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Court of Appeal:
Suit Against NBCUniversal, Actor Oldman, Not a SLAPP
Presiding Justice Edmon Says Action by Writer Who Says His Ideas Were Poached in the Making of ‘The Darkest Hour’ Does Not Stem From Protected Conduct; First District Opinion Is Repudiated
By a MetNews Staff Writer
The Court of Appeal for this district has held that a lawsuit stemming from the making of a motion picture is not necessarily protected conduct for purposes of the anti-SLAPP statute, repudiating a contrary decision from the First District and affirming a Los Angeles Superior Court order giving the go-ahead to the continuation of an action against NBCUniversal, British actor Gary Oldman, and others.
Presiding Justice Lee Edmon of Div. Three authored the unpublished opinion, filed Monday. It expresses agreement with Judge Michael P. Linfield that Code of Civil Procedure §425.16 does not apply in an action by screenwriter Ben Kaplan who claims that elements of his script for a fictionalized biography of Sir Winston Churchill—titled “Churchill”—were pilfered and incorporated in the movie, “The Darkest Hour.”
Kaplan alleges that Oldman in 2015 agreed to appear in “Churchill” for $6 million but was then wooed by subsidiaries of NBCUniversal into portraying the British prime minister in their feature film. “The Darkest Hour” grossed $150 million and was nominated for the Academy Award as the best picture of 2017.
Oldman won the Oscar for best actor and the film bagged two other Oscars.
First District Opinion
In seeking a reversal of Linfield’s denial of their the anti-SLAPP motion, the defendants cited the 2019 First District Court of Appeal opinion in Ojjeh v. Brown, maintaining that it supports their special motion to strike causes of action for breach of contract and breach of fiduciary duty. That case involved the solicitation of investments in a documentary, allegedly through fraud.
Soliciting funding, Justice Carin T. Fujisaki of Div. Three said, “constituted activity in furtherance of their right of free speech in connection with an issue of public interest.”
She noted that “[c]ase law recognizes that protection may be afforded to preliminary actions that assist or are helpful in advancing the exercise of the right of free speech, even if the speech activity is still formative or incomplete at the time a lawsuit is filed.”
Under the “catchall” provision of §425.16, protection is afforded any “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.”
Fujisaki said that “there appears no dispute that application of such funding toward the documentary would have furthered or helped advance the project within the meaning of the catchall provision.”
Differing View
Edmon wrote:
“To the extent that Ojjeh stands for the proposition that any conduct preliminary or related to the making of a film arises out of protected speech, we disagree.”
She elaborated:
“Plainly, not all injurious conduct that occurs preliminary to, or in connection with, the making of a film raises free speech concerns—for example, we would be hard pressed to conclude that a claim alleging that a caterer breached a contract to provide lunch to the cast and crew on a movie set raised free speech concerns, even though the meals to be provided unquestionably would have ‘furthered or helped advance’ the making of the film….We similarly would find no free speech concerns in connection with a claim that a vendor breached a contract to deliver paint to be used to make a movie set, or that a property owner breached an agreement to allow his property to be used for filming a movie, even if these alleged breaches had the effect of delaying the movie’s production.”
The presiding justice also said:
“While defendants’ production of Darkest Hour was a necessary predicate for the claim, it did not itself support a claim for recovery because it was the failure to pay—not the making of the movie—that is alleged to have caused Kaplan harm. And, because a failure to pay is not alleged to be an act in furtherance of free speech, Kaplan’s Desny claims do not arise out of protected activity within the meaning of the anti-SLAPP statute.”
Implied Contract
Kaplan also sued for breach of an implied contract. Such an action was authorized by the California Supreme Court, under circumstances alleged now by Kaplan, in its 1956 opinion in Desny v. Wilder. There, a writer alleged that he had submitted a script and, without recompense or credit, features of it were incorporated in the 1951 film, “Ace in the Hole” produced and directed by defendant Billy Wilder.
Justice B. Rey Schauer said the fact “if it be a fact, that the basic idea for the photoplay had been conveyed to defendants before they saw plaintiff’s synopsis, would not preclude the finding of an implied (inferred-in-fact) contract to pay for the manuscript, including its implemented idea, if they used such manuscript.”
Edmon said in Monday’s opinion:
“While defendants’ production of Darkest Hour was a necessary predicate for the claim, it did not itself support a claim for recovery because it was the failure to pay—not the making of the movie—that is alleged to have caused Kaplan harm. And, because a failure to pay is not alleged to be an act in furtherance of free speech, Kaplan’s Desny claims do not arise out of protected activity within the meaning of the anti-SLAPP statute.”
Torts Alleged
Additionally, Kaplan set forth causes of action for intentional interference with contract, intentional interference with prospective economic advantage, and aiding and abetting breach of fiduciary duty.
The defendants asserting that it is established that casting decisions are protected activity and Kaplan cannot recover based on Oldman being cast as Churchill in “Darkest Hour.”
Edmon said the “injury-producing act” complained of in these causes of action was the persuading of Oldman not to appear in “Churchill.”
She reasoned that the fact the actor “went on to make Darkest Hour explains why” he was induced “not to participate in Kaplan’s film, but was not itself an element of Kaplan’s injury—Kaplan would have suffered the same harm whether Oldman left Kaplan’s project to make Darkest Hour or for a reason wholly unconnected with filmmaking.”
Kaplan sued under the Unfair Competition Law based on conduct complained of in the other causes of action. He set forth: “Defendants’ conduct…constitutes an unlawful business practice because [defendants] misappropriated Mr. Kaplan’s ideas and approaches from Churchill, tortiously interfered with Mr. Kaplan’s business and the development and production of Churchill as a feature film, and/or breached their duties to Mr. Kaplan.”
Edmon said that “[t]hese claims do not arise out of protected conduct for all the reasons discussed above.”
The case is Kaplan v. NBCUniversal Media, B313911.
David Grossman and Mary Balzer of the Century City firm of Loeb & Loeb represented the defendants and Roger N. Behle Jr. and Kevin D. Gamarnik of the Costa Mesa office of Foley Bezek Behle & Curtis acted for Kaplan.
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