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NBCUniversal Media, LLC v. Superior Court (Larry Montz)

California Court of Appeals, Second District, Fourth Division

April 1, 2014

NBCUNIVERSAL MEDIA, LLC et al., Petitioners,
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, LARRY MONTZ et al., Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate. Ernest M. Hiroshige, Judge. Los Angeles County Super. Ct. No. BC475995

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Katten Muchin Rosenman, Gail Migdal Title, Joel R. Weiner and Gloria C. Franke for Petitioners.

No appearance for Respondent.

Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi & Keese, and Graham B. LippSmith for Real Parties in Interest.




Petitioners NBCUniversal Media, LLC, formally known as NBC Universal, Inc. and Universal Television Network seek a writ of mandate directing the

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superior court to vacate its order denying their motion for summary judgment and to enter an order granting the motion of summary judgment against real parties in interest Larry Montz and Daena Smoller (RPIs). For the reasons stated below, we will issue a peremptory writ of mandate.


On December 29, 2011, RPIs filed a complaint for damages against petitioners in Los Angeles County Superior Court, alleging (1) breach of implied contract, and (2) breach of confidence. According to RPIs, from 1996 through 2001, they presented ideas and concepts for a television program, entitled Ghost Expeditions: Haunted, (referred to as “Concepts”) to petitioners, “consistent with well-established customs and practices of the entertainment industry....” RPIs’ idea was a reality television series where “professional paranormal investigators” would lead a team that included “normal people with regular jobs” to investigate haunted houses throughout the country. After informing RPIs they were not interested, petitioners then teamed up with another company to “misappropriate, use and exploit Plaintiffs’ Concepts by producing the hit series Ghost Hunters without Plaintiffs’ permission... and/or without compensating Plaintiffs....” [1] RPIs alleged petitioners breached an implied contractual obligation not to “disclose, use and/or exploit the Concepts without Plaintiffs’ permission and/or without compensating Plaintiffs in the form of payments, credit and other consideration....” RPIs further alleged that as a result of their conduct, a confidential relationship formed between petitioners and them, and that petitioners “breached the confidential relationship by, among other actions, teaming up with and using [another company] to disclose, misappropriate, use and exploit Plaintiffs’ Concepts by disclosing Plaintiffs’ Concepts and producing the hit series Ghost Hunters, repackaged as Defendants’ own projects without Plaintiffs’ permission and/or without compensating Plaintiffs.. . ." RPIs sought injunctive and other equitable relief, petitioners’ profits, and punitive damages.

Petitioners filed an answer, generally denying the allegations. They also asserted 20 affirmative defenses, including the defense that each of the causes of action was barred by the applicable two-year statute of limitations set forth in Code of Civil Procedure section 339.[2]

On December 13, 2012, petitioners filed a motion for summary judgment, asserting (1) that RPIs’ claims were time-barred by the applicable two-year

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statute of limitations, and (2) that the undisputed evidence demonstrated that Ghost Hunters was created independent of petitioners’ Concepts. In their separate statement of undisputed material facts in support of the motion for summary judgment, petitioners asserted -- and RPIs did not dispute: (1) that petitioners approved the Ghost Hunters show in April 2004; (2) that the show premiered on the Syfy cable channel on October 6, 2004; (3) that RPIs first filed a lawsuit based upon the purported misappropriation of their ideas more than two years later in federal court on November 8, 2006; and (4) that after a series of court proceedings (including voluntary dismissal of their copyright infringement claim), RPIs re-filed the remaining state law claims in superior court on December 29, 2011.

Petitioners also produced evidence that on July 22, 2004, Robyn Lattaker-Johnson, petitioners’ director of development for alternative programming at Syfy, sent an e-mail to Eric Mofford, RPIs’ producer, informing him about the Ghost Hunters show. The e-mail described the show as a “docu soap about a group of plumbers-by-day/ghost-hunters-by-night that set out on missions to disprove ghosts or paranormal activity.” Mofford immediately forwarded the e-mail to Montz. In his deposition, Montz admitted speaking with Mofford about the e-mail: “I[] asked him if he had found out if this was our show that was stolen or not, and he replied by saying that Robyn says it’s not our show, that it’s a docu-soap.” Montz stated that he did not know what a “docu-soap” was; he asked Mofford, but was not enlightened. Montz also admitted that at that time it seemed possible that the show Ghost Hunters was an improper use of his idea for a television show. Montz and Mofford continued to discuss Ghost Hunters on two subsequent occasions, and at one point, Mofford told Montz that “he had pitched the show directly to [petitioners], as well as others..., and it looked like our show had been lifted from us.”

Petitioners argued that the statute of limitations on RPIs’ claims began to run, at the latest, when the Ghost Hunters series premiered on the Syfy channel on October 6, 2004 (more than two years before RPIs filed suit), ...

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