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Electronically FILED by Superior Court of California, County of Los Angeles on 05/21/2019 02:30 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk

1 LEWIS BRISBOIS BISGAARD & SMITH LLP


CRAIG HOLDEN, SB# 174643
2 E-Mail: Craig.Holden@lewisbrisbois.com
SKYE DALEY, SB# 284592
3 E-Mail: Skye.Daley@lewisbrisbois.com
633 West 5th Street, Suite 4000
4 Los Angeles, California 90071
Telephone: 213.250.1800
5 Facsimile: 213.250.7900

6 Attorneys for Defendants Creative Artists


Agency, LLC, Andrew Miller & Leah
7 Yerushalaim

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF LOS ANGELES, CENTRAL DISTRICT

11

12 JOHN MUSERO, an Individual, CASE NO. 19STCV10435

13 Plaintiff, DEFENDANTS CREATIVE ARTISTS


AGENCY, LLC, ANDREW MILLER AND
14 vs. LEAH YERUSHALAIM’S NOTICE OF
MOTION AND SPECIAL MOTION TO
15 CREATIVE ARTISTS AGENCY, LLC, a STRIKE; MEMORANDUM OF POINTS
Delaware limited liability company; AND AUTHORITIES
16 ANDREW MILLER, an individual; LEAH
YERUSHALAIM, an individual; and DOES 1 [Filed concurrently with the Declaration of
17 through 10, inclusive, Andrew Miller and the Declaration of Leah
Yerushalaim]
18 Defendant.
Date: June 24, 2019
19 Time: 8:30 a.m.
Dept.: 31
20
[Assigned for All Purposes to:
21 The Hon. Hon. Yolanda Orozco, Dept. 31]

22 Action Filed: March 26, 2019


Trial Date: None Set
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Reservation ID: 703157667590
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LEWIS
BRISBOIS
BISGAARD 4851-1390-1719.1 19STCV10435
& SMITH LLP Defendants’ Special Motion to Strike
ATTORNEYS AT LAW
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on June 24, 2019 at 8:30 a.m., or as soon thereafter as the

3 matter can be heard in Department 31 of the above-entitled Court, located at 111 N. Hill Street,

4 Los Angeles, CA 90017, Defendants CREATIVE ARTISTS AGENCY, LLC, ANDREW

5 MILLER and LEAH YERUSHALAIM (“Defendants”) will, and hereby do, move the Court for an

6 Order striking certain allegations in Plaintiff JOHN MUSERO’s (“Musero” or “Plaintiff”)

7 Complaint pursuant to Code of Civil Procedure section 425.16.

8 This Motion is made on the ground that the Complaint’s allegation that Defendants

9 misappropriated the Plaintiff’s work necessarily arises from the Defendants’ acts in furtherance of

10 their constitutional rights of petition and speech, triggering the protections of Code of Civil

11 Procedure section 425.16. Further, this allegation is entirely without merit and lacking of any

12 evidentiary support and Plaintiff cannot sustain his burden of demonstrating a probability of

13 prevailing on the merits.

14 This motion is based upon the attached Memorandum of Points and Authorities, the

15 Declarations of Andrew Miller and Leah Yerushalaim and all papers, records, and documents on

16 file in this action; and such evidence as may be presented at or before the hearing of the motion.

17

18 DATED: May 21, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP

19

20
By:
21 Craig Holden
Attorneys for Defendants Creative Artists Agency,
22 LLC, Andrew Miller & Leah Yerushalaim
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BISGAARD 4851-1390-1719.1 2 19STCV10435
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1 TABLE OF CONTENTS

2 Page

3 I. INTRODUCTION ................................................................................................................. 1

4 II. PLAINTIFF’S ALLEGATIONS........................................................................................... 1

5 III. LAW AND ARGUMENT .................................................................................................... 2

6 A. The Anti-SLAPP Statute Is Construed Broadly In Favor Of Curtailing


Litigation Targeting Protected Activity .................................................................... 2
7
B. An Anti-SLAPP Motion may be used to Attack Distinct Claims Within a
8 Cause of Action. ........................................................................................................ 3

9 C. The Nomenclature of the Cause of Action is Irrelevant to the Analysis. .................. 3

10 D. Plaintiff’s Allegation That Defendants Misappropriated his Work in the


Production of a Television Show “Arises From” a Protected Activity. .................... 4
11
E. Plaintiff’s Allegation That Defendants Misappropriated his Work in the
12 Production of a Television Show is Connected to an “Issue of Public
Interest.” .................................................................................................................... 7
13
F. Plaintiff Cannot Establish A Probability Of Prevailing Against Defendants. ........... 8
14
1. The Plaintiff Cannot Possibly Succeed on a Desny Claim............................ 8
15
2. The Evidence Conclusively Shows That Penn Independently
16 Created Main Justice. .................................................................................... 9

17 3. Plaintiff’s Allegation is Based Solely in the Concept of “Corporate


Receipt” of his Script. ................................................................................. 10
18
IV. CONCLUSION ................................................................................................................... 12
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1 TABLE OF AUTHORITIES

