KINNEAR v. AMERICAN BROADCASTING COS

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

Greg KINNEAR, Plaintiff and Appellant, v. AMERICAN BROADCASTING COS., etc., et al., Defendants and Respondents.

No. B073214.

Decided: November 10, 1994

Morris, Polich & Purdy, Robert S. Wolfe, John A. Marder and Douglas J. Collodel for Plaintiff and Appellant. Christensen, White, Miller, Fink & Jacobs, Andrew M. White and Ruth Anne Taylor for Defendants and Respondents.

Plaintiff Greg Kinnear (“plaintiff”) appeals from a summary judgment rendered in favor of American Broadcasting Company (“ABC”), Launa Newman-Minson, an executive with ABC (“Minson”), Vin DiBona (“DiBona”), and Waku Waku Corp., a production company owned by DiBona (“Waku”, collectively “defendants”). Plaintiff filed this lawsuit after ABC began broadcasting a television show entitled “America's Funniest Home Videos” (“AFHV”). In his suit, plaintiff contends it was he and a partner who provided ABC with the concept of the show and therefore he should be compensated for it. DiBona contends he was the person who interested ABC in putting AFHV on the air and he asserts he got the idea from seeing a similar Japanese television show.

The trial court found as a matter of law plaintiff was not entitled to any compensation. We find there are triable issues of material fact as to whether the written proposal for the program (“treatment”) which Kinnear and his partner gave to ABC was the impetus behind AFHV and whether the other defendants are also accountable to plaintiff.

Additionally, we note that even if there weren't sufficient evidence in the record to create a triable issue of material fact (which there is), this judgment would still have to be reversed for the failure of the trial court to allow plaintiff to conduct the discovery which he had scheduled prior to the hearing on the motion for summary judgment and which he stated he needed to conduct to have a full opposition to the motion for summary judgment. Further, judgment in favor of Waku would have to be reversed because that defendant never filed a motion for summary judgment or joined in the motion of any of the other defendants. The judgment will be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Creation of Plaintiff's Home Video Idea

The following evidence was presented by plaintiff and/or defendants in their summary judgment papers. In the summer of 1986, plaintiff became aware of the proliferation of camcorders and began thinking about the “strange, off-beat stuff” that people around the country would be recording with their video recorders. He developed the notion that one could accumulate such footage and put it together for a television program. The videos would be submitted by the American public.

Around the time plaintiff began thinking about this television concept, he became reacquainted with someone he had known earlier, a Mark Wolper (“Wolper”). A few weeks after he came up with his home video program idea, he approached Wolper with the concept. Wolper was involved with a production company called the Wolper Organization, which Wolper's father runs. The company is owned by Warner Brothers. Plaintiff has worked with the company on several projects.

During the course of the next 24-month period or so, plaintiff and Wolper discussed the home video idea a dozen or more times, working at it informally and developing it more and more each time it was discussed. In October 1988, Wolper and plaintiff jointly prepared the six-page treatment which defined the format and concept of the home video television show. They called the program “People Productions.” The treatment specifically states that People Production was “created by Greg Xinnear and Mark M. Wolper for Warner Bros. Television.”

Certain features of the treatment are important. In plaintiff's and Wolper's concept, the home video show is a weekly series. It has a live audience and is hosted by one or several “popular, off-beat, and very humorous” person(s) who guide the audience “through a collection of varied and unpredictable amateur videos and film productions.” These productions are accumulated by a weekly search for them. “People Productions is a showcase for everything that has been captured on video and film, on purpose or by accident, spontaneously or by careful design, as a joke or for dramatic and artistic record.”

The treatment provides that as the “hundreds of thousands” of home videos and movies come in, they will be “screened and examined for their entertainment worthiness.” The treatment proposes that the home submissions can be carefully and creatively edited, sweetened, given musical additions and electronic manipulations. Groups and organizations can submit videos. Young filmmakers seeking to be the George Lucas, Steven Spielburg or Mel Brooks of tomorrow can do so as well. Celebrities can drop by on the show and perhaps bring their own home movies. High schools can be recruited. Also planned was participation by the audience and home viewers, who would select the best, the most bizarre, the funniest, etc. videos and the winners would be given prizes. The public would be asked to send in specific categories of videos. Montages would be made from many videos which have only a few seconds of “good” footage. “For the first time ever, Americans will have the chance to ‘strut their stuff’ and the rest of us will watch and laugh, cry or criticize.”

