10 2 B 14 15 16 8 9 20 21 2 n 2s 26 ” 28 FREEDMAN + TAITELMAN. LLP Bryan J Freedman, Esq. (SBN'151990) Steven B, Stiglitz, Esq. (SBN 222667) ‘Sean M, Hardy (SBN 266446) 1901 Avenue ofthe Stars, Suite $00 Los Angeles, California 90067 Telephone: (310) 201-0005, Facsimile: (310) 201-0048 E-mail: BFreedman@ilp.com ‘SStisitz@lp.com SMHardy@2fllp.com | Atomeys for Defendants “aye gan cee Saige. Se uggs Patel JUN 29 2017 Shout cai, neater By: Gloria Robinson, Depely ‘SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES BRYAN BARBER, an individual, Plaintiff KENYA BARRIS, an individual; WILMORE } FILMS, a business entity of form unknown; PRINCIPATO-YOUNG ENTERTAINMENT, } INC., a California corporation; and Cinema Gypsy Productions, Ine, a New York (Corporation; and DOES' 1-10, inclusive, Defendants ) ) ) ) ) ) ) ) ) ) 3 ) ) ) ) ee CASE NO. BC633418 Assigned fr al purposes to Hint Semantha eer Dept31 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY ) JUDGMENT, ORIN THE ALTERANTIVE, SUMMARY ‘ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES DECLARATIONS OF KENYA BARRIS ANDSTEVEN Bi STIGLITZ; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS; AND [PROPOSED] ORDER (Filed Concurrently) Acticn Filed: September 9.2016 ‘Trial Date: December §, 2617 Hearing Date: September 12, 2017 Hearing Time: 8:30 am Reservation ID: 161212180350 MOTION FOR SUMMARY JUDGMENT/ADIUDICATION2 B 4 15 16 ” 8 9 20 2 2 2 23 26 2 28 ‘TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE tht, on September 12,2017, t 830 am. oras soon thereafter 25 the matter may be heard in Department 31 ofthe above-enitled cour located at 111 N, Hill St, Los Angeles, California, Defendants Kenya Baris (“Barris), Hearthstone Production, Ine. cia! Wilmore Films, Prineipato Young Entertainment, in. and Cinema Gypsy Productions, Inc, (coletively, “Defendants” wil, and hereby do, mov, individually and collectively, the Court for summary judgment, pursuant to California Code of Civil Procedure sections 437 This Motion willbe made on the grounds that all ofthe causes of action fil because they all rise from a demonstrably false premise that Defendants coped « 2006 scrip that Plant Bryan Buber allegedly helped to creat (ihe “Untitled Barber/Bartis Project") when Defendants produced the television series “Blackish” eventhough the two works are not “substantially simian” ‘Alteratvely, if for any reason summary judgment cannot be bad, Defendants will, and hereby do, move, individually and collectively, fr an onder summarily adjudicating the following sues: Issue No.1: Baris is ented wo summary adjuication onthe first cause of action, for breach of implied-in-fact contract, on the grounds that Bars did not breach the alleged agreement because the television series “Black-ish” doesnot copy from, and isnot “substantially similar” to, the Untied Barber/Bazis Project. Issue No.2: Baris entitled to summary adjudication onthe second cause of action, forbreach of confidentiality, onthe grounds that Bars di not breach the alleged agreement because Baris didnot disclose the Untied Barber/Bartis Project when he crested the television series “Black-ish.” IssueNo. 3 Baris isentitled to summary adjudication onthe fithreause of exon; for fraud, onthe grounds that Baris dd not actively conceal any facts garding the development o Backiah that were material to any agreement regarding the Untled BarbeeBanis Projet since “Black ish” does not copy fom, and is not “substantially ssa to, the Untitled Barber/Bar Project, MARY JUDGMENTau 2 Pe 25 26 2 28 IsmueNo.4: Bari is ented to summary adjudication onthe ssthcause of ection, for breach of fiduciary duty, onthe grounds that “Blackish” doesnot copy from, andi not substantially similar” othe Untied Barber/Baris Projet. IssueNo.: Defendant Bars sented to summary adjudication cn the third cause of| ction, for declaratory rie, on the grounds that Barber is not ented to credit or compensation ona television series because “Black ish," doesnot copy from, ands not “substantially similar” to, Untded BarberBarris project, Issue No.6: Defendant Hearthstone Productions, Inc. ba! Wilmore Films is ented to summary adjudication on the third cause of action, for declaratory relief, onthe grounds that Barberi not entitled to credit or compensation ona television series because “Blacks,” does not copy from, and isnot “substantially similar to, Untied BarberBaris praject. IssueNo.7: Defendant Principato Young Entertsinment, Inc. is ented to summary adjudication onthe third eause of action, for declaratory rele, onthe grounds hat Barber isnot entitled to cet or compensation ona television series because “Blak-sh," does not copy from, and isnot “substantially similar” to, Untitled Barber/Bartis project. IssueNo.8: Defendant Cinema Gypsy Productions, Ine, is entitledto summary adjudication on the third cause of action, for declaratory relief, onthe grounds that Barber is not entitled to credit or compensation ona television series because “Black-ish,” does not copy from] and is not “substantially similar” to, Untitled Barber/Baris project. IssueNo.9: Defendant Barts, Hearthstone Productions, Inc, d/b/a/ Wilmore Films, Prinipato Young Enterainment, Ie, Cinema Gypsy Productions ne, is ented to summary djudication on the rout cause of ston, or accounting on the grounds tha Barbers not ented to an accounting where he has no right to compensation and he has no right io compensation because “Black-ish” does not copy front; and snot “ubstntely similar to, United Barber/ Baris project IssucNo.10: Defendant Bars, Hearthstone Productions, In. dba Wilmore Fils, Principat Young Entertainment, Ine, Cinema Gypsy Productions, In, iene to summary adjudication on the fourth ease of ston for aecountng on the grounds that Berber is not 2 | MOTION FOR SUMMARY JUDGMENT10 " 2 B “ 1s 6 7 9 20 2 2 a 24 25 26 2 28 ented to an accounting where he has no sight to compensation, and he has no right to compensation because “Blackish," doesnot copy from, and isnot subway similar” to, Untied BarberBarris projet. IssueNo. 11: Defendant Bars, Heahstone Productions, Ie. ibe Wilmore Films, Principato Young Entertainment, Inc, Cinema Gypay Productions nes entitled to summary adjudication on the fourth cause of action, for accountng, on the grounds that Barber is not ented to an accounting where he has no right to compensstion, and he as no right to compensation because “Black-ih,” doesnot copy frm, and isnot substantially similar to, Uited Barber/Bazis project. Issue No.2: Defendant Barris, Hearthstone Productions, Ine. bial Wilmore Films, Prineipto Young Entrainment, ne, Cinema Gypsy Productions, In, is entitled to summary adjudication on the fourth eause of action, for accountng, on the grounds tht Barber is not ented toan accounting where he has no right to compensation, and he hs no right to compensation because “Blackish,” doesnot copy from, and isnot “substantial similar to, Untied BarberBaris project. This Motion wil be based upon this Notice, the stached Memorandum of Points and Authorities the accompanying declarations of Kenya Baris and Steven B Sigit, the accompanying Separate Statement of Undisputed Material Facts, and pn the pleadings, recor and papers on file inthis action, and upon such evidence as may be presented a the time ofthe hearing on this Motion, Date: June 29,2017 FREEDMAN + TAITELMAN, LLP t* Bryan J Fh Steven B. Stig Sean M. Hardy ‘Attomeys for Defendants 3 | HOTION FOR SUMMARY JUDGMENT}” 18 9 20 a 2 a 24 25 26 n 28 Mm, M1, ‘TABLE OF CONTENTS INTRODUCTION ‘STATEMENT OF UNDISPUTED MATERIAL FACTS ‘A. Barris and Barber Met Each Other in College and Became Friends. B. 12006, Barris and Barber Co-Pitched a Television Pilot to VH+1.. © Pe Alleged Implio-n-Fact Between Baris and Barber Regarding he Untied Barber/Barrs Projet. D. The Termination ofthe Untitled BarbeeBars Proje E, TheCreation of “Black-ish” F. A Comparison of the Untitled BarberBars Project with “Bla 1, The Untitled Barbeo/Baris Project. 