Norman v. Ross

320 Cal.Rptr.3d 384

Hayley Marie NORMAN, Plaintiff and Respondent,

v.Tracee Ellis ROSS et al., Defendants and Appellants.

Hayley Marie Norman, Plaintiff and Appellant,

v.Tracee Ellis Ross et al., Defendants and Respondents.

B316971 consolidated with B326626

Court of Appeal, Second District, Division 4.

Filed April 23, 2024

Certified for Partial Publication.^*

APPEAL from judgments and an order of the Superior Court of Los Angeles County, Laura A. Seigle, Judge. The judgments are affirmed; the order is reversed and the matter is remanded with instructions. (Los Angeles County Super. Ct. No. 20STCV35711)

Plonsker Law Group, Michael J. Plonsker and Rex D. Glensy for Plaintiff and Appellant and for Plaintiff and Respondent.

Mitchell Silberberg & Knupp, Elaine K. Kim, Yakub Hazzard, Los Angeles, for Defendants and Appellants and for Defendants and Respondents.

COLLINS, J.

INTRODUCTION

Plaintiff Hayley Marie Norman filed a complaint alleging that her idea for a television series was stolen by defendants Tracee Ellis Ross, Artists First, Kenya Barris, Brian Dobbins, Touchstone Productions dba ABC Studios (ABC), and Big Breakfast LLC. Norman alleged her idea for a series—which she intended to star in, write for, and produce—was turned into a sitcom by defendants without her permission or involvement. Defendants contend the sitcom, a spinoff of an existing television series, was not based on Norman’s ideas.

Norman filed a complaint alleging breach of implied-in-fact contract, breach of confidence, promissory estoppel, and other claims. The defendants filed special motions to strike under Code of Civil Procedure, section 425.16, the anti-SLAPP statute.¹ The trial court granted the motions in full as to Barris, Dobbins, and ABC; the court denied the motions in part as to Ross and Artists First. The parties cross-appealed the court’s order.

Upon de novo review, we find that all of Norman’s claims arise from protected activity, and the trial court erred in holding that parts of Norman’s claims against Ross and Artists First did not. We further find that Norman failed to demonstrate a probability of success on her causes of action. Thus, we find that the special motions to strike should have been granted in full. As such, we reverse and remand the court’s order as it pertains to Ross and Artists First.

Defendants moved for attorney fees following the special motion to strike, and the trial court granted the motion in part, awarding defendants less than 30 percent of the fees they requested. Norman separately appealed after judgments were entered in favor of Barris, Dobbins, and ABC. She contends the trial court erred in not reducing the fee award even further. We deny defendants’ motion to dismiss this appeal, find that the award was not an abuse of discretion, and therefore affirm the judgments entered in favor of Barris, Dobbins, and ABC.

BACKGROUND

A. Factual background

This case is at the pleadings stage, and therefore the facts are not fully developed. The parties did, however, present a significant amount of evidence in support of the anti-SLAPP motions and oppositions. For purposes of this appeal, the following facts are largely undisputed.

1. Black-ish and the character of Bow

Defendant Kenya Barris created the television show Black-ish, which first aired in 2014. It is a 30-minute sitcom that portrays a family headed by father Andre (Dre) and mother Rainbow (Bow) Johnson. Bow, played by defendant Tracee Ellis Ross, is biracial, and the show includes themes relating to Bow’s experiences as a mixed-race woman. Barris stated in a declaration that the character of Bow "was inspired by my wife, Dr. Rania ‘Rainbow’ Barris, who is biracial with a black mother and a white father." Barris also stated that the character Bow’s "mother Alicia is black and her father Paul is white, and they were hippies who raised Bow, and her younger siblings Johan and Santamonica, in a commune or ‘cult’ before it got raided by the government. As a result, Bow does not share the same cultural background and experiences as her husband Dre, who grew up in an urban black neighborhood and has two black parents. Dre and his parents Pops and Ruby do not view Bow as ‘really’ black, while white people see Bow as a black woman."

The character of Bow was introduced in the pilot episode of Black-ish, which aired in September 2014. In the opening moments, Dre, in a voiceover, introduced himself and Bow, describing her as a doctor and a "pigment-challenged mixed-race woman." In the second episode, Dre commented that Bow "grew up in a house full of naked hippies."

