Holly Screentest of America v. NBC Universal

Filed 5/4/07 Holly Screentest of America v. NBC Universal CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Rolf M. Treu, Judge. Affirmed.

Schimmel & Parks and Michael W. Parks; Law Office of Bruce Adelstein and Bruce Adelstein; Edward J. Horowitz for Plaintiffs and Appellants.

Irell & Manella, Henry Shields, Jr., Bruce A. Wessel, and David A. Ryan for Defendants and Respondents.

Appellants Hollywood Screentest of America, Inc. (HST) and James Pascucci (Pascucci) (collectively appellants) appeal an order granting summary judgment against them and in favor of respondents NBC Universal, Inc., and NBC Studios, Inc. (collectively NBC). Appellants also appeal an order sustaining respondent Jeffrey Zuckers (Zucker) demurrer without leave to amend and a judgment of dismissal in favor of Zucker.^[1] We affirm the order granting summary judgment as to all causes of action, and therefore find it unnecessary to address the demurrer.

CONTENTIONS

Appellants contend that NBCs motion for summary judgment was improperly granted because (1) the trial court failed to adhere to the directions of a writ of mandate issued by this court; and (2) issues of material fact existed which should have been submitted to a trier of fact. Appellants further contend that Zuckers demurrer was improperly granted because Zucker, who was a top executive at NBC, may be held personally liable for appellants cause of action for breach of confidence.

FACTUAL BACKGROUND

1. The parties initial communications regarding Hollywood Screentest

Pascucci is the President of HST. HST is a corporate entity formed by Pascucci to develop and promote a television show also known as Hollywood Screentest, a reality show which would give ordinary people from all walks of life the chance to break into the close-knit Hollywood entertainment community. Respondents point out that the Hollywood Screentest idea is similar to a television show of the same name that aired for many years in the 1940s and 1950s. It was also similar to another show entitled Don Adamss Screen Test, which aired in the 1970s. Respondents also point out that in this decade, there have been many reality shows of the same genre, in which average people compete for the opportunity to become the next great pop star (American Idol, Making the Band, and Pop Stars), the next great wrestler (Tough Enough), the next great model (Americas Next Top Model), the next great comedian (Last Comic Standing), and the next great sports announcer (Dream Job).

Pascucci contacted Zucker about Hollywood Screentest in January 2001 by sending an e-mail to Zucker, who had just been named president of NBC Entertainment.^[2]On January 14, 2001, Zucker wrote back, indicating that he would like to see the power point presentation which Pascucci had offered to e-mail to him. Two days later, Pascucci faxed a letter to Zucker, along with a confidentiality agreement, indicating that he would send the power point presentation if Zucker signed the confidentiality agreement. The confidentiality agreement provides, in part: as an express condition to the Hollywood Screen Tests permitting [NBC] access to . . . information . . . [NBC] hereby agree[s] . . . that all such information be deemed confidential and exclusively proprietary to the Hollywood Screen Test . . . . The agreement excludes any information that is or becomes generally available to the public. Pascucci sent the power point presentation, which promised a network of Micro Studios (kiosks) soon to be located in various McDonalds restaurants . . . . Also, the presentation directed NBC to the Hollywood Screentest public website for Visual samples for the concept behind the television series.

The parties communicated further over the next several months. Zucker asked Pascucci to contact John Miller, who dealt with advertising and promotion for NBC, so that Miller could evaluate the advertising opportunity provided by the kiosks Pascucci had described. Pascuccis communications with Miller began on February 8, 2001, when Pascucci asked Miller for a letter of intent. Miller provided a letter expressing NBCs interest in the kiosks to expose our programming to the people who would experience the Hollywood Screen Test kiosks. In April 2001, Pascucci informed NBC that the kiosks would no longer be at McDonalds but at Burger King. After an additional request that NBC agree to sell advertising on the kiosks, Miller wrote Pascucci indicating that it was not in the cards. Pascucci contends that during this time frame, he provided NBC with several written treatments and described subsequent changes and developments in the concept. He also copyrighted those materials and registered them with the Writers Guild of America.

2. The revised concepts for Hollywood Screentest

During the summer of 2001, Pascucci stopped e-mailing NBC. However, the e-mails resumed in September of 2001 with a communication to Zucker regarding a revised and improved Hollywood Screentest marketing plan and new internet game. Zucker again referred Pascucci to John Miller. Pascucci e-mailed Miller later that day with a revised concept involving partnerships with Clear Channel. Three weeks later, Pascucci e-mailed Miller with another revised concept involving an Americas Funniest Home Videos-style show. Miller responded by directing Pascucci to Jeff Gaspin, head of reality television for NBC. On November 6, 2001, Gaspin rejected Pascuccis proposal, stating: Unfortunately we are not looking for this type of program right now.

