Opinion
INTRODUCTION
Michael Brewer and Brewer Media Associates, Inc., appeal from an order of the superior court denying their special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).
FACTUAL AND PROCEDURAL HISTORY
On November 24, 2009, respondent, doing business as 24/7 Productions, filed a complaint against Brewer and his wholly owned and controlled corporation, Brewer Media Associates, Inc., in Los Angeles Superior Court. In the complaint, respondent alleged that he is a documentary filmmaker who made a documentary film entitled, Blacks Without Borders: Chasing The American Dream In South Africa. Respondent had employed Brewer as a cameraman to shoot the film on a “deferred compensation” basis, which meant that Brewer would not be paid until the film was released. Respondent further alleged that Brewer’s work on the film was unsatisfactory and required resрondent to hire another cameraman and reshoot much of the footage. The costs of the reshoot exceeded the deferred compensation that respondent had agreed to pay Brewer.
Respondent further alleged that “Brewer has claimed without any legal basis that he and [respondent] were partners in producing the [f]ilm, and/or that he (or Brewer Media) owns the footage used in the [f]ilm.” Respondent
Respondent stated three causes of action in his complaint. In the first cause of action for intentional interference with contractual relationship, respondent alleged (1) that he “entered into a contract with Showtime on or about October 18, 2008 whereby [respondent] granted a license to Showtime to broadcast the [f]ilm from February 1, 2009, for one year, and Showtimе agreed to pay [respondent] a $25,000 license fee”; (2) that appellants “caused a letter to be written to Showtime dated April 13, 2009, falsely claiming that Brewer Media was the owner and licensor of the footage that comprised the [f]ilm, and that the [f]ilm was Brewer’s ‘brain child,’ and demanding that Showtime cease to broadcast the [fjilm and provide an accounting”; (3) that appellants knew about his contract with Showtime Networks Inc., and intentionally induced Showtime to breach the contract by writing the cease- and-desist letter; and (4) that as a result of appellants’ conduct, “Showtime refusеd to pay [respondent] the agreed licensing fee.”
In the second cause of action for intentional interference with economic relationship, respondent alleged (1) that he “worked hard over the years to establish close relationships with TAC [(The Africa Channel)] and the organizers of FAFF [(the 2009 Pan African Film Festival)], and others”; (2) that appellants knew or should have known about these relationships; (3) that appellants “intentionally sought to disrupt [respondent’s] economic and contractual relationships with TAC, FAFF and others, by falsely claiming to those parties that they had a partnership or copyright or other legal interest in the [f]ilm”; (4) that appellants knew or should have known that these claims had no legal basis because the 2006 lawsuit had been decided in respondent’s favor; and (5) that as a direct result of appellants’ conduct, TAC refused to license the film and the organizers of FAFF refused to allow the film to be shown at FAFF.
In the third cause of action for declaratory relief, respondent sought a judicial determination whether he owed Brewer any payment for Brewer’s work on the film because Brewer’s “errors cost [respondent] far more than [respondent] would otherwise have owed Brewer.” Respondent sought a judgment that he owed Brewer nothing because the expenses for the reshoot offset the deferred compensation owed to Brewer.
On February 19, 2010, appellants filed a special motion to strike the first and second causes of action pursuant to the anti-SLAPP statute. In the
In support of the anti-SLAPP motion, Brewer filed a declaration in which he stated (1) that he entered into a partnership with Bailey to “jointly develop, produce and exploit an episodic ‘lifestyle’ television program under the name Global Living Productions”; (2) that he filmed the content for the program, including interviews; (3) that the interviewees signed release forms stating that this was a coproduction between his company, Brewer Media Associates, and Bailey’s company, 24/7 Productions; (4) that after the shooting was completed, he gave Bailey all of the signed release forms and the master field tapes; (5) that Bailey subsequently refused to recognize that a joint partnership existed and claimed that he exclusively owned all rights to the program; (6) that Bailey had all of the interviewees sign new releases without any mention of Brewer or his company; (7) that Bailey edited the program and changed its name to “Blacks Without Borders” and began to distribute the program; (8) that in response, “my attorneys and I sent cease and desist communications to Showtime, The Africa Channel, the Pan African Film Festival and the Schomburg Center informing them of my rights in the [p]rogram and demanding them to cease and desist the exhibit and exploitation of the [pjrogram”; and (9) that at the time he sent the cease-and-desist communications, he had a “good faith intention to file suit against Bailey if we could not resolve the dispute by way of settlement.”
