, she clearly conditioned her disclosure upon defendants’ agreement to pay for those ideas of plaintiff’s which the defendants used, if any"].) "The law will not in any event, from demands stated subsequent to the unconditioned disclosure of an abstract idea, imply a promise to pay for the idea, for its use, or for its previous disclosure." (Desny, supra, 46 Cal.2d at p. 739, 299 P.2d 257.) Moreover, "the creation of an implied-in-fact contract between an author, on the one hand, and an agent, producer, or director, on the other hand, is of such a personal nature that it is effective only between the contracting parties." (Rokos v. Peck (1986) 182 Cal.App.3d 604, 617, 227 Cal.Rptr. 480.)
The evidence shows that Norman entered into a written contract with Big Breakfast, which gave Big Breakfast exclusive rights to Tragic at the times relevant here. Big Breakfast then shared Tragic with Artists First and Ross months before Norman ever spoke to Ross. Dobbins stated in his declaration that he was not told of any conditions relating to the Tragic materials, and Kelly-Clyne stated in his declaration that he did not tell Dobbins the Tragic materials were Norman’s proprietary property. Ross entered into a written agreement with Big Breakfast to help develop Tragic and pitch it to financiers, which she did. This evidence does not support a finding that Ross and Artists First agreed to receive Tragic pursuant to an agreement that they were expected to pay Norman for her ideas. (See Gunther-Wahl Productions, Inc. v. Mattel, Inc. (2002) 104 Cal.App.4th 27, 43, 128 Cal. Rptr.2d 50 ["the particular facts in the case at bench must be part of the consideration in deciding whether there is an implied-in-fact contract"]; Donahue v. Ziv Television Programs, Inc. (1966) 245 Cal. App.2d 593, 606, 54 Cal.Rptr. 130 [" ‘the circumstances preceding and attending disclosure’ " are relevant to whether there is a contract, quoting Desny, supra, 46 Cal. 2d at p. 739, 299 P.2d 257].)
Norman contends that "the custom and practice of the entertainment industry" can be relied upon to conclude that defendants knew or should have known that Norman expected to be paid. We have not found legal authority directly supporting this proposition, and Nimmer on Copyright rejects the contention: "[I]nsofar as creating an implied contract from whole cloth is concerned, the better view is that industry custom does not do it. It would seem that no other viewpoint could pass muster under Desny v Wilder." (5 Nimmer on Copyright § 19D 05 (2024).) Even if industry custom could be relied upon in certain circumstances, it would not preempt the evidence here that Ross and Artists First did not accept the submission of Tragic based on any condition of payment.
Moreover, Norman asserted that Tragic could be used only upon her express consent and involvement, further suggesting that she was not offering Tragic under the condition of obligation for payment from defendants. In her complaint, Norman alleged that when she shared the Tragic materials, it was "understood … that if any of the [defendants] intended to utilize any element of [Tragic] … in writing, developing, producing, distributing, broad-casting another television program, that they … would obtain Norman’s consent and in the event that they … did so, she would be duly compensated, would be a producer on the series, and would be given both an acting role and proper screen credit." Norman reiterated this position in a declaration filed in support of her discovery motion: "On January 5, 2018, I met with Ross for the first time. I told Ross that under my Agreement with BB, I was attached to the project as an Executive Producer, writer and actor, and that [Tragic] could not be made without me."
Defendants assert this case is therefore similar to Faris v. Enberg (1979) 97 Cal. App.3d 309, 158 Cal.Rptr. 704 (Faris), in which the plaintiff, Faris, conceived of a sports quiz show that he wanted to produce, and approached defendant Enberg, a local sports announcer, about participating in the show as a "master of ceremonies." (Id. at pp. 314-315, 158 Cal.Rptr. 704.) After the defendant appeared as part of a similar show, plaintiff sued him for breach of implied-in-fact contract and breach of confidence. (Id. at p. 316, 158 Cal.Rptr. 704.) The Court of Appeal affirmed summary judgment for the defendant, stating, "[Faris] never thought of selling his sports quiz show idea to anyone including Enberg. He appears at all times to have intended to produce it himself, and sought out Enberg, as a master of ceremonies …. Plaintiff never intended to submit the property for sale and did not tell Enberg that he was submitting it for sale." (Id. at pp. 318-319, 158 Cal.Rptr. 704; see also Aliotti v. R. Dakin & Co. (9th Cir. 1987) 831 F.2d 898, 902 [under California law regarding implied-in-fact contract, "no contract may be implied where an idea has been disclosed not to gain compensation for that idea but for the sole purpose of inducing the defendant to enter a future business relationship."].)