On December 19, 2001, Pascucci wrote Zucker and Miller about another change in format involving the inclusion of short clips from classic movies. He e-mailed two more times regarding this revised concept, and mentioned yet another possible partner, the AMC Channel. Miller was uninterested, telling Pascucci that he did not see any promotional advantage to NBC.

Between January 2002 and September 2002, Pascucci wrote Zucker again 19 times. In a letter dated August 28, 2002, Pascucci referred to himself as Pain in the ass. His communications to Zucker during this time included descriptions of revised versions of the show and queries as to how to get it on the air.

According to Pascuccis deposition testimony, Zucker telephoned him in June 2002 and provided some encouragement for Pascucci to continue his efforts. Specifically, Pascucci claimed, Zucker stated that he like the idea for Hollywood Screentest and instructed Pascucci to secure financing for the movie component of the project and to contact him when that was accomplished.

Respondents present a different version of the communications during this time period. They state that between June 5, 2002 and September 6, 2002, Zucker responded to Pascuccis e-mail messages only twice. In an August 15, 2002 communication, Pascucci asked Zucker, can [you] get me a Letter of Interest on Hollywood Screen Test? Zucker responded, indicating that he was going to pass and telling Pascucci to move on. On September 8, 2002, in response to an e-mail from Pascucci stating, I wont bug you anymore after your FINAL response, Zucker responded, still going to pass [] thank you.

3. Similarities between Hollywood Screentest and the NBC television show Next Action Star

On September 5, 2002, NBC issued a press release, which announced that NBC and Silver Pictures would be teaming up to present a new competitive reality series in which the winners would star in a prime-time action movie.

According to Pascucci, after reading a September 12, 2002 article regarding the Next Action Star project in Variety, he noted numerous elements that he thought were derived from Hollywood Screentest. Specifically, Pascucci pointed out:

The whole multimedia aspect of Hollywood Screen Test utilizing the Internet, utilizing movie screens, utilizing the TV show to promote the film component of the show in order to garner greater ratings not only for this particular TV show The Next Action Star but also other NBC shows.

Pascucci also noted: One of the elements that I gave Mr. Zucker was having an acting coach on the set interacting with the contestants to assist them in their various challenges; and [u]sing celebrities to act within a particular scene during various challenges. Pascucci summed up his complaints as follows: The acting coach. The different challenges. The different categories. The grand prize. The multimedia aspects. Utilizing the movie as not only the grand prize but also utilizing it as part of the television show. Going behind the scenes, whats going behind the scenes in these actors minds before and after the challenge. The process of elimination during the challenges to where you end up with one male and one female winner. Pascucci stated that he did not believe that NBC had any of those ideas before he gave them to NBC.

4. The creation of Next Action Star

NBCs position is that it did not use any of Pascuccis ideas for Hollywood Screentest. In support of this position, NBC presented evidence that Next Action Star was independently created by individuals and entities completely unrelated to NBC. That evidence, set forth below, documents the process by which Next Action Star was created and developed by individuals at three different companies: Brass Ring Productions, GRB Entertainment, and Silver Pictures. The evidence shows that the development of Next Action Star by these three companies occurred over the course of a year before the shows creators presented it to NBC.

Rick Telles of Brass Ring Productions provided a declaration in support of NBCs summary judgment motion which explained that, during the summer of 2001, he collaborated with his colleague Cris Abrego and two producers from GRB Entertainment to develop a program for USA Networks called Hollywood Stunt School. The show was also known as USAs Next Action Hero. Contestants would be eliminated each week with the winner appearing as a stunt person in a movie. USA Networks ultimately decided not to move forward with the project.

According to Telless declaration, Sara Chazen of United Talent Agency suggested that he meet with the production company Silver Pictures. At the meeting, the group discussed a reality show involving stunts, and Greg Noveck of Silver Pictures suggested that the show be attached to a movie and that the winners of the competition star in the movie, rather than merely appear in stunts. Around this time Telles and his colleagues began to refer to the show as Next Action Star.

Michael Branton of GRB Entertainment was also a producer of Next Action Star. Brantons declaration authenticated seven documents, including the proposal written for USA Networks which was ultimately never developed, notes from meetings among the producers of the show, and various documents describing the state of the project at various times throughout 2002.

Gary Benz is the president and CEO of GRB Entertainment and was an executive producer of Next Action Star. Benzs declaration stated that Next Action Star was created by a team of independent producers including Benz and Michael Branton of GRB, Cris Abrego and Rick Telles of Brass Ring, and Greg Noveck and Dana Shelbourne of Silver Pictures. Benz never spoke with anyone at NBC regarding Next Action Star until the show was pitched to NBC in August 2002.

