Opinion
B159566.
11-4-2003
BO ZENGA et al., Plaintiffs and Appellants, v. BRILLSTEIN-GREY ENTERTAINMENT et al., Defendants and Respondents.
Dovel & Luner, Gregory S. Dovel and Julien A. Adams, for Plaintiffs and Appellants. Greenberg Glusker Fields Claman Machtinger & Kinsella, Bertram Fields, Charles N. Shephard, and Aaron J. Moss, for Defendants and Respondents.
Plaintiffs and appellants Bo Zenga and Boz Productions, Inc. (collectively referred to as Zenga) appeal from an order granting the motion for nonsuit in favor of defendants and respondents Samax Enterprises, Inc., incorrectly sued as Brillstein-Grey Entertainment, and Brad Grey, an individual (collectively referred to as Brillstein-Grey). The underlying lawsuit was based upon Zengas claim that he had an oral contract with Brillstein-Grey to form a producing partnership with regard to a movie script.
Zenga contends: (1) the trial court erroneously precluded him from testifying; (2) the trial court erred in excluding a letter sent to the Writers Guild of America (WGA) and drafts of that letter; and (3) the trial court erred in granting nonsuit in favor of Brillstein-Grey. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Peter Safran (Safran) worked at Brillstein-Grey, a multi-faceted entertainment company. Among other functions, Brillstein-Grey served as talent manager, guiding the careers of writers, directors and performers. Safran represented two screenwriters, Aaron Seltzer (Seltzer) and Jason Friedberg (Friedberg). The writers had written a screenplay that spoofed teen horror films, tentatively titled "Scream If You Know What I Did Last Halloween." In September 1998, Safran had been submitting the screenplay to studios and producers for purchase.
In 1998, Brillstein-Grey had achieved most of its success in television, rather than in motion pictures. It had produced one movie that was not profitable and had about 20 others in development.
Previously, Safran had met Zenga and believed Zenga had the background, financial and professional successes, and connections, to assist in selling the screenplay or to obtain independent financing so it could be produced. Many of Safrans beliefs were based upon a conversation Safran and Zenga had in June 1998. At that time, Zenga claimed that he was a successful producer and writer, an award winning screenwriter, a graduate of the Wharton School of Business, a successful investment banker, an award winning playwright, and as a person having access to independent financing for films.
Some of Zengas claims had foundation. Safran and Zenga had previously tried to sell a project and Safran knew Zenga to be a producer. Zenga had sold seven projects to studios to which he was attached as producer and/or writer. On September 25, 1998, the Hollywood Reporter, an entertainment industry trade paper, ran a story about Zengas recent sale of a film project. Another publication called Written By had also run an article about Zengas success in selling scripts.
However, many of the claims Zenga had made to Safran were false. For example, Zenga had not graduated from the Wharton School of Business and he had never been an investment banker. Further, the screenwriting competition he had "won" was a fraudulent screenwriting contest he created. This competition, the Hanover Square Screenwriting Competition, had been created by Zenga with his partner, Stacy Codikow (Codikow).
On September 28, 1998, Safran telephoned Zenga, stating he had a script that might interest him. Pursuant to Zengas request, a draft of Seltzer and Friedbergs screenplay was sent to Zenga that day.
Safran also sent Seltzer and Friedbergs script to three other producers on September 28, 1998, hoping they could facilitate its sale. Safran used the same transmittal letter when sending out the script. When Safran sent out the script for purchase, there was no way to discern the role Brillstein-Grey would play in the production, as that would depend upon who purchased the script. However, it was industry standard that when a studio bought a script from a producer, the producer would play some role in producing the project.
On September 28, 1998, Zenga called Safran and said he liked the script and wanted to meet with the writers. The writers previously had met with other producers.
Seltzer and Friedberg met with Zenga on September 29, or September 30, 1998, for approximately one-half hour to an hour. Zenga gave the writers one page of written notes and verbal suggestions for changes.
Thereafter, Seltzer and Friedberg made changes to the screenplay, based upon Zengas suggestions. Around October 5, 1998, a revised script was sent to Zenga. That day, Zenga called Safran and the two discussed where the script had already been submitted. Zenga stated he had great relationships with certain studios that had not yet received it. Zenga asked if he could submit the script to those places. Safran authorized Zenga to do so, believing this would enhance the sale prospects.
