The Purge is a motion picture in which a fictional U.S. government has established an annual twelve hour period called “the purge” in which all crime is legalized and no emergency services are available. And, for the last year, The Purge has been the subject of an idea submission dispute in the Central District of California.
Plaintiff Douglas Jordan-Benel sued various parties involved in the movie’s production and distribution, claiming that The Purge is based on substantial part on his screenplay, Settler’s Day (the “Script”). According to Jordan-Benel, after he submitted his Script to United Talent Agency, Inc. (“UTA”), it was allegedly transmitted to someone involved in The Purge’s creation and was substantially copied in making the movie. Among claims for copyright infringement and declaratory relief, Jordan-Benel asserted a claim for breach of implied-in-fact contract against UTA, James DeMonaco (the sole credited writer of The Purge) and Why Not Productions, Inc. (one of the movie’s producers).
On March 13, 2015, DeMonaco and Why Not Productions sought to defeat Jordan-Benel’s claim for breach of implied-in-fact contract by filing a motion to strike under California’s anti-SLAPP statute, C.C.P. § 425.16.
The anti-SLAPP statute provides “a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” Chodos v. Cole, 210 Cal.App.4th 692, 700 (2012); see also Cal.Civ.Proc.Code § 425.16(b)(1). In ruling on a special motion to strike, the trial court undertakes a two-step analysis. Castleman v. Sagaser, 216 Cal.App.4th 481, 496 (2013). First, the moving party bears the initial burden to make a “threshold showing” that the challenged causes of action arise from protected free speech or petitioning activity. Castleman, 216 Cal.App.4th at 496-97. On this first prong, the court’s focus is on the “gravamen” of the causes of action, i.e., the moving party’s allegedly wrongful conduct which gave rise to the claims. Id. at 497-98. This requires a showing that the moving party’s conduct was an “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.” Id. at 496; see also Cal.Civ.Proc.Code § 425.16(b)(1) & (e)(1)-(4). If the moving party does not satisfy its burden on the first prong, the motion to strike must be denied. Santa Monica Rent Control Board v. Pearl Street, LLC, 109 Cal.App.4th 1308, 1317 (2003); Clark v. Mazgani, 170 Cal.App.4th 1281, 1286 (2009) (“If the [moving party] fails to satisfy this burden, the complaint is not subject to a motion to strike and the analysis ends.”).
If the moving party meets this threshold burden, the burden then shifts to the non-moving party to establish a probability of prevailing on the cause of action. Castleman, 216 Cal.App.4th at 497. To meet this burden, the non-moving claimant must only plead and substantiate a legally cognizable claim for relief. Id. The non-moving party’s burden is akin to that of a party opposing a motion for summary judgment. Grewal v. Jammu, 191 Cal.App.4th at 977, 990 (2011).
The motion will not be granted unless both prongs are resolved in favor of the defendant; the plaintiff’s cause of action must arise from protected speech or petitioning and the plaintiff must be unable to meet the minimum threshold to establish a claim on the merits.
Here, DeMonaco and Why Not Productions argued that Jordan-Benel’s claim targeted the creation, production, and distribution of The Purge – conduct in furtherance of their free-speech rights on matters of public interest – and therefore was properly the subject of the anti-SLAPP motion. This, they argued, sufficed to meet the first prong of the anti-SLAPP analysis. In response, Jordan-Benel did not address this issue on opposition, instead focusing on the second prong and arguing that his breach of contract claim was sufficiently pled.
The Court ruled in plaintiff Jordan-Benel’s favor on the anti-SLAPP motion, and did so solely with reference to the first prong, i.e., whether Jordan-Benel’s implied-in-fact breach of contract claim arose from protected speech. The Court stated that the activity underlying Jordan-Benel’s claim was not the creation of The Purge. Instead, the court determined that the claim arose from UTA, DeMonaco and Why Not Productions’ alleged failure to pay Jordan-Benel. In essence, the court determined that Jordan-Benel did not sue because The Purge was made – even though that fact was related to his claim – but, instead, because he was not paid for sharing his ideas – not an issue of public interest. According to the court, while the subject of the alleged implied-in-fact contract happened to fall within the realm of anti-SLAPP statute, the claim itself did not.
