DESNY v. WILDER

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District Court of Appeal, Second District, Division 3, California.

Victor DESNY, Plaintiff and Appellant, v. Billy WILDER, Paramount Pictures Corporation, a corporation, and Paramount Film Distributing Corporation, a corporation, Defendants and Respondents.

Civ. 20705.

Decided: July 15, 1955

Milo V. Olson and Frank De Marco, Jr., Los Angeles, for appellant. O'Melveny & Myers, W. B. Carman, William W. Alsup, Everett B. Clary, Los Angeles, for respondents.

This cause has narrowed on appeal into an action in quasi plagiarism—one for recovery of the price of a story drawn from the public domain of news and history and furnished to defendants upon an implied promise to pay the reasonable value in case of use by them in a motion picture. The appeal is taken from a summary judgment in favor of defendants. Plaintiff's amended complaint is in three counts, two of which sound in plagiarism and the other (count I) in quasi-contract. Under the impact of Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947; Kurlan v. Columbia Broadcasting System, 40 Cal.2d 799, 256 P.2d 962; and Burtis v. Universal Pictures Co., Inc., 40 Cal.2d 823, 256 P.2d 933, present counsel for plaintiff rely upon that first cause of action only and urge error in granting a summary judgment with respect thereto.

The Weitzenkorn, Kurlan and Burtis decisions establish these principles as California law: Whereas, prior to the amendment of Civil Code § 980 in 1947, protection was afforded to the author of any product of the mind with respect to the ‘idea’ as well as the form and manner of its expression, Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 256 P.2d 947, 956, that amendment ‘* * * has eliminated the protection formerly given to ‘any product of the mind.” And ‘The statute as it now exists * * * provides protection only ‘in the representation or expression’ of a composition. The Legislature has abrogated the rule of protectibility of an idea and California now accepts the traditional theory of protectible property under common law copyright', namely, that ‘ideas ‘are free as air’.' Id., 40 Cal.2d at page 789, 256 P.2d at page 955. This is equally true of historic events. Echevarria v. Warner Bros. Pictures, D.C., 12 F.Supp. 632, 638; Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56, 59. A contract implied in law cannot arise from submission to another of material from the public domain, unprotectible matter, for the same considerations apply to that situation as to a claim of plagiarism. Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 794–795, 256 P.2d 947. But the submission of such matter under an express contract or one implied in fact may form the basis for a cause of action. Id., 40 Cal.2d at pages 791–794, 256 P.2d at pages 957–959. ‘The only distinction between an implied-in-fact contract and an express contract is that, in the former, the promise is not expressed in words but is implied from the promisor's conduct. Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, 773, 97 P.2d 798; Smith v. Moynihan, 44 Cal. 53, 62; Grant v. Long, 33 Cal.App.2d 725, 736–737, 92 P.2d 940; Civ.Code, §§ 1619–1621. Under the theory of a contract implied in fact, the required proof is essentially the same as under the * * * count upon express contract, with the exception that conduct from which the promise may be implied must be proved. Cole v. Phillips H. Lord, Inc., supra [262 App.Div. 116, 28 N.Y.S.2d 404].’ Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 794, 256 P.2d 947. Appellant now disclaims plagiarism and stands upon an asserted contract implied in fact through words and conduct.