Norman’s claim is similar to the one in Faris in that the evidence does not show she offered Tragic to Ross and Artists First based on an expectation that those defendants would pay her, nor is there any evidence that the defendants accepted the Tragic materials on that basis. Instead, the evidence shows that Tragic was submitted to Ross and Artists First for the purpose of collaborating and seeking a financier. Norman therefore has not demonstrated the existence of an implied-in-fact contract between her and Ross or Artists First.
b. Defendants’ use of plaintiff’s idea
[23] Defendants also contend the trial court erred in finding that Norman demonstrated that Tragic and Mixed-ish were substantially similar. The trial court found that Norman "submitted evidence her ideas were used in ‘Mixed-ish.’ " The court stated that the "similarities includ[e] the basic theme (mixed-race woman using her past experiences as a 12-year-old to confront her current life), use of flashbacks, plots (dating outside one’s race, hair, microaggressions, not fitting in), supporting characters (extremely conservative inlaws), and the desire of the main character to fit in as she feels she does not know where she belongs." The court also rejected defendants’ contention that most of the alleged similarities in the two shows already existed in Black-ish. The court therefore found that Norman met her second-step burden, and denied defendants’ motion as to Ross and Artists First. Defendants contend this holding was erroneous. We agree.
As noted above, "to prevail on a cause of action for breach of implied-in-fact contract, plaintiffs must show … the defendants found the ideas valuable and actually used them—that is, the defendants based their work substantially on the plaintiffs’ ideas, rather than on their own ideas or ideas from other sources." (Spinner, supra, 215 Cal.App.4th at p. 184, 155 Cal.Rptr.3d 32; see also Esplanade Productions, supra, 93 Cal.App.5th at p. 805, 311 Cal.Rptr.3d 350.) "Regardless of the legal theory used to impose an obligation on the idea-recipient, the recipient is legally obligated to pay only if the idea that the recipient used was the one actually received from plaintiff." (5 Nimmer on Copyright § 19D.07 (2023).)
[24] In the absence of direct evidence, use of an idea "can be inferred from evidence showing the defendant had access to the plaintiff’s idea and the parties’ ideas are similar." (Ryder, supra, 246 Cal. App.4th at p. 1073, 201 Cal.Rptr.3d 110.) Because it is undisputed that Ross and Artists First had access to Norman’s ideas, the focus here is on similarity.
[25–27] To raise an inference of use, "the works must be substantially similar." (Ryder, supra, 246 Cal.App.4th at p. 1073, 201 Cal.Rptr.3d 110.) "[T]he common knowledge of the average reader, observer, spectator or listener is the standard of judgment which must be used. [Citations.] For purposes of comparison therefore the works must be viewed as a whole ‘without dissection and without expert or elaborate analysis.’" (Klekas v. EMI Films, Inc. (1984) 150 Cal.App.3d 1102, 1111, 198 Cal. Rptr. 296.) If the court finds that "no rational jury could conclude the actionable elements" are similar, such a finding "defeats an inference of use as a matter of law." (Ryder, supra, 246 Cal.App.4th at p. 1073, 201 Cal.Rptr.3d 110; see also Spinner, supra, 215 Cal.App.4th at p. 185-186, 155 Cal.Rptr.3d 32 ["The framework for proving use in an idea submission claim is parallel to the framework for showing copying in a copyright claim…. We … look to analogous copyright cases for guidance, in addition to idea submission cases"].) [28] Norman urges us to employ the "inverse ratio" standard. Under that rule, "Where there is strong evidence of access, less proof of similarity may suffice. Conversely, if the evidence of access is uncertain, strong proof of similarity should be shown before the inference of copying may be indulged." (Golding v. R.K.O. Pictures (1950) 35 Cal.2d 690, 695, 221 P.2d 95.) Norman then relies on Fink v. Goodson-Todman Enterprises, Ltd. (1970) 9 Cal. App.3d 996, 88 Cal.Rptr. 679 (Fink) to argue that she only "need[s] one similarity" to prevail, and that "finding one substantially similar element is enough."
Fink does not support Norman’s contention. In that case, the plaintiff alleged contract and copyright causes of actions arising from alleged idea theft. The case reached the Court of Appeal following a demurrer, so the court was considering whether the causes of action had been adequately pled. The court considered "whether, as a matter of law, it cannot be said that defendants have appropriated and used[] a qualitatively important part of plaintiff’s material in such a way that features discernible in defendants’ work are substantially similar thereto." (Fink, supra, 9 Cal.App.3d at p. 1007, 88 Cal. Rptr. 679.) The court looked at the "basic theme" of the works, the "detailed exposition (through the combination of the presentation and pilot script) of the back story," "the plots for 15 of an estimated 39 weekly episodes" of the relevant television series, and certain "portrayal techniques" such as a dream sequences, use of flashbacks, "use of the signature and talisman devices," interactions between episode plots and back story, and use of music to create atmosphere. (Id. at p, 1011, 88 Cal. Rptr. 679.) The court did not, as Norman suggests, hold that evidence of substantial similarity was not required in an idea theft case, or that a single similar element was sufficient to support an inference of use.