The project was a joint collaboration of both plaintiff and Wolper. Every sentence of the treatment was reviewed by both. Wolper had an understanding with plaintiff that from a creative standpoint, the treatment was a 50-50 project and plaintiff would be “co-created by credit or entire created-by credit.” They also had an understanding that if ABC was interested in the property, plaintiff would receive producer credit of some sort.

2. ABC's Search for “Reality” Shows

During the latter period of time that plaintiff and Wolper were working on their home video concept, (1987-1988, and possibly in 1989), defendant Minson was employed by ABC as a director of variety and late night programming. One of her duties was to create series for prime time viewing. Specifically, she was to create series that were not traditional sitcoms and dramas, “which means simply that the world is open, ․ it's as creative as you can be.” She felt the traditional variety show was “pretty well put to sleep” and she “felt there was a need to enlarge on the arena.” She had a particular interest in reality shows. In addition to her duty of creating series for general prime time showing, she was to create one for Sunday night prime time.

To make it known to people in the industry that she was interested in developing these reality series, she “did what seemed most logical, [she] made phone calls.” She called agents at the major agencies and told them she was looking for ideas and “would they please ․ pick their best people to come in and pitch.” She also called studios, managers, and producers she knew.

Warner Brothers was one of the studios she contacted. A Mr. Himmelfarb from Warner Brothers came to her office with Wolper to pitch two ideas to her. Himmelfarb had told Wolper that ABC was “extremely interested” in reality based programming for Sunday night. (Wolper had met with people at ABC over thirty times to pitch ideas to them.) Minson rejected the ideas pitched by Himmelfarb and Wolper but indicated a strong interest in considering other reality projects.

In February 1989 Minson met with Wolper for about a half-hour to an hour. At the meeting, Wolper pitched the People Productions treatment to her. That was his main objective for the meeting. At the beginning of the meeting, he put the treatment on the table in Minson's office. Then he presented the concept to her in a “dramatic way” and then they spoke of it in conversational terms. She indicated that she did not feel there was enough significant material in home videos to make a show viable. Although Wolper continued to debate the issue with her, Minson was steadfast in her rejection of the concept.

During the meeting, Wolper read parts of the treatment to Minson, and Minson also picked it up and flipped through the pages. There is a dispute as to whether Wolper left the treatment in Minson's office or she gave it back to him. Wolper says he left it with her and she promised him she would read it. Minson disagrees; she says she returned the treatment to Wolper before he left the meeting.

Wolper's understanding was that if ABC had agreed to develop People Productions, it would have been produced through the Wolper Organization. When he later saw ABC's America's Funniest Home Videos on television, he called Minson to complain that ABC had used the very concept he had pitched to her. Ultimately, plaintiff filed this suit alleging the misappropriation of his and Wolper's ideas. Wolper decided not to join in the suit, for business reasons, even though he felt the Wolper Organization had a legal claim against ABC.

3. The Making of America's Funniest Home Videos

DiBona's explanation of how he came to produce AFHV is as follows. Beginning in November 1988, he had a series of meetings with executives of the Tokyo Broadcasting System (“TBS”) regarding his use in the United States of a particular idea from a TBS television show which had been on the air since 1986. The show is entitled “Fun with Ken and Kato Chan” and the particular segment in which DiBona was interested “featured excerpts of home videos tapes submitted to TBS by the Japanese public.” According to DiBona, the home video segment of the Japanese television “Chan” show is shown to a live studio audience, and is presented by a comedic host. It features videos accompanied by music, and videos in montages. A prize is presented for the best video at the end of each show.

In April 1989, DiBona, who had previously licensed other TBS shows for use in the United States, licensed the Chan show for use in the United States and then set about finding a television network to produce a show similar to it. In May 1989, he pitched the idea to Hank Cohen who was then the director of specials for ABC. Cohen expressed interest in the concept and told DiBona he would work at getting approval for it from ABC. ABC accepted the home video concept and entered into agreements with DiBona's production company to provide for the licensing, production and broadcast of the concept as an ABC special program. DiBona pays a license to TBS for use of the Chan show's format.

