Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. BC369281, Gregory W. Alarcon, Judge.
Liner Yankelevitz Sunshine & Regenstreif, Joseph R. Taylor, Shannon H. Anderson and Michael L. Novicoff for Defendant and Appellant.
Kulik, Gottesman, Mouton & Siegel, Sara V. Katz and Glen L. Kulik for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Code of Civil Procedure section 425.16 (section 425.16 or the anti-SLAPP statute) offers a procedure for early dismissal of meritless claims that are based upon a defendant’s exercise of constitutionally protected speech or petitioning activity. It involves a two-step analysis. First, when the defendant makes an anti-SLAPP motion, the trial court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (§ 425.16, subd. (b)(1).) Second, if the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.
The term “SLAPP” is an acronym for “strategic lawsuits against public participation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.)
In this case, plaintiff Adam Willens sued defendant Jenji Kohan for breach of contract and breach of confidential relationship for allegedly misappropriating his idea for a television show without involving him in its production or giving him credit or compensation. Apparently drafting his complaint so as to avoid a possible statute of limitations defense, Willens alleged that the breach of contract and of confidential relationship occurred when the show was first broadcast without Willens being credited or paid.
Based upon the allegation that the breach occurred on broadcast without Willens being listed in the credits, Kohan contends that Willens’s claims implicate Kohan’s right to free speech, and that the first step of the anti-SLAPP analysis is met. But in addressing the second step – whether Willens can prevail on the claims -- Kohan argues that the conduct that purportedly injured Willens was not, as alleged in the complaint, the network broadcast without credit. Rather, the conduct giving rise to the claims was Kohan’s selling the show to the broadcast network as her own creation without ensuring Willens’s involvement in its production. Because this conduct occurred more than two years before the complaint was filed, Kohan contends that Willens’s claims are barred by the applicable statutes of limitation.
Kohan is correct that the conduct on which Willens’s claims are based is not the network broadcast without Willens being listed in the credits, but rather Kohan’s selling the show as her own singular idea. The result, however, is not the one Kohan seeks. To the contrary, the result, as the trial court correctly concluded, is that the anti-SLAPP statute does not apply, because the conduct on which Willens’s claims are based does not arise from Kohan’s exercise of her constitutionally protected right to free speech.
BACKGROUND
Kohan is a successful writer and producer of television programs. Willens was for a time Kohan’s executive assistant. This lawsuit involves the creation of the television series Weeds, which is broadcast on the Showtime network.
Willens alleges that the idea of the show -- a suburban single mother who sells marijuana out of her home -- was his, that he told Kohan about the idea and agreed that she could use it if he got credited and compensated as a creator and producer, and that Kohan used the idea without crediting or compensating him. He filed a complaint in April 2007, seeking damages for breach of oral contract and breach of confidential relationship.
Kohan filed a special motion to strike under section 425.16. She argued that Willens’s claims arise from constitutionally protected activity -- the listing of Kohan as creator of Weeds in the on-screen credits -- and that Willens cannot prevail on his claims because, among other things, they are barred by the applicable two-year statute of limitation. Willens opposed the motion, arguing that the claims did not arise from constitutionally protected activity and that the statute of limitation did not begin to run until Weeds first aired, which was in August 2005. The trial court agreed that the anti-SLAPP statute did not apply and denied Kohan’s special motion to strike. Kohan appeals.
DISCUSSION
A. Law Governing Anti-SLAPP Motions
Section 425.16 provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or 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 plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) An act “in furtherance of the person’s right of petition or free speech . . . in connection with a public issue” includes “(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 interest; (4) or 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).)
A trial court presented with a special motion to strike engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (City of Cotati).)
The Supreme Court has explained that “the statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e). . . .’ [Citations.]” (City of Cotati, supra, 29 Cal.4th at p. 78.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Id. at p. 79.) Our review of the trial court’s determination is de novo. (Kronemyer v. Internet Movie Database, Inc. (2007) 150 Cal.App.4th 941, 946 (Kronemyer).)
B. Application to This Case
1. The Complaint
We begin with the allegations of the complaint. The complaint alleges the following relevant background facts: “As a result of their professional and personal relationship, there was mutual trust between Willens and Kohan and Willens felt comfortable sharing his creative ideas with Kohan in confidence. [¶] . . . On January 29, 2003, Willens pitched a television show idea to Kohan based on the premise of a suburban drug dealer who is a single mother with an ordinary life, who supports herself by dealing marijuana out of her home. Kohan said that she liked the idea and asked if she could ‘have’ it. Willens replied that she could, so long as Kohan protected Willens by causing him to be credited and compensated as a creator and producer should the idea sell and be produced. Kohan agreed. . . . [¶] . . . Kohan began pitching Willens’s idea to potential production entities for the purpose of convincing a network to buy and produce the idea Willens had disclosed. One of the parties whom Kohan contacted was Showtime. [¶] . . . In or about August 2005, the television show ‘Weeds’ premiered on Showtime as the highest-rated series of the year. . . . After seeing the show Willens concluded it was based on his idea and that he was entitled to credit and compensation.”
