Esplanade Prods., Inc. v. Walt Disney Co.

93 Cal.App.5th 793

311 Cal.Rptr.3d 350

ESPLANADE PRODUCTIONS, INC., Plaintiff and Appellant,

v.The WALT DISNEY COMPANY et al., Defendants and Respondents.

B315859

Court of Appeal, Second District, Division 7, California.

Filed July 19, 2023

Drooz Legal and Deborah Drooz for Plaintiff and Appellant.

O'Melveny & Myers, Daniel M. Petrocelli, Drew E. Breuder and Craig P. Bloom, Los Angeles, for Defendants and Respondents.

PERLUSS, P. J.

Esplanade Productions, Inc. sued The Walt Disney Company and affiliated entities (collectively Disney) for breach of an implied-in-fact contract, breach of confidence and unfair competition, alleging Disney had used the creative ideas of Esplanade's principal, Gary Goldman, in Disney's animated motion picture Zootopia without compensating Esplanade. The trial court sustained without leave to amend the demurrer of Disney regarding the individual elements of the works and the works as a whole, finding they were not substantially similar as a matter of law. The court overruled Disney's demurrer as to the title "Zootopia." Three years later the court granted the motion for summary judgment filed by Disney, ruling there was no evidence the creators of Disney's Zootopia had access to Goldman's work and, even if there was evidence of access, any inference of copying was rebutted by the undisputed evidence a Disney employee had independently created the title "Zootopia."

On appeal from the judgment entered in favor of Disney, Esplanade challenges the trial court's demurrer ruling and the grant of summary judgment. We affirm both rulings based on lack of access.¹

FACTUAL AND PROCEDURAL BACKGROUND

1. Goldman's Treatment

Goldman is a screenwriter who has written and produced several major motion pictures. In 1984 Goldman incorporated Esplanade to be the entity through which he would provide writing and producing services. Goldman has at all times been the director and sole shareholder of Esplanade.

In 2000 Goldman began developing an idea for a mixed live-action/animated movie called "Looney." Goldman wrote a "treatment" for the predominantly live-action portion of the film and registered the treatment with the Writer's Guild of America, West, Inc. in August 2000. The treatment consists of an eight-page summary, which tells the story of Zeke, a genius cartoonist, who is the writer, director, producer and (almost sole) voice-actor of an animated television show called "Zootopia" that has become a "worldwide sensation." The show is the "unique expression of [Zeke's] character," and he regularly holds conversations in the voices of his characters, even responding to one character voice with the voice of another character. Over the course of his career Zeke has gone from being "a nice, sweet, sensitive guy to being universally known as one of the biggest egomaniacs in Hollywood."

The action of the film begins with Zeke going through his morning routine, which establishes his enormous wealth, decadent lifestyle and tyrannical behavior. When he arrives at work, the viewer first sees the animated show, Zootopia. The Looney treatment describes Zootopia as, "Backstage at the zoo. Every morning, the animals punch in and go to work. At closing time, they punch out and go home. It's a metaphor for life and for America." The treatment lists nine animal characters: seven teenagers (hyena, aardvark, sloth, koala, bear, cheetah, squirrel) and two adults (ibex and ostrich), as well as a human zookeeper. After that brief description of the show Zootopia, the Looney treatment continues describing the live-action plot. Zeke and his creative partner (and only friend), Robin, are visited by their hometown bully, whom Zeke proceeds to humiliate. Zeke is then called to a meeting with a studio executive who asks Zeke to endorse a product Zeke believes is harmful. Zeke refuses. Later that day Zeke publicly mocks the studio executive on a popular talk show. Zeke is fired the next day.

Thus begins Zeke's downfall. He learns he is broke; his wife leaves him; his so-called friends abandon him; he cannot get work; he fights with Robin, loses his house, gets arrested and, left with no alternative, returns home to his parents’ house in Kansas. Throughout his hardships Zeke is haunted by his animated characters, who follow him like an entourage that only he can see. As his mental state devolves, Robin visits Kansas with her new fiancé, the childhood bully. Zeke realizes he is in love with Robin, but she rejects him. Zeke is ultimately committed to a psychiatric facility where he recognizes that his "characters are all him. And he has to master them, integrate them." Zeke returns to Hollywood, again professes his love to Robin; and, after some dramatic tension and uncertainty, she leaves the bully at the altar to be with Zeke.