According to a letter written to Warner Brothers by an attorney in ABC's legal department, ABC entered into an agreement with DiBona to produce AFHV as a “special,” with an option for a series and a series of specials. The special was developed by a John Hamlin, ABC's entertainment vice president for special programs. It was broadcast on a Sunday evening in November 1989 and was very successful. Because of its success, ABC turned it into a weekly series, and Minson was put in charge of the series.

AFHV is owned by DiBona's production company and ABC. Such an ownership arrangement is more financially beneficial to a network like ABC than would be licensing a show from another company, like Warner Brothers/the Wolper Organization.

4. Minson's Contacts with DiBona

DiBona acknowledges that at some point in time, he had a meeting with Minson at which she indicated to him that ABC was interested in developing reality shows. There is also evidence that on February 28, 1989, four days after the day on which Wolper says he met with Minson to pitch the People Productions treatment, there was a phone call between Minson's office and DiBona. There was also a phone call between her office and DiBona on March 1, 1989, and her records for that call contain the notation “Vin DiBona wants to meet.” Minson's and DiBona's recollections of these calls is not clear.

Mr. Cohen states in his declaration that when DiBona approached him with his home video concept, Minson was one of the people at ABC to whom Cohen, in turn, tried to pitch it. However, he also states that she gave him a negative reaction to it and she never, prior to the airing of the first program, ever gave him any ideas or suggestions for the program. Minson testified in her deposition that at that meeting, Cohen brought with him and showed her the demonstration tape that DiBona had brought to show Cohen. Said tape was composed of parts of the Japanese version of AFHV. Minson told Cohen she thought it was funny but she didn't think he could get Americans to do those kinds of things on the tape. Records indicate Minson had a meeting with DiBona on May 25, 1989. Minson does not recall the purpose of the meeting. The next day, May 26, DiBona sent his manager a letter wherein he stated that Cohen and Minson wanted to pitch the video show to ABC's president Bob Iger as a special followed by a weekly series.

5. Plaintiff's Suit

This suit was filed in September 1990. In his complaint, plaintiff alleged causes of action for breach of oral contract, breach of implied-in-fact contract, breach of confidence, and fraud against ABC and Minson; he alleged a cause of action for intentional interference with a contractual relationship against DiBona and Waku. The defendants were each alleged to be “the agents, employees, servants, joint-venturers and/or co-conspirators of the remaining defendants, and were acting in the course and scope” of such roles.

6. Defendants' Motions for Summary Judgment

ABC, Minson, and DiBona filed motions for summary judgment in October 1991. The basis of defendants' motions is that the evidence presented by them shows they did not produce AFHV by using, in any manner, the Kinnear-Wolper People Productions treatment which Wolper took to Minson. Rather, they produced it on the basis of the TBS Chan show, the helpful input which people at ABC gave to DiBona, as well as DiBona's own ideas. Minson asserts she forgot about the People Productions treatment after Wolper left her office on the day he pitched it to her.

The moving defendants presented declarations and deposition evidence to support their explanation of how AFHV got developed. They argue that while they have this evidence to prove that they did not utilize the treatment for People Productions, plaintiff only has (1) his speculations as to what defendants Minson and DiBona talked about when they spoke on the phone and met and (2) certain similarities between his treatment and AFHV. Regarding these similarities, defendants argue that they are elements common to many game shows and to a previous television show which aired in 1987 and 1988 and which plaintiff could himself have copied from to produce his treatment of People Productions.

Defendants also contended that plaintiff had no standing to bring this action against them because if ABC had contracted for use of People Productions, the contract would not have been with plaintiff but rather with the Wolper organization and/or Warner Brothers.

7. Plaintiff's Request for Discovery

Prior to the time defendants filed their motion for summary judgment, plaintiff had scheduled the depositions of (1) the president of ABC, (2) Minson's secretary, the person who prepared Minson's calendar notes and telephone memos, (3) Minson's supervisor, and (4) John Hamlin, an ABC executive involved in the development of AFHV. Additionally, plaintiff had served Minson and DiBona with interrogatories. Rather than holding off ruling on the motions for summary judgment until plaintiff had finished his discovery, the trial court, over plaintiff's objection, stayed all of this discovery except the deposition of ABC's president.

