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Court of Appeal:
Action Alleging Talent Agency Swiped Script May Proceed
Opinion Says There’s Inadequate Link to Public Interest for Lawsuit to Be a SLAPP
By a METNEWS Staff Writer
A major talent agency yesterday failed in its bid for a reversal by the Court of Appeal for this district of a Los Angeles Superior Court order denying its anti-SLAPP motion in an action brought by a writer who claims that the agency and two of its employees pirated his script for a pilot about the U.S. Attorney’s Office.
Presiding Justice Dennis M. Perluss of Div. Five wrote the opinion affirming the denial, but for a reason differing from that of the trial judge.
Writer John Musero—a former deputy district attorney in Philadelphia—was a client of the Beverly Hills-based Creative Artists Agency (“CAA”) and was represented by two of its talent agents, Andrew Miller and Leah Yerushalaim, in connection with his script, “Main Justice,” which he hoped would become a series. Miller also represented producer Jerry Bruckheimer and his company, as well as writer Sascha Penn.
Website Announcement
Musero’s first amended complaint relates that in September 2017, an entertainment industry website announced:
“Eric Holder is going to Hollywood. The former U.S. Attorney General has teamed with top producer Jerry Bruckheimer for Main Justice, a legal drama series project, which has been set up at CBS. Written by Sascha Penn (“Penn”) and executive produced by Holder and Bruckhiemer....
“Centered around the U.S. Attorney General, the show takes us into the tumultuous world of the 5th floor of the Department of Justice where he takes on the biggest legal and investigative cases in the country....”
Similarities Noted
The complaint notes:
“Musero’s Main Justice is also centered around the U.S. Attorney General. Musero’s Main Justice also takes the audience into the tumultuous world of the 5th floor of the Department of Justice. Musero’s Main Justice also takes on the biggest legal and investigative cases in the country. And the Attorney General in both Bruckheimer’s Main Justice and Musero’s Main Justice is fictional.”
The pleading went on to set forth: “Upon information and belief, both Bruckheimer’s Main Justice and Musero’s Main Justice conclude with a final scene that contains a shocking ambush assassination attempt on the Attorney General on a D.C. street at night.”
A pilot was made but CBS did not commission a series.
“By selling a competing project under the same title about the same thing, agent Miller foreclosed any possibility of the prior project he had represented and commissioned, Musero’s Main Justice, being sold. In so doing, Defendants advantaged its more powerful client. Jerry Bruckheimer and Bruckheimer TV, at the significant expense of its less powerful client, Musero.”
Orozco’s View
Los Angeles Superior Court Judge Yolanda Orozco denied the defendants’ anti-SLAPP motion, reasoning that while the action meets the first prong of Code of Civil Procedure §425.16—speech on a matter of public interest—it fails because Musero is apt to prevail on the merits.
Addressing the first prong, Orozco said:
“[T]he asserted public interest here is the ‘general topic’ of the Attorney General, and more specifically, Eric Holder. The Court finds that the topic itself is a matter of public interest, as the Attorney General, and Eric Holder are public figures regularly in the public eye....Defendants participated in, or furthered, the discourse that makes the topic of the first black Attorney General, one of public interest by creating a show that was ‘built around the notion of the complexities of being a black Attorney General’ with story lines that can be said to be ‘ripped [from] the headlines’ of national news. Such a show would undeniably contribute to the public debate and discourse that makes the Attorney General and Eric Holder topics of public interest.”
Perluss’s Opinion
Perluss agreed that the lawsuit is not a SLAPP, but disagreed with Orozco’s view that the first prong is satisfied. He wrote:
“It is undoubtedly correct that a proposed television series not only based on the life of former Attorney General Holder but also apparently created in part by him would be a topic of widespread public interest….But when the context and content of the specific, allegedly wrongful statements at issue here are considered, the degree of connection between those statements and that topic of public interest is insufficient to warrant protection….”
He elaborated:
“As to content, significantly, Musero’s creative work that Miller allegedly misappropriated and conveyed to Penn did not relate in any way to Eric Holder or to the first Black Attorney General of the United States; Musero’s pilot script protagonist was an entirely fictional female Attorney General. Communicating the general idea of a legal drama…involving the Attorney General and prosecutors in the Department of Justice is not significantly different from the second 30 minutes of each episode of the Law & Order franchise that ran on NBC for 20 years, which focused on the Manhattan District Attorney’s Office and its prosecutors, and is not closely linked to any ongoing public interest that might exist with respect to former Attorney General Holder or even to the Penn-Bruckheimer series itself.”
The case is Musero v. Creative Artists Agency, 2021 S.O.S. 6562.
Craig Holden of Lewis Brisbois Bisgaard & Smith joined with Louis P. Petrich and Robert S. Gutierrez of Ballard Spahr in representing CAA, Miller and Yerushalaim. Stephen M. Doniger and Kelsey M. Schulz of Doniger/Burroughs acted for Musero.
Doniger commented yesterday:
“This was never a valid anti-SLAPP case. We now look forward to developing the case so that a jury can confirm that CAA’s gross breach of its agency agreement with and fiduciary duties to Mr. Musero are unacceptable.”
Copyright 2021, Metropolitan News Company