The writers described the changes as being minor.
Zenga submitted Seltzer and Friedbergs screenplay to about five studios.
Safran also submitted the screenplay to studios, including Miramax/Dimension (Miramax). When Safran sent the script to the studios, he sent a copy of his transmittal letter to Zenga.
As evidenced in a letter agreement, Miramax purchased the script on October 15, 1998.
Safran asked Miramax to negotiate with Brillstein-Grey and also to negotiate with Zenga about participating in the project as a producer in some capacity. In an October 15, 1998, letter, Miramax confirmed in writing its commitment to negotiate with Brillstein-Grey and with Zenga.
The letter addressed to Safran, read: "This letter shall confirm that we shall negotiate in good faith within our customary parameters with Brillstein/Grey and Bo Zenger [sic] in connection with producing services to be rendered in the event that we proceed to production."
The law firm of Bloom, Hergott, Diemer & Cook (Bloom Hergott) represented Brillstein-Grey.
On October 22, 1998, Safran sent Brad Grey, Brillstein-Greys owner, an e-mail stating in part, "I just spoke with Brian Burkin at [Miramax] business affairs and he reiterated that [Brillstein-Grey] and Bo Zenga are producing this project for [Miramax]. He apologised [sic] that the press releases did not reflect that."
On October 26, 1998, Zengas attorney, Mary Sullivan (Sullivan), contacted Bloom Hergott about the project.
On November 5, 1998, Brillstein-Greys attorney called Sullivan and stated that Brillstein-Grey was not inclined to involve itself in Zengas efforts to get " `produced by " credit for Zenga. Sullivan was informed that she should negotiate separately with Miramax.
By December 1998, the Wayans Brothers, a successful comedy team, became involved in the project. They insisted on having their own management company, Gold-Miller, serve as the primary producer on the project. Thereafter, Safran knew that Brillstein-Greys role would be secondary.
On December 8, 1998, Sullivan informed Miramax in writing that she represented Zenga and invited Miramax to negotiate with her.
On December 14, 1998, Miramax made an offer to Bloom Hergott that included a proposal for a producer fee and box office bonuses to be shared by Brillstein-Grey and Zenga. The offer gave Zenga a lower producing credit than Brillstein-Grey and treated them differently with regard to services to be performed. Bloom Hergott told Miramax it was not representing Zenga. Brillstein-Grey rejected the offer.
On December 18, 1998, Miramaxs attorneys gave Bloom Hergott another proposal. It included an up-front payment to Brillstein-Grey with Miramax paying Zenga separately. Bloom Hergott told Miramax it was not representing Zenga, but informed Miramax that it thought Zenga would accept $150,000 for his up-front producer fee.
On January 7, 1999, Miramax and Brillstein-Grey reached an agreement that included an up-front producer payment that was larger than the prior offer, plus additional compensation to be calculated by a complicated formula contingent upon the films box office success. The contingent compensation, referred to as back-end compensation, was to be divided between Brillstein-Grey and Gold-Miller. Brad Grey and Safran were to receive "executive produced by" credits, Brillstein-Grey would receive production company credit, and Brillstein-Grey would receive third position production credit. Miramax was to separately pay Zenga.
Sullivan negotiated for Zengas services. On March 2, 1999, Zenga and Miramax entered into a contract whereby Zenga was to receive a set producer fee that was less than one-third of what Brillstein-Grey was to receive, no back-end compensation and third position executive producer credit. In this no-quote deal, Zengas rights against Brillstein-Grey were preserved.
The script eventually became Scary Movie, a movie released in the summer and expected to be highly successful.
2. Procedure.
Zenga sued Brillstein-Grey alleging he had a partnership agreement with Brillstein-Grey. Zenga claimed he had an oral contract with Brillstein-Grey to be equal partners as producers. In the operative complaint, Zenga alleged that he had agreed in the initial conversation with Safran to assist Brillstein-Grey and in exchange they would be "partners as producers on the project[]" and "equal producing partners, . . . receiving equal credits and compensation." In opening statement, Zenga alleged that the agreement was reached in the September 28, 1998, telephone conversation. On appeal, and at other parts of the trial, Zenga argued that the agreement with Brillstein-Grey was formed on either September 28 or September 29, 1998. Also on appeal, Zenga argues the parties actions evidenced a partnership contract.