2 Cases

3 Alexander v. AETN, LLC,


(E.D. Cal. Sept. 2, 2011) 2011 U.S. Dist. LEXIS 99913 ..................................................... 5
4
Baral v. Schnitt,
5 (2016) 1 Cal. 5th 376............................................................................................................ 3

6 Cross v. Cooper,
(2011) 197 Cal.App.4th 357 ................................................................................................. 7
7
Daniel v. Wayans,
8 (2017) 8 Cal. App. 5th 367 ................................................................................................... 6

9 Desny v. Wilder,
(1956) 46 Cal.2d 715 ............................................................................................................ 8
10
Doe v. City of Los Angeles,
11 (2007) 42 Cal. 4th 531........................................................................................................ 12

12 Doe v. Gangland Products,


(9th Cir. 2013) 730 F.3d 946 ................................................................................................ 4
13
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
14 (1996) 47 Cal.App.4th 777 ................................................................................................... 3

15 Grosso v. Miramax Film Corp.,


(9th Cir. 2004) 383 F.3d 965 ................................................................................................ 8
16
Hilton v. Hallmark Cards,
17 (9th Cir. 2010) 599 F.3d 894 ............................................................................................ 4, 7

18 Hollywood Screentest of America, Inc. v. NBC Universal, Inc.


(2007) 151 Cal.App.4th 631 ........................................................................................... 9, 10
19
Jordan-Benel v. Universal City Studios, Inc.,
20 (9th Cir. 2017) 859 F.3d 1184 .......................................................................................... 3, 4

21 Lafayette Morehouse, Inc. v. Chronicle Publishing Co.


(1995) 37 Cal.App.4th 855 ................................................................................................... 2
22
M.G. v. Time Warner, Inc.,
23 (2001) 89 Cal.App.4th 623 ................................................................................................... 5

24 Navellier v. Sletten,
(2002) 29 Cal.4th 82......................................................................................................... 3, 4
25
Nygard, Inc. v. Uusi-Kerttula,
26 (2008) 159 Cal.App.4th 1027 ............................................................................................... 7

27 Okun v. Superior Court


(1981) 29 Cal.3d 442 .......................................................................................................... 12
28
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1 Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP
(2005) 133 Cal.App.4th 658 ................................................................................................. 4
2
Pridonoff v. Balokovich,
3 (1951) 36 Cal. 2d 788 ......................................................................................................... 12

4 Sarver v. Chartier,
(9th Cir. 2016) 813 F.3d 891 ................................................................................................ 4
5
Seelig v. Infinity Broadcasting Corp.
6 (2002) , 97 Cal.App.4th 798 ................................................................................................. 7

7 Sheley v. Harrop,
(2017) 9 Cal. App. 5th 1147 ................................................................................................. 4
8
Spinner v. American Broadcasting Companies, Inc.
9 (2013) 215 Cal.App.4th 172 ............................................................................................ 9, 12

10 Symmonds v. Mahoney,
(2019) 31 Cal. App. 5th 1096 ............................................................................................... 6
11
Tamkin v. CBS Broadcasting, Inc.,
12 (2011) 193 Cal.App.4th 133 ..................................................................................... 4, 5, 6, 7

13 Thayer v. Kabateck Brown Kellner LLP


(2012) 207 Cal.App.4th 141 ................................................................................................. 8
14
Wilder v. CBS Corp,
15 (C.D. Cal. 2013) 2013 U.S. Dist. LEXIS 190059 ................................................................ 5

16
Statutes
17

18
Code Civ. Proc., § 425.16. ......................................................................................................... 1, 2, 3
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Code Civ. Proc., § 425.16(a) ............................................................................................................. 3
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LEWIS
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BISGAARD 4851-1390-1719.1 2 19STCV10435
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1 I. INTRODUCTION

2 Plaintiff John Musero’s (“Musero” or “Plaintiff”) allegation that Defendants Creative

3 Artists Agency, LLC (“CAA”), Andrew Miller (“Miller”) and Leah Yerushalaim (“Yerushalaim”)

4 (collectively “Defendants”) misappropriated his creative work is a well-worn example of precisely

5 the allegation that forms the basis of a “strategic lawsuit against public participation,” and should

6 be stricken. Here, Plaintiff seeks to impose liability based on Defendants’ alleged conduct in

7 engaging in a constitutionally-protected activity—namely, the alleged communications with those

8 creating a television show. Consequently, Plaintiff’s claims fall within the ambit of Code of Civil

9 Procedure (“C.C.P.”) §425.16 (the “anti-SLAPP” statute).

10 Plaintiff is therefore obligated to produce evidence demonstrating that he has a probability

11 of prevailing on the merits of this claim. Plaintiff cannot meet this burden because he cannot

12 prove that those who created the alleged infringing television show had access to his script, and in

13 any event moving parties can conclusively establish the independent creation of that show.