The first count of the amended complaint alleges: ‘Prior to November 17, 1949, Plaintiff conceived, originated and completed a certain untitled literary and dramatic composition (hereinafter called ‘Plaintiff's Property’) based upon the life of Floyd Collins. Plaintiff has, at all times prior to and since November 17, 1949, been, and now is, the sole and exclusive owner of Plaintiff's Property, and has at all times retained all common law rights of ownership and authorship therein.' Attached as an exhibit is a copy of the story which is 57 pages in the original pleading. The complaint further avers that ‘Within two years last past and on or about November 17, 1949, Plaintiff submitted Plaintiff's Property to the Defendants Billy Wilder and Paramount Pictures Corporation. In making said submission, Plaintiff stated to said Defendants Billy Wilder and Paramount Pictures Corporation that it was made for the purpose of sale of Plaintiff's Property to Defendants to be used by Defendants only if Defendants paid to Plaintiff the reasonable value thereof. Defendants accepted submission of Plaintiff's Property, and became fully familiar with the contents thereof, thereby indicating their consent to pay Plaintiff the reasonable value of said material if used by them.’ It is also alleged that defendants made, distributed and exhibited a motion picture entitled ‘Ace in the Hole’ or ‘The Big Carnival’; that they used and copied ‘Plaintiff's Property’ in and in connection with said motion picture, knowing that he expected to be paid for such use. He seeks recovery of $150,000 as the reasonable value of his said ‘property’. Defendants' answer admitted the production and distribution of said photoplay and denied most of the other material allegations.

Shortly after a pretrial hearing defendants gave notice of a motion for summary judgment, to be based upon the records and files, the deposition of plaintiff taken by defendants, affidavits of Jacob H. Karp, Billy Wilder and Marian Elliott, the notice of motion and an attached memorandum of points and authorities. It had developed upon plaintiff's deposition that he never did submit to defendants the story attached to the complaint as Exhibit 1, but, at the request of Wilder's secretary, had submitted a synopsis of same. And defendants in their supporting memorandum said that ‘* * * because plaintiff testified in his deposition taken on October 22, 1953 that what he claims to have submitted to defendants and to have been appropriated by defendants is not Exhibit 1 to the amended complaint, as alleged in said complaint, but, rather, an outline or summary of said Exhibit 1, we believe that the case now can, and should be, decided for defendants on the issues of law involved. For purposes of this motion we are assuming that plaintiff did make a submission to defendants in accordance with his testimony in his deposition. At a trial of the action the purported fact of such submission would be contested, but to simplify the issues it is not contested in the making of this motion.’ (Emphasis added.) The memorandum quotes the entire outline or synopsis. Plaintiff's deposition has been treated by counsel for both sides as an opposing affidavit of plaintiff and we so consider it. Before testing its sufficiency to show the existence of a cause of action it is well to bring it into focus through a quotation from appellant's opening brief. ‘It is conceded for purposes of argument that the synopsis submitted by plaintiff to defendants was not sufficiently unique or original to be the basis for recovery under the law of plagiarism or infringement. It is conceded that the plaintiff first obtained the central idea or theme of his story, which involves the entrapment of a man in an underground cave and the national interest promoted by the attempt to rescue him, from the Floyd Collins incident which occurred in the 1920's.’

Plaintiff's deposition told of two telephone conversations with defendant Wilder's secretary. Wilder was employed by Paramount ‘* * * either as a writer, producer or director, or a combination of the three’ at various times. The secretary was also a company employee. When plaintiff first called to make an appointment with Wilder she insisted on knowing his business. ‘I told her about this fantastic, unusual story. * * * I described to her the story in a few words. * * * I told her that it was the life story of Floyd Collins who was trapped and made sensational news for two weeks, headlines, front page right-hand corner, all over the country, and I told her the plot. * * * I described the entrapment. I told her that it was not only the governor but even the White House and President Coolidge was involved in it, and that it was national news which kept the people in suspense for two weeks. I described to her the entrapment and the death, in ten minutes, probably. * * * That is right. I described the central idea. The main emphasis was the central idea, which was the entrapment, this boy who was trapped in a cave eighty-some feet deep. I also told her the picture had never been made with a cave background before. * * * I told her that the story starts from the time that he was a boy, until he dies at the end of the story, when he dies, and I described to her—not very accurately, but I described to her the main features of the story.’ Plaintiff wanted to send her a copy of his story; after ‘I explained to her in brief the plot and the sensational interest in this country twenty-five years ago she seemed to be interested’ and asked how many pages; when told it was sixty pages she said Wilder would not read it and it must go to the script department there to be condensed into three or four pages for submission to producers and directors if considered ‘fantastic and wonderful’; plaintiff said he preferred to make his own synopis and send it to her; she acquiesced; he made a condensation or outline of three or four pages, called the secretary two days later and told her of the synopsis; she said she would take it down in shorthand and show it to Wilder and let plaintiff know. Plaintiff read his outline to her over the telephone. She took his telephone number but never communicated with him.