Moreover, legal authority developed in the five decades since Fink was decided does not support Norman’s position. Indeed, in idea theft cases "[c]ourts have specifically rejected the contention that liability could be imposed on defendants on the basis of less than substantial similarities." (5 Nimmer on Copyright § 19D.08 (2023).) The Ninth Circuit recently rejected the inverse ratio rule in a copyright case, finding that it created the type of uncertainty underlying Norman’s arguments here. The Ninth Circuit stated that the inverse ratio rule "is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties." (Skidmore as Trustee for Randy Craig Wolfe Trust v. Led Zeppelin (9th Cir. 2020) 952 F.3d 1051, 1066.) The court found that the inverse ratio rule was unhelpful to a copyright analysis, because "[a]ccess does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work." (Id. at p. 1069.) The court noted, "[W]e are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity." (Id. at p. 1069.)
[29] We need not address the applicability of the inverse ratio rule generally. Under the circumstances here, although it is undisputed that some defendants had access to Norman’s work, that access does not obviate the substantial similarity requirement. We therefore follow the many cases holding that in an idea theft case, a plaintiff may raise an inference of use by proving access to the plaintiff’s ideas and that the defendant’s work is substantially similar to the plaintiff’s ideas. (See, e.g., Esplanade Productions, supra, 93 Cal. App.5th at pp. 805-806, 311 Cal.Rptr.3d 350; Spinner, supra, 215 Cal.App.4th at pp. 184-185, 155 Cal.Rptr.3d 32; Ryder, supra, 246 Cal.App.4th at p. 1073, 201 Cal.Rptr.3d 110; Hollywood Screentest, supra, 151 Cal.App.4th at p. 646, 60 Cal. Rptr.3d 279; Sutton v. Walt Disney Productions (1953) 118 Cal.App.2d 598, 603, 258 P.2d 519.)
The trial court found that Tragic and Mixed-ish were substantially similar because "the core of both works focuses on a mixed-race character trying to figure out how she fits in, dealing with parents of different races, and navigating in black and white worlds. Some of the plot points, such as involving hair and dating a white person, are similar. Both use the ‘gimmick’ of flashbacks."
Norman’s declaration was the only evidence the trial court cited in its finding regarding substantial similarity Defendants argue the trial court erred in overruling their objections to Norman’s declaration, and in relying on Norman's characterizations of the evidence rather than the evidence itself The admissibility of Norman’s statements does not affect our findings, and therefore we need not address defendants’ evidentiary objections here. However, we do agree that the court was obligated to consider the works themselves, not only Norman’s characterization of them It is unclear whether the court did so
Defendants note that the mixed-race character of Bow, her family, and her struggles to fit in were developed in Blackish generally and in the Black-ish episode "Being Bow-racial" specifically. They argue that because these elements existed before Tragic, they should be "filtered out" of the substantial similarity analysis, as the Court of Appeal did in Ryder, supra, 246 Cal.App.4th at p. 1074, 201 Cal. Rptr.3d 110.
In Ryder, writer and director James Cameron created the story that eventually became the film Avatar (20th Century Fox 2009). In 1995, Cameron recorded his ideas in "a detailed 102-page ‘scriptment,’ which he describes as a ‘highly detailed scriptlength treatment that, like a treatment, was in a narrative rather than dialogue form, and laid out the story, characters, setting and many of the visual images for Avatar in great detail.’ " (Id. at p. 1068, 201 Cal.Rptr.3d 110.) Between 1996 and 1998, plaintiff Eric Ryder wrote a science fiction short story called "KRZ 2068" (KRZ). Ryder shared the story with people at Lightstorm Entertainment, and they worked on revising and preparing the story for a pitch; ultimately Lightstorm passed on the project. (Ryder, supra, 246 Cal.App.4th at pp. 1069-1070, 201 Cal. Rptr.3d 110.) Ryder later sued Cameron and Lightstorm, alleging that they "fraudulently expressed interest in developing … KRZ and used parts of that story in Cameron’s 2009 film Avatar," (Id. at p. 1067, 201 Cal.Rptr.3d 110.) The trial court granted the defendants’ motion for summary judgment.
On appeal, in considering substantial similarity between Avatar and KRZ, the court stated, "The preexisting elements in the Avatar scriptment are not actionable because defendants would not have ‘used’ those same elements from Ryder’s later-created KRZ. Thus, we ‘filter out’ those preexisting elements in assessing the similarity of the works." (Ryder, supra, 246 Cal.App.4th at p. 1074, 201 Cal.Rptr.3d 110.) The court relied on a copyright case, Murray Hill Publications, Inc. v. Twentieth Century Fox Film Corp. (6th Cir. 2004) 361 F.3d 312, 326, which stated, "[W]here defendant owns a prior work containing the same elements, he has no reason … to copy wrongfully from another what he could legally copy from himself. Therefore, where an element occurs both in the defendant’s prior work and the plaintiff’s prior work, no inference of copying can be drawn." (Ryder, supra, 246 Cal.App.4th at pp. 1074-1075, 201 Cal. Rptr.3d 110.)