After a number of motions, the trial court precluded Zenga from testifying as a discovery sanction.
Zenga presented his case. In a signed order, the trial court granted Brillstein-Greys motion for nonsuit. Notice of entry of the order was filed. Zenga timely appealed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion In Precluding Zenga From Testifying.
As a discovery sanction, the trial court precluded Zenga from testifying. Zenga contends this was error. We find his contention unpersuasive.
a. Additional Facts.
To entice Safran into entering into a contractual relationship, Zenga lied by portraying himself as a graduate of the Wharton School of Business, a successful investment banker, an award winning screenwriter, an award winning playwright, and as a person having access to independent financing for films.
Zengas deposition was taken on September 20, 2000. He testified that he was an award winning screenwriter, having won the Hanover Square Screenwriting Competition. He also testified that he had not organized, run, nor judged the Hanover Square Screenwriting Competition. Additionally, Zenga testified that he had received prize money for this competition, but was forced to relinquish his rights to his prize winning screenplay.
Zengas deposition testimony was false. Zenga and Codikow had created Hanover Square Productions and had created a fraudulent screenwriting competition so Zenga could publicize himself as the winner. Zenga and Codikow concealed this scheme by depicting Zengas deceased step-father, his mother, and a childhood friend as the officers of Hanover Square Productions. Zenga and Codikow placed advertisements in the entertainment press announcing that Hanover Square Productions was conducting a screenwriting competition and would award a $20,000 prize to each winner. After receiving entries from innocent screenwriters, Zenga and Codikow announced that Zenga, Codikows roommate, and a third person, were the competition winners. Thereafter, Zenga represented that he was an "award winning screenwriter."
On September 21, 2000, the second day of Zengas deposition, Zenga repudiated some of his testimony from the preceding day. He admitted that he and Codikow owned Hanover Square Productions, but claimed Codikow was in charge of the screenwriting contest. When asked if he had spoken to Codikow between his first and second deposition sessions, Zenga falsely testified that he had not.
About five months later, on February 14, 2001, Codikow was deposed. Codikow admitted that she and Zenga owned Hanover Square Productions. However, she supported Zengas false story that the idea for the screenwriting competition was hers. She also testified that Zenga was opposed to the idea and he had no involvement with it. At the end of her deposition, Codikow was confronted with evidence that the screenwriting competition was fraudulent.
Codikows deposition was scheduled to resume on February 21, 2001. At that time, Codikow replaced her attorney (who also had been representing Zenga) with other counsel.
On March 8, 2001, Codikow admitted to counsel for Brillstein-Grey and to her new attorney, Thomas Sears, that she had testified falsely in her first deposition session. Codikow also stated that she and Zenga jointly participated in creating the Hanover Square Screenwriting Competition and stated she had testified falsely because Zenga had threatened her. Codikow also stated she was afraid of Zenga.
On March 21, 2001, Brillstein-Grey filed an ex parte application seeking, among other relief, an order to dismiss the case based upon Zengas perjury and his procuring of fraudulent testimony. The trial court denied the request for dismissal, but ordered Zenga to appear for his deposition.
On March 28, 2001, Brillstein-Grey re-deposed Zenga. Zenga invoked his Fifth Amendment privileges not to incriminate himself. Zenga refused to answer over 500 questions.
On March 29 and April 3, 2001, Codikow resumed her deposition. In part, Codikow testified that she previously had testified untruthfully, that she had been pressured to lie by Zenga, that Zenga had been directly involved with the screenwriting competition, and that she was afraid of Zenga.
On April 9, 2001, Brillstein-Grey moved to dismiss the action, based upon Zengas refusal to answer questions at his deposition and based upon Codikows deposition testimony that she had been induced to lie.
On May 1, 2001, a hearing on the motion to dismiss was held. The trial court denied the motion, indicating dismissal at that time was inappropriate because Zenga had not been ordered to answer questions. The trial court declined to make a finding that Zenga had coerced Codikow into giving false testimony.