14 Accordingly, Defendants respectfully request that the Court grant this motion.

15 II. PLAINTIFF’S ALLEGATIONS

16 Plaintiff is a lawyer-turned-aspiring writer, who was represented by CAA agents Miller

17 and Yerushalaim beginning in June of 2014. Complaint, ¶¶ 11, 15, 16. Plaintiff’s Complaint

18 consists of two main grievances: the first is that Defendants failed to provide satisfactory services

19 as his agents. The second is that Defendants misappropriated one of his creative works; a

20 television concept called Main Justice. This Special Motion to Strike is grounded in Plaintiff’s

21 second grievance, which also permeates his first.

22 Plaintiff alleges, generally, that he wrote a television pilot for a legal drama series about

23 the United States Attorney General, and the Department of Justice, titled Main Justice. Id. at ¶ 22.

24 Plaintiff states that he provided this script to CAA agents Miller and Yerushalaim to assist in

25 refining the work and to pitch the concept to production companies, in the hopes that it might be

26 bought and developed into a television show. Id. at ¶ 23. The script was in fact “shopped” around
27 to various production houses and used as a writing sample to obtain work for Plaintiff as a writer;

28 indeed, a prominent Emmy Award winning production company, The Mark Gordon Company,
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1 obtained a one year option to develop and purchase the rights to Main Justice. Id. at ¶¶ 24, 25, 32.

2 The Plaintiff states, however, that the Mark Gordon Company did not ultimately choose to

3 develop the show and the option expired in June of 2017. Id. at ¶ 36.

4 Later, the Plaintiff alleges a television show, also about the Attorney General and the

5 United States Justice Department, was developed by a different CAA client, producer Jerry

6 Bruckheimer. Id. at ¶ 37. Bruckheimer’s show was written by a different CAA client named

7 Sascha Penn (“Penn”) in coordination with former United States Attorney General Eric Holder. Id.

8 at ¶ 37. The Plaintiff goes on to allege, on information and belief, that his Main Justice concept

9 was taken by Miller and shared with Penn, who “harvested” Musero’s work in order to create his

10 own version of the show – essentially copying Musero’s work as their own. Id. at ¶¶ 37-48.

11 Plaintiff also alleges “upon information and belief” that Miller “personally initiated the

12 development of Bruckheimer’s Main Justice with his client [writer] Penn, and his other client

13 Bruckheimer TV” and that Miller “created a pitch document which was used to sell Bruckheimer’s

14 Main Justice to CBS.” Id. at ¶¶ 41 and 43 (emphasis added). The Plaintiff alleges that all three

15 Defendants “work[ed] on Bruckheimer’s Main Justice pilot…” and that they “profited

16 significantly” for such work. Id. at ¶ 47. Plaintiff alleges that all three Defendants

17 misappropriated “Plaintiff’s original and creative work in Main Justice, developing it with

18 producer Jerry Bruckheimer, Bruckheimer TV and writer Penn…” Id. at ¶ 77. In so alleging, the

19 Plaintiff has made clear that the gravamen of this lawsuit is grounded in the Defendants’ role in

20 the production of Jerry Bruckheimer’s television series, Main Justice.

21 III. LAW AND ARGUMENT

22 A. The Anti-SLAPP Statute Is Construed Broadly In Favor Of Curtailing

23 Litigation Targeting Protected Activity

24 C.C.P. §425.16 is a procedural remedy designed to quickly dispose of lawsuits that

25 infringe upon the valid exercise of constitutional rights. (Lafayette Morehouse, Inc. v. Chronicle

26 Publishing Co. (1995) 37 Cal.App.4th 855, 865.) §425.16(b)(1) provides:


27 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
28 Constitution in connection with a public issue shall be subject to a special motion
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1 to strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.
2

3 Section 425.16 was amended in January 1997 to resolve conflicting interpretations of the

4 statute issued by the appellate courts. The Legislature stated that henceforth the statute “shall be

5 construed broadly.” (Code Civ. Proc. § 425.16(a), emphasis added.)

6 In determining whether to grant an anti-SLAPP motion, courts engage in a two-step

7 process. First, the court decides whether the moving party has made a threshold showing that the

8 challenged cause of action is one arising from protected activity, i.e., whether the activity fits one

9 of the four categories enumerated at §425.16(e). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

10 Once the moving party establishes that the lawsuit arises from protected activity, the burden shifts

11 to plaintiff to show through competent evidence a probability that he will succeed on his claim.

12 (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777; C.C.P. §425.16(a).)

13 B. An Anti-SLAPP Motion may be used to Attack Distinct Claims Within a

14 Cause of Action.

15 “[T]he Legislature's choice of the term ‘motion to strike’ reflects the understanding that an

16 anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a

17 count as pleaded.” Baral v. Schnitt, (2016) 1 Cal. 5th 376, 393 (emphasis added); see also

18 Jordan-Benel v. Universal City Studios, Inc., (2017) 859 F.3d 1184, fn. 4 (“An Anti-SLAPP

19 motion may strike distinct claims within a cause of action, even if it the entire cause of action

20 is not subject to anti-SLAPP.”).