Plaintiff did not recall mentioning in the first conversation anything about selling the Floyd Collins story to defendants. Concerning the second one he testified: ‘Q. By Mr. Alsup: Mr. Desny, did you make any statement at all to this secretary of Billy Wilder, in that second telephone call which you say occurred in November, 1949, to the effect that you were reading her this outline or telling her about your synopsis for the purpose of selling it to Billy Wilder and Paramount Pictures, and that they could use it only if they paid you the reasonable value of it? A. Yes, definitely. I made it clear to her that I wrote the story and that I wanted to sell it. Q. What did you say in the connection, as best you can recall the exact language? and if you can't recall it, give us the substance of it. * * *’

‘The Witness: I naturally mentioned again that this story was my story which has taken me so much effort and research and time, and therefore if anybody used it they will have to pay for it, because I made it clear to her that I didn't write the story for pleasure.

‘Q. By Mr. Alsup: What did she say? A. She said that if Billy Wilder of Paramount uses the story, ‘naturally we will pay you for it.’'

‘Q. Anything else? A. No. That was the extent of it.’ This was in November, 1949; the picture was released in 1951; in July, 1950 plaintiff called the secretary to protest the alleged use of plaintiff's material in defendants' photoplay,—Well, I just protested very angrily.'

Though conceding that plaintiff did submit the story to defendants as testified in his deposition, defendants undertook to offset this by a showing that neither Wilder not his secretary had authority to make or negotiate a contract. This is the burden of the Karp and Wilder affidavits.1 It is somewhat beside the point upon this appeal because appellant's counsel insists only upon a contract implied in fact,—not an express one. And that implied contract arose, so he says, from use of plaintiff's material with knowledge that he expected to be paid for its use. Wilder's affidavit discloses that the secretary's duties included answering the telephone, keeping him informed of engagements, and keeping some record of persons who called him on the telephone. Plainly this would encompass receiving and delivering messages to him. Information received by her in so doing would be imputed to her principal, 2 Cal.Jur.2d § 160, p. 855, because it was her duty to report the information to him. This would warrant the inference that she transcribed and delivered the synopsis to him. And the motion picture, which we have viewed, states that it was written by Wilder and two others, and that Wilder produced and directed it.

Parenthetically it should be said that lack of authority to negotiate or contract, if important, could not be established by any such generalities as those contained in the affidavits, one of them being this: ‘At no time has my secretary had any authority to make a contract in my behalf or to negotiate for a contract in my behalf for the purchase of a motion picture story or script, or otherwise.’ Wilder affidavit. The extent of authority of an agent involves a pure conclusion, 2 Am.Jur. § 447, p. 353; Waniorek v. United Railroads, 17 Cal.App. 121, 132, 118 P. 947, and a motion for summary judgment cannot be sustained by an affiant's conclusions. Weichman v. Vetri, 100 Cal.App.2d 177, 179, 223 P.2d 288; Krupp v. Mullen, 120 Cal.App.2d 53, 57, 260 P.2d 629. This is for the reason, among others, that section 437c, Code of Civil Procedure, provides that ‘The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.’ (Emphasis added.)

