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Stafford Bailey v. Michael Brewer et al

July 19, 2011


(Los Angeles County Super. Ct. No. BC 426843) APPEAL from an order of the Superior Court of Los Angeles County, Yvette M. Palazuelos, Judge.

The opinion of the court was delivered by: Manella, J.




Michael Brewer and Brewer Media Associates, Inc. appeal from an order of the superior court denying their special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).*fn1 Appellants contend the trial court erred in denying their anti-SLAPP motion because (1) respondent Stafford Bailey's claims against appellants are subject to being stricken under the anti-SLAPP statute as they arose from protected activity; and (2) respondent's claims are barred by the litigation privilege in Civil Code section 47. Finding no error, we affirm.


On November 24, 2009, respondent, doing business as 24/7 Productions, filed a complaint against Brewer and his wholly owned and controlled corporation, Brewer Media Associates, Inc., in Los Angeles Superior Court. In the complaint, respondent alleged that he is a documentary film maker who made a documentary film entitled, "Blacks Without Borders: Chasing The American Dream In South Africa." Respondent had employed Brewer as a cameraman to shoot the film on a "deferred compensation" basis, which meant that Brewer would not be paid until the film was released. Respondent further alleged that Brewer's work on the film was unsatisfactory and required respondent to hire another cameraman and reshoot much of the footage. The costs of the reshoot exceeded the deferred compensation that respondent had agreed to pay Brewer.

Respondent further alleged that "Brewer has claimed without any legal basis that he and [respondent] were partners in producing the [f]ilm, and/or that he (or Brewer Media) owns the footage used in the [f]ilm." Respondent also alleged that Brewer filed "a lawsuit in 2006 against [respondent] in the Los Angeles Small Claims Court, case no. LAV 06V02398 ('2006 Lawsuit'). In that lawsuit, [Brewer] claimed that he and [respondent] were partners, that [respondent] had misappropriated partnership assets, and that he was entitled to a share thereof. The matter went to trial and resulted in a finding that [respondent] owed nothing to Brewer."

Respondent stated three causes of action in his complaint. In the first cause of action for intentional interference with contractual relationship, respondent alleged (1) that he "entered into a contract with Showtime on or about October 18, 2008 whereby [respondent] granted a license to Showtime to broadcast the [f]ilm from February 1, 2009, for one year, and Showtime agreed to pay [respondent] a $25,000 license fee"; (2) that appellants "caused a letter to be written to Showtime dated April 13, 2009, falsely claiming that Brewer Media was the owner and licensor of the footage that comprised the [f]ilm, and that the [f]ilm was Brewer's 'brain child,' and demanding that Showtime cease to broadcast the [f]ilm and provide an accounting"; (3) that appellants knew about his contract with Showtime, and intentionally induced Showtime to breach the contract by writing the cease and desist letter; and (4) that as a result of appellants' conduct, "Showtime refused to pay [respondent] the agreed licensing fee."

In the second cause of action for intentional interference with economic relationship, respondent alleged (1) that he "worked hard over the years to establish close relationships with TAC [The African Channel] and the organizers of PAFF [the 2009 Pan African Film Festival], and others"; (2) that appellants knew or should have known about these relationships; (3) that appellants "intentionally sought to disrupt [respondent's] economic and contractual relationships with TAC, PAFF and others, by falsely claiming to those parties that they had a partnership or copyright or other legal interest in the [f]ilm"; (4) that appellants knew or should have known that these claims had no legal basis because the 2006 lawsuit had been decided in respondent's favor; and (5) that as a direct result of appellants' conduct, TAC refused to license the film and the organizers of PAFF refused to allow the film to be shown at PAFF.

In the third cause of action for declaratory relief, respondent sought a judicial determination whether he owed Brewer any payment for Brewer's work on the film because Brewer's "errors cost [respondent] far more than [respondent] would otherwise have owed Brewer." Respondent sought a judgment that he owed Brewer nothing because the expenses for the reshoot offset the deferred compensation owed to Brewer.

On February 19, 2010, appellants filed a special motion to strike the first and second causes of action pursuant to the anti-SLAPP statute. In the anti-SLAPP motion, appellants contended these two causes of action are "based on cease and desist letters that [appellants] sent to Showtime, The Africa Channel, The Pan African Film Festival and others in anticipation of litigation." Appellants contended that the cease and desist letters were protected under section 425.16, subdivision (e)(1) and (2) as statements made in connection with an issue under consideration or review before a judicial proceeding. Thus, appellants argued, the first two causes of action were within the scope of the anti-SLAPP statute. Appellants further contended that the cease and desist letters were absolutely privileged under Civil Code section 47. Accordingly, respondent could not show that he would prevail on the first two claims in his complaint because those claims were barred as a matter of law.

In support of the anti-SLAPP motion, Brewer filed a declaration in which he stated (1) that he entered into a partnership with Bailey to "jointly develop, produce and exploit an episodic 'lifestyle' television program under the name Global Living Productions"; (2) that he filmed the content for the program, including interviews; (3) that the interviewees signed release forms stating that this was a co-production between his company, Brewer Media Associates, and Bailey's company, 24/7 Productions; (4) that after the shooting was completed, he gave Bailey all of the signed release forms and the master field tapes; (5) that Bailey subsequently refused to recognize that a joint partnership existed and claimed that he exclusively owned all rights to the program; (6) that Bailey had all of the interviewees sign new releases without any mention of Brewer or his company; (7) that Bailey edited the program and changed its name to "Blacks without Borders" and began to distribute the program; (8) that in response, "my attorneys and I sent cease and desist communications to Showtime, The Africa Channel, the Pan African Film Festival and the Schomburg Center informing them of my rights in the [p]rogram and demanding them to cease and desist the exhibit and exploitation of the [p]rogram"; and (9) that at the time he sent the cease and desist communications, he had a "good faith intention to file suit against Bailey if we could not resolve the dispute by way of settlement."

Appellants also attached a copy of the cease and desist letter to Showtime. In the letter, Bradley J. Gross of the law firm of Becker & Poliakoff informed Showtime (1) that he represented "Brewer Media Associates, Inc. ('Brewer'), the owner and licensor of the footage comprising a documentary called, 'Blacks Without Borders,'"; (2) that his client's footage had been "unlawfully incorporated" into the documentary; (3) that the film was "the brainchild of Brewer, and [wa]s the result of dozens of hours of interviews and footage, all of [which] were filmed in South Africa"; (4) that "[a]ll of the footage comprising the [d]ocumentary belongs to Brewer, and 24/7 Productions usurped that footage in violation of [his] client's valuable intellectual property rights"; and (5) that he had contacted all media ...

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