Sara Chazen of United Talent Agency also provided testimony regarding the development of Next Action Star. She represented GRB and Brass Ring in connection with the Next Action Star project. Chazen arranged a meeting in late 2001 at which GRB and Brass Ring pitched an idea to Silver Pictures for the parties jointly to produce a reality competition show where the winners would appear in a movie. Chazens testimony confirmed that at that meeting, Greg Noveck suggested that the program be tied to a movie which would star the winners of the show. Chazen testified that she later arranged a pitch meeting at NBC where the independent producers presented Next Action Star as a competition elimination show where men and women are going to get a chance to star in a . . . movie. She explained that Next Action Star would have one male and one female winner.

The declaration of NBC employee Michael Katz documents the scheduling and content of the meeting at which the Next Action Star producers pitched the program to NBC. The testimony of fellow NBC executive Jamila Hunter corroborated Katzs account. Jeffrey Gaspin also provided testimony as to NBCs interest in the project, and confirmed that NBC had no involvement with Next Action Star prior to the initial meeting in August 2002.

Appellants have provided no evidence calling into question the statements provided by the witnesses from Brass Ring Productions, GRB Entertainment, United Talent Agency, or any of the individuals present at the initial Next Action Star pitch meeting.

PROCEDURAL HISTORY

1. The complaints and Zuckers demurrer

Appellants second amended complaint against respondents, the operative complaint against NBC, was filed on November 4, 2003. It included causes of action for breach of written contract, breach of implied in fact contract, breach of the covenant of good faith and fair dealing, breach of confidence, unjust enrichment/quantum meruit, accounting, misappropriation of intangible property interests, and unfair competition.

Zucker was named as a defendant in the second amended complaint as to the breach of confidence cause of action only. Zucker filed a demurrer on December 10, 2003, which the trial court, the Honorable Alan G. Buckner presiding, sustained with leave to amend on February 19, 2004. The third amended complaint, which named Zucker in its fourth cause of action for fraud and in its fifth cause of action for breach of confidence, was filed on March 1, 2004. Zucker demurred again, and on April 27, 2004, Judge Buckner sustained Zuckers demurrer without leave to amend. A judgment of dismissal in favor of Zucker was entered on October 13, 2005.

2. NBCs summary judgment motion and the first hearing

On June 17, 2004, NBC filed a motion for summary judgment or, in the alternative, summary adjudication. NBC argued, inter alia, that all of appellants claims were barred because there was no disputed issue of fact that Next Action Star was independently created and that NBC used nothing submitted by appellants. Under Teich v. General Mills, Inc. (1959) 170 Cal.App.2d 791, NBC argued that it was entitled to summary judgment.

Appellants opposed the motion. They argued that Zucker had signed a confidentiality agreement and encouraged appellants with favorable remarks about Hollywood Screentest. Both parties filed objections to the evidence submitted by the opposing party, including objections to declarations.

Judge Buckner held a hearing on NBCs summary judgment motion on August 31, 2004. Upon considering the parties objections to evidence, he ruled that several of the opinions stated in the declarations of appellants expert witnesses Harris Tulchin and Greg Victoroff be stricken. After the hearing, he indicated that he would grant NBCs motion for summary adjudication as to the fifth cause of action for unjust enrichment/quantum meruit but deny NBCs motion in all other respects.

Judge Buckner asked appellants to provide a proposed order. The first two orders that appellants provided were rejected by Judge Buckner. The third proposed order and NBCs objections thereto, had not been acted upon when Judge Buckner died in mid-December 2004.

On Friday, January 7, 2005, Judge Ricardo A. Torres, who was appointed to replace Judge Buckner, signed and filed appellants third proposed order without notice and without conducting a hearing.

3. The writ petition and alternative writ

NBC filed a petition for writ of mandate with this court on January 26, 2005, requesting that Judge Torress order be vacated and summary judgment be granted in NBCs favor.^[3]On March 1, 2005, this court issued an alternative writ of mandate which gave the superior court two options:

(a) (1) vacate your order of January 7, 2005, denying petitioners[] summary judgment and granting them summary adjudication of petitioners fifth cause of action, and (2) assign a new judge who will hold a hearing, decide the case on the record of the motion for summary judgment that has been previously submitted and on argument at that hearing, and issue an order that comports with Code of Civil Procedure section 437c, subdivision (g); [or]

(b) in the alternative, SHOW CAUSE . . . why a peremptory writ of mandate ordering you to do so should not issue.

On March 4, 2005, the superior court assigned the matter to the Honorable Rolf M. Treu. By minute order dated March 14, 2005, Judge Treu accepted option (a) of the alternative writ and scheduled a new summary judgment hearing. In keeping with the instructions set forth in the writ, Judge Treu ordered that No further filings on this motion will be considered without permission having been previously granted by the Court.

