Metropolitan News-Enterprise


Friday,  March 5, 2010


Page 1


Court Overturns $5 Million Award Over Film ‘Sahara


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal has overturned a $5 million award against best-selling author Clive Cussler in litigation over the adaptation of his novel “Sahara” into one of 2005’s biggest flops at the box office.

Div. Three held in an unpublished opinion Wednesday that Cussler’s public criticism of the film and demands for script changes before filming began did not breach an implied covenant of good faith and fair dealing in his contract with the movie’s producer.

Cussler in 2004 sued Crusader Entertainment, now known as Bristol Bay Productions, claiming the company violated an agreement to let him approve the film’s screenplay. Crusader countersued, arguing Cussler’s actions hurt the movie’s prospects.

The film—which starred Matthew McConaughey as adventurer Dirk Pitt, and co-starred Steve Zahn and Penélope Cruz—reportedly lost about $80 million at the box office after expenses.

After a 14-week trial in 2007 that garnered national attention, a jury rejected all of Crusader’s claims except for breach of the implied covenant. Los Angeles Superior Court Judge John P. Shook ordered entry of judgment for $5 million in damages.

The jury also found in its special verdict that Crusader was obligated to pay Cussler for a second Dirk Pitt film. Cussler moved that $8.5 million be awarded to him based on that finding, but Shook denied the motion.

Cussler appealed both decisions, but the Court of Appeal—in an opinion by Justice Patti S. Kitching—rejected Cussler’s request for payment, even as it agreed that Crusader’s remaining claim against Cussler was barred by law. Pursuant to the decision, the court also remanded to determine who was the prevailing party and thus entitled to costs and attorney fees, likely in the millions of dollars.

Kitching said that Cussler’s alleged bad faith disapproval of screenplays and associated delays in the production of the film did not violate any implied covenant because they were expressly permitted under the terms of his contract with Crusader.

“Crusader expressly promised to not change the Approved Screenplay unless Cussler, in his sole and absolute discretion, approved,” she wrote. “We cannot excuse Crusader from its express obligation to the use the Approved Screenplay and take away Cussler’s express right to reject unapproved screenplays unless, contrary to the parties’ intention, a literal interpretation of the contract would render it illusory and unenforceable….

“Under the plain and literal terms of the contract, Cussler could reject unapproved screenplays for unreasonable reasons (e.g., a desire to write the screenplay himself) or for no reason at all.”

Kitching also rejected Crusader’s claims that Cussler’s public statements about the film and his alleged unreasonable delay in approving actor Steve Zahn violated an implied covenant, as well as Cussler’s claim that his expert should have been permitted to testify to the profits an alternative “Sahara” based on his screenplay would have made.

Representatives for Cussler and Crusader both claimed victory.

Crusader’s attorney, Marvin Putnam of O’Melveny & Myers, said:

“As the jury correctly found, Crusader did not harm Clive Cussler in any way and owes him nothing. Now, although he was first to sue, Cussler comes away with empty hands.”

But Cussler’s attorney, Bert Fields of Greenberg Glusker, told the MetNews the decision was a “big win” for his client. He also said the opinion acknowledged that Crusader no longer held any rights in further works by Cussler, “one of the reasons [Cussler] filed suit in the first place.”

Justices Richard D. Aldrich and H. Walter Croskey joined Kitching in her opinion.

The case is Cussler v. Crusader Entertainment, LLC, B208738.


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