Filed 3/27/20 Oldman v. Bates CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

KURT OLDMAN et al.,

Plaintiffs and Appellants,

v.

TYLER BATES et al.,

Defendants and Appellants.

B296539

(Los Angeles County

Super. Ct. No. 18STCV01060)

APPEAL from an order of the Superior Court of Los Angeles County, Elizabeth R. Feffer, Judge. Affirmed in part and reversed in part with instructions.

Theodora Oringher, Edward E. Johnson and Katherine J. Flores for Defendants and Appellants

Gutman Law, Alan S. Gutman and John Juenger for Plaintiffs and Appellants.

______________________

 

Tyler Bates and his company Tyler Bates Music, Inc. (collectively Bates) hired Kurt Oldman and Dieter Hartmann (plaintiffs) to help compose music for the movie Guardians of the Galaxy Vol. 2 (the film). After the project was completed, disputes arose about the compensation owed to plaintiffs for their work on the film, and they sued Bates for recompense. Bates filed a special motion to strike plaintiffs’ entire complaint under the anti-SLAPP statute; plaintiffs argued the motion was frivolous and sought their fees and costs in opposing it. The trial court denied the special motion to strike and denied plaintiffs’ fee award request.

Bates now appeals the ruling on the special motion to strike, and plaintiffs cross-appeal the denial of their request for attorney’s fees and costs. We affirm in part and reverse in part the trial court’s denial of Bates’s special motion to strike. We find no error in the trial court’s denial of plaintiffs’ request for fees and costs and affirm that ruling.

BACKGROUND

Bates hired plaintiffs to assist in composing the music for the film. Plaintiffs allege Bates induced them to perform this work by agreeing to pay them $50,000 each upfront, and promising to list plaintiffs on the film’s cue sheet so that plaintiffs would also receive, in perpetuity, 15 percent of the writer’s share of performance royalties on the score. A cue sheet sets forth the percentage of performance royalties that composers are entitled to receive and is provided to performing rights organizations, such as BMI (Broadcasting Music, Inc.) or ASCAP (American Society of Composers, Authors and Publishers), to ensure proper payment of royalties.

Plaintiffs allege that after they completed their work, Bates breached his promise, telling plaintiffs that they would not be added to the cue sheet and Bates would instead pay plaintiffs 13.3 percent of the royalties for three years. Plaintiffs assert this breach damaged them as the bulk of the compensation for their work was to come from future performance royalties.

Plaintiffs also allege that Bates falsely claimed sole credit for the film score, when in actuality plaintiffs and another individual composed most of the music. Plaintiffs complain they understood the film’s credits would include an “additional music by” credit for plaintiffs in light of their contribution, but instead only Bates received credit.

Plaintiffs filed a complaint against Bates alleging causes of action for promissory fraud, intentional misrepresentation, promissory estoppel, breach of oral contract, declaratory relief, and an accounting. Those causes of action asserted two overarching claims. First, all six causes of action asserted a promise by Bates to list plaintiffs on the cue sheet such that they would receive 15 percent of the writer’s share of royalties in perpetuity; based on the breach of that promise, plaintiffs requested compensatory and punitive damages, a declaration that plaintiffs were entitled to cue sheet credit and 15 percent of the writer’s share of performance royalties in perpetuity, and an accounting to determine the amount owed to plaintiffs. Second, all but the accounting cause of action asserted plaintiffs understood they would receive “additional music by” credit on the film, and requested a court order that they be given such credit as well as damages from this omission.

Bates responded by filing a special motion to strike, arguing the complaint alleged causes of action arising from acts in furtherance of his First Amendment rights about an issue of public interest. (Code Civ. Proc., § 425.16, subds. (b)(1), (e)(4).) In particular, Bates argued that all acts undertaken in relation to the creation of the film are protected activities because films are expressive works subject to First Amendment protections. Bates further argued that plaintiffs’ causes of action were all based on his alleged failure to provide creative attribution in the film credits and on the cue sheet. Thus, Bates contended, the holding of Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941 (Kronemyer)—that protected conduct includes a website’s decision to not list someone as a producer on a film—dictated that the special motion to strike be granted. Bates also argued that plaintiffs could not establish the required probability that they would prevail on their claims.