4. Judge Treus rulings

Prior to holding a new summary judgment hearing, Judge Treu issued tentative rulings on the parties evidentiary objections and invited additional briefing on those issues. NBC submitted a brief arguing in support of the admissibility of two of its declarations. Appellants also submitted a brief which, according to Judge Treus minute order, mainly summarized rulings and argument before the late Judge Buckner and went well beyond the evidentiary issues at hand. Appellants also submitted a wholly unsolicited declaration [of counsel] presumably to correct the objections made.

In a minute order dated July 19, 2005, Judge Treu ruled:

In view of the mandate by the Court of Appeal that the Superior Court was to analyze the motion denovo, the Court is not going to consider Plaintiffs Supplemental Brief other than [those portions dealing with the evidentiary issues] . . . .

The Court will not consider the Supplemental Declaration of [appellants attorney] since that filing violates not only the order of this Court but also the briefing sequence of Code of Civil Procedure 437c.

Counsel are admonished at the hearing on this motion, that there is to be no reference made to any prior rulings by any other Judicial Officer. The motion is being analyzed by the Court, . . . and will be argued by counsel, denovo.

The summary judgment hearing by Judge Treu was held on August 9, 2005. Before the hearing, Judge Treu gave three questions to the parties:

[1.] What admissible evidence is there before the Court that the contents of the pitch of Next Action Sta[r] to NBC in 8-02 were not an independent creation?

[2.] What admissible evidence is there before the Court that Mr. Gaspin revealed, contributed or otherwise disclosed any content of the Hollywood Screentest pitch that was later used by NBC for Next Action Star?

[3.] If the Court finds for moving party on the issue of independent creation, what causes of action, if any, remain viable?

At the hearing, Judge Treu informed the parties of several evidentiary rulings. He sustained NBCs objections to documentary evidence attached to a declaration of appellants counsel on the grounds of lack of authentication. In addition, he sustained NBCs objections to the declarations of appellants experts Harris Tulchin and Greg Victoroff, striking the two declarations in their entirety. He also informed the parties that he did not read over 1,500 pages of unmarked deposition pages attached to a second declaration of counsel filed with appellants opposition brief on the grounds that it was not in compliance with former rule 316 of the California Rules of Court,^[4]which requires that a party mark its deposition pages to indicate what testimony is pertinent.

After giving the parties the opportunity to respond to the questions that he had presented to them, Judge Treu granted NBCs summary judgment motion and ordered NBC to prepare the order and judgment. The order was filed on September 2, 2005. Judgment in favor of NBC was entered on September 19, 2005.

On November 1, 2005, appellants filed a notice of appeal from the September 19, 2005 judgment in favor of the NBC entities and from the October 13, 2005 judgment in favor of Jeffrey Zucker.

DISCUSSION

I. Compliance with this courts writ of mandate

Appellants first argument is that the trial court failed to comply with the alternative writ of mandate issued by this court on March 1, 2005. The writ specified that the superior court should decide the case on the record of the motion for summary judgment that has been previously submitted. Appellants argue that this directive was violated by Judge Treu when he made evidentiary rulings sustaining NBCs objections to the documentary evidence attached to appellants counsels declaration and striking the declarations of appellants experts, Harris Tulchin and Greg Victoroff. Appellants further contend that this directive was violated by Judge Treus failure to read the deposition excerpts which were filed in violation of former rule 316 of the California Rules of Court.

A. The trial court properly considered and ruled upon the parties evidentiary objections

Compliance with this courts alternative writ is reviewed de novo. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) The alternative writ issued by this court ordered the superior court to reconsider NBCs motion for summary judgment on the record previously submitted by the parties. That record included evidentiary objections filed by both parties. There is no language in the order forbidding the superior court from considering these evidentiary objections or in any way preventing the superior court from exercising its ordinary powers in connection with its analysis of the summary judgment record.

The parties evidentiary objections were integral to the superior courts evaluation of the summary judgment motion. Under Code of Civil Procedure section 437c, the court is required to determine whether there are any triable issues of material fact. In order to make that determination, the court must necessarily first decide what admissible evidence it has before it: Part of the judicial function in assessing the merits of a summary judgment or adjudication motion involves a determination as to what evidence is admissible and that which is not. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784.)

Further, this courts alternative writ specifically ordered that the superior court vacate its order of January 7, 2005. The superior court complied. That order contained a ruling on the summary judgment motion itself as well as rulings on the parties evidentiary objections. Because the Court of Appeal ordered that Judge Buckners evidentiary rulings be vacated, a writ commanding the superior court to evaluate the record without reconsidering the evidentiary objections would essentially be an order overruling all such objections. That was not the intention of this court, as initial evidentiary rulings are within the domain of the trial court. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 235 [trial courts have a duty to rule on evidentiary objections, and it is not the function of an appellate court to make evidentiary rulings in the first instance].)