21 Here, Defendants seek not to strike the entirety of the Complaint, but merely to strike

22 Plaintiff’s allegations that Defendants’ misappropriated his work, utilized his creative ideas to

23 create a television show, or allegedly breached a fiduciary duty by doing any of these acts.

24 C. The Nomenclature of the Cause of Action is Irrelevant to the Analysis.

25 Importantly, the nomenclature of the cause of action is irrelevant to the analysis of whether

26 a cause of action – or any individual claim therein - is subject to anti-SLAPP; if a claim arises
27 from conduct in furtherance of free speech, it falls within the scope of the statute regardless of its

28 label. See, e.g., Navellier v. Sletten, (2002) 29 Cal.4th 82, 91 (SLAPP statute’s “definitional focus
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1 is not the form of the plaintiff’s cause of action, but rather, the defendant’s activity that gives rise

2 to his or her asserted liability”). As the California Supreme Court held in Navellier, claims for

3 breach of contract “are not categorically excluded from the operation of the anti-SLAPP statute

4 ….” 29 Cal.4th at 92 (emphasis added).

5 Thus, instead of focusing on the name given to the cause of action by Plaintiff, “[w]e must

6 determine whether the claim actually arises from protected activity. Sheley v. Harrop, (2017) 9

7 Cal. App. 5th 1147, 1167 (citing Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton

8 LLP (2005) 133 Cal.App.4th 658, 669–670) (emphasis original).

9 D. Plaintiff’s Allegation That Defendants Misappropriated his Work in the

10 Production of a Television Show “Arises From” a Protected Activity.

11 “To prevail on an anti-SLAPP motion to strike, the defendant must first make a prima facie

12 showing that the plaintiff's suit arises from an act in furtherance of the defendant's rights of

13 petition or free speech. An ‘act in furtherance’ includes, among other things, ‘conduct in

14 furtherance of the exercise of the constitutional right of petition or the constitutional right of free

15 speech in connection with a public issue or an issue of public interest.’" Jordan-Benel v. Universal

16 City Studios, Inc., (9th Cir. 2017) 859 F.3d 1184 (citing Cal. Code Civ. Proc. § 425.16(e)(4)).

17 Here, the activities underlying Plaintiff's claims against the Defendants were their

18 communications in connection with the development and subsequent sale of the unrelated Main

19 Justice project ; these actions, according to Plaintiff, “conferred a significant economic benefit to

20 CAA, Miller and Yerushalaim.” See Complaint, ¶ 77. Plaintiff’s allegation that Defendants

21 misappropriated his work confirms that the alleged conduct underlying all three causes of action

22 consists of speech or conduct in furtherance of speech. Creation of a television show is a

23 protected activity. See, e.g, Tamkin v. CBS Broad., Inc., (2011) 193 Cal.App.4th 133, 143

24 (creation of television show a protected activity); Sarver v. Chartier, (9th Cir. 2016) 813 F.3d 891,

25 901-902 (creation/distribution of fictional film a protected activity); Doe v. Gangland Prods., (9th

26 Cir. 2013) 730 F.3d 946, 954-955 (creation/broadcast of television program a protected activity);
27 Hilton v. Hallmark Cards, (9th Cir. 2010) 599 F.3d 894,904 (distribution of greeting cards a

28 protected activity); Alexander v. AETN, LLC, (E.D. Cal. Sept. 2, 2011) 2011 U.S. Dist. LEXIS
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1 99913 (broadcast of television program a protected activity); M.G. v. Time Warner, Inc., (2001) 89

2 Cal.App.4th 623 (broadcast of HBO program and publication of magazine article a protected

3 activity).

4 In Wilder v. CBS Corp., the plaintiff, Angela Wilder, alleged that CBS stole her idea for a

5 daytime talk show. Wilder v. CBS Corp, (C.D. Cal. 2013) 2013 U.S. Dist. LEXIS 190059 . Wilder

6 alleged that she pitched to CBS a “one-hour daily talk show dedicated solely to the interests of

7 mothers and the myriad issues of motherhood, to be taped in front of a live audience.” Id. at pg. 3.

8 Two years after CBS declined to produce Wilder’s show, CBS aired The Talk, “a show dedicated

9 to motherhood and the issues faced by mothers in their everyday lives.” Id. Wilder alleged that

10 "The Talk" has a number of remarkable similarities to the [Wilder’s pitch], including the subject

11 matter . . . the format . . the hosts. . .” Id.

12 CBS filed an anti-SLAPP motion to strike the Complaint. The Court ultimately found

13 “[u]nder California law, the actions giving rise to Plaintiff's claims against the CBS Defendants—

14 the production and distribution of "The Talk"—are clearly ‘in furtherance’ of the right to free

15 speech.” Id. at pg. 32. The Court then found the television show to be “an issue of public interest”

16 and moved on to the second prong of the two part anti-SLAPP test (whether Wilder established a

17 probability of prevailing against CBS).