2 "Black-ish*.. LEGAL STANDARD GOVERNING SUMMARY JUDGMENT. ARGUMENT. 1. Themes.. ‘The Untied BarberBartis Project Pilot Script »b. “Black it 2 The Characters... The United Barber/Barrs Project Plot Serpt. blackish. The Characters Are Mazkedly Different 3. The Seting and Pot... 4. Dialogue B. The Lack of Copying Jusifies Summary Adjudication aso the Every Cause of Es eee 1 ‘Action and as to Every Defendants. 1, Breach of Implied-n-Fact Contract (Fitst Cause of Action)... 2. Breach of Confidence (Second Cause of Action). 3. Fraud and Breach of Fiduciary Duty (Fifth and Sixth Causes of Action) i MOTION FOR SUMMARY JUDGMEN T/ADJUDICATION 3 184. Declaratory Reli (Third Cause of Action). 5. The Fourth Cause of Action, for an Accounting. IV. CONCLUSION. | MOTTON FOR SUMMARY JUDGMENT}‘TABLE OF AUTHORITIES 2 || cases 3 || Aliott v.R. Dakin & Co., 831 F.2d 898, 903 (9th Cir-1987).. Blaustein v, Burton, 9 Cal. App. 3d 161, 186-187 (1970)... Burtis v. Universal Pictures Co,, 40 Cal2d 823 (1953) . Davies v. Krasna, 245 Cal. App. 2d 535, 538 (1966). ‘Del Madera Properties v, Rhodes & Gardner, Inc, 820 F.2d 973, 976 (Sth Cir. 1987). Desny v. Wilder, 46 Cal 2d 715 (1956). Divton of Labor Law Efren. TrnepasieTasporaton Co 69 Cal. pp 3268, 275 (1977). 11 Donahue v. Ziv Television Programs, Inc., 245 Cal. App. 2d $93, $97, 601 (1966). Fars v. Enberg, 97 Cal. App. 34 309, 323 (1979).. Fink v. Goodbon-Todman Eerie, 9 Cal App, 34996, 10101013, 10131014187) 17,18) 15 || Green v. Schwarzenegger, 1995 WL 874191 at 13-23 (C.D. Cal 1995) wn 1 16 || Henried v. Four Star Television, 26 Cal. App. 2d 435, 436-37 (1968). 17,19 17 TI Ktekas v. EMI Films, Inc, 150 Cal. App. 341102, 1113-14 (1984). Mann v. Columbia Pictures, In., 128 Cal. App. 3d 628 (1982) Sangster v. Paetkau, 68 Cal. App. 4h 151, 161-62 (1998). ‘St. James Church of Christ Holiness v. Sup, Ct, 135 Cal. App. 24 352, 359 (1985) Sutton v, Walt Disney Prods., 118 Cal. App. 24 598, 603 (1953) nu inv, State BA. of Chiropractic Exam'rs, 130 Cal. App. 4th 609, 616 (2005) .. Tesellev. McLoughlin, 173 Cal. App. 4th 156, 179 (2008), 25 || STATUTES 26 || COP $8437¢(0),437e(9)2) 27 || cor g437e0), 28 |] ccP §4376(0}2.. MOTION FOR SUMMARY JUDGMENT}1] gytRopucrion 2 Plaintiff Bryan Barber and Defendant Kenya Barris were old friends from Clark-AQtanta 3 || University in the early 1990s, They briefly worked together ona pitch for a television series in 4 |] 2006, but they ultimately were notable to produce a pilot episode, ack: 5 ‘In 2013, Baris pitched a concept for a new and different television series, 6 || was has been airing on the ABC television network for three seasons, Barber now claims that 7 || "Blackcish” copies from the script that Barber and Barris prepared in 2006. In realty, Barris 8 || cid not copy anything the two projects are therefore not “substantially similar,” as would be 9 || required fora finding of liability. 0 (On the one hand, the concept for the 2006 project was to produce a television series 11 |[about 20-something, African-American professionals in the entertainment industry who were 12 || tying to build careers while des ing with stereotypical issues relating to race. As such hat 13 |] proposed television series was similar in concept to “Entourage,” with the addition ofa race 14 ]}eomponent. The main event in the pilot episode i an In Syle magazine party from which one 15 |] ofthe main characters purposefily excludes his gitfiend so hat he ean “scope” other women, 16 |} The script forthe plo episode includes senes relating to quasi-commercial sex in the 17 |[enterinment industry and the use andor sale of marijuana by several ofthe characters 8 On the other hand, “Black-ish” is television serie about highly sucess, midle- 19 |/ aged stican-American married coupe with four children. “Blaccish” has been compared to 20 || the Cosby Show,” except that it has an additonal focus on posing nuanced issues relating to 21 | rce and tacking them in unconventional ways that genealy lad to satisfying resolutions. 2 |] Forexample, the most prominent story line in the pilot episode of ‘Blackcish eats tothe 25 || desire of the teenage son inthis African-American failyto havea Bar Mitzvah like many of 24-| his Jewish frendshave had. The father intaly proposes that his son have' ational Aftcan 25 | coming-of-age ceremony, but the family eventually sets on hip hop “Bro Mitzvah.” 26 ‘The 2006 project and “Blackish” are so dissimilar that, if any reasonable finder or fact, 27 |] were to read the scripts ofthe two pilot episodes one after the other, he or she would conelude 28 || the same that there was no copying. As such, the Court should grant the Motion, 1 ‘MOTION FOR SUMMARY JUDGMENT/ADIUDICATION‘STATEMENT OF UNDISPUTED MATERIAL FACTS! ‘A. Barris and Barber Met Each Other in College and Became Friends {In approximately 1992, Barber and Barris met each other in college at Clark-Atianta University, and became friends. (Declaration of Steven B. Stiglitz “Stiglitz Decl.” 3, Ex. 2 Barber Tr.) 42:12.20) B. In 2006, Barris and Barber Co-Pitched a Television Pilot to VH-1 nor about 2006, Barber and Barris discussed an idea fo a television series about young Aftican-American, entertainment industry professionals who were “fishes out of water,” and Which ultimately became known asthe Untitled Barber/Baris Projet, (Stiglitz Decl. 4, Ex.3 (Complaint) § 11; Stiglte Decl. $3, Ex. 2 (Barber Tr.) 50:21-51:8.) Shertl thereafter, they pitched the idea for the television series to Maggie Malina and another executive atthe television] network VH-L. (Stiglitz Deel. 4, Ex.3 (Complaint) 11, Stiglitz Ded, $3, Ex. 2 (Barber Tr) '77:19-81:10.) Eventually, Barber and Baris prepared a seript fr a pilot for their proposed television series (he “Pilot Script”), (SS 1, 11,21, 31, 41, $1, 61, 71, 81,91, 101, 111, 121),) C. The Alleged Implied-in-Ract Between Barris and Barber Regarding the Untitled Barber/Barris Project ‘The complaint alleges essentially the same agreement for hath the fist cause of action, for breach of implied fact agreement, and forthe second cause of action, for breach of ‘confidence. In both causes of action, Barber alleges: “Plaintif’s idea was based on his own life ‘experiences, which he had shared with Barris in confidence and with the understanding that Plaintiff intended to exploit it commercially through their partnership.” (SS 2, 12, 22, 32,42, 52] 62, 72,82, 92, 102, 112, 122.) Barber further explained the agreement: “Because based on our conversation, we were not going ta move