Although Ryder was not a copyright case, Norman argues its reasoning has no place outside of copyright law, because parties may contract for anything—even the development of non-original ideas. (See, e.g., Chandler v. Roach (1957) 156 Cal.App.2d 435, 442, 319 P.2d 776 ["The producer and the writer should be free to make any contract they desire to make with reference to the buying of the ideas of the writer"]; Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 791, 256 P.2d 947 [a plaintiff may prove the defendants agreed "to pay for [the plaintiff’s] composition if they used it, or any portion of it, regardless of its originality"].) Nevertheless, in an idea theft case the plaintiff must show that " ‘the defendants based their work substantially on the plaintiffs’ ideas, rather than on their own ideas or ideas from other sources.’ " (Esplanade Productions, supra, 93 Cal.App.5th at p. 805, 311 Cal. Rptr.3d 350, quoting Spinner, supra, 215 Cal.App.4th at p. 184, 155 Cal.Rptr.3d 32 [emphasis added].) The recipient of an idea "is legally obligated to pay only if the idea that the recipient used was the one actually received from plaintiff." (5 Nimmer on Copyright § 19D.07 (2023).)
Thus, in a case like Ryder or this one, where there is evidence that the defendants created certain characters and story lines before the plaintiff created or shared her ideas, filtering out those preexisting elements is appropriate. If the defendants had already begun to develop those ideas before receiving them from the plaintiff, there can be no liability for the alleged theft of such ideas.
The trial court found that there were "differences between the highly detailed scriptment in Ryder and the preexisting general concepts at issue here." We agree that as a practical matter, preexisting elements must be developed to a certain level of detail to allow a court to determine which factors to filter out. But we disagree that characters whose existence, background, and family relationships had been developed over several seasons of a series, as well as a completed and aired episode specifically addressing Bow’s background, were somehow too general or undeveloped to allow the court to filter out these preexisting elements.
Conceivably, there could be liability despite preexisting elements where, for example, the defendants created characters and a general story line, asked the plaintiff to further develop those specific ideas, and then used the plaintiff's work without compensation. Such a scenario has not been alleged here.
[30] Thus, we filter out elements that defendants had already created and used in Black-ish before Norman shared her ideas about Tragic. Black-ish developed the character of Bow, a mixed-race woman with a black parent and a white parent. The black parent and white parent are in an interracial relationship; the episode "Being Bow-racial" also specifically addressed interracial dating. That episode further showed that, while growing up, Bow grappled with fitting in and what it means to be half-black and half-white in America, including not knowing which race box to check on a school form. She experienced microaggressions and misunderstandings from others. We therefore reject Norman’s argument that the following ele- ments support a substantial similarity finding: involvement of "a mixed-race woman who grew up in the suburbs," "dating outside your race," undefined "microaggressions felt by the main role," "the challenges of a mixed-race person such as not fitting in [and] not knowing what box to check when asked one’s race," the main characters’ "desire to fit in and not knowing where she belongs."
We are not employing the independent creation doctrine, which holds that inference of use can be dispelled by evidence of independent creation. (See, e.g., Hollywood Screentest, supra, 151 Cal.App.4th at p. 646, 60 Cal.Rptr 3d 279; Teich v General Mills, Inc. (1959) 170 Cal.App.2d 791, 799-800, 339 P.2d 627.) Although defendants presented evidence that Mixed-ish was created independently by Winston and Barris, who both stated that they never saw the Tragic materials, defendants acknowledged to the trial court that they had not fully developed this defense.
Notably, these are very general, high-level elements. Even if they were not filtered out as preexisting elements, they would be of limited use in a substantial similarity analysis. (See, e.g., Ryder, supra, 246 Cal.App.4th at pp. 1077-1078, 201 Cal.Rptr.3d 110 [certain elements are "too obvious and insubstantial to be an actionable similarity"]; Klekas v. EMI Films, Inc. (1984) 150 Cal.App.3d 1102, 1112-1113, 198 Cal.Rptr. 296 ["the subjects of friendship, courage, honor and the effect of war on the human spirit" were general and "not protectible material in and of themselves"]; Corbello v. Valli (9th Cir. 2020) 974 F.3d 965, 975 [in the copyright context, "[n]on-protectable elements include … scenes-a-faire (that is, ‘situations and incidents that flow necessarily or naturally from a basic plot premise’ or generic plot line) and ‘[f]amiliar stock scenes and themes that are staples of literature’ "].)