18 In Tamkin v. CBS Broadcasting, Inc., the California Court of Appeal considered a case

19 brought by plaintiffs, Scott and Melinda Tamkin, who alleged that CBS utilized their names and

20 likenesses in a defamatory manner in the creation the show CSI: Crime Scene Investigation.

21 Tamkin v. CBS Broadcasting, Inc., (2011) 193 Cal.App.4th 133. The Plaintiffs filed a complaint

22 alleging defamation and invasion of privacy. Id. at 139. In response, CBS filed an anti-SLAPP

23 motion to strike the Complaint, arguing that the production of CSI is a protected activity.

24 The Court in Tamkin ultimately concluded “that defendants' conduct here arose from

25 protected activities because defendants' acts were in furtherance of the exercise of their right of

26 free speech in connection with an issue of public interest. . . . defendants demonstrated that their
27 challenged conduct was in furtherance of the creative process of developing and broadcasting

28 CSI.” Id. at 144. The Court found that where “defendants' acts helped to advance or assist in the
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1 creation, casting, and broadcasting of an episode of a popular television show,” those acts are “in

2 furtherance of the exercise of the right of free speech.” Id. at 143. Finally, the Court found that

3 “the creation and broadcasting of CSI episode 913 is an issue of public interest . . .” Id.

4 Tamkin and Wilder are not unique. Far more recently, in February of 2019, our Second

5 District Court of Appeal approved of Tamkin and extended the concept further by finding a

6 “singer's selection of the musicians that play with him both advances and assists the performance

7 of the music, and therefore is an act in furtherance of his exercise of the right of free speech.”

8 Symmonds v. Mahoney, (2019) 31 Cal. App. 5th 1096, 1106. In Daniel v. Wayans, (2017) 8 Cal.

9 App. 5th 367, 382, the Court found “all of the alleged misconduct is based squarely on Wayans's

10 exercise of free speech—the creation and promotion of a full-length motion picture, including

11 the off-camera creative process.” (emphasis added).

12 Here, Defendants are accused of misappropriating Musero’s proposed television series,

13 Main Justice, by “developing [the script] with producer Jerry Bruckheimer, Bruckheimer TV and

14 writer Penn, selling it to CBS, conferring a significant economic benefit to CAA, Miller and

15 Yerushalaim.” Complaint, ¶ 77. This alleged fact pattern is identical to the situation in Wilder,

16 where Wilder accused CBS of stealing her idea for the show “The Talk.” There, the Court found

17 “the production and distribution of ‘The Talk’—are clearly ‘in furtherance’ of the right to free

18 speech.” Wilder, 2013 U.S. Dist. LEXIS 190059, *32. Likewise, this Court must find that the

19 production and sale of Main Justice was ‘in furtherance’ of Defendants’ right to free speech.

20 Further, as in Tamkin, Defendants’ acts are alleged to “have helped to advance or assist in

21 the creation, casting, and broadcasting of an episode of” a television show, produced by a wildly

22 prolific and successful producer. Tamkin, 193 Cal.App.4th at 143. As in Daniels, the allegation of

23 misappropriation stems “the creation and promotion of a” television show, “ including the off-

24 camera creative process.” Daniels, 8 Cal. App. 5th at 382. Last, as in Symmonds, the selection of

25 creative team to produce the show is likewise an exercise of the right to free speech. Symmonds 31

26 Cal. App. 5th at 1106.


27 Unquestionably, the development and sale of Bruckheimer’s Main Justice falls squarely

28 within the purview of the anti-SLAPP statute as a protected activity.


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1 E. Plaintiff’s Allegation That Defendants Misappropriated his Work in the

2 Production of a Television Show is Connected to an “Issue of Public Interest.”

3 The “public interest” requirement, “like all of section 425.16, is to be construed broadly

4 …” Seelig v. Infinity Broadcasting Corp. (2002), 97 Cal.App.4th 798, 808. An issue of public

5 interest has been broadly defined as “any issue in which the public is interested,” and “need not be

6 ‘significant’ to be protected by the anti-SLAPP statute ….” Nygard, Inc. v. Uusi-Kerttula, (2008)

7 159 Cal.App.4th 1027, 1042; Cross v. Cooper, (2011) 197 Cal.App.4th 357, 372-373 (same). As

8 was held in applying the statute to a greeting card, “the activity of the defendant need not involve

9 questions of civic concern; social or even low-brow topics may suffice ….” Hilton v. Hallmark

10 Cards, (9th Cir. 2010) 599 F.3d 894, 905-06.

11 This broad standard is easily met here. As widely disseminated expressive works,

12 television shows themselves are matters of public interest. See, e.g., Tamkin v. CBS Broad., Inc.,

13 (2011) 193 Cal.App.4th 133, 143 (popularity of television program showed public was

14 “demonstrably interested in the creation and broadcasting of that episode” for the purposes of

15 SLAPP statute); Seelig, 97 Cal.App.4th at 807-08 (popularity of television program demonstrated

16 it was of “significant interest”). Similarly, this show was being produced by a successful, prolific

17 and popular producer, Jerry Bruckheimer, and had been approved for production of a one-hour

18 pilot by CBS. Complaint, ¶ 44.