forwaat on this ~ on ~ on are an sue shaw that we created unless hath af "References 0 "SS" refer to the Separate Stuement of Undiputed Matra Facts, Forexampl SS 1 refers to Feet No. inthe Separate Statement of Unpsted Material Face. Siisly, SSI, 1,21 retest the SS Pacts vith each ofthe umber lied AI ittns in the Memorandum bt fer directo vince consitite now material its tht Defendants contend they aed ot esabinh to obtain summary jet rine ltematne summary adjcication. For purposes ofthis matin only, Defendants donot ite the fais et fh herein because the ispts we not tera to this maton, |~____MOTION FOR SUMMARY JUDGMENT}6 "7 18 9 20 2 2 2 4 25 26 u 2% us were parties that would participate so the im ~ implied-n-fact-- breach of ipl infect contact I~ believe is speaking to the fact that Kenya went and pitched the show without telling me, I would assume because we crested the show together and had a show ~ contract with VET regarding the show, that if were to go and and pitch the show to another network, I would go back and tell Kenya, and if Kenya were to pitch the show to another network, he would, Now we did't have that conversation, so 11 would assume that thatthe implied part, We didnt have the conversation, “Hey, you know, Kenya, if you go and ite the show, you better bring me along." ($83, 13,23, 33,4, $3, 63, 73, 83,93, 103,113, 123) Barber intl testified that he didnot eall any agreemest between himself and Baris that neither of them would move forward witha projec tht had the same characters as the Untitled Barber/Baris Projet without the other, (Stiglitz Del. 13, Ex. 2 (Barber Tr.) 15615- 25.) ven afer Barber changed tht testimony, he sill ested thatthe discussion with Barts ves limited to copying the characters from the United BarberBaris Project, not using modified versions ofthe characters: “The madiication conversation never even happened. We never had a modification conversation. 1 don" think ether of us could ~ could prec, you know, Hey, her's going tobe an opportunity to do this show if we mod — motif the characters.” (SS 4, 14,24, 34,44, 54,64, 74 84,94, 104, 14,124) D. The Termination ofthe United Barber/Barris Project During the proces of refining the pilot episode for VII, Barber came othe decision that he no Tonger wanted fo work wth Bars on th projet, and informed Baris ofthat deision| (tiglte Decl. 3, Bx. 2 (Barber Te) 12925-130:17) Ultimately, the Untied BarberBaris Project did not move forward on VHI-1, but Barber and Barris remained fiends, though not as close (Stig Del. 3, Bx. 2 (Barber Tr) 163:%13) 1B, The Creation of “Blackeish! nor about 2013, Baris decided to pitch a pilot fora family-oriented situation comedy that deply explored the issue of race in today's world, from the perspective of aan upper midle class Aftcan-American family (the “Baris Projet". (S85, 15, 25,35, 45,55, 65,75, 85,95, 105, 115, 125.) In or about 2013, Bais pitched the concep for the Barts Project othe 3 [MOTTON FOR SUMMARY JUDGMENT}n 24 25 26 u 28 television network ABC and provided ABC with a document entitled “Blackish Plot Story One Page." (Baris Deel. 5, Ex. 1.) Inor about October 2013, ABC ordered a script for a pilot of| ne Baris Project, which by that time had become known by the tile “Blacksh” and which was ater stylized to “Blackish (SS 6, 16,26 36,46, $6, 66, 76,86, 96,106, 116, 126.) Inor shout 2013 and 2014, Baris worked on several dats of an outline anda fl sript fr the plot evsode of Black ish.” (Bats Decl. $7.) In or about January 2014, ABC grenlt the production ofthe pilot episode of Blaceish.” (Baris Decl 9.) Barriscontinued working on tne script thereafter, and ulimately the pilot epsode of “Black-sh” sired onthe ABC television networkin or ebout September 2014, ($87, 17,27, 37,47, 87, 67,77, 87,97, 107,117,127) ‘Barris didnot copy anything fom the Untitled BarberBarris Projet when developing Blackish” or writing any ofthe episodes since that 3c. (S88, 18, 28, 38,48, 58, 68, 78, 88, 98, 108,118, 128.) Baris also did not disclose the content of the Untitled Barber/Barris Project to others involved in the creation or development of “Black-sh.” ($$ 9,19, 29, 39, 49,59, 69, 79, 89,99, 109, 119, 129.) Even an examination ofthe scripts of ll the episodes of “Blackcish” would yield the same conclusion. ($8 10, 20,30, 40, $0, 60, 70, 80, 90, 100, 120, 130) F, A Comparison ofthe Unttied Barber/Barris Project with *Black-ish” |. The Untitled Barber/Barris Projet Scene 1: Most ofthe main characters are onthe way to In Style magazine's “30 Under 30” party, which is described as having a “PAPARAZZI LACED RED CARPET.” (Stiglitz Decl. $2, Ex. 1 (Pilot Script) at 33-35,)° Scene : A flasback, two days prior, at a resturant where the Barber character and the Baris character meet a movie star, Gabrielle Union. The Bars character pretends thet he knows friend ofthe movie sar sa that he ean stike up a conversation. After the conversation, lends: Baris admits he was lying (Stiglitz et. 2, Ex-I-Pilot Seri) at 36-39) = Scene 3: Charles King, the agent ofthe Barber character, talks ona telephone call Barber, who expresses exasperation that King does not understand the image he wants to project, All pages numbers tise fr the Plt Srp ae references othe last wo Bates numb inthe bottom right core. For example page 33 refer the document Bes strped PLTFOOODS 4 [OTION FOR SUMMARY JUDGMENTand King responds that Baber is an unknown quantity ir the industry. (Stiglte Decl. $2, Ex. 1 (Pilot Scrip) at 40-43.) ‘Seene 4; This introduces the Barris character's new workplace, where he is beginning his first day om the job, (Stiglitz Decl. $2, Ex. 1 (Pilot Script) at 43-45.) Jeff, Batis’ boss, “tries to be hip” by calling Baris “Kenyatta,” and asking about a doing a black handshake, (Stiglitz Decl. 42, Ex. 1 (Pilot Script) at 43-45.) Scene 5: This introduces the Barber character's family, Barber ison set at work when| receives two separate personal telephone calls -one from: his mother and one from his brother, Flip. Inthe conversation with his mother, the Barber character confirms that he’s planning to attend a family dinner that night, and his mother esponds, “Good, beeause your uncle Dwight seid he needs you to pee in a eup for his drug test” Inthe other conversation, Flip asks to [borrow money, and the Barber character's response reveals that Flip is a drug addict and small= time dealer. (Stiglitz Decl §2, Ex. 1 (Pilot Script) at 45.47.) Scene 6: Charles King is at his office presenting hs client roster and describing each client to his colleagues. (Stiglitz Decl, 2, Ex. 1 (Pilot Script at 48.) Scene 7: This briefly introduces Barris’ girlftiend, Bow. While Barris is st work, he gets 2 telephone call from Bow accusing him of visiting escor service websites, which Barris denies, (Stiglite Decl $2; Ex. 1 (Pilot Seript at 48-50.) ‘Scene 8: After ending the telephone call wth Bow, Baris then immediately calle Rarber| while Barber is working onthe set of a music video. They have a conversation about the accusation that Bow made, and Barris tells Barber that he thinks Barber's music video producer, William, i the one who was visiting the explicit websites from Barris computer. (Pilot Script a 50-51.) As the telephone call ends, he scene moves back