On May 16, 2001, in light of the trial courts May 1, 2001, ruling Brillstein-Grey filed a motion to compel Zenga to answer 347 questions. A hearing was held on June 6, 2001. On June 19, 2001, Zenga was ordered to answer 334 questions and reasonable follow-up questions. Zenga was ordered to respond to questions relating to whether or not the Hanover Square Screenwriting Competition was a fraud, whether he had testified falsely in his deposition and in his interrogatories responses, whether he had suborned perjury, whether he had intimidated witnesses, whether he had encouraged others to destroy documents, whether his resume was accurate, and whether there was a relationship between his resume and the misrepresentations made to Safran regarding his background.
Zengas deposition resumed on June 26 and June 27, 2001. Zenga invoked the Fifth Amendment with respect to 270 of the 334 court-ordered questions, and additionally refused to answer 111 follow-up questions. Zenga refused to answer whether he had lied in his prior deposition sessions, whether he lied in his interrogatory responses, whether he asked witnesses to lie, whether he participated in the Hanover Square Screenwriting Competition, whether he was an award winning screenwriter, and whether he attempted to promote himself by claiming that he was an award winning writer. Zenga also refused to answer questions regarding his efforts to conceal and destroy documents.
Brillstein-Grey moved to dismiss the action or for other sanctions. The motion was heard on August 10, 2001. The trial court denied the motion stating that it would not impose the ultimate sanction, but indicated it would hear Brillstein-Greys renewed request for sanctions as articulated in a pretrial motion in limine.
On October 9, 2001, Brillstein-Grey filed a motion in limine seeking dismissal or other sanctions against Zenga for his refusal to answer questions as ordered by the court. The motion was heard on May 9, 2002, by the Honorable Robert OBrien, the trial judge. The trial court concluded that Zengas invocation of the Fifth Amendment was not limited to questions relating to the Hanover Square Screenwriting Competition and that Zenga could not use his Fifth Amendment privileges to cherry-pick subjects on which he testified. The trial court precluded Zenga from testifying. During his deposition, Zenga had been asked if he had encouraged specific witnesses to lie. The pretrial order also precluded Zenga from cross-examining those witnesses. Another order precluded Brillstein-Grey from using Zengas deposition.
The prior motions had been heard by the Honorable S. James Otero.
b. Discussion.
The question before us has been addressed previously by other courts: How is a partys Fifth Amendment rights balanced against the oppositions rights to full and fair discovery? (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168; Fremont Indemnity Co. v. Superior Court (1982) 137 Cal.App.3d 554; Fuller v. Superior Court (2001) 87 Cal.App.4th 299.)
Persons may not initiate lawsuits and then rely upon their Fifth Amendment privilege against self-incrimination to prevent the opposition from obtaining information through discovery, as the opposition would be prejudiced in preparing a defense. (Hartbrodt v. Burke, supra, 42 Cal.App.4th at p. 174; Fremont Indemnity Co. v. Superior Court, supra, 137 Cal.App.3d at p. 557.) Where a civil plaintiff invokes the Fifth Amendment, thereby preventing the defendant from conducting discovery and presenting his or her case, the defendant is entitled to a sanction formulated according to the circumstances. (Hartbrodt v. Burke, supra, at p. 174; Fremont Indemnity Co. v. Superior Court, supra, at p. 557; cf. Fuller v. Superior Court, supra, 87 Cal.App.4th at p. 299; cf. McGinty v. Superior Court (1994) 26 Cal.App.4th 204.) The ultimate sanction of dismissal may be appropriate if not disproportionate to the purposes for which sanctions are designed. Dismissals have been affirmed when there is a history of abuse or deliberate violations of a partys obligations to the court, such as participating in a plan to present fabricated testimony. (Cf. McGinty v. Superior Court, supra, at p. 213.)
In reviewing discovery sanction orders, we determine whether the trial court abused its discretion, i.e., whether the trial courts ruling fell outside the bounds of reason. (Fuller v. Superior Court, supra, 87 Cal.App.4th at p. 304; Hartbrodt v. Burke, supra, 42 Cal.App.4th at p. 175.)