19 Moreover, the topics addressed in Main Justice involve social and cultural issues of

20 interest to the public. Main Justice takes place at the United States Department of Justice, where

21 characters tackle real-world legal issues, topics and dilemmas, essentially ripping drama “from the

22 headlines.” Indeed, even the title Main Justice itself is derived from the nickname given to the

23 main building which houses the Justice Department and its subservient investigative bureaus. The

24 broad topics of Main Justice easily satisfy the “public interest” requirement.

25 Because the alleged appropriation of Main Justice by Defendants necessarily touches upon

26 a protected activity in connection with a matter of public interest, the first prong of the anti-
27 SLAPP examination is clearly satisfied.

28
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1 F. Plaintiff Cannot Establish A Probability Of Prevailing Against Defendants.

2 Because Plaintiff’s claims satisfy the first prong of the anti-SLAPP statute, the burden

3 shifts to Plaintiff to make a prima facie showing of facts that would, if proved at trial, support a

4 judgment in his favor. Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 159.

5 Here, Plaintiff must identify facts that would, if proved at trial, support a finding that defendants

6 appropriated his work as their own in the creation of Bruckheimer’s Main Justice. That necessarily

7 means (1) that a Desny claim was created between the named Defendants and the Plaintiff,

8 whereby the Defendants would pay Plaintiff the fair value for the Defendants’ use of his work, or

9 (2) even if Plaintiff had a direct action against the Defendants, they would be obligated to prove

10 that the Defendants utilized Plaintiff’s Main Justice concept in creating the allegedly infringing

11 television series, or, while still insufficient to support a cause of action, at least (3) that Defendants

12 somehow relayed the Plaintiff’s creative or original work to Penn who then utilized the concept

13 for his own series.

14 1. The Plaintiff Cannot Possibly Succeed on a Desny Claim.

15 In the absence of an actionable copyright claim, the law does not afford any property right

16 in an idea. Desny v. Wilder, (1956) 46 Cal.2d 715, 731-732. California’s Supreme Court,

17 however, has recognized that there may, under limited circumstances, be either an express or

18 implied contract concerning the defendant’s use of a plaintiff’s idea. Id. at 733-734. Under this

19 narrow exception, a plaintiff’s initial disclosure of an idea can serve as consideration for a

20 defendant’s promise of payment for that idea if used. Id. at 733 (“That disclosure may therefore

21 be consideration for a promise to pay .. . .”); Grosso v. Miramax Film Corp., (9th Cir. 2004) 383

22 F.3d 965, 967. A Desny implied contract “is justified on the theory that the bargain is not for the

23 idea itself, but for the services of conveying that idea.” Grosso, 383 F.3d at 967; Desny, 46

24 Cal.2d at. at 737-38 (“[C]onveyance of an idea can constitute valuable consideration and can be

25 bargained for before it is disclosed to the proposed purchaser, but once it is conveyed, i.e.,

26 disclosed to him and he has grasped it, it is henceforth his own and he may work with it and use it
27 as he sees fit.”). Thus, an implied contract may exist where there is a mutual understanding that

28 the plaintiff will be compensated if the defendant uses the plaintiff’s idea. See Desny, 46 Cal.2d at
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1 739.

2 Here, the Plaintiff cannot provide any evidence to support his proposition that the named

3 Defendants in this action – his talent agents – agreed to pay the Plaintiff the fair value for the use

4 of his idea. Nor can the Plaintiff possibly provide any evidence to show that the named Defendants

5 used his idea to produce their own creative work, i.e., Bruckheimer/Penn’s Main Justice. Plaintiff

6 has not alleged such an agreement as this was clearly not their mutual intent.

7 2. The Evidence Conclusively Shows That Penn Independently Created

8 Main Justice.

9 “When the plaintiffs do not have direct evidence of use, they may raise an inference of use

10 by showing the defendants had access to their ideas and the defendants' work is substantially

11 similar to the plaintiffs' ideas.” Spinner v. American Broadcasting Companies, Inc., (2013) 215

12 Cal.App.4th 172, 184-85 (citing Hollywood Screentest of America, Inc. v. NBC Universal, Inc.

13 (2007) 151 Cal.App.4th 631, 646. Importantly, “[e]ven when the plaintiffs raise an inference of

14 use, however, the defendants may dispel that inference with evidence that conclusively

15 demonstrates the defendants independently created their product.” Id. at 185.

16 In Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th

17 631, the Court considered a case wherein the Plaintiff alleged that he pitched a television show

18 idea to NBC Universal, who ultimately rejected the idea. Screentest, 151 Cal.App.4th at 635. One

19 year later, NBC released a television show with marked similarities to the show pitched by the

20 plaintiff. Id. at 636. The plaintiff sued, alleging NBC misappropriated his concept and NBC filed a

21 Motion for Summary Judgment, asking the trial court to find as a matter of law that the NBC show

22 was a creation independent of the plaintiff. The trial court granted the summary judgment motion.