to Barber's conversation with a famous rapper Big-Boi, who says that he will work on-s music video f Barber is-abe to book &-| certain actress to work with him, (Stiglitz Decl. 2, Ex. 1 (Pilot Serpt at 51-52.) Scene 9: At Barber’ family gathering, which Baris and William are both attending, ‘Willian talks to Barber aside the crowd and explains thatthe actress Big Boi wants isnot an acceptable choice for their music video because she receatly wrote a “tll all book about 5 N FOR SUMMARY TUDGMENT NO"“4 15, 6 7 8 9 2 2 n a 24 25 26 n 28 everybody in the industry” and “Her nckname's Magic Mouth for Chvistsakes! And tt me, it’s not because she can sing.” (Stiglitz Del. 2, Ex. 1 (Pilot Stipt) at $3.) The remainder of the scene develops the characters in Barber's family. Forexample, Barber's uncle ison probation a gambler anda drug user. (Stiglitz Del. 2, Ex. (Pilot Seip) at 53-56.) A further revelation regarding Barber's family happens when Barbe's uncle exclaims: “You're trying to tell me not one of you n-—- is drug free? Gott damn shame. There ain't a cup of clean pee in this whole damn house.” (Stiglitz Decl. 2, Ex. 1 (Pilot Stipt) at 55-56.) Barts gives a response indicating that he uses marijuana, too, (Stiglitz Deel. $2, Ex. 1 (Pilot Seript) at 56) ‘Seene 10: This inkes place at Baris’ workplace where he and his boss have a disagreement over whether the words “nizzle” and “neezi” are inappropriate for television because they are short forthe “N" word. (Stiglitz Decl. §2, Ex. 1 (Pilot Seript) at 56-57.) ‘Scene 11: At Barber's music video, Barber and William have to figure out how to handle the actress who Big Boi wanted on the set. Barber eventually realizes that she i just putting on an act of being a typically difficult, beautiful actress. Armed with that knowledge, he convinces hero just act ikea normal person. (Stiglitz Decl. $2, Ex. Pilot Seri) 57-60) Scene 12: At Bans’ workplace again, Bars receives a phone cal from hs gent, Charles King, King relays that Baris’ bos isnot sure Bars is connecting with the “characters” at his new job, Bars complains that his boss just wants him to sell ut his Aftcan-American background. (Stiglitz Decl, § 2, Ex. 1 (Plot Script) at 60-62.) That scene has two shor follow ups—one in King's office and one in Baris’ oie. In King’s office, King asks his assistant to buy subscriptions to magazines and copies of DVDs ofthe quintessential Urban Pop Caltre over the las fifty years for other agents at William Moris Agency to review, so that they will have a biter understanding of it, and his assistant congratulates him on the idea. In Baris office; he sells out by suggesting thatthe characters sence” while previously sid-wag an inappropriate shorthand forthe °N" word. (Stiglitz Del. 2, Ex. 1 (Plt Script) at 63-64.) Seene 13: This tkes place beck at Barber's msi video set. He and Wiliam se that the video is a sucess, but that they ended up losing $300 ret on the project Tessas owes, att spelen way pel of Aan American colaquil sige 6 MOTION FOR SUMMARY JUDGMEN’Scene 14: The final scene ofthe Pilot Sript isa the In Syle magazine “30 Under 30° ary that was built up since the beginning ofthe episode, The crew cannot get past the bouncer because Barber apparently is lef off he ist in eror. The bouncers finally going to lt them into the party when disaster sikes. Gabrielle Union i there withthe very same frend that Barris claimed he knew when Baris and Barber ran nto Union athe restaurant. Union realizes tat Barris was lying, calls him outa fake, and the bouncers refise to let the group into the party sa result. (Stiglitz Del. 2, Ex. 1 (Plot Sexipt) st 65-70) 2. “Black-ih” Scene I: After a “cold opening,” with a voiceover to explain the asi premise ofthe series, the frst ac begin with scene in Dre's kitchen over family breakfast. The family iscusses Dre's anticipated promotion. (Bass Des. 7, Ex. 2 (Blackcish Plo) 5-7) Scene 2: A conversation between Dre and Junior in Dre's ca oa the way to schoo. Junior reveals tat he wants to playfield hockey instead of basketball, And, when he gts out of ca, his rend calls him “Andy,” which sounds like a whit version of ‘name (Andre). Barris Decl. $7, Ex. 2 (Black-ish Pilot at 7-8.) Scene 3: At Dre's work, when he is scheduled to receive the promotion, He gets his anticipated promotion, not just to Vice President, but to Senior Vice President, The problem is that he is ow heading the “Urban” division, which he sees asa disadvantage because it biseonholes him based on his rave. (Barris Decl. 7, Fx 2 (Rlnck-ish Pilot) st 912.) ‘Seene 4: At the Johnson family dinner table, Dre's family toasts his promotion, but Dre expresses concem that he got the positon because of his race, rather than independent of his race, (Baris Decl. 7, Ex.2 (Black-ish Pilot) at 13-15.) Scene S: In Dre and Rainbow's bedroom later that night. They discus the promotion again, with her colorblind perspective opposite his race-conscious perspective. (Baris Decl 7, Ex, 2 (Black-ish Pilot) at 16-17.) Scene 6; At Dre’s office, there ar two short interactions in which Dre perceives that his boss and the owner ofthe company each act different than usual around him because he is African-American, (Barris Decl. 7, Ex. 2 (Black-ish Pilot) at 17-18.) 1 [MOTTON FORSUMMARY JUDGMENT‘ene 7: In the Johnson family room, there are two distinct ace-related conversations. In one, Dre's youngest daughter deserbes the only oer Aftcan-American gel inher las by several features other than her race, and Dre and Rainbow disagree aso whether that colorblindness is healthy. Inthe other, Junior introduces the family to his white fld hockey fiend, Zach, While Zach is there, Junior announces that he wants to have a Bur Mitevah, which again draws disagreement between Dre and Rainbow as to whether the decision reflects too much detachment from their heritage. (Barris Decl. 7, Ex. (Black-ih Pilot) at 18-20.) ‘Seene 8: Inthe Johnson family kitchen, Dre announces a new set of rules that all relate to his family acting more “black,” including that Junior now has to have an African rite-of- passage ceremony instead of a Bar Mitzvah. (Bartis Decl. §7, Ex.2(Black-ish Pilot) at 20-23.) ‘Scene 9: Act Two ends with this short scene at Dre's work where he presents his ‘advertising pitch, which includes “ICONIC IMAGES from moments of social upheaval throughout Black history, that for some reason culminates in SUGAR RAY LEONARD |PUMMELING DONNIE LALONE,” He quickly realizes he has taken race consciousness too far. (Barris Decl. 7, Ex.2 (Black-ish Pilot) at 23.) Scene 10: Dre is at work, deflated. (Barris Decl. 7, Ex. 2 (Black-ish Pilot) at 24.) ‘Scene 11: At home in the backyard, Dre has transformed the yard toa mock Attican village for Juniors rite-of-passage ceremony. (Barris Decl. 7, Ex. 2 (Black-ish Pilot) at 24-25, Scene 12: Tre and Rainhow tal inthe Inundry room, Dre reveals thatthe over-the-top pitch almost got him fired. Rainbow responds to help Dre see the bigger picture and not to see his promotion in such a negative light. (Bartis Decl. 7, Ex.2 (Black-ish Pilot at 25-26.) Scene 13: Inthe Johnsons’ front yard, fst, Dre and Junior have a heart-to-hear, talking about sports girls and blackness. Then, Dre and his father, “Pops,” talk about