Appellants also attached a copy of the cease-and-desist letter to Showtime. In the letter, Bradley J. Gross of the law firm of Becker & Poliakoff informed Showtime (1) that he represented “Brewer Media Associates, Inc. (‘Brewer’), the owner and licensor of the footage comprising a documentary called, ‘Blacks Without Borders’ ”; (2) thаt his client’s footage had been “unlawfully incorporated” into the documentary; (3) that the film was “the brainchild of Brewer, and [wa]s the result of dozens of hours of interviews and footage, all of [which] were filmed in South Africa”; (4) that “[a]ll of the footage comprising the [documentary belongs to Brewer, and 24/7 Productions usurped that footage in violation of [his] client’s valuable intellectual property rights”; and (5) that he had contacted all media outlets that had received
Respondent opposed the anti-SLAPP motion on the ground that the anti-SLAPP statute and the litigation privilege applied only to litigation “contemplated in good faith and under serious consideration,” and that appellants had not shown that the cease-and-desist letter to Showtime was made in connection with anticipated litigation that Brewer was contemplating in good faith. According to respondent, the letter did not reference any litigation or contain an imminent threat to file a lawsuit. Moreover, respondent contended, Brewer’s statement that he intended to file suit against Bailey must be rejected because Brewer had filed a small claims court action on the same grounds as in the instant anticipated litigation and had lost after a contested hearing.
Respondent attached a copy of the small claims action as part of a request for judicial notice. In the small claims action, Brewer alleged that the parties “entered into a joint venture to produce a television program, ‘Global Living.’ ” He further alleged that respondent “breach[ed] [his] fiduciary duties to the partnership, misapрropriat[ed] . . . partnership assets and repudiated] ... the partnership.” Brewer sued to wind up the partnership and for “partial value of partnership assets misappropriated].” On June 5, 2006, after a contested hearing, the small claims court concluded that “[defendant does not owe plaintiff any money on plaintiff’s claim.”
In their reply to respondent’s opposition, appellants contended (1) that prelitigation statements need not be immediately followed by a lawsuit in order to be considered protected by the anti-SLAPP statute and the litigation privilege and (2) that the litigation privilege applies to claims that are not legally viable. Appellants asserted that it was irrelevant whether Brewer had filed a prior lawsuit against Bailey. Moreover, they claimed “the ruling in small claims court did not mention anything regarding the rights to the [f]ilm, . . . [and] [t]hus, Brewer is not precluded from litigating the issue of whether or not the parties had formed a partnership with regards to the [f]ilm.”
After a hearing, the superior court denied the anti-SLAPP motion. In its written order denying the motion, the trial court found that appellants’ prelitigation letters and communications to Showtime and other media entities formed the basis of respondent’s first and second causes of action; it concluded, however, that appellants’ letters and communications were not protected by the anti-SLAPP statute and the litigation privilege because the dispute between the parties had not “ ‘ripened into a proposed proceeding.’ ”
The order denying the anti-SLAPP motion was entered July 21, 2010. Appellants filed a timely notice of appeal from the order.
DISCUSSION
To determine whether a cause of action should be stricken under the anti-SLAPP statute, section 425.16 establishes a two-part test. Under the first part, the party bringing the anti-SLAPP motion has the initial burden of shоwing that the cause of action arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity. (Zamos v. Stroud (2004)
An appellate court independently reviews the trial court’s order denying an anti-SLAPP motion. (Rusheen v. Cohen (2006)
Here, the trial court denied the anti-SLAPP motion on the ground that appellants had failed to meet their burden of demonstrating that the activity underlying respondent’s claims was protected. The trial court determined that appellants’ cease-and-desist letters and communications to Showtime and
As an initial matter, we independently conclude that appellants’ cease-and-desist letters and communications to Showtime and other media outlets formed the basis of respondent’s first two causes of action in his complaint. Although the cease-and-desist letters and communications were not attached to the complaint and appellants produced only one cease-and-desist letter with the anti-SLAPP motion, we make this determination based upon our independent review of the reсord. The complaint alleged that appellants had sent a letter to Showtime and made certain communications to other media outlets that caused those media outlets to refuse to broadcast or show the film. The anti-SLAPP motion asserted that these letters and communications were cease-and-desist letters and communications from appellants’ attorneys. On this record, there was sufficient evidence to conclude that the cease-and-desist letters and communications formed the basis of respondent’s first two causes of action. We next address whethеr these letters and communications were protected under the anti-SLAPP statute.
A. Prelitigation Statements Protected Under Section 425.16
Section 425.16 protects any “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’” (§ 425.16, subd. (e).) Such acts include “any written or oral statement or writing made in connection with an issue under consideration or review by a . .. judicial body . . . .” (Id., subd. (e)(2).) Thus, “statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of рublic interest. [Citations.]” (Rohde v. Wolf (2007)
In determining whether a statement was made in anticipation of litigation contemplated in good faith and under serious consideration, this court may look to how this test has been applied in cases involving the litigation privilege of Civil Code section 47. (Flatley, supra, 39 Cal.4th at pp. 322-323 [although the scope of § 425.16 and Civ. Code, § 47 are not identical, the latter may be used “as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry—that is, by examining the scope of the litigation privilege to determine whether а given communication falls within the ambit of subdivision (e)(1) and (2)”].) Cases applying the litigation privilege have held that “if the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege. [Citation.]” (Blanchard v. DIRECTV, Inc. (2004)
Here, respondent asserts that appellants’ prelitigation statements were not protected under section 425.16 because they related to litigation barred as a matter of law. Appellants counter that they were not threatening to relitigate the claims decided in the small claims action. Furthermore, appellants assert that the subject of the prior lawsuit is irrelevant, because statements related to claims barred by the doctrine of res judicata are prоtected under section 425.16. We address each of these contentions in turn.
