L'Heureux v. Miller

1

STEPHEN L'HEUREUX, Plaintiff and Respondent, v. FRANK MILLER et al., Defendants and Appellants.

B322839

California Court of Appeals, Second District, Seventh Division

May 22, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 20STCV28241 Stephanie M. Bowick, Judge. Reversed with directions.

Grodsky, Olecki & Puritsky, Allen B. Grodsky and Tim B Henderson for Defendants and Appellants.

Pillsbury Winthrop Shaw Pittmam, Kenneth E. Keller, Alekzandir Morton and John J. Steger for Plaintiff and Respondent.

SEGAL J.

INTRODUCTION

Frank Miller is a prominent comic book writer. Several major motion pictures have been adapted from Miller's works, including two based on his Sin City comic book series. Stephen L'Heureux was a producer for one of the Sin City movies.

L'Heureux filed this action against Miller; his company, Frank Miller, Inc.; and the company's chief executive officer, Silenn Thomas (the Miller parties). L'Heureux alleged the Miller parties granted him the rights to adapt Sin City and one of Miller's other comic books, Hard Boiled, for a television series and a film, respectively, but reneged on the agreements and told various people in the entertainment industry-in particular, production studio executives- not to work with L'Heureux because L'Heureux did not have the rights to use Miller's works. L'Heureux asserted causes of action for defamation, interference with contract and with prospective economic advantage, and breach of the implied covenant of good faith and fair dealing.

The Miller parties filed a special motion under Code of Civil Procedure section 425.16 (section 425.16) to strike each of L'Heureux's causes of action and the entire complaint. As relevant to this appeal, they argued their alleged statements about L'Heureux's rights to produce adaptations of Miller's works were protected activity under section 425.16, subdivision (e)(4).

The trial court separately analyzed the Miller parties' statements about whether L'Heureux had rights to Sin City and their statements about whether L'Heureux had rights to Hard Boiled. On the first step of the now-familiar analysis under section 425.16, the court ruled that the Miller parties' statements about L'Heureux's Sin City rights were protected activity, but that their statements about L'Heureux's Hard Boiled rights were not. On the second step, the trial court ruled L'Heureux demonstrated a probability of success on most of his claims based on the Miller parties' statements about his rights to Sin City.

The Miller parties argue the trial court should have ruled on the first step that both their statements about L'Heureux's rights to Hard Boiled, as well as the statements about L'Heureux's rights to Sin City, were protected activity under section 425.16, subdivision (e)(4), while L'Heureux argues the trial court should have ruled neither set of statements was protected activity. We agree with the Miller parties on the first step that they showed the statements about the production of a Sin City television series and a Hard Boiled movie-and in particular, the identity of the producers and others attached to the series and the movie-were matters of public interest and that, by stating to production studios L'Heureux had no rights to use the works, the Miller parties participated in and furthered the discourse, which made the issues ones of public interest. (See FilmOn.com, Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 151 (FilmOn.com).)

On the second step of the analysis under section 425.16, the Miller parties argue the trial court erred in ruling L'Heureux demonstrated a probability of success on his claims based on the Miller parties' statements about L'Heureux's rights to Sin City. We again agree with the Miller parties. L'Heureux attempted to show a probability of success by submitting a declaration describing what a studio executive told him that she had heard from Miller's agent. The executive's statement about what Miller's agent said was hearsay and, contrary to L'Heureux's contention, was not admissible as a statement against interest under Evidence Code section 1230. Because L'Heureux does not argue it is reasonably possible the executive would testify (or her testimony would otherwise be admissible) at trial (see Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 (Sweetwater)), and in fact argues the opposite, the court erred in admitting the statement. Therefore, we reverse the order denying the motion to strike the claims relating to Sin City.

For the claims based on the Miller parties' statements about L'Heureux's rights to Hard Boiled (for which the trial court did not conduct a step-two analysis), we conclude L'Heureux failed to show a probability of success on his causes of action for defamation, for interference with contract, or for interference with prospective economic advantage. L'Heureux, however, did show a probability of success on his cause of action for breach of the implied covenant of good faith and fair dealing-but only against Miller, not against Frank Miller, Inc. or Thomas. Therefore, we reverse the order with directions to enter a new order granting the motion in part and denying it in part.