Norman asserts that touching on these themes as a small part of Black-ish is not the same as developing an entire series out of these elements. We agree that the depth of treatment in each of the works is a relevant consideration. Thus, we examine how Norman and defendants built upon these basic themes in Tragic and Mixed-ish to determine whether Norman has presented evidence upon which a rational jury could conclude that the two works are substantially similar. (See Ryder, supra, 246 Cal.App.4th at p. 1073, 201 Cal.Rptr.3d 110; Spinner, supra, 215 Cal.App.4th at p. 185,155 Cal.Rptr .3d 32.).
Although there are no bright-line rules for determining substantial similarity, we rely on guidance from previous cases that made substantial similarity findings. (See, e.g., Weitzenkorn v. Lesser, supra, 40 Cal.2d at p.791, 256 P.2d 947 [comparing the "form and manner of expression"; "the ‘basic dramatic core’ "; the "combination of characters, locale and myth"; and the "characterizations, descriptions, and events"]; Henried v. Four Star Television (1968) 266 Cal.App.2d 435, 436, 72 Cal. Rptr. 223 [reviewing for commonalities in "plot, motivation, subject matter, milieu, and characterization"]; Minniear v. Tors (1968) 266 Cal.App.2d 495, 505, 72 Cal. Rptr. 287 [examining whether there were "similarities in basic plot ideas, themes, sequences and dramatic ‘gimmicks’ "]; Ryder, supra, 246 Cal.App.4th at pp. 1076-1079, 201 Cal.Rptr.3d 110 [comparing in the two works the role of the main characters, characters’ motivations, interactions between characters, "significant plot point[s]," specific scenes, and use of technology].)
We begin by considering the basic themes and tones of the two series. The basic theme of Tragic centered around adult main character Hayley’s life in the present day, starring Norman as a fictionalized version of herself. Different pitches/decks listed Hayley’s job as a journalist or an actor. Tragic was to be "[a]n unflinching, self-deprecating depiction of the minutiae of Hayley’s everyday life." Tragic included many references to current issues such as Hayley’s half-sister Jazmyn being "Black Twitter famous," videos going viral, Hayley’s future in-laws being Trump supporters, Black Lives Matter, and #Oscars-SoWhite. The show was intended to be edgy and adult, with the pilot episode focusing on Hayley getting caught lying and stealing. The deck included jokes such as, "[C]an Hayley really claim that she’s problack when her own fiance is white? Even her pussy is colonized!" and Jazmyn being "eager to date but can’t seem to find a black man she doesn’t think is a ‘fucknigga.’ " One episode proposal suggested that Sam, a former heroin addict, was curious about trying ayahuasca; Hayley tries it and has a bad trip.
Mixed-ish, on the other hand, centered around Bow as a 12-year-old child in 1985. She was innocent and naive after growing up on the utopian commune, and was learning about the "real world" while attending elementary/middle school for the first time. The series was wholesome and family friendly. Bow was kind to others and a peacemaker. In the second episode, for example, Bow tried to employ conflict resolution skills to help other students at school get along, and she dragged a new table into the cafeteria so she and a Latina friend could sit together without choosing the black or white side. Conversation around the family dinner table focused on how each family member made the world a better place that day. Plots included whether the children would be able to go trick-or-treating like their friends, and the children not knowing about Christmas because the commune celebrated winter solstice instead. Because the series was set in the mid-1980’s, there were no cell phones, no social media, and no references to current events. Historical concepts such as affirmative action were explained via voiceover, and events of the time—the Challenger disaster, ozone layer depletion—were addressed.
In the first season of Mixed-ish, Bow is in seventh grade and attends the same school as Johan, age 7, and Santamonica, age 5.
Both shows focused on family relationships, but the relationships were not similar. In Tragic, Hayley "tries to bridge her two disparate families, but in doing so usually creates more unrest and confusion. In every scenario, she’ll be the odd person out, seeking a way to deal with otherness." Hayley’s white mother was portrayed as neurotic and living with her codependent and clueless white boyfriend/husband. Hayley did not grow up with her father or Jazmyn. Jazmyn was "image conscious to the extreme" and played to her social media following. Hayley lived with her white fiance, Sam; he was from a "Trump supporting Evangelical family in the com fields of Illinois." The season arc showed the couple planning their wedding, but experiencing increasing strain in their relationship and calling off the wedding when their "families clash, a fight erupts, and Hayley and Sam are forced to take opposite sides."
In Mixed-ish, on the other hand, the family was cohesive and supportive. Bow lived with her black mother, Alicia, an attorney; her white father, Paul, a stay-at-home parent; and her two siblings. Alicia and Paul retained their hippie values from the commune. Bow had no issues finding belonging within her family; the lack of belonging came almost exclusively from outside the family (e.g., at school). Two extended family members regularly visited the family: Alicia’s sister Denise, and Paul’s father Harrison, who was also Alicia’s boss. Much of the familial conflict centered around the hippie parents’ views conflicting with the more mainstream ideas of Denise and Harrison. For example, Alicia and Paul told the children that race does not matter, but Denise argued that their commune-style, race-blind thinking would not work in the real world. And when Harrison criticized Paul for being a stay-at-home parent in the same episode in which Bow was struggling to navigate the black/white divide at school, Paul and Bow had a conversation about why it is hard for both of them to be "different."