Bow’s parents, Paul and Alicia, were introduced in season 1, episode 16, titled "Parental Guidance," which aired in March 2015. The parents were portrayed as hippies, driving an RV that "runs on vegetable oil and animal waste," encouraging Dre to warm his "heart with the light from within," and talking about their past participation in civil rights marches. Several episodes of Black-ish portray the culture clash between Bow’s hippie parents and Dre’s black family, and/or the white side of Bow’s family and Dre’s black family. Bow’s brother Johan became a regular character in season 3 of Black-ish, and their sister Santamonica appeared in one episode in season 3.

2. "Being Bow-racial"

Bow’s experiences with her racial identity were directly addressed in Black-ish season 3 episode 8, "Being Bow-racial," which aired in November 2016. In that episode, Bow and Dre’s son, Junior, came home with his new girlfriend Megan, who was white. Bow had a strong reaction to seeing Junior with a white girlfriend. In a voiceover, Bow explained the history of mixed-race children in America, including the children of slaves and white owners. She stated that Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (Loving) officially held that states could no longer prohibit interracial marriage, which resulted in skyrocketing rates of biracial births and "more people with an identity crisis who don’t even know what to call themselves, and are always asking, ‘Where do I fit in?’ "

The episode shifted back to the present, and Dre’s mother suggested to Bow that she can’t like Junior’s girlfriend "if you don’t even like yourself. And you don’t even know who you are." Later, Bow’s brother, Johan, suggested to Bow that she always had "an identity issue." The episode flashed back to Bow as a child, played by a child actor. Bow was in school, holding a pencil and looking at a registration form trying to figure out which "race" box to check. Young Bow asked the black teacher walking by, "How come there's not a box for both?" The teacher responded, "Baby, you’d better check black."

Returning to the present, Bow said to Johan, "It was confusing! Didn’t you ever struggle with which box to check? I mean if you check one, you’re denying a whole part of yourself." In a later scene Bow told Johan, "I’ve been confused most of my life. Do you remember me in high school?" The scene flashed back to teenage Bow played by Ross, looking and talking like a character from the film Clueless (Paramount Pictures 1995), walking down a school hallway with several white peers. In the present, Bow told Johan, "I couldn’t help it though! I mean, that’s who we grew up around. Those were my friends." Johan asked skeptically, "Were they?" The scene cut back to the high school flashback, where a white friend told teenage Bow, "You should like, totally audition for the theater this year. We could really use some strong black actors." Bow looked uncomfortable at the mention of her race, but agreed. The flashback then cut to a school production of The Wizard of Oz, with Bow playing the part of a flying monkey being rolled across the stage on a cart.

Back in the present, Johan asked Bow why she agreed to play a flying monkey. Bow replied, "Admittedly, mistakes were made. But if you were in that situation you just—you over-compensate. You do what you can to fit in." Bow continued, "In college, with my black friends, I went in hella hard." Again the scene flashed back, this time to Bow in college. She was wearing sunglasses, large hoop earrings, and a shirt that revealed her midriff. Bow approached a picnic table where several black friends were seated and called out, "What up y’all? Oh!" while gesturing with her arms. Bow then awkwardly danced and launched into a rap of her name.

Returning to the present, Johan told Bow it was no big deal that she "leaned into a few dumb stereotypes to try to get people’s approval. Everybody does it." Bow responded, "Yeah, but not everybody is pulled into day-to-day situations where they're forced to pick a side." The scene flashed back again, this time to Bow sitting in the middle of a couch. A group of black young adults was sitting and standing to one side of her, and a group of white young adults was on the other side. They were watching a television on which the O.J. Simpson verdict was about to be read. When the not guilty verdict was announced, Bow initially turned to the black side of the room and joined their cheers. However, she quickly turned to the white side of the room, saw their looks of shock and disappointment, and changed her expression. Back in the present, Bow said to Johan, "I’m so confused."

Bow decided to talk with her white father, Paul, at his RV. Bow told him she felt uncomfortable about Junior having a white girlfriend, and they discussed her confusion about her racial identity. Bow noted that Paul was white, and said she did not want to deny that half of herself. Paul suggested that because Bow had a black husband and a "black family," Junior choosing a white girlfriend "feels like a rejection." Bow responded, "Exactly. That’s exactly it." Paul reassured Bow, "you know who you are." Bow nodded and responded, "I know who I am. Thank you." As the scene ended with Paul and Bow hugging, Bow said in a voiceover, "So there it was—I had to go back to my past to look at my future."

3. Norman’s...