The alternative writ ordered the superior court to appoint a new judge to examine the entire summary judgment record de novo. We find that Judge Treu correctly interpreted the writ by understanding it to allow him to make evidentiary rulings within his sound discretion.

Appellants argue in the alternative that, if Judge Treu had the authority to make evidentiary rulings, he abused his discretion in refusing to consider a supplemental declaration filed by appellants attorney.^[5]The supplemental declaration, filed on June 27, 2005, provided further authentication of documents attached to the previously filed declaration and according to Judge Treu was filed presumably to correct objections made. Judge Treu refused to consider the supplemental declaration for two reasons: it was filed in violation of the courts order specifying that no further filings would be considered without prior permission of the court; and it was filed in violation the briefing sequence set forth in Code of Civil Procedure section 437c (section 437c).

Both of Judge Treus reasons were sound. The alternative writ specifically directed the superior court to decide the case on the record that had previously been submitted. Thus, the trial court was to consider only those documents that were before Judge Buckner. While Judge Treu had invited further briefing on the parties evidentiary objections, he had not given permission for a supplemental declaration to be filed. His refusal to accept such a filing was well within the courts discretion.

In addition, section 437c specifies the briefing sequence for a summary judgment motion. It provides for the submission of an opening brief with evidence, an opposition brief with evidence, and a reply brief. ( 437c, subds. (a)-(b).) It does not allow for the submission of additional evidence by the opposing party after the moving partys reply. Judge Treus refusal to accept the declaration on these grounds was also well within the discretion of the court.

B. The trial court acted within its discretion in failing to read the deposition testimony filed in violation of the California Rules of Court

Appellants claim that Judge Treu violated the writs directive to decide the case on the record of the motion for summary judgment that has been previously submitted because he failed to read over 1,500 pages of deposition testimony attached to appellants attorneys declaration that were filed in violation of rule 3.1116 of the California Rules of Court.^[6] Appellants argue that we should review this issue de novo, as it involves a question of whether the trial court properly followed this courts writ of mandate. However, as we have discussed above, the writ did not divest the trial court of its inherent discretionary powers, which include making evidentiary determinations and taking appropriate action for noncompliance with organizational and formatting requirements. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208 (Parkview); Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72-74.) We therefore review the courts decision not to read through much of the testimony attached to appellants attorneys declaration for abuse of discretion.

Appellants rely on Parkview to support their position. In Parkview, the Court of Appeal, Second Appellate District, Division 7, reversed a grant of summary judgment which was based on a lack of admissible evidence in opposition to the motion stemming from the plaintiffs inadequate statement of undisputed material facts. (Parkview, supra, 133 Cal.App.4th at pp. 1201-1202.) The plaintiffs separate statement required the court to comb the 37 pages of declarations and hundreds of pages of attached documents to unearth evidence supporting plaintiffs position. (Id. at p. 1208.) The trial court indicated that if it is not set forth in the separate statement, it does not exist because it is not set forth in the separate statement no triable issue of material fact exists here. (Ibid.)

The Court of Appeal determined that the trial court abused its discretion in granting the defendants motion for summary judgment without providing the plaintiff an opportunity to correct the deficiencies in its separate statement. (Parkview, supra, 133 Cal.App.4th at p. 1210.) In reversing the trial courts judgment, the Court of Appeal stated: The trial courts dissatisfaction with Parkview Villas failure to file a proper separate statement is understandable. . . . Appropriate, limited sanctions for that procedural error are proper; terminating sanctions are not . . . the respondent [should be] afforded a reasonable opportunity to file [a proper statement]. (Id. at p. 1216.)

The present case is distinguishable. First, Judge Treu did not disregard appellants entire separate statement. He did not exclude the deposition testimony or prevent appellants from relying on it in support of their opposition to NBCs summary judgment motion. He simply admitted that he had not read through the scores of pages given the voluminous and unorganized form in which it was submitted to him. Thus, appellants comparison of Judge Treus action as tantamount to terminating sanctions is not well taken.

Appellants further argue that, under Parkview, Judge Treu should have accepted appellants counsels offer to correct any of those errors. However, as noted above, Judge Treus action in failing to read what NBCs counsel described as context provided in case someone wanted to look at what was between the pages was of far lesser consequence than the sanctions imposed by the Parkview trial court.^[7] In addition, Judge Treu was working under different procedural circumstances than those present in Parkview. He had been specifically ordered by this court to decide the motion on the record that was previously submitted to Judge Buckner. He therefore made an appropriate ruling enforcing a case-specific mandate from a higher court which prevented additional submissions without prior approval. As Judge Treu stated at the hearing in response to appellants attorneys request that he accept a corrected declaration:

The mandate of the court was to review the documents, review the motion, decide the motion based on the filed papers . . . [t]hats exactly what the court did and has done.