The facts stated in the affidavits opposing the motion are to be taken as true, Weichman v. Vetri, supra, 100 Cal.App.2d 177, 179–180, 223 P.2d 288; Raden v. Laurie, 120 Cal.App.2d 778, 782, 262 P.2d 61; D. E. Sanford Co. v. Cory Glass, etc., Co., 85 Cal.App.2d 724, 731, 194 P.2d 127. And the court's sole function is to ascertain whether a triable issue of fact exists; there it must stop, without trying to solve the issue. Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 555, 122 P.2d 264. A triable issue exists when there is a conflict in the evidence or divergent inferences deducible from uncontradicted evidence. This principle finds everyday application upon motions for nonsuit, directed verdict, judgment non obstante, and determination on appeal of sufficiency of evidence to sustain a finding. Applied to the instant case this means that the court properly could grant the motion only if plaintiff's evidence and supporting circumstances were legally insufficient to warrant a finding of an implied contract, one implied in fact.

In plaintiff's conversations with Wilder's secretary he revealed to her his idea of a motion picture based upon the life and death of Floyd Collins and also his treatment of the facts, which he had drawn from sources such as the New York Times and American Mercury Magazine. Both the idea and its concrete expression (even though wanting in protectible quality) may be the subject of sale to anyone who is willing to buy. In Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 791, 256 P.2d 947, 957, Mr. Justice Edmonds' opinion says: ‘The question of protectibility need not be considered in determining the sufficiency of the allegations of the first count of the complaint, based upon express contract.’ In the Kurlan case, Mr. Justice Traynor says, concerning the express contract count, 40 Cal.2d at page 815, 256 P.2d at page 973: ‘Although that idea is not property, it may be protected by an express or an implied-in-fact contract.’ In the second telephone call plaintiff specifically told Wilder's secretary he expected to be paid the reasonable value if his material was used by defendants. If used after this submission an implied contract to pay would be fairly, if not inevitably, inferable.

And the first conversation would support such an inference although plaintiff is unable to recall that he said anything about expecting payment. A request for submission of the material is not of the essence. It is a settled principle that ‘* * * in the absence of an express contract originally, where one performs for another, with the other's knowledge, a useful service of a character usually charged for, and the latter expresses no dissent, or avails himself of the service, a promise to pay the reasonable value is implied.’ 12 Cal.Jur.2d § 5, p. 188. ‘And even though no request is made for the performance of work or service, if it is known that it is being rendered with the expectation of pay, the person benefited is liable. It is a question of fact if services are accepted whether a reasonable man in the position of the parties would understand that they are offered in return for a fair compensation, or would rather suppose either that they are offered gratuitously, or if not, that the recipient might think so. It is customary to lay down presumptions, as that ‘with respect to strangers a contract for compensation will be implied unless a contrary situation is exhibited,’ whereas as between relatives ‘a contract alleged to exist must be affirmatively shown.’ But it is undesirable to lay too much stress on such presumptions. They are mere inferences of fact. Intimate friends sometimes render services gratuitously, and how close must relationship be to make one presumption or another applicable? The question is purely one of fact, varying in every case, but with the burden always on the party, who alleges a contract and seeks to enforce it, to prove its existence.' Williston on Contracts (Rev.Ed.), Vol. 1, § 36, pp. 94, 95, 96. The motion picture companies have been subjected to this type of suit innumerable times over the years. They have become, or should have become, sensitive to the fact that anyone like plaintiff who submits a manuscript or story is in search of large rewards. On the other hand there is no basis in common sense to suppose that plaintiff, a stranger to defendant, should offer it anything as a basis for its making money without expecting to be paid for it. The circumstances of the original conversation and its partial disclosure suggest the inference that both sides would expect payment of a consideration in event of use by defendant. ‘Implicit in this submission was the belief that if the program were used he would be compensated therefor.’ Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 663, 221 P.2d 73, 79, 23 A.L.R.2d 216. It is to be remembered that our present task is merely to determine whether inferences of sufficient substantiality arose to make a triable issue of fact. So far as the second conversation is concerned, it does not affirmatively appear that the mention of payment followed the disclosure. The deposition was taken under section 2055, Code of Civil Procedure, and the order of eliciting facts was determined by the cross examiner.