Plaintiffs filed an opposition supported by declarations from both Oldman and Hartmann. In their opposition, plaintiffs argued that Bates failed to show how his conduct furthered his exercise of free speech. Plaintiffs asserted Kronemyer was inapposite because the gravamen of plaintiffs’ complaint was that Bates failed to compensate them as promised. With regard to their probability of prevailing, plaintiffs’ declarations both discuss an agreement with Bates to receive 15 percent cue sheet credit, but are silent as to the “additional music by” issue. Plaintiffs contended they should be awarded attorney’s fees and costs because Bates’s anti-SLAPP motion was “completely devoid of merit” and “frivolous.”

The trial court denied the special motion to strike. The court found that the conduct at issue was not protected activity because it concerned a failure to fulfill contractual and other obligations, not free speech. Because Bates did not meet his burden to show the claims arose from protected activity, the trial court found it unnecessary to address whether plaintiffs could establish a probability that they would prevail on their claims. The trial court also found that the special motion to strike “was not entirely frivolous or solely intended to cause unnecessary delay,” and denied plaintiffs’ request for attorney’s fees and costs. These appeals followed.

DISCUSSION

A. Standard of Review and Statutory Framework
B.
We review de novo the trial court’s grant or denial of a special motion to strike under the anti-SLAPP statute. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)

The Legislature enacted section 425.16 to “combat lawsuits designed to chill the exercise of free speech and petition rights.” (Park, supra, 2 Cal.5th at p. 1060.) To that end, the anti-SLAPP statute provides that “[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 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 plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Acts in furtherance of the right of free speech include any conduct “in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Id., subd. (e)(4).)

When considering whether a claim should be struck, courts undertake a two-prong analysis. “First, the court must decide whether the defendant has made a prima facie showing that the acts of which the plaintiff complains were taken in furtherance of the defendant’s rights of petition or free speech. [Citation.] If the defendant carries that burden, the burden shifts to the plaintiff to show a probability of prevailing on the claim. [Citation.] The plaintiff can carry his burden by making a prima facie showing of facts that would, if proved, support a judgment in his favor. [Citation.] The court’s consideration of the defendant’s evidence is limited to determining whether it defeats the plaintiff’s showing as a matter of law. [Citation.] The trial court does not weigh the evidence or make credibility determinations. [Citation.]” (Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 271.)

C. Bates’s Alleged Failure to Provide Cue Sheet Credit for Purposes of Royalty Payments Is Not Protected Activity
D.
Bates begins by arguing that films involve free speech, and therefore any act that helps to advance or assist in the creation of a film is a protected activity. (See Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143-144; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280.) In Bates’s view, that necessarily means his alleged failure to provide promised compensation for work on a film in the form of royalty cue sheets is protected activity. As support, Bates argues that Kronemyer holds that refusing to provide attribution for a film is protected activity, and cue sheets are akin to such attribution.

For a claim to be struck under the anti-SLAPP statute, it is not enough that it be related to the defendant’s protected activity. It must arise from such activity. (§ 425.16, subd. (b)(1).) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park, supra, 2 Cal.5th at p. 1062.) In turn, an activity “underlies or forms the basis of the claim” (ibid.) only where “the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id. at p. 1060.) We must be “attuned to and . . . take[ ] care to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity.” (Id. at p. 1064.) Accordingly, “in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.)

When one analyzes the allegations of plaintiffs’ causes of action based on Bates’s alleged failure to provide 15 percent cue sheet credit, it becomes clear that protected activity does not supply the elements of any of those causes of action. Rather, the causes of action concern a dispute over promised compensation. That the project giving rise to the compensation dispute was music for a film is part of the relevant factual mosaic, but neither the development of the film’s music, nor any creative or other protected activity related to the film’s music, is the wrong complained of. The claims instead arise out of an alleged promise to compensate plaintiffs for their work through future royalty payments, and Bates’s alleged failure to honor that promise.