whether Dre is doing the right things ava father: Baris Dect: 9; Ex-2 (Blackeish-Pilot}-at27-29:) Scene 14: At Junior's birthday party, which is a compromise hip hop Bro Mitavah, and tums out to be a success for everyone, (Barris Decl. 7, Ex. 2 (Black-ish Pilot) at 29-30,) Scene 15: Rack at work where Dre gives a successful advertising pitch forthe “Los Angeles tourism campaign.” In a voiceover, Dre comments that it“went alot better once 1 8 MOTION FOR SUMMARY JUDGMENTrealized thet Urban can also mean hip, cool, and colorful, just like my family.” (Bartis Dec. 7, Ex. 2 (Black-ish Pilot) at 30.) Scene ‘The final scene i in the Johnson front yard, where Pops puts his am around Dre, and Dre realizes that he has done well. (Barris Decl. 7, Ex.2 (Black-ish Pilot) at 31.) in. STANDARD GOVERNING SUMMAR} ‘A motion for summary judgment “shall be granted i ll the papers submitted show that there is no triable issue as to any material fact and thatthe moving party is entitled to judgment sa matter of law." CCP §437e(c). A defendant moving for summary judgment may succeed ‘upon a showing tha either: (a) one or more elements of the eause of action cannot be established; or (b) there is a complete defense to that cause of action, CCP §§437(0), |437e(p)(2); Tain v. State Ba. of Chiropractic Exam rs, 130 Cal, App. 4th 609, 616 (2005); ‘Sangster v. Paetkau, 68 Cal. App. 4th 151, 161-62 (1998). Once a defendant meets this burden, the burden then shifts tothe plaintiff to prove the existence of a triable issue of fact regarding that element of is cause of action or that defense, CCP §4376(0\2). m1. ARGUMENT A. “Blackcish” Was Not Copied from the Untitled Barber/Barris Project ‘Barber's claims in this Action all arse ftom the allegation that, in ereating “Black-ish,” Barris copied one or more elements from the Pilot Sript forthe Untitled Barber/Barris Project, St none ofthe Defendants involved in the creation of “Black-ish” copied the Untitled Barber/Bartis itz Deel. $3, Ex. 2 (Barber Tr.) 197:20-200:12.) The undisputed material fcts show that Project.* The Court can confi this conclusion by comparing the various elements of the two works, including the themes the settings and plot, the characters, andthe dialogue, 1. Themes a, The Untitled Barber/Barris Project Pilot Script Barber described the concept forthe Untitled Barber/Barris Project as follows: “I got thi Tallow the Cour more thorough review ofthe ent history ofthe series, Defendant ae fing, lng wih hi motion, 2 separ, uner seal, Declaration of Kenya Barris which conan th fal erp ofl or mos al ofthe cpsoées ofthe seis. See, generally, Under Seal Declaration of Kenya Briand exhib thereto (Baris Del $ Eas 12) [MOTTON FOR SUMMARY JUDGMENT2 23 244 28 6 2 28 show that 'm going to do about myself, my agent, Charles King, my brother and my produce, and what itis is basically a~ ask out of water, Tn aback ~ tm a black, you know, guy trying to make it in Hollywood and tying to adjust to the Hollywood system. (Barber Tr. 51.22.52 (emphasis added).) The result of hi characters end up feeling ussatse! and excluded ftom the mainstream. The most important ish out of water” theme is that the main example ofthis happens atthe In Style magazine “30 Under 30” party. The Bryan characteris supposed to be “onthe list” to get into this paparazzi-laden, red carpet party, but the bouncer cannot find him on thelist and he ultimately is excluded because the bouncers see Bryan's friend, Kenya, as a “fake.” A similar unsatisfying resolution happens at Kenya's work. When is putin charge of developing “urban” dialogue, he tiesto exclude uses ofthe words “nizzle” and “neezie” because they are short for the “N" word, ‘The result is that he almost gets fired, an| he has to completely compromise his morals in order to keep his jab. (Stiglitz Decl. 2, Ex. 1 (Pilot Scrip) at 56-57.) In both ofthese key events the “ish out of water” theme is highly visible and results in an unsatisfying resolution, b. “Black-ish” “Black-ish” regularly attempts to deliver a moral or a message toits audience, and that is often accomplished through the use of a voiceover to let the audience know what the character is thinking as events happen. (Barris Decl. 11.) “Black-ish” is focused on the challenge of remaining true to one's heritage and values ~or, as Andre puts it, “keeping it rea!" ~ while navigating social and professional opportunities and challenges. The Johnson family navigates these challenges well reaching morally acceptable compromises between respecting theit heritage and fitting in with the people in their current community, This isa result of thoughtful reflection and accepting input from family members with different views, Also, Dre's focus is not how he ane his family are perceived by others; but rather how they view themselves. The theme of the series seems tobe the importance of faith and family in confronting racism, and the| general difficulty of even well-intentioned members ofthe white community to embrace A\tican Americans. Thus, even though both works involve upwardly mobile African-Americans, the actual themes are entirely distinct and this factor weighs strongly in favor of summary judgment, 10 [MOTTON FOR SUMMARY JUDGMENT}2, The Characters The Untitled Barber/Barvis Project Pilot Seript ‘The script describes the following significant characters: Bryan Barber: “29, the ‘re-originator’ ofthe Mohawk. A star in his own mind and just. bout ready to burst over the fact that everyone else hasnt figured thet he's ‘the shit.” (Stiglitz Decl. $2, Ex. 1 (Pilot Script) at 34) This characteris a music video director, (Stiglitz Decl. 42, Ex. 1 Pilot Script) at 66.) William Green: “32, White, Bryan's producer... speaks with an overly done English accent that he wild like a skilled swordsman. A connoisseur of any and everything scummy, the} ‘translator and conduit between ‘the guys” and ‘mainstream’ Hollywood,” (Stiglitz Deel. 2, Ex. 1 (Pitot Script) at 35.) Flip Barber: “FLIP, 25, the epitome of a hustler” is Bryan's brother (Stiglitz Decl. 2, Ex. 1 (Plot Script) t 46.) This character is introduced while he's smoking marijuane, descibed nthe Pilot Script as “a fat spliff.” (Stiglitz Deel, $2, Ex. 1 (Pilot Seript) at 46.) During his deposition in this action, Barber described the inspiration for the character as follows: “You now, my brother was a former artist who then turned into kindof, lke, struggling, but he—he the lives on kind of ike onthe other side ofthe tracks, so he's ind of like one fot inthe ~ in the urban word inthe hood and the other foot like his connection to =o this word is through me.” (Stiglitz Del. $3, Ex. 2 Barber Te) 7:11-18) enya Barris: 28, television writer, cocky for no reason and is owm worse [se] enemy. Think George Costanza witha fo’ and some shythm.” Stiglitz Del 2, Ex. I (Pilot Serpt) at 33.) That characters starting his frst day a new job at a company called “Oh No You Dida’ with an office on Paramount's ot, (Pilot Sript at 4.) ‘Charles King: Kenya's ageniend and Barber's agents deseibed an but working really hard on loosening up.” (Pilot Scrip at 33.) During his deposition in his scion, Barber described the inspiration for character a follows: “you know, Charles i, you ites know, Charles is going to