Zengas involvement with Hanover Square Productions was relevant to a number of important issues raised in the lawsuit. Zengas case was based upon a claim that an oral contract had been formed in a conversation between himself and Safran. Brillstein-Grey asserted that if there was a contract, it had been induced by fraud. By refusing to answer questions relating to Hanover Square Productions, Zenga sought to deny Brillstein-Grey access to information Brillstein-Grey claimed had been used to entice it into a relationship with Zenga, such as Zengas representation that he was an award winning screenwriter. Further, these and other facts were also relevant to Zengas credibility, a key issue in that only Zenga and Safran participated in the conversation during which the agreement purportedly had been discussed. Additionally, Zenga had alleged that his agreement to work with the writers to fix the script had led to the partnership agreement. If so, his writing skills were material. When Zenga refused to answer questions regarding these subjects, Zenga denied Brillstein-Grey access to valuable discovery.
Further, Zenga sought to use the judicial system for his benefit, yet he sought to undermine the integrity of its process by encouraging Codikow to lie and by lying himself.
Zenga contends that the sanction order was overly broad because he was precluded from testifying on all subjects. He argues that he should have been precluded only from testifying about Hanover Square Productions. However, Hanover Square Productions was not the only subject about which Zenga refused to testify. For example, Zenga also refused to answer questions as to whether he suborned perjury and efforts he took to conceal and destroy documents.
Further, we agree with Brillstein-Grey that an order precluding Zenga from testifying only about Hanover Square Productions would have been a gift to Zenga, not a sanction. It would have been beneficial for Zenga to preclude all information about the fraudulent screenwriting competition.
In light of these facts, we would have concluded that the trial court would not have erred in imposing the ultimate sanction of dismissal. Thus, we cannot conclude that the trial court abused its discretion in imposing the lesser sanction of prohibiting Zenga from testifying. The formulation of the discovery sanction was tailored and appropriate to the severity of Zengas actions.
2. The Trial Court Did Not Err In Excluding The WGA Letters.
Zenga contends the trial court erred in excluding Exhibits 3, 4, and 5. These documents were drafts of a letter to be sent to the WGA, the final letter, and cover letters that accompanied these letters. Zenga contends they were admissible as adoptive admissions. We find this contention unpersuasive.
a. Additional Facts.
In an Evidence Code section 402 hearing held outside the presence of the jury, the following facts were ascertained.
At the request of the writers (Seltzer and Friedberg), Zenga drafted a letter to be sent to the WGA. The letter was to be used by the writers in an arbitration regarding their screenwriting credit.
The first draft of the letter (Exhibit 3) was sent by facsimile to Safran for his review. The second draft of the letter, Exhibit 4, was sent to Safran by facsimile and by mail. Exhibit 3 had no cover letter, whereas Exhibit 4 had a cover letter addressed to Safran as well as to one writer. (Exhibit 4.) The cover letter asked that the document be reviewed and Zenga notified if any changes were needed. (Exhibit 4.) Exhibit 5 is the final draft of the letter. The accompanying cover letter was signed by Zenga and was addressed to Safran and Aaron Seltzer. It stated that the revised letter was enclosed, Zenga hoped it would be helpful, and the recipients should not hesitate to ask for additional assistance. After reading the final draft, Safran put it in a file. He did not make additional suggestions for change.
The cover letter accompanying Exhibit 4 was addressed to "Jason Seltzer & Peter Safran." It appears this was a typographical error and the letter was addressed to either "Jason Friedberg" or "Aaron Seltzer" and Peter Safran.
All drafts of the WGA letter described how Zenga had come to be involved with the screenplay. The following statements were included in the second paragraph: "In September of 1998 I received a phone call from Peter Safran of Brillstein-Grey. He told me that he had a script which he thought had a lot of promise but [was what] he described as `fractured. He asked if I would be interested in helping him fix the script and we would partner on the project as producers. He went on to tell me the name of the script (`Scream If You Know What I Did Last Halloween) and a little bit about the writers, Aaron Seltzer & Jason Friedberg." (Italics added.) (Exhibits 3-5.)