Kronemyer, on which Bates relies, is inapposite given the nature of the royalty dispute at issue here. In that case, Kronemyer sued Internet Movie Database (IMDb) because IMDb’s website did not list him as a producer of the movie “My Big Fat Greek Wedding.” (Kronemyer, supra, 150 Cal.App.4th at p. 944.) The trial court granted IMDb’s anti-SLAPP motion, and the Court of Appeal affirmed, finding “the gravamen of the lawsuit is the content of [IMDb’s] Web site.” (Id. at p. 947.) “This is borne out by [Kronemyer]’s prayer for relief, in which he asks the trial court to require [IMDb] to change the content of the Web site to identify him as a producer on the projects at issue.” (Ibid.) Thus, IMDb’s listing or not listing of credits on its informational website was an act in furtherance of its right of free speech. (Id. at pp. 947-948.)

Kronemyer did not involve any alleged contract or enforceable promise between the parties concerning compensation for work performed. Instead, Kronemyer involved an effort to force a third party to engage in certain speech by listing someone as a producer. Here, in contrast, with respect to receiving 15 percent cue sheet credit, plaintiffs seek compensation allegedly promised to induce their performance, but then not received. While receipt of the compensation requires listing plaintiffs on the cue sheet provided to performing rights organizations, the wrong complained of remains the alleged breach of promised compensation and not the type of protected free speech activity at issue in Kronemyer. (See, e.g., Jordan-Benel v. Universal City Studios, Inc. (9th Cir. 2017) 859 F.3d 1184, 1190 [implied-in-fact contract claim related to film script did not arise from protected activity, but instead from alleged failure to pay writer].)

Bates has not carried his burden to show that plaintiffs’ claims relating to receiving 15 percent cue sheet credit arise from acts in furtherance of protected activity. The trial court correctly denied the special motion to strike as to these claims.

E. The Alleged Failure to Acknowledge Plaintiffs’ Creative Contributions Through an “Additional Music By” Credit
F.
1. The Alleged Failure Is Protected Activity

In contrast, plaintiffs’ claims arising out of Bates’s alleged failure to argue for and secure “additional music by” credit for plaintiffs on the film do arise from acts in furtherance of protected activity. Plaintiffs do not allege a contract or promise triggering a legally cognizable obligation for Bates to have secured “additional music by” credit in the film; they allege only that they “understood” they would receive “additional music by” credit in the film based on Hartmann’s past work with Bates on the original Guardians of the Galaxy movie. Plaintiffs’ theory is that “additional music by” credit should be awarded because “in what amounts to a case of stolen valor . . . , Bates has claimed 100[ percent] of the credit for the score, when, in actuality, he only composed a small percentage of the score, while [plaintiffs], as well as another writer, composed most of it.”

As opposed to an alleged promise to induce performance, the “additional music by” claim arises out of artistic disputes about the level of creative contribution to the film score, and seeks to compel speech to acknowledge plaintiffs’ alleged contribution. Acts that help to advance or assist in the creation of an artistic project, such as collaborating on a film score, are protected activity. (Tamkin v. CBS Broadcasting, Inc., supra, 193 Cal.App.4th at pp. 143-144.) Moreover, as plaintiffs acknowledge, “it would be up to Bates to inform the studio or producer as to what input [plaintiffs] had in order to determine what film credits they would receive” and that “Bates was responsible for discussing how the credits relating to the score should be with the filmmakers.” Bates’s decision not to communicate the purported level of plaintiffs’ creative contributions to the studio for purposes of an “additional music by” credit is conduct in the furtherance of the exercise of free speech rights. (Kronemyer, supra, 150 Cal.App.4th at p. 947 [the constitutional right of free speech includes the right not to speak on certain topics].)