The denial of an anti-SLAPP motion, both in federal court and state court, is immediately appealable and, on July 6, 2015 the defendants (except UTA) filed a Notice of Appeal of the district court’s order with the Ninth Circuit. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003).
With respect to the trial court’s ruling, it is true that the application of the anti-SLAPP statute is not as simple as identifying protected activity that triggered, motivated or related to a complaint. City of Cotati v. Cashman, 29 Cal.4th 69, 71-72, 77-78 (2002) (explaining that it is not enough to show that an action was “triggered by protected activity”); Episcopal Church Cases, 45 Cal.4th 467, 477-78 (2009) (holding that movant failed to make threshold showing for prong one, even though claim may have been “triggered” by protected activity); Panakosta Partners, LP v. Hammer Lake Management, LLC, 199 Cal.App.4th 612, 636 (2011) (“The anti-SLAPP statute cannot be read to mean that any claim asserted in an action which arguably was filed in retaliation for the exercise of … petition rights falls under Code of Civil Procedure 425.16”) (citation omitted); City of Alhambra v. D’Ausilio, 193 Cal.App.4th 1301, 1307 (2011) (holding that movant failed to satisfy prong one, and stating that “that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such”); Marlin v. Aimco Venezia, LLC, 154 Cal.App.4th 154, 160 (2007) (prong one not satisfied even though petitioning activity “may have triggered the plaintiff’s complaint”); Santa Monica Rent Control Bd., 109 Cal.App.4th at 1313, 1318 (2003) (prong one not satisfied even if lawsuit was filed because of and in response to moving party’s protected activity).
Rather, “it is the principal thrust or gravamen of the [challenged] cause of action that determines whether the anti-SLAPP statute applies[.]” Robles v. Chalilpoyil, 181 Cal.App.4th 566, 575 (2010). In analyzing the principal thrust or gravamen of the cause of action, the court focuses on whether the moving party’s own “act underlying the [challenged] cause of action [was] itself … an act in furtherance of the right of petition or free speech.” City of Cotati, 29 Cal.4th at 78 (emphasis in original); Freeman v. Schack, 154 Cal.App.4th 719, 727 (2007) (in order to satisfy the first prong, the moving party’s own “act underlying the [challenged] cause of action must itself have been an act in furtherance of the right of petition or free speech”) (emphasis in original); Wang v. Wal-Mart Real Estate Bus. Trust, 153 Cal.App.4th 790,807 (2007) (in prong one, the court “look[s] to whether [cross-defendants’] acts underlying [claimant’s] causes of action were themselves acts carried out ‘in furtherance of the right of petition or free speech.’”) (quotation omitted); California Back Specialists Med. Group v. Rand, 160 Cal.App.4th 1032, 1037 (2008) (in considering the principal thrust or gravamen of a cause of action, the focus is “the [moving party] defendant’s activity that gives rise to his or her asserted liability – and whether that activity constitutes protected speech or petitioning.”).
Here, the Ninth Circuit’s analysis will likely focus on whether the gravamen of the claim is the act of producing and distributing the motion picture, or making a private contract. Although the district court chose to focus on the defendants’ refusal to pay, it could have chosen to focus on the defendants’ alleged “use” of the plaintiff’s work as being the act underlying the cause of action. And such an act – such “use” in the making and distribution of a motion picture – was certainly in furtherance of their right of free speech. The outcome of the Ninth Circuit appeal would expand the tools available to obtain the dismissal of idea submission disputes that lack merit. If the Ninth Circuit were to determine that Jordan-Benel’s claim arose from the creation of The Purge, and therefore that the anti-SLAPP statute applies to idea submission claims, it would provide defendants with a weapon for disposing of such lawsuits at an early stage. Such a determination would not categorically exclude causes of action arising from protected free speech rights, but would force plaintiffs to show – at an early stage – that they have a probability of prevailing on their cause of action within the meaning of the anti-SLAPP statute. Stay tuned.