Is NBC entitled to a peremptory grant of mandate directing summary judgment where television program aired more than two years prior to filing of purported creators’ complaint for breach of implied contract?

Posted in: Appellate Practice, Trial Practice by Steven Vartabedian on

Whenever I lecture on writ practice, the question inevitably arises whether the appellate courts ever grant writ relief compelling the grant of a summary judgment motion denied in the trial court. My answer: rarely, mostly because, if the moving party is correct, it will prevail at trial; and, if it doesn’t, it still has the remedy of an appeal from the final judgment.

NBCUniversal Media, LLC v. Superior Court (ordered published 4/28/14) B250892 is one of those rare exceptions. There, real parties (Montz) presented ideas and concepts for a television program entitled Ghost Expeditions: Haunted to NBC from 1996 to 2001. The proposed show was to be a reality series about common people investigating haunted houses. NBC rejected the idea. But on October 6, 2004, the Ghost Hunters hit series, produced by NBC, premiered on the Syfy Channel. NBC had, on July 22, 2004, e-mailed real parties to advise them about the show, described as a “docu-soap about a group of plumbers-by-day/ghost-hunters-by-night that set out on a mission to disprove ghosts or paranormal activity.” Montz sued NBC initially in Federal Court on November 8, 2006. NBC’s motion for summary judgment was denied by the trial court.

NBC sought a writ of mandate from the Court of Appeal, Second Appellate District, Division Four, compelling the grant of the motion for judgment on the ground the statute of limitations had expired. The court issued a peremptory writ of mandate commanding the trial court to enter summary judgment in NBC’s favor. In doing so, the court determined that, as a matter of law, Montz could not prevail.

The appellate court did note that normally resolution of statute of limitation issues is a question of fact not properly disposed of on summary judgment. However, here it determined that uncontradicted facts were established in discovery. One uncontradicted fact was that NBC’s show was released to the general public on October 6, 2004, more than two years ( the statutory period applicable here) before Montz filed suit. Montz argued below and on the writ that the accrual of the causes of action should be delayed in accordance when his company actually discovering the show had been released and that it may have been based upon that company’s creative idea.

But the court determined that, for the implied contract and breach of confidence claims here concerning public use of one’s creative idea, the latest date of accrual was when the show in question was made public. Furthermore, a plaintiff has the burden of pleading and showing delayed accrual, and due diligence in discovering, and here was put on notice of the nature of this show back on July 22, 2004. Montz cannot say its failure to take note of the public broadcast and figure out that it was based on their idea no later than the time of public broadcast demonstrated due diligence.

Montz also claimed in the writ proceedings that this was a continuing wrong with each separate episode of the show that was released beyond November 8, 2004. The Court disagreed for several reasons. First, that issue was not raised below in the trial court; nor was there any record developed in the trial court to support that argument. Additionally, the “continuing wrong” authority it relied on involved a copyright infringement case, which was not the claim in this case.

So some points made here might be helpful to appellate/writ practitioners. Some appellate courts in exercise of their discretion will grant writ relief commanding the grant of summary judgment (just don’t count on it). Also, appellate courts will not look favorably upon arguments not made in the lower court, nor based upon a sufficient factual record below.

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