Similar to Kronemyer, plaintiffs seek to impose liability based on an alleged failure by Bates to engage in speech advocating that plaintiffs be accorded “additional music by” credit. Nor is plaintiffs “additional music by” claim restricted to the First Amendment rights of Bates, as such credit would necessarily involve the film credits themselves. Plaintiffs argue that “any free speech interest of the film” is not implicated by their claim for “additional music by” credit because they did not sue the producers “or anyone else who might have the power to change the film’s credits.” The allegations of their complaint, however, are not so restricted. In plaintiffs’ cause of action for promissory estoppel, for example, plaintiffs allege that they “must each receive . . . ‘additional music by’ credit.” Plaintiffs also request in their declaratory relief claim that the court declare that plaintiffs are entitled to “additional music by” credits.

Plaintiffs lastly argue that even if their claims arise from acts in furtherance of free speech rights, Bates’s failure to secure “additional music by” credit will not be known to the public and therefore, is not an issue of public interest. We fail to see how declaratory relief about who in fact composed the music for what plaintiffs acknowledge was a “blockbuster” film will not be known to the public, or is not an issue of public interest. Kronemyer reached a similar conclusion. In that case, the court found that “My Big Fat Greek Wedding” was a successful independent motion picture, and therefore a topic of widespread public interest with regard to alleged producer credit. (Kronemyer, supra, 150 Cal.App.4th at p. 949.) The same logic applies here.

Bates accordingly made a prima facie showing that the complained-of “additional music by” acts were taken in furtherance of his right of free speech in connection with a topic of public interest.

2. Plaintiffs Failed to Meet Their Burden to Show

a Probability of Prevailing on the “Additional

Music By” Claims

Having found Bates satisfied the first prong of the anti-SLAPP analysis on the “additional music by” credit claim, we turn to whether plaintiffs have shown a probability of prevailing on that claim. (See Midland Pacific Building Corp. v. King, supra, 157 Cal.App.4th at p. 271.) We conclude they have not.

The declarations and supporting exhibits submitted in support of plaintiffs’ opposition to the special motion to strike is devoid of any discussion or support concerning the issue of “additional music by” credit. Plaintiffs’ responding brief in this court is similarly silent, focusing its evidentiary analysis solely on the cue sheet issue. Given the total absence of evidence, plaintiffs fail to show any probability of prevailing on the “additional music by” claim.

G. The Trial Court Did Not Err in Declining to Award Attorney’s Fees and Costs
H.
Section 425.16, subdivision (c)(1) requires the court to award attorney’s fees and costs to a prevailing plaintiff “[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay . . . .” (Ibid.) A frivolous motion is one “ ‘ “totally and completely without merit,” ’ ” that is, “ ‘ “any reasonable attorney would agree such motion is totally devoid of merit.” ’ ” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.) The trial court’s ruling as to whether a special motion to strike was frivolous or intended to cause delay is reviewed under the abuse of discretion standard. (Ibid.) We find Bates’ motion to strike should have been granted in part. We accordingly find no abuse of discretion in the denial of plaintiffs’ request for attorney’s fees and costs.

DISPOSITION

The trial court’s order denying the special motion to strike is affirmed in part and reversed in part. On remand, the court shall enter a new and different order partially granting the motion as follows:

The following portions of the complaint are hereby stricken:

• In paragraph 26, the following language: “Oldman and Hartmann also understood that they would receive ‘additional music by’ credits, as had been accorded to Hartmann on GOG1”;
•
• In paragraph 29, the following language: “the additional credits”;
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• In paragraph 33, the following language: “Oldman and Hartmann also understood that they would receive ‘additional music by’ credits, as had been accorded to Hartmann on GOG1”;
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• In paragraph 36, the following language: “the additional credits”;
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• In paragraph 40, the following language: “ ‘additional music by’ credit”;
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• In paragraph 46, the following language: “ ‘additional music by’ credit”;
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• In paragraph 48, the following language: “ ‘additional music by’ credit”;
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• In paragraph 50, the following language: “ ‘additional music by’ credit”;
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• In paragraph 53, the following language at lines 10 to 11 and 13: “ ‘additional music by’ credits”;
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• In paragraph 54, the following language: “ ‘additional music by’ credits.”
•
The trial court’s order denying plaintiff’s request for attorneys’ fees and costs, is affirmed. Each party is to bear their own costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

CHANEY, Acting P. J. BENDIX, J.