The complaint alleges two causes of action: breach of contract, and breach of confidential relationship. The breach of contract cause of action alleges that Willens and Kohan entered into an oral contract in which “they agreed that in exchange for allowing Kohan to develop and attempt to sell [Willens’s] idea, if the show was produced and aired Willens would be credited and compensated as a creator and producer of the show.” Although it alleges that “Kohan disclosed Willens’s idea to Showtime without (i) telling the latter that Willens was the true creator, and (ii) without advising Showtime of their contract or its terms,” it alleges that “Kohan breached the contract when, in August 2005, the show ‘Weeds’ was broadcast based on Willens’s idea and Willens was neither credited nor compensated as required by their contract.” (Italics added.)
The breach of confidential relationship claim alleges there was a confidential relationship between Willens and Kohan “whereby they trusted one another and had confidence in each other’s integrity and fidelity,” and that Willens and Kohan were aware of the relationship when Willens disclosed ideas to Kohan relying on their trust. The claim alleges that “Kohan knew she could not cause Willens’s idea to be used for the production and broadcast of a television series without affording him credit and compensation as she had agreed,” and that Kohan breached their confidential relationship by “allowing ‘Weeds’ to be produced and broadcast starting in August 2005, without causing Willens’ [sic] to be credited or compensated as a creator and producer.”
2. Kohan’s Anti-SLAPP Motion
Seizing upon Willens’s allegation that the breaches occurred when Weeds was broadcast without giving credit to Willens as a creator or producer, Kohan brought a special motion to strike under section 425.16. What makes Kohan’s motion unusual is that Kohan described differently the conduct upon which Willens’s claims are based depending on whether she was addressing the first step or the second step of the anti-SLAPP analysis.
In arguing that the anti-SLAPP statute applies, Kohan relied upon our decision in Kronemyer, supra, 150 Cal.App.4th 941, in which an alleged producer of the movie My Big Fat Greek Wedding sued an internet website that provides a database of information about movies, television programs, and performers, for failing to list him as a producer of the movie. In that case, we found that “the listing of credits on respondent’s Web site is an act in furtherance of the right of free speech protected under the anti-SLAPP statute.” (Id. at p. 947.)
In her motion, Kohan argued that Willens’s claims “arise from protected activity because they expressly target the listing of the ‘Weeds’ on-screen credits that bear Ms. Kohan’s name.” She contended the claims are subject to the anti-SLAPP statute because her “identity as the creator, writer and producer of the highly successful and widely-viewed television show ‘Weeds’ is a matter of public interest, and thus has considerable ‘social value,’” and the complaint is “directly connected to this topic of public interest” because it seeks to impose damages for Kohan’s “exercise of her right to publicize her status as the creator, producer and writer of a television show of public importance.” She repeats this argument on appeal: she argues in her opening brief that the anti-SLAPP statute applies because both of Willens’s claims “are explicitly based upon the allegation that [Kohan] took public credit for a popular and topical work of art and refused to acknowledge [Willens’s] alleged contribution to the creation of that work.”
In her motion, addressing the second step of the anti-SLAPP procedure, Kohan switched her focus to Willens’s allegation that she sold Weeds to Showtime without telling it that Willens was to be credited and compensated as a creator and producer. She argued in her moving papers (and argues on appeal) that Willens cannot prevail on his claims because they are time-barred, pointing to a letter he sent her on June 1, 2004, which she asserts demonstrates that he was “fully apprised of the facts giving rise to these claims” as of that date. In that letter, Willens noted that he saw an article about Showtime greenlighting Weeds, and said, “From its description, ‘Weeds’ is clearly based on the premise I created in January of 2003 about a suburban mother who deals marijuana out of her house. In fact, you and I had a conversation in which I told you about my idea, and you liked it so much, you asked if you could ‘have’ it. I agreed, provided I was active in the development of the project and received credit for creating the premise should the project move forward. You accepted these terms. . . . [¶] As a friend and former employee, I’m hurt and disappointed by your decision to move forward on this project without informing or including me as per our verbal contract.” Kohan responded immediately to his letter (through her lawyer), categorically denying that she used his idea.
We note that Kohan also argues that Willens cannot prevail because he cannot establish the essential elements of his claims, but we need not address that argument in light of our resolution of the appeal.
Willens filed his complaint on April 11, 2007. Claims for breach of an oral contract and breach of a confidential relationship have a two-year statute of limitation. (Code Civ. Proc., § 339 [breach of oral contract]; Davies v. Krasna (1975) 14 Cal.3d 502, 510 [breach of confidential relationship].)
In a declaration filed in support of her motion, Kohan states that the idea for the show was her own, although it was inspired by a play she saw in the 1990s, the passage of the medical marijuana law in California, an article in Esquire magazine about “Suburban Stoners” that she read in February 2002, and an article she read in December 2002 in Los Angeles Magazine about a middle-class drug dealer in suburban Los Angeles.