In Tragic, Hayley’s father was portrayed as a gambling addict and her mother’s parents were "Russian alcoholics.’’ Pointing to the line in Mixed-ish, episode 1 in which an amped-up Harrison says, "I do cocaine,’’ Norman argues the family dynamics of the shows were similar because "both series also have a relative with addiction.’’ Other than the single line in episode 1 of Mixed-ish, however, the series did not address addiction.
Norman contends both shows involve "an uplifting tone of self-affirmation." However, Tragic was not pitched as such. Rather, it was pitched as "honest and irreverent," "unflinching," and "off-kilter"; Hayley "isn’t afraid to speak up" or "force the conversation"; and plots revolved around her "faux pas and her issues with society and other people’s behavior." Hayley’s upbringing was "misguided," and her efforts to connect with family and friends "usually creates more unrest and confusion." Plots and jokes included adult topics such as sex and drug use, as opposed to Bow and her siblings’ experiences growing up in a supportive family and attending elementary/middle school. While there is some overlap in theme—mixed-race protagonists navigating a race-conscious world—the differences in theme far outweigh the similarities.
We next consider the series’ plot devices. Norman argues that "[b]oth series take place in the present day," and that "[e]very episode of both series includes the ‘way in’ to the back story through the use of flashbacks." This is incorrect. Flashbacks were to be used in every episode of Tragic, but they were not used regularly in Mixed-ish, which was not set in the present day. The pilot episode of Mixed-ish began in the present day and used a flashback to set up the story of Bow’s life changing at age 12. However, the remainder of Mixed-ish was set in the 1980’s, with some retrospective narration by Bow’s character as an adult. Thus, no rational jury would find the use of flashbacks support a finding of substantial similarity.
Norman also asserts that the settings of the shows were similar. Tragic was set in the city; Hayley lived with her fiance in "East Hollywood (a.k.a. Little Armenia)." In Mixed-ish, Bow and her family lived in a house owned by Paul’s father in a non-descript suburb, and many of Bow’s interactions occurred in her racially diverse school. Norman contends that because young Hayley also grew up in the suburbs, this element is substantially similar. This detail does not demonstrate that the settings of the shows are similar. Moreover, the suburbs in the two series had opposite meanings: in Tragic, Hayley’s white, suburban background was referenced as the reason she did not understand black culture, while the racially diverse suburb and school in Mixed-ish represented the harsh realities of the mainstream world compared to the commune.
Norman also contends that some of the jokes or plots of Mixed-ish came from the Tragic pitch. She points to the joke in Mixed-ish about white people clapping on the 1 and the 3 beats, for example, but this joke is common fodder for comedians and musicians. Moreover, it made up mere seconds of a single Mixed-ish episode. Norman also argues that Mixed-ish is similar to Tragic because both had "conservative" in-laws. This is not a major plot point in Mixed-ish, and in-laws having different political views than the main characters is a common family sitcom trope, which was also used in Black-ish with Dre’s parents. These minor details do not support a finding of substantial similarity.
Defendants point out that in Black-ish, season 2 episode 11, which aired in 2016, Bow and Dre’s daughter Diane criticizes her twin brother Jack for clapping on the 1 and the 3.
Norman also points to the plot about the children’s hair for school picture day in episode 3 of Mixed-ish, comparing it to the meme about her childhood hair in the Tragic deck. In Norman’s meme, however, her messy hair was shown as an indicator that her white mother did not know how to do black hair. In Mixed-ish, the conflict was whether the children should embrace their natural hair or conform to styles that were more mainstream at the time. Therefore, while both the Tragic meme and the Mixed-ish episode addressed children’s hair, no reasonable jury would find them to be substantially similar.
Thus, the differences in general theme, tone, characters, relationships, settings, and plots demonstrate that the two series are not substantially similar. If "no rational jury could conclude the actionable elements" are similar, there is no inference of use as a matter of law. (Ryder, supra, 246 Cal.App.4th at p. 1073, 201 Cal.Rptr.3d 110; see also Spinner, supra, 215 Cal. App.4th at p. 185, 155 Cal.Rptr.3d 32.) Here, Norman has failed to meet her burden to show substantial similarity. The trial court’s holding to the contrary was erroneous.