be a character on my show, too, so you know how Charles i, like [Charles is fuckin’ black and he’s a black agent, and so he's working at this white agency and u (MOTTON FOR SUMMARY JUDGMENT}|Charies is ~ like this whole thing is he’s trying to sep ~ separate himself from being black.” (Stiglitz Decl 43, Ex. 2 Barber Tr) 55:22-56:5.) Bow: Kenya's girlfriend, described as “28, mixed heritage besity® and a doctor (Stiglitz Dect. $2, Ex. 1 (Pilot Scrip) at 37, 49.) Baris is considering whether to propose, but he's stil interested in other women and tells Barber at one point, “I don't now ifT can do it. Be! with one woman forthe rest of my lif.” (Stiglte Decl. 2, Ex. 1 (Pilct Script) at 37, 39.) tacy King: Charles’ wife is described as “29, beautiful andthe hippest thing about Charles.” (Stiglitz Decl. 42, Ex. 1 Pilot Script at 33.) b. “Blackeish” Dre Johnson: When the show begins, Dre Johnson is nearly 40 years old and married ‘with four children, (Barris Deel. 11.) He is about to receive a promotion to Senior Vice resident at an advertising agency, Rainbow Johnson: An anesthesiologist and the biracial wife of Dre. She tries to be [colorblind and has liberal views about race Zocy Johnson: Dre's 7-yearold daughter. She is the attractive, popular, entitled, stylish, and socially ative member of the Johnson family. She is typically apathetic to any dealings with her family and generally has a shallow personality and tendencies of selfishness towards her siblings, especially Junior. Andre ("Junior") Johnson Jr.: Dre's 16-year-old son. He isa so-called "nerd" whois {confused by the world around him and frequently subjected to disdain and pettiness atthe hands of his more shallow and obnoxious father and siblings. ‘Jack and Diane Johnson: Dre's 8-yearold fraternal twins. Jack idolizes his dad and. Diane considers herself smarter and more mature than her twin brother, Rn has good advice.” "Pops! Johnson: Dre's ther. Te is « curmudgeon ase opinionated: burhe often ‘The Characters Are Markedly Different ‘When asked at deposition, Barber initially testified that all six led characters from the Untitled Barber/Barrs Projet ~ Barber, Baris, Bow, William, Charles, and Stacey — were 2 /_ MOTION FOR SUMMARY JUDGMENTcopied, (Stiglitz Decl. 3, Ex. 2 (Barber Tr) 176:5-177:9.) When pressed, he narrowed that allegation significantly tothe following three alleged similarities: (1) Dre in “Black-ish” is copied from a combination of Barber, Baris, and Charles King inthe Untitled Barber/Barris Project; 2) Rainbow in “Black-ish” is copied from a combination of Stacey King end Bow in the) Untitled Barber/Barris Project; (3) Dre's boss on “Black from William on the Untitled Barber/Barris Project, (Stiglitz Ded. 3, Ex.2 Barber Tr.) 1812204 not provide the basis fr finding any breach of contract because Barber clearly testified tht there was never a discussion about whether he and Barris agreed not to use modified versions ofthe characters inthe Untitled Barber/Bastis Project, First, Dre does not combine the Baris, Barber, and Charles King characters from the Untitled Barber/Baris Project, ish” [e. Mr. Stevenson] is derived 3:10.) Fven if allegations (1) and (2) were tre (wich they are not, they still would Dre is mor established, and more suecesful than any ofthe characters inthe Untitled BarberBars Project. Dre is approaching 40, recive a promotion to Senior Vice resident of his company, ives in large house and has family with four chidre (15,13, and year-old ins). Dre may initially eactto dificult isues na similar courerprodctve way that the Barris character reacts in the Untied Barber/Bars Project, but Dre seems to benefit fom the teachable moments ina way that allows hima to succeed, without abandoning his moras. It is nose teachable moments, highlighted by a prominent voiceover, tht give “Black-ish” the substance and complet that the Untied BarberBaris Project lcks. For example, a Dre notes, he actully reached «good place by recognizing tat the “U-ban” department he leads can fer not justo Aftican-Americn, but ls to “hip, coo, and colo” which are race-neutal descriptors for himset and his family. Inthe United BarberBarss Projet the Barber character gives the impression of success, but there are hints hat they are more pretentious than sucessful. Barber drives a ashy /BMW and says he does music videos to “pay the bills,” but Baber lost money on he only musi ideo project he created during the events in the Plot Sexpt, Baber ls is willing to compromise his morals to get the ob done, as reflected by the scee in which he effectively hires 1B MOTION FOR SUMMARY JUDGMENT Harel3 prostitute to satisfy the whim of demanding star. Baris also appears to give the impression that he is mote successful or important than he really is. The Pilot Script describes Barris as cocky for no reason,” and describes Barris first day at anew writing job with no mention of @ high-level job ttle. Baris also is disloyal to his serious girltiend, instead deciding to attend artes without her so he can at least theoretically pursue other women, He also appears to be & fake in that he lies to a famous actress he sees ata restaurant just forthe fun of striking up a conversation, and then drops her name to make it seem like he is “somebody.” And, he ‘completely compromises his morals when he is convinced by his new boss to use the “N" word, or derivatives oft, for effect when writing for a television series, In twist onthe usual Hollywood plot, the agent, Charles King, appears tobe the mos likeable of the entire group, but leven that has it limits. When Charles faces pressure to develop the “Urban” department at liam Moris Agency he tums tothe same sor of over-the-top references to decades of black pop culture ions tht nearly sunk Dre at his advertising job and he never realizes his err. Second, Rainbow on “Black-ah” is nota mere combination of Bow and Stacey. In the Untitled Barber Baris Projet, Stacey isa one-dimensional character who has oly two line, both eiisiing her husband's “cheap suit" revealing her tobe shallow. Bow sa stereotypical jelous girtiend, She has only two lines nthe pilot, and bth are etcizing Barts for visting escort service websites, eventhough Baris’ white frend actualy was the euily party. Rainbow Johnson's character can hardy be compared to the ane-imensional,twn-lin prt hat Stacey and Bow cach have, In “Black-sh," Rainbow play a major role in the overarching theme, ypically advocating fora more colorblind approach and for «more Inissez-fie approach to child rearing, especially when i comes toletng the hiléren find thir cil identi. Third, video producer; Wiliam Wiliam i close fiend ofthe group who atends both Barber's family dinner andthe In Style magazine pat. (Stiglitz Decl. 2, Ex. 1 (Pilot Sept) 2133.35.) ipsurd to claim that Baris’ boss, Mr. Stevenson, is similar to Barber's music William also is described asa “connoisseur of any and everything scummy” and he participtes in hiring quasi-prostitute to satisfy the demand ofa famous rapper. (Stiglitz Deel. 2, Ex, 1 (Pilot Script) at 35.) Barris’ boss has only one scene, when he announces the Baris character's “4 MOTION FOR SUMMARY JUD ENTPromotion ina professional manner. (Baris Decl 7, Ex. 2 (‘Black sh Pilot”) at 11-12) Further, “Black-ish” includes a numberof dstintive characters that do not appear in Untitled BarberBaris Project. The other key characters are members of Dre and Bow's family. The Untitled Barber/Barrs Project des not have any speaking roles for children and the members of Barer’ family are generally less wholesome thn the Johnsons. 