If express, such a contract could rest in parol, Civ.Code, § 1622; Kurlan v. Columbia Broadcasting System, supra, 40 Cal.2d 799, 810, 256 P.2d 962; Johnston v. Twentieth Century-Fox Film Corporation, 82 Cal.App.2d 796, 820, 187 P.2d 474, and of course necessity of a writing is negated by the very concept of a contract implied in fact. We do not agree with the assertion that ‘An oral recitation of a synopsis over the telephone cannot be construed to be submission of a written manuscript’,—not unless the word ‘manuscript’ be taken as referring to the sixty page story rather than the synopsis.

Counsel for respondents make the point that there could be no contract here because plaintiff's unprotectible material was not property and the essence of a contract respecting same is the disclosure for an agreed consideration; that, in this instance, the disclosure was made before any mention of an expectation of compensation and therefore there could be no contract implied in fact.2 There appears to be no reason why a contract to pay for use could not be made as well as one to pay for disclosure; the former would be much more sensible and realistic. It is a question of fact as to what men's minds actually meet upon.

This contention must be examined with the Weitzenkorn and Kurlan rulings in mind. They hold that there can be an express or an implied-in-fact contract covering ideas or other material drawn from the public domain. Respondents' cited cases of Bristol v. Equitable Life Assurance Society, 132 N.Y. 264, 30 N.E. 506, 507 and Rodriguez v. Western Union Telegraph Co., 259 App.Div. 224, 18 N.Y.S.2d 759, do support the proposition that advance disclosure is fatal to a claim of a contract to pay for use of an idea. But they represent only one viewpoint in a field which discloses a split in the authorities. And those New York cases, unless confined to mere ideas, deny the California rule that there can be a contract implied in fact with respect to unprotectible literary material.

Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643 upholds an agreement to pay for a disclosed idea, saying at page 646: ‘The utterance of his idea by a creator or the expiration of his copyright or patent operates merely to destroy his monopolistic right in the copyrighted work or patented invention; but the creative value of the idea imparted by the literary work or by the invention is not destroyed. The case does not pivot on an unauthorized use of an asserted property right, common law or statutory, in a disclosed idea, but on a contract to pay for the authorized use of a disclosed idea. Plaintiff was under no legal obligation to make his plan known to defendant. He disclosed it in consideration of a promise given and received as the equivalent in value for its disclosure. Defendant's cases recognize, we think, the disclosure of a new and useful idea, or one thought to be useful, may be protected by contract.’ This case is followed in Schonwald v. F. Burkhart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7.

It well may be true with respect to a mere idea that ‘A duty not to use an idea already known cannot be created by virtue of the fact that one makes a confidential disclosure of that idea.’ Smoley v. New Jersey Zinc Co., D.C., 24 F.Supp. 294, 300. That rule would apply to plaintiff's disclosure of his idea of making a motion picture based upon the harrowing experience of Floyd Collins. But we apprehend that it does not extend to disclosure, for the express purpose of sale, of a written treatment of that idea even though it be merely plaintiff's individual method of telling the story of an historical event drawn from newspapers and magazines. Treatments of news events furnish an analogy, though not a complete one. They are protectible, see 34 Am.Jur. § 17, p. 412. Other compilations of known facts are also protected in the same manner as original compositions. Section 12, at page 409 of 34 American Jurisprudence says: ‘Creation, in its technical sense, is not essential to vest one with ownership of rights in intellectual property. Thus, a compiler who merely gathers and arranges, in some concrete form, materials which are open and accessible to all who have the mind to work with like diligence is as much the owner of the result of his labors as if his work were a creation rather than a construction. Also, one who, by his own investigation and labor, annotates or makes a commentary upon the literary product of another is considered the owner of his notes and comments, and he is treated, in law, accordingly.’