Judge Treus decision to disallow a corrected declaration, offered at the end of the hearing on the summary judgment motion, was not an abuse of discretion especially given this courts mandate that he decide the case on the record before him.

II. The summary judgment ruling

Appellants argue that the trial courts grant of summary judgment should be reversed. Because appellants believe that Judge Treu erroneously altered the record, appellants arguments regarding reversal of the summary judgment motion as to each cause of action rely on the record as it existed when NBC submitted its writ petition to this Court. We have determined above that Judge Treus evidentiary rulings were in keeping with this courts writ of mandate and were not an abuse of the trial courts discretion. We therefore review the summary judgment on the record as it existed after Judge Treus evidentiary rulings. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014 [appellate court must consider all of the evidence the parties offered in connection with the motion for summary judgment except that which the trial court properly excluded].) Our review is de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

A. Independent creation

The parties dispute heavily whether the legal doctrine of independent creation negates all of appellants causes of action against NBC. We therefore preliminarily address this doctrine and the cases cited by the parties.

The independent creation doctrine is set forth in Teich v. General Mills, Inc. (1959) 170 Cal.App.2d 791 (Teich). In Teich, the plaintiff had developed an idea for a childrens item and submitted the idea to General Mills with the thought that it might be used as a cereal box prize. In the summer of 1955 he met with an advertising and sales promotion manager at a division of General Mills, who encouraged him to develop the idea. Teichs subsequent efforts to contact this manager were unsuccessful, but the following January he noticed a promotion for a similar item on a General Mills cereal box and, upon purchasing and opening the box, found inside the box an item markedly similar to the one he had presented to the company. (Id. at pp. 796-798.) He sued General Mills, claiming that the company had used his idea and that he was therefore entitled to compensation. He won before the jury but the trial court granted General Millss motion for judgment notwithstanding the verdict. (Id. at pp. 803-806.)

The Court of Appeal affirmed the trial courts grant of judgment notwithstanding the verdict. The court explained that the defendants receipt of plaintiffs idea for the product, and the similarity between plaintiffs idea and defendants product, created an inference that the defendant used plaintiffs idea. (Teich, supra, 170 Cal.App.2d at p. 797.) However, the court found that this inference of use could be dispelled as a matter of law by direct evidence of independent creation. Such evidence existed in Teich. It consisted of the testimony of three witnesses and documentary evidence. (Id. at pp. 799-800.) The court held that this evidence dispelled the inference of use as a matter of law and explained it follows from the absence of copying that plaintiff has no cause of action. (Id. at p. 805; see also Mann v. Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 650 [evidence of the authors independent creation of the screenplay Shampoo rebutted plaintiffs inference of access to and use of her work].) NBC contends that the inference of use in this case is similarly rebutted by uncontradicted evidence that GRB Entertainment, Brass Ring Productions, and Silver Pictures independently created the concept for Next Action Star without any input from NBC.

Appellants disagree, citing Desny v. Wilder (1956) 46 Cal.2d 715, 744 (Desny) for the proposition that It is not essential to recovery that plaintiffs story or synopsis possess the elements of copyright protectibility if the fact of consensual contract be found. [Citation.] In Desny, the plaintiff had submitted to a producer at Paramount Pictures Corporation a story idea based on a true story. Plaintiff conceded for the purposes of argument that the synopsis was not sufficiently unique or original to be the basis for recovery under the law of plagiarism or infringement. (Id. at p. 728.) Despite plaintiffs use of a story that was in the public domain, the court concluded that a factual issue, rather than one of law, [was] presented as to whether defendants used plaintiffs synopsis or developed their production independently thereof. [Citations.] (Id. at p. 749.) Thus, summary judgment was reversed for a determination of whether defendants appropriated plaintiffs composition and used it or any part of it in the production of their photoplay without compensating the plaintiff for the value of his story. (Id. at p. 750.)

Desny is distinguishable. In Desny, the defendants had presented no evidence of independent creation, nor had they produced any evidence denying their use. (Desny, supra, 46 Cal.2d at p. 746.) Here, in contrast, defendants have produced extensive evidence documenting the development and creation of Next Action Star by entities entirely independent from NBC.^[8]

Appellants repeated protests that they need not show originality in order to receive protection are unavailing. In fact, the originality of appellants ideas is irrelevant to the question of whether the independent creation of Next Action Star precludes appellants causes of action. The key issue is not whether appellants ideas were original, but whether respondents used appellants ideas without properly compensating appellants for that use.