The hearing on the motions was held on November 25, 1991. The trial court did not issue its ruling until June 2, 1992, nearly seven months later. Judgment was filed November 12, 1992, in favor of all four defendants. This timely appeal followed.

ISSUES ON APPEAL

On appeal, plaintiff contends he has standing, as creator and co-owner of People Productions, to bring this action.

Plaintiff also asserts that the record shows there are triable issues of material fact as to whether (1) an implied-in-fact contract was formed between ABC and plaintiff; (2) Minson and ABC committed a breach of confidence in handling plaintiff's People Productions treatment; (3) plaintiff is the victim of fraud; and (4) DiBona is liable for interference with a contractual relationship.

Plaintiff further contends the trial court erred in denying him time to (1) finish his scheduled discovery and (2) take the depositions of the persons who filed declarations in support of the motions for summary judgment. Lastly, plaintiff asserts error in the trial court's granting summary judgment to Waku, a party who neither filed a motion for summary judgment nor joined in another party's motion.

DISCUSSION

1. Standard of Review

In an appeal from a summary judgment, the order granting that judgment is reviewed de novo. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) Because a summary judgment is such a drastic procedure, it must be used with caution; and any doubts about whether a summary judgment should be granted must be resolved against the party moving for the judgment. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35.) Affidavits submitted to support the motion are construed strictly, while those submitted in opposition are liberally construed. (Ibid.) All reasonable inferences are drawn in favor of the party who is opposing the motion. (Price, supra, at p. 474.) The motion is properly granted only when the evidence shows there is no triable issue as to any material fact and thus the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Thus, the trial court seeks to find issues rather than determine them. (Price, at p. 474.)

2. The Standing Issue

a. Standing to Sue for Breach of Implied Contract and Breach of Confidence

It is undisputed that plaintiff was not present when Wolper pitched People Productions to Minson. Wolper testified during his deposition that he and plaintiff understood that the People Productions project would be developed as part of the Wolper Organization. The treatment states it was created by the two men for that organization. Plaintiff acknowledges that had ABC expressly accepted the concept he and Wolper developed, the contract for People Productions would not have included him per se. Wolper testified it would have been a contract between ABC and Wolper/Warner Brothers. He also stated that plaintiff's contract, (regarding finances, credits and producer status), would have been with Warner Brothers and that no negotiations for that contract had yet taken place when the treatment was presented to Minson.

Based on this state of the facts, defendants contend that plaintiff lacks standing to sue them for breach of oral or implied contract. Nor, say defendants, can plaintiff sue on a third party beneficiary contract theory (since such a contract would not have been formed expressly for plaintiff's benefit (R.J. Cardinal Co. v.. Ritchie (1963) 218 Cal.App.2d 124, 135-136). Defendants' position is that there is no privity of contract between themselves and plaintiff nor would there ever have been: the only possible contract in which ABC would have been a party is a contract between ABC and Wolper/Warner Brothers.

Defendants' position, however, really amounts to an assertion that had there been an express deal struck, it would have been between ABC and Wolper/Warner Brothers and plaintiff would not have been a signatory to it. However, plaintiff does not have to claim there was an express agreement in order to recover in this suit. He is suing on what he contends is ABC's implied promise that if it uses a treatment, it will pay for its use. In effect, plaintiff's position is that the breach of this implied promise prevented the express contract between ABC and Wolper/Warner Brothers from coming into being.

In Desny v. Wilder (1956) 46 Cal.2d 715, 733, a suit to recover the reasonable value of an idea for a photoplay, the Supreme Court approved of the following language from an appellate brief: “ ‘If a studio wishes to have an idea disclosed to it and finds that idea of sufficient value to make use of it, it is difficult to see how any hardship is involved in requiring payment of the reasonable value of the material submitted.” ’ (Id. at p. 734.) “The person who can and does convey a valuable idea to a producer who commercially solicits the service or who voluntarily accepts it knowing that it is tendered for a price should ․ be entitled to recover.” (Ibid.) The court noted that “the law of implied contracts assumes particular importance in literary idea and property controversies.” (Ibid.) From this Supreme Court opinion it seems self-evident that the party most likely to have standing to sue on the implied promise to pay for what is used, is the person who created what is used.