3. The Setting and Plot ‘The plot ofthe two works could not be more diffrent. On the one hand, the Untied Barber/Baris Project follows young professionals who atend Hollywood partes and smoke marijuana, On the other hand, “Black-ish” follows the life of family of six, with four school aged children, Any facial similarities inthe plot elements breakdown upon deeper analysis, First, each work has a “handshake” scene, but they ae qu differen. tn the pilot for Blaci-sh" Dre's assistant Kris greets him by saying, “Big Dre, what up?! Or should I sey Me. Vee-Peezy/?!” Afr that, Dre and Kris “do a complicated, but wll practced, HANDSHAKE." In voiceover, re explains, "Notice how I do the shake with hm? For the ‘good ones"... you don't mind sprinkling something here and there.” In the Untied Barber/Baris Projet, {eres an uncomfortable moment as Jeff (Baris boss isto greet hm with a‘eool” handshake that goes awry.” (Stilt Second, each work has a scene where “grape soda” is mentioned, but the scenes in the Decl. 2, Ex. 1 (Pilot Script) at 44.) two works were quite different, Inthe “Black-ish” pilot, Junior’ fiend, Zach, comes to the Johnson house and says, “Yeah, I've been craving grape soda all day and my parents never buy any." Dre responds, “And why in the ell would you assume—" Zach then responds, “Found it” (Barris Decl. $7, Ex. 2 (*Black-ish” Pilot) at 19.) This complex scene raises the issue of how to address stereotypes, recognizing that sometimes thee is truth to them and not all of them are offensive On the other hand in the Untitled Barber/Barris Project; the “grape soda” scene is} almost a throw away that is interupted by the main action, (Stiglitz Deel. 2, Bx. 1 Pilot Script) at 49.) ‘Third, both works feature a main character interacting with low-level workers, like security guards. The Black-ish Plot Script describes the friendliest of relationships between Dre 18 |" MOTTON FOR SUMMARY JUDGMENT}andthe security guards this work, “Dre makes his way though te lobby and is greeted by ALL, but none more fondly than the other BLACK EMPLOYEES (SECURITY GUARDS, JANITORS, MAIL ROOM GUYS, ee)" (Bans Decl. $7, Ex. 2 *Blackcish Plot) at 9) On| the other han, inthe Untied BarbeeBarrs Project, Bars fake when he meets the security utr, As e enters, he happens to see Union entering the studio inthe next an. He exchanges smiles with Union (because she thinks Barris knows her fiend), then ells the security guard, Old frend. We had breakfast this moming. Take care, bos.” (Stiglitz Dec. 12, Ex. (Pilot Serpe) a 43.) 4, Dialogue “Blacicish” plainly did nt copy any dialogue from the Untitled BarbexBarrs Project. B, The Lack of Copying Jastifies Summary Adjudication as tothe Every Cause of ‘Action and as to Every Defendants 1. Breach of Implied-in-Fact Contract (First Cause of Action) “Astothe basic elements [of contact cause of atin}, there is no difference between sm expres and implied contract... While an implied in feet contract maybe infeed from the conduct, situation or mutual relation of the pats, he very heat of his kind of agreement i an intent to promise” Division of Labor Law Enforcement, Transpacf Transporsaion Co. 69 cal. App. 34268, 275 (1970. The seminal cases evaluating a breach of impledin fat contract include Deny Wilde, 46 Ca124715 (1956) (“Desny") and Mann». Columbia Pictures, Ine, 128 Cal Ap. 34 628 (1982) ("Mann"), Relying heavily onthe decision in Desm, the Court in Man held that whether a defendant has a contractual obligation tothe idea purveyors dependent upon wheter the “idea” or treatment was used or disclosed bythe person or entity receiving the idea or treatment Fat 6 "( Ton tha Mann an Columbietered into an impled-infact contac, plaintiff must demonstrate tat she clearly conditioned he offer of ‘Women Pus’ upon an obligation to pay fort ort ideas, fused by Columbia; and Columbia, knowing the condition before it knew the ideas, voluntarily accepted ther disclosure (necessrilyon the specified basis and found them valuable and used them.” Je. (Emphasis added), 16 |______ MOTION FOR SUMMARY JUDGMENT‘The Court further held that [the] wil court ean old as a matte of law than an inference as been dispelled where it as ben rebutted by clear, positive and uncontradicted evidence not open to doubt... In Mann, defendants produced evidence that use did not occur. Therefore, because ‘use was essential to Mann's recovery, as a mater of a, ther sno contractual obligation fortis court to enforce here” Id (itera tations and quotation matks omited.) tis" do not aor ihe basis fr factual The Cour went even further holding that “mere posi inferences” Mann, 128 Cal App. 34 at 650 (emphasis added, citation omited). ‘As such, the plaintiff ina breach of implied fr entertainment industry content must also prove “substantial simiariy” between the works at fact contract ease relating to use of an id issue. See Sutton v, Walt Disney Prod, 118 Cal App. 24598, 603 (1953). California law, ike federal law, ist requires the cour to compar the wo films and gant summary judgment only itean determine that a reasonable jury coud concude thatthe works are not substantially similar. Burts. Universal Pietures Co, 40 Cal.24 823 (1953). Incor ring whether two works are similar, courts do not consider elements of films that are too trivial or commonplace to support a finding of substantial similaity. Kiekas ». EMI| Films, in, 150 Cal. App. 3d 1102, 1113-14 (1984) (meditative man returning from military laity; Henriedv. Four Star service to common to support finding of substantial Television, 266 Cal. Ap. 24435, 436-37 (196) (protagonists both ride in taufeu-iven Rolls Royee to common to support finding of substantial similarity); Greenv, Schwarzenegger 1995 WL 874191 at *13-23 (C.D. Cal. 199) main characters taking metal fom, changing shapes, and traveling through time to ler future too common to suppor finding of substantial similarity), In Henied, the court explained, “Additionally, substantial similarity is determined so though generates or lists of alleged similarities, but through comperingeach work asa ole by looking the works pots sequences, characters, stings, dame gimmicks, and themes.” Henried, 266 Cal App. 2d 435, 436-37 (emphasis in orginal). Further, the specifi facts examined by the Califomia cours in determining “substantial silat” are mach the same as those examined bythe federal cours. Fink. Goodson- Todian Enterprises, Lid, 9 Cal. App. 34996, 113-1014 (1970) (diseussing concept of " |______"MOTION FOR SUMMARY JUDGMENT}substantial si larity under Califomia law), Californie law, like federal law, fist requires the ofthe two films, Henried v. Four Star Television, 266 Cal. App. 24.435, 436 (1968). See also Fink, supra, [Court to examine the “plo, motivation, subject matter, milieu, and characterizatir Cal. App. 3 at 1010-1013 (1970) (court must examine the struct spne” and “basi theme” ofthe wor; Daves