Safran received the drafts of the letter in March, prior to his knowledge that Zenga had a disagreement with Brillstein-Grey. After receiving the drafts, Safran suggested additions. He did not suggest the phrase "partner on the project as producers" be changed or deleted. Safran noticed the term " `partner " in the draft document. However, he did not focus on the term. To Safran, the term could be used in many different ways, and because the letter was to be used in a WGA arbitration, he thought it was irrelevant.
b. Discussion.
"The adoptive admission exception to the hearsay rule is expressed in Evidence Code section 1221. That statute provides that `[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth. (Evid. Code, § 1221.)" (People v. Fauber (1992) 2 Cal.4th 792, 851; People v. Riel (2000) 22 Cal.4th 1153, 1189.)
"The adoptive admissions exception generally permits hearsay to be admitted against a party, when that party has adopted or agreed that a statement originally made by someone else is true. The statute contemplates either explicit acceptance of anothers statement or acquiescence in its truth by silence or equivocal or evasive conduct." (People v. Castille (2003) 108 Cal.App.4th 469, 479, fn. omitted.) "Silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2002) [¶] 8:1164, p. 40, citing, People v. Riel, supra, 22 Cal.4th at p. 1189; accord, People v. Fauber, supra, 2 Cal.4th at pp. 852-853.)
"`For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential. [Citation.]" (People v. Riel, supra, 22 Cal.4th at p. 1189.) As long as the recipient understood the accusatory nature of the statements, and the statements were made " `under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the partys reaction to it. . . . (Estate of Neilson (1962) 57 Cal.2d 733, 746.)" (People v. Riel, supra, at p. 1189.)
"`To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendants conduct actually constituted an adoptive admission becomes a question for the jury to decide. (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)" (People v. Riel, supra, 22 Cal.4th at pp. 1189-1190; cf. J & J Builders Supply v. Caffin (1967) 248 Cal.App.2d 292 [partnership by estoppel; defendant silent as co-defendant held the two out as partners].)
Not responding to a letter can be an adoptive admission where, in ordinary practice, recipients would have answered had they not acquiesced in the letters statements. (Simpson v. Bergmann (1932) 125 Cal.App. 1, 7-8.)
Zenga argues the WGA letters and accompanying transmittal letters were admissible as adoptive admissions. He suggests that Safran admitted there was a partnership because he did not object to the phrase "partner on the project as producers."
The admissibility of the WGA letters depends upon whether they were communicated to Safran under circumstances that called for a reply, whether Safran understood the statements to be ones stating that a partnership had been formed, and whether it could be inferred from his silence that he had adopted the statements as an admission.
The purpose of the letters had nothing to do with Zengas claim that a partnership had been formed and Zengas review of them was not focused on that issue. The letter was drafted to assist the two writers (Seltzer and Friedberg) in their dispute with the WGA with regard to writing credit. Neither Safran nor Brillstein-Grey were directly involved in the WGA dispute. The WGA would not be considering whether a partnership was formed. Whether there was a "partnership" between Safran and Brillstein-Grey would not effect the WGAs conclusion. In light of the purpose of the letter, Safran had no need to suggest the phrase be omitted or modified.
Further, the drafts of the letter were sent to Safran for his comment prior to Safran being made aware of Zengas claim that he had formed a partnership with Brillstein-Grey. Thus, when Safran used the ambiguous term "partner on the project as producers" it was not reasonable for Safran to conclude that Zenga was making a claim of a partnership, requiring a response. (Fremont Indemnity Co. v. Superior Court, supra, 137 Cal.App.3d at p. 559; cf. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 605-606.)
Hence, as the trial court found, the use of the term "partnership" was not made under circumstances that would ordinarily evoke a response. The situation before us is not a case where a person was silent in the face of an accusation of a crime, negligence, or other wrongdoing. (E.g., Estate of Neilson, supra, 57 Cal.2d at p. 746.) The remarks were at most vague and inconclusive assertions that there was some relationship between Safran and Brillstein-Grey. It would not be reasonable to infer from Safrans silence that he was adopting the phrase "partner on the project as producers" as an admission that there was a partnership between Zenga and Brillstein-Grey.
The trial court did not err in excluding Exhibits 3, 4, and 5.