Thus, we find plaintiff's standing to sue for breach of implied contract from the following facts: (1) it is a common practice in the entertainment industry for payment to be made for ideas that are submitted and used; (2) ABC admittedly solicited ideas for reality shows; (3) Wolper's presentation to Minson was a result of that solicitation; (4) Wolper and ABC's history is that ABC would pay for ideas used; (5) ABC does not contend that there was no understanding between Minson and Wolper that payment was expected and would be given if the People Production treatment was used by ABC. We find it untenable that plaintiff would not have standing to sue for his alleged damages simply because he would not be a signatory on a contract with ABC. The ideas were his and Wolper's. The fact that Wolper (or the Wolper Organization or Warner Brothers) chooses not to join in this action is not relevant to the issue of standing.

The same analysis applies to the cause of action for breach of confidence. “When defendant received [the People Productions treatment], with the understanding that this idea was confidential, defendant incurred an obligation not to use or disclose that idea without the creator's consent. [Citation.] The obligation thus incurred lies not in the contractual language but is imposed by law [citation]; an action for its breach lies either in quasi-contract or in tort [citation].” (Davies v. Krasna (1975) 14 Cal.3d 502, 508, emphasis added.)

b. Standing to Sue for Fraud

Defendants contend that plaintiff has no standing to sue for fraud because Minson's allegedly false representation (that ABC would financially compensate for its use of the People Productions treatment) was not made to plaintiff but rather to another (Wolper). They contend that a cause of action for fraud rests only with the person to whom the fraudulent representation is made. “However, the representation may be made indirectly as well as directly. [Citation.] [¶] The statement may be made to one person intending that he shall communicate it to another, as where a misrepresentation is made to one of two spouses, or to an agent, ․ [Citations.]” (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 706, 707, p. 807.)

Here, the treatment stated that it was the creation of not just its presentor (Wolper) but also of plaintiff. Additionally, it bore the name of Warner Brothers. Arguably, Minson intended her implied representation to pay for its use to be communicated by Wolper to all involved with the treatment. Wolper acted as their agent.

c. Standing to Sue for Interference with Contract

Defendants contend plaintiff has no standing to sue DiBona for interference with contract because there is no valid contract in existence. Given our above analysis regarding implied-in-fact contracts, defendants' argument obviously fails.

3. The Presence of Triable Issues of Material Fact

Plaintiff argues that he has presented sufficient evidence to raise triable issues of material fact as to (1) whether there was a breach of ABC's implied promise to pay for the treatment submitted to it if it used that treatment; (2) whether there was a breach of confidence by Minson; (3) whether plaintiff was the victim of fraud; and (4) whether DiBona and Waku intentionally interfered with his contractual relationship with ABC.

a. Breach of an Implied-in-Fact Contract

Defendants claim that the trial court properly determined that plaintiff's cause of action for breach of implied contract fails because they presented evidence that “DiBona created [AFHV] completely independent of the [People Productions] treatment.” Plaintiff, however, is entitled to have reasonable inferences drawn in his favor from the evidence before the trial court, and there is evidence which raises questions as to whether Minson was communicating plaintiff's and Wolper's ideas to DiBona and to executives at ABC when AFHV was being pitched or created.

To begin with, there is direct evidence that Wolper left a copy of the treatment with Minson when he left their meeting. This is evidence that Minson had continuing access to the treatment; that she could use it for future reference whether it was in connection with making People Productions or AFHV. There is evidence that Minson's office was twice in contact with DiBona's just days after she met with Wolper, as well as evidence that at the time of the second call, DiBona indicated he wanted to meet with Minson. Additionally, at some point in time, Minson indicated to DiBona that ABC was interested in developing reality shows. There is a letter written by DiBona a day after he met with Minson in May 1989 wherein he states that Minson was to be involved in pitching his “Chan Show” idea to ABC's president.

There is also evidence that presenting a show of home videos with ABC as the owner of the show or series (as is the case with AFHV) is financially more beneficial to ABC than would be a licensing arrangement (as would have been the case with People Productions).