In addition to the Looney treatment Goldman prepared a six-page description of the animated characters who populated the Zootopia show-within-the-film. The five main characters are a koala, hyena, aardvark, sloth and squirrel; all between the ages of 14 and 17. The koala is the leader of the group. He "looks cute, but he's ... consumed with unbridled ambition." He concocts "wild schemes" to challenge the bear for leadership of the animals and to win the affections of the attractive cheetah. The hyena is described as "[a] prankster. A jolly guy, out for a good time." He is an outcast "totally without hope of ever changing that situation or living a normal life." He "revels in being offensive" and "takes pride in his obnoxious behavior." The hyena also has a "volcanic libido" but has "no hope of fulfilling it with an actual female." The third member of the clique is the aardvark, a "strong, athletic, but dorky guy who is obsessed with self-improvement." He believes "an animal can be whatever he wants to be" and "[t]here is no such thing as ‘animal nature.’ ‘If you want to be an elephant, you can be an elephant.’ " The sloth is a "highly educated and cultured epicure who is monumentally lazy." He "has no hope that he can change or improve; or that anyone else can change or improve." The final main character is the only wild animal on the show: the squirrel, who can enter and exit the zoo as she pleases. She is "cute, curvaceous, sexy," self-sufficient and "the voice of common-sense." But no matter what advice she gives based on her knowledge of the outside world, the zoo animals "laugh her off as being absurd." The squirrel is romantic and "could almost fall for" any of the males; but they "treasure her as a friend, just not as a lover."

The show's supporting characters are the bear, cheetah, ibex and ostrich. The bear is a football player who takes his leadership for granted. The cheetah is a "[g]orgeous sex goddess cheerleader" who constantly tries to make the bear jealous. The ibex is an adult character who runs a bar frequented by the characters and is married to the other adult character, the ostrich. The ostrich is "very prissy and vain, but not too attractive."

Goldman envisioned the Looney film as being the first installment of a franchise that introduced his Zootopia characters. He then hoped to write and produce an animated spin-off starring the Zootopia characters.

2. Goldman's Looney/Zootopia Pitch

In 2009 Goldman was developing a live-action film with Brigham Taylor, who at the time was a production and development executive with Walt Disney Pictures. According to Goldman, after one of their meetings regarding the live-action project, Goldman told Taylor about Looney/Zootopia and gave Taylor copies of the Looney treatment, Zootopia character descriptions, copies of animated character drawings Goldman had commissioned, a two-page synopsis of the Looney plot and two one-page "teasers" even more briefly summarizing the plot of Looney (collectively the "pitch materials"). Goldman alleges Taylor agreed to show the pitch materials to Disney's animation department. Subsequently Taylor informed Goldman that Disney's animation department was not interested in the Looney/Zootopia story.

3. Disney's Zootopia (Spoiler Alert )

At some point after 2009 Disney began developing an animated film about a civilization comprised entirely of anthropomorphic animals who had evolved beyond being predator and prey and instead coexisted (mostly) peacefully in a modern world. The project went through several iterations, beginning as a spy movie set on an island with a fox protagonist and ultimately becoming a buddy-cop movie with a rabbit as the main protagonist and the fox as her reluctant partner. The movie was released in 2016 and earned more than $1 billion in box office revenue.

The plot of Disney's Zootopia centers on a young rabbit named Judy from the agricultural suburb of Bunnyburrow. In the prologue the viewer sees Judy as a child in a school play. She explains to the audience that animals have "moved beyond our primitive savage ways" and "predator and prey live in harmony." Judy says she wants to be a police officer when she grows up, despite her concerned parents’ reminder that, "There's never been a bunny cop." It's not clear whether Judy registers her parents’ apprehension because she scampers off to defend her friends against a bully (who happens to be a fox). The bully tells Judy that she will never be anything more than "just a stupid, carrot farming dumb bunny."

The movie then jumps ahead to show a young-adult Judy completing and graduating from the police academy. She is assigned to work in the "big city" of Zootopia. As she boards the train to Zootopia, Judy's parents again express concern about the predators in the city, particularly the foxes. They attempt to give her fox deterrent, fox repellent and a fox taser. She placatingly accepts the fox repellent and jumps onto the train.

When she reports to the police station for her first day, a cheetah officer marvels at the "cute" bunny cop. Judy politely explains that "a bunny can call another bunny ‘cute’ but when other animals do it, it's a little ...." The...