In his first telephone conversation plaintiff disclosed his idea and told briefly the Collins story, but he did not then furnish the text of his sixty page treatment and had not yet prepared the synopsis. So he did not then lose any rights inhering in or growing out of his own written story of the Collins tragedy. In the next conversation he revealed the entire synopsis, his own treatment of the event, giving explicit notice that he expected payment in the event of its use by defendants. That this constituted sufficient basis for a contract implied in fact is suggested by the ruling in Yadkoe v. Fields, 66 Cal.App.2d 150, 151 P.2d 906, 908, where recovery upon implied contract was upheld. Without request plaintiff, a total stranger, submitted to defendant W. C. Fields a certain radio script; Fields acknowledged same and said “if you would like to submit a couple of scripts gratis and I am able to use them, who knows, both parties being willing, we might enter into a contract.” Plaintiff complied. Defendant used some of his material and defended the action upon the ground, among others, that it was not protectible. Plaintiff's recovery was upheld, reference being made, as supporting authority, to Liggett & Meyers Tobacco Co. v. Meyer, 101 Ind.App. 420, 194 N.E., 206; How J. Ryan & Associates v. Century Brewing Ass'n, 185 Wash. 600, 55 P.2d 1053, 104 A.L.R. 1353; and Cole v. Phillips H. Lord, Inc., 262 App.Div. 116, 28 N.Y.S.2d 404. The opinion does not specifically pass upon the question of whether the material used was within the protectible class, but it remarks on page 159 of 66 Cal.App.2d on page 911 of 151 P.2d and its reliance upon the Liggett, How J. Ryan and Cole cases seem to indicate the view that it was dealing with protectible matter. The law has progressed since Yadkoe to the point where it is now recognized that an implied contract way arise from material which is otherwise publici juris,—one implied in fact. A true quasi-contract cannot spring from its use, for there is no unjust enrichment,—the same considerations applying here as in a true plagiarism case. The implied contract with respect to public domain material is like any other which is implied in fact. ‘Under the theory of a contract implied in fact, the required proof is essentially the same as * * * upon express contract, with the exception that conduct from which the promise may be implied must be proved.’ Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 794, 256 P.2d 947, 959. If plaintiff Desny's manuscript story of a well-known event were protectible per se the Yadkoe case would be directly in point; but counsel for appellant concedes it was not in that category. However, counsel does not concede that the synopsis could not be made the subject of an implied contract to pay in case of use. Plaintiff's deposition shows a submission upon express declaration of a right to compensation in case of use by defendants. If it were held that use under these circumstances could not give rise to a contract implied in fact that phase of the Weitzenkorn decision would have been ignored and the distinction between contracts implied in law and those implied in fact would have been obliterated. The essential difference between the two types of quasi-contract is that the former relates to protectible (original) material and the latter pertains to facts, stories, plays, etc. drawn from the public domain. Unless the present factual situation gives rise to an implied contract it is difficult to conceive of a situation that would do so.

In the field of protectible literary or musical or like property a limited or qualified publication does not destroy the private ownership. Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 666, 221 P.2d 73, 23 A.L.R.2d 216; see also cases discussed in dissent of Mr. Justice Carter in Kurlan v. Columbia Broadcasting System, supra, 40 Cal.2d 799, 816–819, 256 P.2d 962. There seems to be no good reason why the same rule should not apply to a manuscript which, though not original and protectible, may become the subject of a protecting contract. ‘A limited publication of literary property is really not a publication, in the ordinary sense of the word, but a privileged disclosure. It is the communication of knowledge of the contents of literary property under conditions expressly or impliedly precluding its dedication to the public.’ 34 Am.Jur. § 61, p. 445. ‘If it were held otherwise, the mere offer to sell would destroy the thing offered’, says the Washington court in How J. Ryan & Associates v. Century Brewing Ass'n., 185 Wash. 600, 55 P.2d 1053, 1054, 104 A.L.R. 1353. And Moore v. Ford Motor Co., 2 Cir., 43 F.2d 685, 687 recognizes that limited submission may be made of nonprotectible material without destroying the subject of the offer. So does Elfenbein v. Luckenbach Terminals, 111 N.J.L. 67, 166 A. 91. While the contents of plaintiff's synopsis were within the public domain and defendants free to use all or any of the facts or incidents there set forth they had to go to original sources for their said facts and they could not, in the face of plaintiff's notice of a expectation of pay, take a short-cut by using his compilation, not without incurring liability to him for such use.