FACTUAL AND PROCEDURAL BACKGROUND

A. Miller Writes Comic Books and Wins Awards

Miller is a prominent comic book writer. He has won several comic book industry awards, including the Comic-Con International Icon Award.^[1] His Sin City comic book series has also received several Comic-Con and other industry awards.

There have been several major motion pictures and at least one television series based on Miller's works. Miller codirected and cowrote two movies based on the Sin City series: Sin City (Dimension Films 2005) and its sequel, Sin City: A Dame to Kill For (TWC-Dimension 2014). The first Sin City movie earned, among other accolades, a Palme d'Or nomination at the Cannes Film Festival and grossed over $158 million worldwide at the box office. Miller was also an executive producer of the movie 300 (Warner Bros. Pictures 2006), an adaptation of one of his comic book series, which grossed over $456 million worldwide at the box office. Miller was also an executive producer of the television series Cursed (Netflix 2020), also based on one of Miller's comic books.

B. L'Heureux's Company Obtains Rights to Sin City and an Option To Purchase the Rights to Hard Boiled

L'Heureux is a movie producer. In 2008-between the release of the first and second Sin City movies-L'Heureux's company, Solipsist Films, entered an agreement with Miller to obtain "the specific property currently entitled 'Sin City 2' (A Dame to Kill For)," as well as "the characters, scenes, stories and elements contained therein" and "all ancillary rights therein ...." L'Heureux and Solipsist were among the producers of the second Sin City movie.

In 2009 Solipsist entered into an agreement to obtain the option, for a period of 18 months, to purchase all rights, including film rights, to Hard Boiled, a comic book series coauthored by Miller and Geoff Darrow. Miller signed the agreement on behalf of a company called Empire City Inc.

At one point, Frank Miller, Inc. and Solipsist offered The Weinstein Company (TWC) the rights to produce a television series based on Sin City.^[2] However, in 2018 TWC filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of Delaware. (See In re: TWC Liquidation Trust, LLC (Bankr.D.Del. filed March 19, 2018, No.18-10601). Miller and Frank Miller, Inc. filed an objection in the bankruptcy proceeding, and the bankruptcy court entered an order pursuant to a stipulation of the parties stating that "any rights, title or interests in the Sin City Television Series reverted prior to the Petition Date ...."

C. L'Heureux Sues the Miller Parties for Obstructing His Efforts To Produce a Sin City Television Series and a Hard Boiled Movie

In 2020 L'Heureux filed this action against the Miller parties alleging that, while L'Heureux was negotiating agreements with production studios for a Sin City television series and a Hard Boiled movie, the Miller parties falsely stated L'Heureux did not have the rights to produce the series or the movie. L'Heureux alleged that he had entered an agreement with Legendary Television Productions "for the production of a Sin City TV series," but that the Miller parties made "false and defamatory statements" to Legendary and others in the entertainment industry that "L'Heureux has no rights in or to produce Sin City TV." As a result of the Miller parties' statements, L'Heureux claimed, "Legendary made a 'revised offer' to L'Heureux which dramatically reduced [his] compensation" and "his involvement as a producer ...." L'Heureux also alleged that, following the stipulation and order in the TWC bankruptcy proceedings, "Miller and his representatives issued press releases [falsely] claiming that all rights in Sin City and Sin City TV had reverted to Miller" (but not to L'Heureux or Solipsist).

Regarding his efforts to produce a movie based on Hard Boiled, L'Heureux alleged that, after Miller initially granted him the option to purchase the rights to Hard Boiled for a limited period, Miller and L'Heureux entered a new option agreement that "extended indefinitely" L'Heureux's option to purchase those rights. L'Heureux alleged he entered into a separate agreement with Miller's coauthor, Darrow, "to develop, package, and produce Hard Boiled."

L'Heureux alleged that eventually he and two of his business partners "brought the [Hard Boiled] movie project to MGM Studios ...." According to L'Heureux, however, the Miller parties "made false and defamatory statements" to MGM and others in the...