23 Id. at 641.

24 In affirming the trial court’s ruling, the Court of Appeal noted that NBC produced three

25 declarations describing how the show was created, without any input from the plaintiff. The

26 plaintiff, on the other hand, had “point[ed] to no evidence that NBC actually used” his ideas. Id. at
27 648. Rather, he asked the court to “draw inferences based on general similarities and timing,” and

28 he argued that a fact question existed as to whether the NBC show was independently created
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1 because of the “numerous similarities” between the shows and the timing of the show’s

2 production. Id. The court concluded that the plaintiff’s “speculation as to NBC's use is insufficient

3 to create a disputed issue of fact. An inference of use sufficient to challenge NBC's ‘clear, positive

4 and uncontradicted evidence’ of independent creation may not be drawn from ‘suspicion alone, or

5 … imagination, speculation, supposition, surmise, conjecture, or guesswork.’” Id.

6 Here, all Plaintiff has is suspicion, speculation, supposition, surmise, conjecture and guess

7 work. Plaintiff alleges blindly that Miller worked with Penn to copy his work and appropriate his

8 television series concept as their own without any real evidence. In truth, Penn’s show was created

9 separately from Musero, and Miller, Yerushaliam and CAA played no role in its development.

10 (a) Leah Yerushalaim

11 The burden shifts to Plaintiff to make a prima facie showing of facts that would, if proved

12 at trial, support a judgment in his favor against Leah Yerushalaim. Ms. Yerushalaim has never

13 met, nor spoken to writer Sascha Penn. Declaration of Leah Yerushalaim, ¶ 3. Ms. Yerushalaim

14 has never provided Sascha Penn with any of Mr. Musero’s creative or original work, including his

15 script, concept, pitch, series overview or pilot, for the Plaintiff’s “Main Justice” concept.

16 Declaration of Leah Yerushalaim. at ¶ 4. Ms. Yerushalaim has never instructed anyone to provide

17 the Plaintiff’s creative or original work to Mr. Penn. Id. ¶ 6. And, Ms. Yerushalaim played no role,

18 and had no involvement, in the creation or sale of Sascha Penn/Bruckheimer’s Main Justice pilot.

19 Id. ¶ 9.

20 Thus, the Plaintiff cannot make a prima facie showing of facts that would, if proved at

21 trial, support a finding that Ms. Yerushalaim misappropriated his work. Ms. Yerushalaim simply

22 had nothing to do with the creation or sale of Penn/Bruckheimer’s Main Justice. She has never

23 even met or spoken to its writer/creator, Sacsha Penn. It is therefore impossible for the Plaintiff to

24 satisfy his burden, and thus the allegation of misappropriation against Ms. Yerushalaim should be

25 stricken.

26 (b) Andrew Miller

27 The burden shifts to Plaintiff to make a prima facie showing of facts that would, if proved

28 at trial, support a judgment in his favor against Andrew Miller. Mr. Miller has never provided the
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1 script, concept, pitch, series overview or pilot, for Musero’s show, titled Main Justice, to Sascha

2 Penn, nor has he instructed anyone to do so. Declaration of Andrew Miller, ¶¶ 3, 6. Mr. Miller has

3 never discussed Musero or his work with Sascha Penn. Id. at ¶¶ 7, 8.

4 Thus, the Plaintiff cannot make a prima facie showing of facts that would, if proved at

5 trial, support a finding that Mr. Miller misappropriated his work. Mr. Miller did not share any of

6 Mr. Musero’s original or creative work with Mr. Penn, and Mr. Miller’s role in the development

7 and sale of Mr. Penn’s Main Justice did not come about until well after the idea was formulated.

8 It is therefore impossible for the Plaintiff to satisfy his burden, and thus the allegation of

9 misappropriation against Mr. Miller should be stricken.

10 (c) CAA

11 The burden shifts to Plaintiff to make a prima facie showing of facts that would, if proved

12 at trial, support a judgment in his favor against CAA. Leah Yerushalaim has never interacted with

13 Mr. Penn. Declaration of Leah Yerushalaim, ¶ 3. Andrew Miller has never discussed Mr. Musero

14 or his work with Mr. Penn. Declaration of Andrew Miller, ¶¶ 3, 7, 8. Mr. Miller did not become

15 involved in Mr. Penn’s efforts on Main Justice until after Mr. Penn approached him with the

16 concept. Id. ¶ 5.

17 Thus, the Plaintiff cannot make a prima facie showing of facts that would, if proved at

18 trial, support a finding that CAA misappropriated his work. The show was created and developed

19 entirely separately and distinctly from Mr. Musero’s concept. It is therefore impossible for the

20 Plaintiff to satisfy his burden, and thus the allegation of misappropriation against CAA should be

21 stricken.