2. Breach of confidence
[31] The trial court found that Norman did not meet her second step anti-SLAPP burden for this cause of action because "she did not submit evidence that she requested her ideas be kept confidential when she disclosed them to Ross and Dobbins. She states she ‘understood … that my sharing of my materials was done on a confidential basis (Norman Decl. ¶ 12), but she does not state she told Ross and Dobbins that she was offering the materials to them in confidence." The court also noted that Norman did not claim that any special relationship between her and any defendant created a duty of confidentiality, and she cited no "legal authority holding that in Hollywood, custom and practice creates a duty of confidentiality whenever a person discloses an idea even if there is no communication of the confidentiality of the submission." Nevertheless, for reasons not explained in the court’s order, the court denied the special motion to strike as to Ross and Artists First, and granted it as to Barris.
Defendants assert that the court’s findings were correct, and its failure to strike the breach of confidence cause of action was error. Norman argues "that she explicitly requested confidentiality at the time of disclosure." She points to paragraph 4 of her declaration, but this paragraph discusses Norman’s disclosure to Vogel at Big Breakfast—not to any defendants. Norman also points to paragraph 12 of her declaration, in which she states that when she met with Ross in January 2018, after Ross had already received the initial Tragic materials, Norman "understood like I did for my disclosures to BB, that my sharing of my materials was done on a confidential basis." Norman also relies on the declaration of her expert witness, Richard Marks, who stated that it is the custom and practice within the entertainment industry to keep pitch materials confidential.
[32–35] This evidence does not demonstrate any understanding on the part of defendants of a confidential relationship, which is a necessary element of the claim. "An actionable breach of confidence will arise when an idea … is offered to another in confidence, and is voluntarily received by the offeree in confidence with the understanding that it is not to be disclosed to others … There must exist evidence of the communication of the confidentiality of the submission or evidence from which a confidential relationship can be inferred." (Faris, supra, 97 Cal.App.3d at p. 323, 158 Cal.Rptr. 704.) Because such a claim is based on an implied obligation or contract between the parties, "the gravamen of the tort is an understanding between the parties that an idea is offered upon a condition of confidence." (TeleCount Engineers, Inc. v. Pacific Tel. & Tel. Co. (1985) 168 Cal.App.3d 455, 464, 214 Cal.Rptr. 276 (Tele-Count Engineers).) It is therefore essential "that the plaintiff in a breach of confidence action must demonstrate the defendant’s actual knowledge of the condition of confidentiality." (Ibid., citing Mann v. Columbia Pictures, Inc., supra, 128 Cal.App.3d at p. 646, 180 Cal. Rptr. 522; see also Faris, supra, 97 Cal. App.3d at p. 324, 158 Cal.Rptr. 704 ["evidence of knowledge of confidence or from which a confidential relationship can be implied is a minimum prerequisite"].)
Norman’s "understanding" that her communication was confidential, and her expert’s opinion that pitches are typically considered confidential, do not meet this standard. There is no suggestion in the evidence that defendants received the Tragic materials under an agreement of confidentiality. To the contrary, Dobbins stated in his declaration that he was not told that the materials were confidential. Kelly-Clyne stated in his declaration that he did not tell Dobbins or Ross that the information was confidential: "As Big Breakfast had the exclusive rights to Tragic and owned the development, we did not communicate to Ms. Ross or her manager Brian Dobbins at [Artists First] that the Tragic project or ideas were Ms. Norman’s proprietary and confidential information."
[36] Moreover, as noted above, "a cause of action for ‘breach of confidence’ requires a finding that [the defendants] actually used [the plaintiff’s] confidential information to their benefit." (Hollywood Screentest, supra, 151 Cal.App.4th at p. 651, 60 Cal.Rptr.3d 279; see also Esplanade Productions, supra, 93 Cal.App.5th at p. 805, 311 Cal.Rptr.3d 350.) For the reasons discussed above, Norman cannot make that showing here. Thus, Norman has not demonstrated a probability of success as to her breach of confidence cause of action as to any defendant, so the motion should have been granted for this claim.
Norman contends the trial court erred in denying her motion seeking discovery regarding whether the relationship among the defendants may have constituted a joint venture due to the fact that Artists First and Big Breakfast shared a parent company, Electus. She contends that with respect to the breach of implied-in-fact contract and breach of confidence causes of action, "should this court find that Norman has not met her Prong Two burden without establishing the existence of a [joint venture], then it is clear that the Superior Court abused its discretion" in denying Norman’s request for discovery on this topic. Because this is not the basis for our holding that Norman failed to demonstrate a probability of success, Norman has not demonstrated the court erred in denying her motion for discovery on this topic.
3. Promissory estoppel and intentional misrepresentation
[37, 38] The elements of a promissory estoppel claim are: (1) a promise that is clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance was both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by the reliance. (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734, 205 Cal.Rptr.3d 21.) "The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage." (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231, 162 Cal.Rptr.3d 864.)