Thus, there is evidence that (1) Minson (and necessarily ABC) had continuing access to the ideas in plaintiff's treatment; (2) ABC had a financial motive to work with DiBona rather than Wolper/Warner Brothers; (3) Minson was in contact with DiBona just shortly after she met with Wolper and after that DiBona presented his Chan Show concept to ABC; and (4) thereafter Minson continued to have contact with DiBona and indeed DiBona believed Minson was going to be pitching his ideas to ABC's president. Added to that is the very strong similarity between the People Productions treatment and AFHV.

Courts have recognized that circumstantial evidence, such as access to the plaintiff's ideas combined with substantial similarities between those ideas and the defendant's finished product, will warrant sending the evidence to a jury to determine whether there has been copying by the defendant. Courts recognize that a defendant's copying is rarely going to be proved with direct evidence. (Shaw v. Lindheim (9th Cir.1990) 919 F.2d. 1353, 1356 .) Defendants who have copied another's ideas will rarely admit to the deed. Rather, they will have invented stories to explain how their work came about. (Kovacs v. Mutual Broadcasting System (1950) 99 Cal.App.2d 56, 61; Donahue v. Ziv Television Programs, Inc. (1966) 245 Cal.App.2d 593.)

In Donahue, the court found that while the defendants had presented to the jury “a fairly impressive case to the effect that the idea for [the allegedly copied television show] was independently conceived by [one of the defendants]” such evidence did not rise to the level of “ ‘clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved.” ’ (Donahue v. Ziv Television Programs, Inc., supra, 245 Cal.App.2d at p. 598.) This test for evidence that is “clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved” was used in Teich v. General Mills, Inc. (1959) 170 Cal.App.2d 791, 799. The Donahue court stated that “Just where testimony [rises to meet the Teich test] is, of course, a matter of judgment.”

In Donahue, the jury had found in favor of the plaintiffs on the issue of copying but the trial court had granted a judgment notwithstanding the verdict and a new trial to the corporate defendant. The reviewing court reversed the former ruling and affirmed the latter. In the trial that followed, the jury again found in favor of the plaintiffs and that determination was upheld on appeal; the second reviewing court noted that there was no suggestion that the evidence in the second trial was substantially different from that in the first trial.

In Teich, the evidence presented by the defendants really did meet the test. There, plaintiff had submitted an idea to defendant for a children's “premium” which defendant could put in its boxes of cereal. Plaintiff first approached defendant by mail on July 6, offering to disclose the idea. On July 20, he met with one of defendant's employees and presented the premium concept. Soon thereafter plaintiff wrote twice to this employee to tell him he had resolved a certain concern that the employee had had about the premium, but the employee never replied. In January of the next year, plaintiff saw that defendant had begun putting in its “Trix” cereals a premium quite similar to the idea presented to it by plaintiff. Thereafter, he sued for breach of contract. At trial, defendant presented evidence that the two persons responsible for conceiving and developing the Trix premium (Mr. Valentine and Mr. Radford) had first contacted defendant by mail on May 27, 1955 and disclosed their idea by mail on July 29, with subsequent letters being written between defendant and them. Plaintiff admitted the genuiness of those letters, both as to date and as to writers and addressees. Additionally, there was evidence showing Valentine and Radford had written to third parties, several weeks before plaintiff initially wrote to defendant, seeking to secure products with which to mass produce their premium.

Here, although defendants have presented evidence that AFHV was created without input from plaintiff's treatment, we do not find this evidence to meet the test set out in Teich. For example, defendants' assertions of there being no seepage from Minson's knowledge of plaintiff's ideas to the end product of AFHV is weakened by the contacts between Minson and DiBona, some of them beginning soon after Wolper had pitched People Productions to Minson, and by DiBona's letter in which he states that Minson would be pitching his American Chan show to ABC's president.

It is for the jury to determine whether plaintiff's work has been taken from him without compensation. “Proof of substantial similarities gives rise to an inference of both access and copying. [Citations.] The weight to be given the inference as against direct evidence of nonaccess and noncopying is a question for the trier of fact. (Kovacs v. Mutual Broadcasting System, supra, 99 Cal.App.2d at p. 65.) Here, there is strong proof of both access and similarities. For purposes of the summary judgment motion, the inferences to be drawn in plaintiff's favor from the circumstantial evidence in the record require a reversal of the summary judgment on the question of whether there was a breach of the implied promise to pay for People Productions if it was used.