3. The Trial Court Did Not Err In Granting Brillstein-Greys Nonsuit Motion.
Zenga contends the trial court erred in granting the nonsuit motion as there were facts establishing a partnership. We disagree.
Zenga states in his opening brief that the facts established a contract with Brillstein-Grey "to attach each other to studio submissions . . . ." He states this is an alternative theory. Since this concept appears for the first time on appeal, we have no need to discuss it. In any event, such a contract was not breached as Brillstein-Grey did attach Zenga to the script and Zenga received a substantial fee.
a. Standard of review.
Motions for nonsuit are made prior to a defendant presenting his or her case. They test the sufficiency of the plaintiffs evidence and are granted only if the evidence would not support a jury verdict in the plaintiffs favor. " ` "In determining whether plaintiffs evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give `to the plaintiff[s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[s] favor . . . . " [Citations.] [¶] . . . [¶] [A] judgment of nonsuit must not be reversed if plaintiffs proof raises nothing more than speculation, suspicion, or conjecture[. R]eversal is warranted if there is "some substance to plaintiffs evidence upon which reasonable minds could differ . . . ." [Citations.] [Citation.]" (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313.) We review the record de novo, using the same standard as the trial court. (Ibid.; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1455.)
b. Discussion.
As currently defined, a partnership is "an association of two or more persons to carry on as co-owners a business for profit." (Corp. Code, § 15006.) A partnership can be formed without a writing and "whether or not the persons intend to form a partnership." (Corp. Code, § 16202, subd. (a).) " `The parties [to a partnership] need only possess the general intent to engage in the acts that constitute a partnership rather than the specific intent to be partners . . . . Parties who act as partners in conducting their business will likely be treated as partners for legal purposes. [Citation.]" (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 457, fn. 18.) Further, if the actions of the persons demonstrate they intended to jointly participate in the management and control of the business, the terms of a partnership can be ascertained at a later time. (Corp. Code, § 16202, subd. (a); Weiner v. Fleischman (1991) 54 Cal.3d 476, 482-483;Holmes v. Lerner, supra, at pp. 457-459.) Sharing profits and losses is evidence of a partnership, but not indispensable elements. (Holmes v. Lerner, supra, at pp. 454, 456, fn. 17; Corp. Code, § 16202, subd. (c)(3).) If partners have not specified how profits will be split, they will be shared equally. (Corp. Code, § 16401, subd. (b);Holmes v. Lerner, supra, at p. 454.)
Here, the evidence presented did not establish that Zenga and Brillstein-Grey were "partners on the project." Safran did not expect, bargain for, nor act in any fashion to suggest, that Zenga was to be Brillstein-Greys partner. Rather, the evidence was consistent — Safran hoped that Zenga could assist in the sale of the script or in obtaining independent financing for it and expected that if Zenga assisted, Zenga would have some role. In accordance with Safrans expectation, Safran obtained a promise from Miramax to negotiate separately with Brillstein-Grey and Zenga for services.
The fact that two or more persons render producing services on a film does not constitute sufficient evidence of a partnership. Industry practice was that many different people and entities have different producing roles, and that when a project is bought from a producer, that producer will have some producing role. Consistent with this practice, there was the expectation that Zenga would participate in some way, in the production of the movie.
Zenga argues that Exhibit 74 provides direct evidence of a partnership. This argument is unpersuasive. Exhibit 74 is a note made by Brillstein-Greys lawyer during a conversation with Sullivan, Zengas lawyer. In the note, Brillstein-Greys attorney merely recorded Zengas claim that a partnership had been formed. This document cannot possibly be evidence that a partnership actually was formed.
Exhibit 74 was recorded by attorney Eric Brooks in June 2000, approximately one week before Zenga filed his lawsuit. The note read: "Zenga wants $ or share of BGs backend `because hes entitled to it. he [sic] wants to see Greys deal supposed to be partners on the project (per Safran)"
Zenga also argues that other documents support his assertion that the parties intended to form a partnership. Given the industry standard that a number of people have a number of different producing roles on a movie, and that these people often share roles even though they have no other business relationship, referring to Zenga as a producer did not establish a partnership relationship between Brillstein-Grey and Zenga. These documents merely evidence a commitment to have Zenga participate as a producer.