B. Appellants have provided no evidence creating a disputed question of fact on the issue of use

We have found that NBC has successfully shown undisputed evidence of independent creation by entities unrelated to NBC and unassisted by NBC. We now look carefully at appellants evidence to determine whether they have provided any evidence that calls into question the evidence supporting independent creation. We find that they have not.^[9]

Appellants point to no evidence that NBC actually used their ideas. Instead, they ask that we draw inferences based on general similarities and timing. They argue that a fact question exists as to whether Next Action Star was independently created by virtue of (1) the numerous similarities between Hollywood Screentest and Next Action Star; (2) the modifications of Next Action Star from its original stuntman concept to the actor concept previously provided to NBC by Pascucci; and (3) NBCs simultaneous and suspicious acceptance of the modified Next Action Stars concept and Zuckers final rejection of Hollywood Screentest.

Appellants speculation as to NBCs use is insufficient to create a disputed issue of fact. An inference of use sufficient to challenge NBCs clear, positive and uncontradicted evidence of independent creation may not be drawn from suspicion alone, or . . . imagination, speculation, supposition, surmise, conjecture, or guesswork. [Citation.] [Citations.] (Mann v. Columbia Pictures, Inc., supra, 128 Cal.App.3d at pp. 648, 650-651.) Thus, the similarities and timing are insufficient to create a disputed issue of fact. In addition, the declaration of Rick Telles of Brass Ring Productions and the testimony of Sara Chazen of United Talent Agency neither of which is contradicted by appellants show that the concept of making the male and female winners stars of the movie, rather than just stuntmen, occurred as early as December 2001, at least six months before the creators of Next Action Star communicated with NBC regarding the show.

We conclude that the uncontradicted evidence presented by GRB Entertainment, Brass Ring Productions, and Silver Pictures that Next Action Star was independently created prior to any of these parties having any contact with NBC negates any inference that NBC used appellants ideas. We address the consequences of this conclusion as to each of appellants causes of action below.

C. Each of appellants causes of action fails as a matter of law because NBCs undisputed evidence of independent creation prevents a finding that NBC used appellants ideas

Each of appellants causes of action requires a finding that NBC wrongfully used appellants ideas. Because NBC has presented undisputed evidence of independent creation, thus preventing a finding of use, none of appellants causes of action can survive. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [a defendant may prevail on summary judgment by showing that one or more elements of a cause of action cannot be established].)

1. The first and fourth causes of action for breach of contract and breach of confidence

Appellants assert that their evidence of the sequence of events during the 18 months preceding NBCs announcement of Next Action Star raises material issues of fact on the issue of whether NBC breached the written confidentiality agreement or breached appellants confidence by using ideas from Hollywood Screentest to its benefit, rather than guarding those confidences or paying reasonable compensation for use of those confidences.

Appellants theory is dependent on a showing that NBC actually used appellants ideas. NBCs strong and undisputed evidence of the independent creation of Next Action Star, which occurred without the involvement of NBC, negates these causes of action.

2. The second, fifth and sixth causes of action for breach of implied-in-fact contract, unjust enrichment/quantum meruit, and accounting

In support of appellants opposition to NBCs summary judgment motion, Pascucci provided a declaration which stated that he communicated his intention that he and HST be compensated by NBC for any hard work, use and benefits obtained by NBC resulting from his submissions. Appellants describe the resulting implied-in-fact contract as a contract to compensate Pascucci and HST for any use it made of Hollywood Screentest. Appellants argue that the existence of an implied-in-fact contract is a question of fact, and again point to the 18-month time period during which communications went on between appellants and NBC. Appellants argue that a reasonable trier of fact could conclude that an implied-in-fact contract arose, thus creating an obligation for NBC to pay appellants reasonable compensation for their use of appellants ideas. If equity requires NBC to pay reasonable compensation, appellants claim, an accounting is proper.

Appellants cause of action for an implied-in-fact contract for payment in exchange for the use of ideas necessarily requires a finding that NBC actually used appellants ideas. As discussed above, that element is negated by the uncontradicted evidence of the independent creation of Next Action Star. Therefore, the cause of action for breach of implied-in-fact contract and the related causes of action for equitable awards fail as a matter of law.

3. The third cause of action for breach of the covenant of good faith and fair dealing

In support of their third cause of action, appellants state NBC may hardly dispute that it breached an implied covenant of good faith and fair dealing if it received confidential ideas from Pascucci and HST, and then used those ideas without paying reasonable compensation. (Citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371.) Once again, this cause of action requires appellants to prove use of their ideas, which they have not.

4. The seventh cause of action for misappropriation of intangible property

The elements of a cause of action for common law misappropriation are: 1) the plaintiff has made a substantial investment of time, effort and money into creating the thing misappropriated, such that the court can characterize the thing as a kind of property right, 2) the defendant has appropriated the thing at little or no cost, such that the court can characterize defendants actions as reaping where it has not sown and 3) the defendant has injured plaintiff by the misappropriation. [Citations.] (Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group (1996) 50 Cal.App.4th 548, 561.)