[39] The trial court held that Norman presented no evidence that she altered her actions in reliance on Ross’s promises, or that Ross had no intent to perform when she made such promises. Norman argues the court erred, and points to paragraphs 13 and 14 of her declaration, which describe some of her early conversations with Ross. Norman asserts these paragraphs show that Norman "changed her position by deciding to move forward with Ross on [Tragic] and by disclosing all her materials to her."
However, the evidence showed that Norman wanted Ross to be involved in developing Tragic. Dobbins therefore sent the Tragic materials to Ross months before Ross and Norman talked. Norman said in her declaration that when she first spoke with Ross in January 2018, "my goal was to sell the series to Ross by … sharing ideas, concepts, and stories about [Tragic] directly with her" and "I told Ross that I would love to work with her." Norman and Ross did work together, and together they pitched Tragic to financiers. The evidence does not suggest that Norman changed her position in reliance on any promises made by Ross.
Moreover, Norman’s damages for these causes of action arise from the allegation that defendants used material from Tragic to make Mixed-ish without compensating Norman. With respect to her promissory estoppel cause of action, for example, Norman argues in her appellate briefing, "It was Ross’s full access to [Tragic] that enabled her to use it, or parts of it, as ‘creator’ and ‘executive producer’ of Mixed-ish." And in her cause of action for intentional misrepresentation, she asserts that defendants "knew at the time of [their misrepresentations] that they intended to appropriate [Tragic] for themselves without having any intention of attaching Norman in any manner to the series ‘Mixed-ish.’ " As discussed above, the evidence does not support a finding that Mixed-ish was substantially similar to Tragic, and there is no evidence supporting a finding that at the time Norman shared Tragic with defendants, they intended to steal her material. Norman therefore has not met her burden to show a probability of success as to these causes of action.
4. Intentional interference with contract and inducing breach of contract
[40–43] "To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148, 17 Cal.Rptr.3d 289, 95 P.3d 513.) The plaintiff also "must show the defendant’s knowledge that the interference was certain or substantially certain to occur as a result of his or her action." (Ibid.) To prevail on a cause of action for inducing breach of contract, a plaintiff must prove (1) the existence of a valid contract with a third party; (2) the defendant had knowledge of the contract and intended to induce its breach; (3) the contract was in fact breached; (4) the breach was caused by defendant’s unjustified or wrongful conduct; and (5) the plaintiff suffered damages as a result. (Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 291, 136 Cal.Rptr.3d 97.)
The trial court found that Norman had not demonstrated a probability of success for these causes of action because she "did not submit evidence that Big Breakfast failed to perform or breached its contractual relationship as a result of the defendants’ actions." The court noted that Big Breakfast worked with Norman, Ross, and others to develop Tragic, and pitched it to six potential financiers. The court stated that Norman "did not submit evidence that Big Breakfast would have successfully placed Plaintiff’s series with a network or production company if the defendants had not started working on ‘Mixed-ish’ or that Big Breakfast abandoned her contract because of ‘Mixed-ish’ or any actions by the defendants."
The evidence supports this finding. Norman’s agreement with Big Breakfast was to help develop Tragic and pitch it to financiers. The evidence shows that Big Breakfast did so. Norman does not directly address this on appeal. Rather, Norman contends that "within one month of Mixed-ish being publicly announced, BB terminated its relationship with Norman." The evidence shows, however, that Norman’s agreement with Big Breakfast expired according to its own terms in March 2019—a date the parties agreed upon in October 2018, when they extended the term sheet originally signed in November 2017. Norman has not presented any evidence that defendants’ actions affected the expiration of the agreement. Norman also contends Big Breakfast breached the agreement by "giv[ing] away the confidential elements of’ Tragic. Assuming for the sake of argument this occurred and could be considered a breach of contract, the evidence does not suggest the moving defendants induced that breach.
In addition, Norman asserts on appeal that the "contractual provision that Defendants are alleged to have interfered with and/or induced the breach of is Norman’s right to receive compensation," and the "interference and breach are that [Tragic], in the disguise of Mixed-ish, was made without Norman being compensated." As discussed above, the two series are not substantially similar. Thus, Norman has not demonstrated a probability of prevailing on her causes of action for intentional interference with contract or inducing breach of contract.
We therefore find that Norman failed to meet her second-step burden of demonstrating a probability of success. Defendants’ anti-SLAPP motions should have been granted in full. We therefore reverse the trial court’s ruling as it pertains to Ross and Artists First, and remand the matter with instructions to the trial court to grant the motion as to them.
See footnote *, ante.
DISPOSITION
The judgments in favor of Barris, Dobbins, and ABC are affirmed. The trial court’s order denying the special motion to strike under section 425.16 as to Ross and Artists First is reversed. The matter is remanded to the trial court with instructions to grant the special motions to strike in full as to Ross and Artists First. Defendants are entitled to their costs on appeal.
We concur:
CURREY, P. J.
MORI, J.