By arguing that Willens knew of the alleged breach of contract and/or confidential relationship by the time these letters were exchanged, Kohan impliedly conceded in the trial court (and impliedly concedes on appeal) that the conduct giving rise to Willens’s claims was not, as she earlier argued, the public broadcast of the show giving credit only to Kohan. Rather, the conduct underlying the claims was her private negotiation with Showtime, in which she sold the show as her own creation. Indeed, in her reply in support of her motion, Kohan expressly argued that the alleged breach occurred “when [Kohan] first pitched [the show] to the Showtime Network, . . . ‘without (i) telling the latter that Willens was the true creator, and (ii) without advising Showtime of their contract or its terms.’”
3. Inapplicability of the Anti-SLAPP Statute
As we have noted, “the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e). . . .’ [Citations.]” (City of Cotati, supra, 29 Cal.4th at p. 78.)
Kohan is correct that the conduct underlying Willens’s claims is not the public broadcast of the show giving credit only to Kohan, but rather Kohan’s private negotiation with Showtime, in which she sold the show as her own creation. This is apparent when one considers the agreement Kohan is alleged to have breached. Although the complaint’s description of the terms of the alleged contract is limited -- it alleges that Kohan agreed that Willens “would be credited and compensated as a creator and producer of the show” if the show was produced -- the evidence submitted in support of and in opposition to the anti-SLAPP motion describes the contract in more detail. In his declaration filed in opposition to Kohan’s motion, Willens describes the contract as follows: “I told her I would agree to let her ‘have’ the idea if she agreed to let me have creator or co-creator credit, involve me in the development of the show and see to it that I was hired onto the show as a writer if the show was made. Kohan responded ‘of course’ to each of my stated terms.” In an email Willens says he sent to himself immediately after he told Kohan about his idea, Willens describes the terms of the contract this way: “I told her it was okay [to use his idea] as long as I was attached and got credit for coming up with the idea and got to develop the show with her. She agreed to all of this.” And, as noted above, Willens stated in his June 1, 2004 letter that Kohan agreed that he would be “active in the development of the project and receive[] credit for creating the premise should the project move forward.”
From this evidence and the allegations of the complaint, it is clear that the conduct that caused the alleged injury for which Willens seeks to recover is Kohan’s failure to include Willens when she developed and sold the show to Showtime. That conduct did not involve any statement “made in a place open to the public or a public forum” (§ 425.16, subd. (e)(3)), nor was it conduct in furtherance of Kohan’s exercise of her right of free speech “in connection with a public issue or an issue of public interest” (§ 425.16, subd. (e)(4)). (Cf. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1246 [“The ‘public interest’ component of section 425.16, subdivision (e)(3) and (4) is met when ‘the statement or activity precipitating the claim involved a topic of widespread public interest,’ and ‘the statement . . . in some manner itself contribute[s] to the public debate’”; see also Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 [“The most commonly articulated definitions of ‘statements made in connection with a public issue’ focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest. [Citations.] As to the latter, it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate”].)
It appears that the complaint’s focus on the first broadcast of Weeds, rather than Kohan’s negotiations with Showtime or development of the show, is due to Willens’s assertion that his claims did not accrue until that broadcast. He argues that his claims are not time-barred because it was not until the show was broadcast that he could prove the similarity between the show and his idea, which he contends is required to establish his claims. We need not address this argument in light of our conclusion that the anti-SLAPP statute does not apply.
In short, Kohan’s conduct that precipitated Willens’s claims was purely private conduct, involving purely private interests. That this conduct ultimately led to the public broadcast of credits that attributed the creation of the show solely to Kohan is not determinative here. The broadcast of credits -- which may be protected conduct in some circumstances -- is “‘merely incidental’ to the unprotected conduct” and does not subject Willens’s claims to the anti-SLAPP statute. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton (2005) 133 Cal.App.4th 658, 672.)
Because Willens’s claims are not based upon protected conduct, the anti-SLAPP statute does not apply and we need not consider whether Willens demonstrated a probability of prevailing. (City of Cotati, supra, 29 Cal.4th at pp. 80-81.) We recognize Kohan’s frustration that her argument that the claims are time-barred must await a summary judgment motion if it cannot be resolved in an anti-SLAPP motion because there is no other procedure that allows submission of extrinsic evidence at an early stage of the proceedings. That is a matter that may be taken up with the Legislature; we are without power to rewrite the anti-SLAPP statute to include claims such as those alleged here.
C. Attorney Fees
There is one final issue. Willens notes in his respondent’s brief that he asked the trial court to award him attorney fees under section 425.16, subdivision (c), on the ground that Kohan’s motion was frivolous, but the court did not address his request in its order denying Kohan’s motion. He asks us to rule on his request, or to remand the matter with directions to the trial court to determine whether Kohan’s motion was frivolous. We decline Willens’s request because he did not file his own notice of appeal. (Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9 [“respondent must file its own notice of appeal in order to obtain affirmative relief by way of appeal”].) This does not preclude Willens from arguing on remand that he is entitled to attorney fees for this appeal. We express no opinion as to the merits of such an argument.
DISPOSITION
The order is affirmed. Willens shall recover his costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.