Counsel for respondents also argue that there can be no consideration for an implied promise to pay for unprotectible material which has been disclosed. The Rodriguez and Bristol cases, supra, stand for this proposition. They deal with mere ideas. If disclosure of a treatment of an idea constitutes adequate consideration for a contract, the use of the same after disclosure would afford no less support for a promise to pay.

We apprehend that defendants' motion should have prevailed in the face of a showing of the alleged implied contract if they had succeeded in establishing without conflict that there was no use of plaintiff's synopsis in making the motion picture. In this event the other triable issues would not be determinative ones. Of course the moving party has the burden of making a clear showing that he is entitled to judgment without a trial. Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065; Werner v. Sargeant, 121 Cal.App.2d 833, 837, 264 P.2d 217. Defendants' affidavits make no mention of whether plaintiff's treatment was actually used in the making of the photoplay. And their argument in this court stresses the fact that they had the right to use any and all material relating to Floyd Collins rather than a claim that they did not promote their own convenience by adapting to their photoplay the readily available compilation of facts. They are thus left in position where it must appear as a matter of law that there was no substantial similarity, so that on that basis it may be further said that no use was made of plaintiff's material. The document filed by plaintiff's counsel at time of argument, entitled ‘Appellant's Opening Argument’ makes a comparison of plaintiff's synopsis and the scenario of defendants' photoplay and we have witnessed a showing of the motion picture, with the result that this court cannot say, as matter of law, that there was no use by defendants of plaintiff's outline.

The record discloses triable issues of fact.

Plaintiff also appeals from an order of January 27, 1954 denying a motion to set aside the judgment and permit plaintiff to amend the amended complaint. The proposed amendment substituted an allegation of submission of the synopsis in the manner and on the term set forth in plaintiff's deposition, in the place of paragraph VI of the amended complaint which averred submission of his full treatment, Exhibit 1. The order is not appealable. Bank of America, etc., v. Oil Well Supply Co., 12 Cal.App.2d 265, 271, 55 P.2d 885; Werner v. Sargeant, supra, 121 Cal.App.2d 833, 834–835, 264 P.2d 217. But the arguments presented by respondents in connection with that attempted appeal are pertinent to the propriety of the summary judgment. They say that there was a fatal variance between allegata and probata in that the complaint alleged submission of the entire story, Exhibit 1, and the proof showed that the only thing submitted was the synopsis.

A sound discretion ordinarily demands that a party be permitted to amend when, upon motion for summary judgment, it appears that his pleading is defective, but the initiative must be taken by counsel; if he does not so move the court is not required to act. Gardenswartz v. Equitable, etc., Society, 23 Cal.App.Supp.2d 745, 753, 68 P.2d 322; Krupp v. Mullen, 120 Cal.App.2d 53, 57, 260 P.2d 629. In this case no such motion was made until after judgment entered. But if perchance there was a fatal departure, rather than a variance, the court properly rendered judgment for defendants.

Section 469, Code of Civil Procedure, says: ‘No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the Court may order the pleading to be amended, upon such terms as may be just.’ Section 470: ‘Where the variance is not material, as provided in the last section, the Court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.’ Section 471: ‘Where, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections, but a failure of proof.’ Respondents' point is that there was a complete failure of proof because the reliance upon the synopsis was an attempt to introduce an entirely new cause of action after the statute of limitation had run. This contention cannot be upheld.