B. Res Judicata Effect of Small Claims Action
Appellants argue that “the ruling in small claims court did not mention anything regarding the rights to the [f|ilm, . . . [and] [t]hus, Brewer is not precluded from litigating the issue of whether or not the parties had formed a partnership with regards to the [f]ilm.” As an initial matter, we note that the
A small claims plaintiff is collaterally estopped from relitigating the same issue in superior court where the record is sufficiently clear to determine that the issue was litigated and decided against the plaintiff in the small claims action. (Pitzen v. Superior Court (2004)
In the small claims action, Brewer sued respondent for damages based upon a purported “joint venture to produce a television program, ‘Global Living.’ ” He sought a “dissolution and winding up of the partnership as a result of defendant’s breach of fiduciary duties to the partnership, misappropriation of partnership assets and repudiation of the partnership.” After a contested hearing, the small claims court held that respondent did not owe Brewer any money on his claim. From this evidence, we conclude that the issue litigated and decided was whether respondent had misappropriated any asset in which Brewer claimed a proprietary interest arising from the purported partnership to produce a television program called “Global Living.” The small claims court’s decision necessarily found that respondent had not misappropriated any asset of the alleged partnership.
In the instant litigation, Brewer’s declaration asserted he had “a good faith intention to file suit against Bailey if [the parties] could not resolve the dispute by way of settlement.” The basis for the lawsuit was Brewer’s alleged rights in a television program whose name had been changed to “Blacks Without Borders.” Brewer alleged (1) that he had entered into “a partnership with [respondent] to jointly develop, produce and exploit ... [a] television program under the name Global Living Productions”; (2) that Brewer traveled to South Africa for two weeks and filmed content for the program; (3) that respondent subsequently refused to recognize that a joint partnership existed and claimed exclusive ownership of all rights to thе program; and (4) that respondent began to distribute the program without Brewer’s knowledge or consent.
Appellants contend that the record of the small claims action is inadequate to demonstrate that they are barred from litigating copyright claims to the film footage. They nоte that the ruling in the small claims action never mentioned anything about rights to the film. Additionally, the ruling never stated that the assets of the partnership included copyright claims to the footage. Appellants thus contend they are not precluded from litigating their copyright claims. We disagree.
Appellants have never suggested that their interest in the documentary film has changed since Brewer filed the small claims action. The Brewer declaration stated that Brewer had filmed interviews as part of a purported partnership to produce and exploit a television program, that respondent had repudiated that partnership and unlawfully claimed exclusive ownership in the footage, and that respondent was seeking to distribute a television program comprising that footage without Brewer’s consent. Thus, the footage used in the film was an asset of the partnership formed to create, produce, and exploit the television program. The claim for misappropriation of the assets of that joint partnership, raised in the small claims action, necessarily encompassed any claim for violating Brewer’s copyright in the footage used to creаte the film. Brewer lost on that claim after a contested hearing. Thus, he is barred from relitigating the same issue in superior court. We next turn to whether statements related to barred claims are protected under section 425.16.
C. Meritless Claims Under Section 425.16
It is well settled that a party seeking to invoke the protections of section 425.16 for prelitigation statements must demonstrate that the statements “relate[] to litigation that is contemplated in good faith and under serious consideration.” (Action Apartment, supra,
We recognize that a party need not demonstrate that it would succeed on the merits of the contemрlated litigation in order to invoke the protection of the litigation privilege or section 425.16. (Cf. Feldman, supra,
Although section 425.16 must be construed broadly, our holding comports with the purpose of section 425.16, which is to protect activity that furthers the right to free speech or to petition for redress of grievances. (See § 425.16, subd. (a) [“[T]his section shall be construed broadly.”]; Flatley, supra,
Appellants argue that under our Supreme Court’s holding in Action Apartment, even meritless and malicious claims are protected by the litigation privilege; accordingly, section 425.16 should apply equally to claims barred by res judicata. Action Apartment addressed the validity of a municipal
Action Apartment is distinguishable from the instant case. First, the scope of protection for prelitigation statements under the litigation privilege of Civil Code seсtion 47 is not co-extensive with the scope of protection for prelitigation statements under Code of Civil Procedure section 425.16. (Flatley, supra,
Second, Action Apartment did not address the applicability of a state statute—section 425.16—to a party barred from relitigating a claim or issue by the doctrine of res judicata. The court never addressed the doctrine of res judicata, and it expressly recognized that state law could provide exceptions to the litigation privilege. (Action Apartment, supra,
Moreover, our holding that a prelitigation statement made in connection with a claim barred by the doctrine of res judicata is not protected under section 425.16 does not implicate the “core policy” underlying Civil Code section 47, which is to protect access to the courts. (Rubin v. Green (1993)
DISPOSITION
The order is affirmed. Respondent is awarded costs.
Willhite, Acting P. J., and Suzukawa, J., concurred.
Notes
All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.
The elements of a malicious prosecution action are favorable termination, lack of probable cause, and malice. (Soukup v. Law Offices of Herbert Hafif (2006)