Because of the uncontradicted evidence of the independent creation of Next Action Star by unrelated entities, appellants cannot show that NBC appropriated any ideas from appellants. Without that essential element, this cause of action fails.^[10]

5. The eighth cause of action for unfair competition

Appellants final cause of action is a statutory cause of action for unfair competition under Business & Professions Code sections 17200 et seq. That statute imposes penalties for any unlawful, unfair, or fraudulent business act or practice. Appellants argue that the evidence permits the inference that NBC wanted appellants to continue to work with NBC while NBC pursued the Next Action Star deal with GRB Entertainment and Silver Pictures. Appellants argue that NBCs motive was to prevent appellants from seeking and obtaining a deal with another network that would result in Hollywood Screentest being broadcast in competition with, and even prior to, Next Action Star. Appellants sought disgorgement and/or restitution, preliminary and permanent injunctive relief, and attorneys fees under this cause of action.

The uncontradicted evidence of the independent creation of Next Action Star, without the involvement of NBC, negates the necessary finding that NBCs actions were unfair, unlawful, or fraudulent. (See South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 890 [affirming summary judgment under Bus. & Prof. Code 17200 on the grounds that the business practice at issue was not unfair, unlawful, or fraudulent].) In addition, appellants point to no evidence that they were prevented in any way from seeking a deal with another network.

III. The demurrer as to respondent Zucker

Appellants contend that Zuckers demurrer should have been overruled on one cause of action: breach of confidence. The basis for Zuckers demurrer as to this cause of action was that he signed the confidentiality agreement as an agent for NBC Entertainment, and an agent cannot be personally liable on a contract he signs for his corporate employer. The trial court agreed. Appellants argument in opposition to the trial courts ruling centers on appellants position that Zuckers conduct in breaching appellants confidence was a tort, rather than a breach of contract.

As discussed above in section II.B.1, appellants cause of action for breach of confidence requires a finding that respondents actually used appellants confidential information to their benefit. We have determined that appellants claim for breach of confidence fails as a matter of law because the clear, uncontradicted evidence that Next Action Star was independently created by entities that were not involved with NBC at the time prevents a finding of such use. This analysis applies equally to respondent Zucker as well as NBC. Therefore, we need not address the parties competing contentions as to the nature of the breach of confidence cause of action.

DISPOSITION

The order granting summary judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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^[1] NBC and Zucker will be collectively referred to as respondents.

^[2] Pascucci first contacted NBC about Hollywood Screentest in 1995. An NBC executive informed Pascucci that she was not interested. NBC concluded at the time that Hollywood Screentest was not an original concept. Pascucci did not ask NBC to sign a confidentiality agreement in 1995.

^[3] Appellants requested that we take judicial notice of the files and records of the writ proceeding. We granted that request on August 18, 2006.

^[4] This rule was renumbered effective January 1, 2007, and is now rule 3.1116 of the California Rules of Court.

^[5] Appellants do not argue in their briefs that the trial court abused its discretion by sustaining NBCs objections to the declarations of Harris Tulchin and Greg Victoroff and striking those declarations in their entirety. Therefore we do not address this issue.

^[6] The rule provides, in pertinent part, that Other than the title page, the exhibit must contain only the relevant pages of the transcript (Cal. Rules of Court, rule 3.1116, subd. (b)) and The relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony (rule 3.1116, subd. (c)).

^[7] The court indicated that it had not read the deposition testimony attached to appellants counsels declaration or a supplemental declaration filed by NBCs counsel, both of which were not in compliance with the rule cited by the court. While NBC indicated that the additional pages were filed for context, appellants counsel indicated that the reason their papers were so unorganized was that at the time their oppositions were due, they had been in the course of numerous depositions and had not had time to get all the paperwork organized.

^[8] This evidence was included in the declaration of Rick Telles of Brass Ring Productions, the declaration of Michael Branton of GRB Entertainment and attachments thereto, the declaration of Gary Benz of GRB Entertainment, the testimony of Sara Chazen of United Talent Agency, the declaration of NBC employee Michael Katz, the testimony of NBC executive Jamila Hunter, and the testimony of NBC executive Jeffrey Gaspin. It is set forth in greater detail in section 4 of the Factual Background.

^[9] In so finding, we are aware that much of the evidence presented by appellants in support of their opposition was excluded by Judge Treu. However, we have read appellants briefs and the supporting citations to the record comprehensively, despite the fact that appellants cite us to evidence found in submissions that were ultimately excluded by the court. We note that, even if this evidence had not been excluded by the trial court, appellants would still have failed to create a disputed question of fact on the issue of independent creation or NBCs use of appellants materials.

^[10] NBC argues in the alternative that this cause of action fails because, under Desny, supra, 46 Cal.2d at pages 731-732, ideas are not considered property. Because we find that the negation of the element of use disposes of this cause of action, we do not address the parties debate on this issue, nor do we address any of NBCs other alternative arguments as to why appellants causes of action fail.