For example, the cover letter used by Zenga to submit the screenplay to the studios (Exhibit 1) stated that Zenga was "producing this in association with Brillstein-Grey Entertainment." The testimony established that the phrase "producing . . . in an association with" is commonly used when one or more entities is involved in a project. It did not indicate a partnership. Furthermore, the document contains nothing more than the self-serving statement by Zenga.
The same conclusion would be reached when the other documents are examined.
None of the documents to which Zenga refers mentioned a partnership.
For example, the fact that Safran copied Zenga with letters that accompanied the script when Safran sent it to the studios did not establish that Zenga and Brillstein-Grey were partners. This merely showed that Safran was keeping Zenga informed.
Miramaxs October 15, 1998, letter sent to confirm that it would negotiate with Brillstein-Grey and Zenga did not establish a partnership. The attorney who wrote the letter testified that he had no understanding that Zenga would negotiate as a team with Brillstein-Grey and that this letter was intended to document that Miramax was to negotiate separately with Brillstein-Grey and Zenga for producing services.
The October 22, 1998, e-mail message sent by Safran to Grey stated that Miramax had "reiterated that [Brillstein-Grey] and . . . Zenga are produc[ers] . . . ."
On April 3, 2000, Sullivan wrote Brillstein-Greys attorney. In part, Sullivan stated that "when [the Scary Movie] project was being set up with Miramax, I indicated to you that Brillstein was not negotiating in a manner consistent with the understanding [of the] parties." This letter never defines the "relationship."
Zenga also argues that a reasonable inference can be drawn that a partnership was formed from the circumstantial evidence. This argument is not persuasive.
Zenga was not able to establish the terms of any agreement. Zenga did not establish how the terms would be ascertained. Even if the division of profit could be set by law (Corp. Code, § 16401, subd. (b)), it was not shown how the other parameters of a "partnership" relationship would be established. There was no demonstration that the parties possessed the general intent to engage in acts constituting a partnership, nor did Brillstein-Grey or Zenga act as though they had formed a partnership. There was no evidence that Brillstein-Grey and Zenga expected to jointly operate a business. (Compare with, Greene v. Brooks (1965) 235 Cal.App.2d 161.) No one testified that Brillstein-Grey and Zenga had discussed a partnership arrangement. No one testified that they treated Brillstein-Grey and Zenga as partners. There was no co-ownership of a product or a business. There was no joint control of a business. Neither Safran, Sullivan, nor Bloom Hergott, told Miramax that Brillstein-Grey and Zenga were partners. Negative responses to Zengas counsels leading questions was not evidence to the contrary.
Miramaxs first offer included a provision that Brillstein-Grey was to be paid a specified sum, and then Brillstein-Grey would pay Zenga. This offer did not show that Brillstein-Grey and Zenga were partners or were being treated equally by Miramax, as the producing credit being offered to them was different. Also, joint offers were common, as studios use this negotiation strategy hoping producers would bargain among themselves. Additionally, when this offer was made by Miramax, Miramax had already been put on notice that Sullivan would be negotiating for Zenga.
Zenga portrays himself as "enjoying noteworthy success in selling projects to [the] studios[]" because he had sold seven projects to major studios. He suggests that because of his successful reputation, as demonstrated by the Hollywood Reporter and Written By articles, it was beneficial for Brillstein-Grey to attach itself to Zenga. Even if this portrayal is accurate, it does not evidence a partnership relationship. At the most, it might prove that Brillstein-Grey was obligated to suggest to Miramax that Zenga be attached to the project in some capacity, an obligation Brillstein-Grey fulfilled.
We have reviewed the entire record, as is our obligation. (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327.) To accept Zengas argument that there was proof of a partnership would be to base a conclusion on speculation and conjecture. The trial court correctly concluded that, construing the evidence in the light most favorable to Zenga, there was no evidence to establish a partnership between Brillstein-Grey and Zenga.
DISPOSITION
The order is affirmed. Bo Zenga and Boz Productions, Inc. are to pay all costs on appeal.
We concur: CROSKEY, ACTING P. J., KITCHING, J.