22 3. Plaintiff’s Allegation is Based Solely in the Concept of “Corporate

23 Receipt” of his Script.

24 The Plaintiff appears to assume that CAA was the source of the “leak” of his work to Penn,

25 Bruckheimer and the rest of the creative team responsible for creating Bruckheimer’s Main

26 Justice, even while acknowledging that he – not CAA - shared his script with the Dan Jinks
27 Company, a CBS Studios affiliate, and that Plaintiff “on his own accord” – not CAA – also

28 shopped Main Justice around to Robert Katz and Nick Pepper at The Mark Gordon Company.
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1 Complaint. at ¶¶ 24, 25. Despite acknowledging that the Plaintiff himself put Main Justice in the

2 hands of two studios, and therefore their potentially countless producers, writers, and employees,

3 “on information and belief,” the Plaintiff nevertheless alleges that it was Miller, alone, who shared

4 Main Justice with the individuals who would later go on to write a show about the United States

5 Justice Department. Id. at ¶ 41.1

6 A cursory examination of the Plaintiff’s Complaint lays bare the lack of evidentiary

7 support for such a claim. The Plaintiff has nothing more than innuendo to link his creative work

8 with that of Bruckheimer. Musero’s premise is that “access” to his unpublished work is

9 established merely by alleging that it was sent to his agent at CAA, who also represented the

10 author of the allegedly infringing script. Importantly, while Musero claims that similarities exist

11 between his script and the infringing script, they clearly are not significant enough to rise to the

12 level of being “substantial” so that the similarities in expression would constitute copyright

13 infringement. Thus, these vaguely similar projects are alleged to have somehow passed from

14 Musero to Miller’s other client merely by virtue of their common representation.

15 In Spinner v. American Broadcasting Companies, Inc. (2013), 215 Cal.App.4th 172 the

16 Court concluded that “[b]are ‘corporate receipt’ of the plaintiffs' work may not be sufficient to

17 show access. A reasonable possibility of access requires a sufficiently strong nexus between the

18 intermediary to whom the plaintiffs submitted their work and the creator of the allegedly offending

19 work. The relationship linking the intermediary and the creator should be more than the simple

20 fact that they share a common employer.” Spinner, 215 Cal.App.4th at 186.

21 Again, as discussed more fully above, Ms. Yerushalaim has never met, nor spoken to

22 writer Sascha Penn. Declaration of Leah Yerushalaim, ¶ 3. Ms. Yerushalaim has never provided

23 Sascha Penn with any of Mr. Musero’s creative or original work, including his script, concept,

24
1
25 Although pleading “on information and belief” is not improper, per se, it is proper only so long “as the pleading
gives notice of the issues sufficient to enable preparation of a defense.” Doe v. City of Los Angeles, (2007) 42 Cal. 4th
26 531, 549-550 (citing Okun v. Superior Court (1981) 29 Cal.3d 442, 458). Further, facts pled upon information and
belief, without stating the basis for that belief, is improper. Id. at fn. 5; see also Pridonoff v. Balokovich, (1951) 36
27 Cal. 2d 788, 792 (Defendants must be “informed of the exact nature of the claim of special damages and afforded an
opportunity to prepare a defense against it. That is all that is required of the allegation.”).
28
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1 pitch, series overview or pilot, for the Plaintiff’s “Main Justice” concept. Declaration of Leah

2 Yerushalaim. at ¶ 4. Ms. Yerushalaim has never instructed anyone to provide the Plaintiff’s

3 creative or original work to Mr. Penn. Id. ¶ 6. And, Ms. Yerushalaim played no role, and had no

4 involvement, in the creation or sale of Sascha Penn/Bruckheimer’s Main Justice pilot. Id. ¶ 9. Mr.

5 Miller has never provided the script, concept, pitch, series overview or pilot, for Musero’s show,

6 titled Main Justice, to Sascha Penn, nor has he instructed anyone to do so. Declaration of Andrew

7 Miller, ¶¶ 3, 6. Mr. Miller has never discussed Musero or his work with Sascha Penn. Id. at ¶¶ 7,

8 8.

9 Thus, there is simply no evidence that Sascha Penn, Jerry Bruckheimer, Bruckheimer TV,

10 Bruckheimer Productions, or any other entity or individual involved in the making of the Main

11 Justice series selected by CBS for production as a pilot, were in any way informed in their work

12 by John Musero or his script, concept, pilot, series overview or treatment. The burden shifts to the

13 Plaintiff to produce evidence supporting this claim, which the Plaintiff invariably cannot.

14 IV. CONCLUSION

15 For the foregoing reasons, Defendants respectfully urge the Court to grant their anti-

16 SLAPP motion, and remove any allegation regarding misappropriation from the pleadings. See

17 Baral, 1 Cal. 5th at 396 (“Allegations of protected activity supporting the stricken claim are

18 eliminated from the complaint. . .”).

19

20 DATED: May 21, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP

21

22
By:
23 Craig Holden
Attorneys for Defendants Creative Artists Agency,
24 LLC, Andrew Miller & Leah Yerushalaim
25

26
27

28
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