Great liberality is indulged in the matter of amendment to the end that lawsuits may be determined upon their merits. Klopstock v. Superior Court, 17 Cal.2d 13, 19, 108 P.2d 906, 135 A.L.R. 318; Frost v. Witter, 132 Cal. 421, 424, 64 P. 705; Barr v. Carroll, 128 Cal.App.2d 23, 26, 274 P.2d 717; Hanna v. Hirschhorn, 112 Cal.App. 438, 440–442, 296 P. 891. But the solution of every problem of whether a new cause of action has been inserted by amendment after the running of the statute of limitation must be solved by applying to the apecific facts a correct conception of what constitutes a cause of action. A cause of action is the right to secure redress for violation of an obligation owing to the claimant. Though phrased in varying ways this is the result of the authorities. In Frost v. Witter, supra, 132 Cal. 421, 426, 64 P. 705, 707, the court said: ‘The action therefore springs from the obligation, and hence the ‘cause of action’ is simply the obligation.' Again: ‘The ‘cause of action’ is therefore to be distinguished also from the ‘remedy,’ which is simply the means by which the obligation or the corresponding action is effectuated; and also from the ‘relief’ sought. Pom. Pl. & Prac. § 453.' In Klopstock v. Superior Court, supra, 17 Cal.2d 13, at page 20, 108 P.2d 906, at page 910: ‘In determining whether a wholly different cause of action is introduced by the amendment technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant not be required to answer a wholly different legal liability or obligation from that originally stated. As the court says in the Frost case, supra, 132 Cal. at page 426, 64 P. at page 707, for the purpose of determining whether amendment is possible, the ‘cause of action’ referred to as furnishing the test means only the legal obligation which it is sought to enforce against the defendant. Other courts have used almost identical language; the test is not whether under technical rules of pleading a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant. The power to permit amendment is denied only if a change is made in the liability sought to be enforced against the defendant. See Harriss v. Tams, 258 N.Y. 229, 242, 179 N.E. 476.' Day v. Western Loan & Building Co., 42 Cal.App.2d 226, 231, 108 P.2d 702, 704: ‘It is well settled that, where the original complaint has been filed within the statutory period, an amended complaint may be filed after the statute has run as long as it does not state a new or different cause of action from that appearing in the original complaint. Stated another way, if the original complaint defectively states a cause of action, it may be amended after the running of the statute as long as the cause of action stated in the amended pleading can trace its descent from the original pleading.’

Certainly the proposed amended pleading ‘can trace its descent from the original pleading’ for it relies upon an abstract of the story initially alleged to have been submitted. And respondents can not claim to have been misled, for they adopted for the purpose of their motion the synopsis and agreed it had been submitted to them. There was no shifting to a new cause of action here, at best a variance and that is not a matter available to the moving party in a proceeding for summary judgment. This is a case in which the court may find the fact according to the evidence. And the case appears to be a proper one in which to direct the allowance of the proposed amendment, 4 Cal.Jur.2d § 668, p. 556, and, because of appellant's concession that no cause of action exists upon the second or third count, to limit the trial to the issues raised by the amended first case of action and answer thereto. 4 Cal.Jur.2d § 668, p. 555.

The appeal from the order of January 27, 1954 denying motion to set aside judgment etc., is dismissed. The judgment is reversed with instructions to limit the trial to issues raised by first count of amended complaint and answer thereto, and to permit plaintiff to amend paragraph VI of the amended complaint in the manner heretofore proposed by him, and to make such other and further amendments to said complaint as the court may deem appropriate.

FOOTNOTES

1.  The Marian Elliott affidavit merely authenticates copies of certain documents, which are conceded to be correct.

2.  Interesting discussions of this problem appear in 27 Southern California Law Review 290 and 42 California Law Review 28. See also 104 A.L.R. 1357; 23 A.L.R.2d 245; 170 A.L.R. 459.

ASHBURN, Justice pro tem.

SHINN, P. J., and VALLEÉ, J., concur.