v.Krasna, 248 Cal. Ap, 2d 535, 53 (1966) (idea, ental theme and aramatic coe of story"); Donahue» Ziv Televison Programs, Inc, 24S Cal. App. 24593, $97 601 (1966 substantial similarity present if there are “esbugh similarities in basic pltidas, themes, sequences and dramatic gimmicks™ between the to works) ere, Barber cannot show breach of any contrac expres or implied any such contrac is based on the position that the Defendants breached i by using some ide or concept from the Untitled Barber/Barts Project. As set oth in det above, Defendants did no such thing. Here, he smilrtes do not meet the requirements set forth in Klas, Henried, fact — because Green, and Davies. The general theme of one or more black men trying to fit into a white man’s world is too generic to be protected. Upon closer inspection, there is no deeper similarity because the way that the two works treat the issue of race is very different, Once that generic and arguable similarity is set aside, the only similarity ofnoteis that Bow and Rainbow Johnson both use a variation on the rea! life name and occupation of Defendants Kenya Barris’ wife, Rainbow. That mere detail is not even protectable (because itis taken from rel life, not from. the Untitled Barbec/Barris Project), and even if it were, ttt alone would not come close to ‘constituting “substantial similarity.” As such, the Court should grant the motion as to breach of iimplied-in-fact contract. 2, Breach of Confidence (Second Cause of Action) Actionable breach of confidence in the idea-submission context arses “when an idea ‘is offered to another inconfidence, and is voluntarily received by the offere in confidence wit the understanding that itis not to be disclosed to others, ead isnot to be used by the offeree for Purposes beyond the limits ofthe confidence without the offeror's permission.” Faris v. Enberg| 97 Cal. App. 3d 309, 323 (1979). To prevail on a claim for breach of confidence in idea submission context, a plaintiff must show: (1) plaintiff conveyed confidential and novel 18 /______ MOTION FOR SUMMARY JUDGMENTinformation to defendant; (2) defendant knew the information was conveyed in confidence; (3) plaintiff and defendant understood thatthe confidence would be maintained; and (4) defendant disclosed or used information in violation of the confidential understanding. Allott. R Dakin & Co,, 831 F.2d 898, 903 (9th Cir-1987) (applying California law); see also Blaustein v. Burton, 9. Cal. App. 34 161, 186-187 (1970). ere, Barber's ease for breach of confidence is no stronger than his ease for breach of implied-in-fact contract because both would require use of ideas or concepts inthe Untitled Barber/Bartis Project. Moreover, Barber's case for breach of confidence has an additional weakness in that characters that mirror the real life people Kenya and Rainbow Baris could not reasonably have been revealed “in confidence” to Kenya Batis, That is nonsensical, s the [Cour should gran the motion ast this cause of ation 3. Fraud and Breach of Fiduciary Duty Fifth and Barber's ith cause of action for feu, alleges that Bars’ unlawfully and actively Jeoncesled “important facts about the development of the Series,” i.e, “Black-ish.” (Stiglitz Ded th Causes of Action) 14, Ex. 3 (Complaint $] 40-42, 49) In other words, Baber is alleging once agin, that Baris copied the Untied BarberBaris Project. This ime, the unique additonal element isa fraudulent attempt to conceal important acs, but the fundamental nature ofthe clam sill requires a showing that Barber copied. The Court should reject that theory and grant the motion 10 thie ease of action. Simiay, Barber's sixth use of ation, fr breach of fiduciary duty, is explicitly r= hashing the previously asserted causes of action. Rather than deseribe any unique acts for this cause of action, Barber simply alleges, “Baris breached his fiduciary dies to PlaintifFas alleged herein.” As such, finding of no copying is decisive fr this cause of action as wel 4. Declaratory Relief (Third Cause of Action) Barbers declaratory rele eauseof action seks thee diferent items of rl, First, Barber seeks a indng that “Defendant exploited Barbers ides andlor Orginal Untitled Script." (Stig Del. $4, Bx. 3 (Complaint) 33, That is redundant with al the proc causes of ation Second, Barber seeks finding hate “is ented t compensation... a awrite and eestor of| 19 IN FOR SUMMARY JUDGMENT MO"the Pilot and the Series [.e.“Black-ish”]... that have or will low from [Barber's] original concept that is now known as “Black-ish” To the exten thet request for compensation is ted to some other claim, it is redundant. To the extent that request for compensation arises from pure copying, without any additional element fora state Iaw claim, such a request for declaratory is pre-empted by the Copyright Act. Del Madera Properties v, Rhodes de Gardner, In 820 F.2d 973, 976 (9th Cir. 1987). Third, Barber seeks a finding that he “is entitled to ‘credit as a writer and creator of the Pilot andthe Series (Le. “Black-ish"] ...." Since Barber had| ‘no direct role in creating “Black-ish,” fundamentally, a clae for credit must be based on an assertion that “Black-ish” is copied from the project he does allege he created, namely the ‘Untitled Barber/Barris Project. Once again, that claim fils eeause there was no copying. 5, The Fourth Cause of Action, for an Accouating. “An action for accounting isnot available where the alaintff alleges the right to recover sum certain or @ sum that can be made certain by calculation. St. James Church of Christ Holiness v. Sup. Ct 135 Cal. App. 2d 352, 359 (1955); Teselle , McLoughlin, 173 Cal. App. 4th 156, 179 (2009). Here, asset forth above, Barber has no rigt to any amounts any of the Defendants because he cannot show that any ofthe Defendants owe him any money due to the failure of the other causes of action, IV. CONCLUSION For the foregoing reasons, Defendants respectfully equest thatthe Court grant the motion in its entirety, or in the altemative, grant summary adjudication of each ofthe issues set forth above. Dated: June 29, 2017 FREED) tAN, LLP Boan Fe sievea, Sigliz Be Sten lary ‘ttomeys for Defendants Tobe pre-empted, state aw lim, sucha for decaratory reli, mat (1) relate oa work that is ube to protection unde the Copyright Act sad (2) assert rights “equivalent o ay ofthe exclusive rights within the gene Scope of copyrights Specified bythe Act) Here pre-emption aps lecause the work ia seit which is protected by the Copyright Act, andthe ight ssered isthe excanve ah prepa allegedly “derivative” works (17 USC. § 1062), sich at thenew television seis “Blackish.” 20 MOTION FOR SUMMARY JUDGMENTPan mine es orn wih oeaponng maaan a eal page roe {eReeraon a be nebo ace og den oxen Tne aca wt Sate, ‘Cape whl acop page ao Resarsdn oe eseation 1: 161212180350 Pan Bans ENA Deter erponcend ae Monk Cte itn or Suman udgment fedbam FEEIAFORMATION (Fete are nonsefundel) Fest PapeFen: Pay sneer pp was pov [Bescon Fa] Mot fe Soa Do “om Total Fest ‘Reap ban TTATRaROS 0 aon Cra crs Mabon, Smee SoeoO ICE A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING NOTIONIDOCUMENT AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE MOTIONINOCUMENT FACE PAGE. psinelaoartepvelpnilep aston