Additionally, even if such evidence did not exist now, the trial court should have permitted plaintiff to conduct the discovery he had scheduled and depose the persons submitting declarations on behalf of defendants. (Code Civ. Proc., § 437c, subd. (h).) Since direct evidence of copying is rarely going to be obtained by a plaintiff, he should be given leeway to gather circumstantial evidence from the persons who claim to have exculpatory information for the defendant.

b. Minson's Personal Liability

Defendants contend the cause of action for breach of confidence fails because the treatment (1) was not submitted to Minson in confidence, (2) was not used by Minson, (3) was not discussed by Minson with anyone but Wolper, and (4) did not contain “novel” ideas.

Regarding the first “problem,” we note the following. “Implicit in [Wolper's submission of the treatment to Minson] is the obligation to guard the idea so submitted from disclosure to third persons by any act or omission on the part of the corporation, its officers or employees. [Citation.] A violation of that duty would constitute a breach of confidence. [Citations.] There would obviously be such a breach on the part of any officer of the corporation who made use of the idea for his own personal purposes or gain.” (Davies v. Krasna (1966) 245 Cal.App.2d 535, 549-550, emphasis added.)

As for the assertion that the treatment was not used by Minson or even disclosed by her, the record contains evidence which raises a triable issue of material fact on those issues. There is evidence she had contacts with DiBona just after she received the treatment. There is evidence that not long thereafter, he showed up at ABC pitching AFHV. Additionally, there is evidence that Minson was put in charge of the weekly series of AFHV; arguably, there is an inference to be drawn that she had an incentive to make use of People Productions-her own personal gain.

Defendants assert there can be no cause of action for breach of confidence unless the idea submitted in confidence to the defendant is novel. They cite Fink v. Goodson-Todman Enterprises, Ltd. (1970) 9 Cal.App.3d 996, 1009. However, the court's pronouncement in Fink was tentative: “The right of plaintiff's work to protection by reason of sufficient novelty and elaboration of the accessible idea is a prequisite [sic], of course, in the common law copyright count and also, we feel, in the unjust enrichment-breach of confidence count.” (Also see the court's discussion at p. 1010, fn. 18.) Additionally, no such requirement of novel ideas is set out by the Supreme Court in Davies v. Krasna, supra, 14 Cal.3d 502, 508.)

c. The Cause of Action for Fraud

Defendants argue that there can be no cause of action for fraud because plaintiff conceded in his deposition that Minson made no promises to Wolper, other than to read the treatment he had brought to her. However, the representation on which plaintiff rests his fraud cause of action is the same as the one on which his breach of implied-in-fact contract rests. The representation, common in the entertainment industry and common to Wolper's past dealings with ABC, was that if ABC used a treatment presented to it, it would pay for that use. As stated above in our discussion of plaintiff's standing to sue for fraud, given the presence of plaintiff's, Wolper's and Warner Brothers' names on the treatment, a triable issue is raised regarding whether Minson intended her implied representation to Wolper to be communicated to plaintiff and to Warner Brothers.

d. The Cause of Action for Intentional Interference with Contractual Relations

As noted earlier, defendants take the position that there can be no cause of action against DiBona and Waku for interference with contractual relations because there was no contract between plaintiff and ABC with which DiBona and Waku could interfere. We have disposed of this argument in our discussion of the standing issue. There is evidence to raise a triable issue of material fact as to whether an implied-in-fact contract was created when Wolper pitched the People Productions concept to Minson.

Additionally, given the evidence of the various contacts between Minson and DiBona which came in between the time Minson met with Wolper and DiBona's AFHV concept was accepted by ABC, and given DiBona's letter saying Minson was going to go to bat for him, a reasonable inference is raised that DiBona, through Minson, knew about the submission of the People Productions treatment and possibly even had access to it. Given the financial incentive which DiBona would have to have ABC's home video program be attributed to himself rather than to plaintiff, an inference can be made that DiBona intended to interfere with plaintiff's position vis-a-vis ABC, notwithstanding DiBona's pronouncements that he knew nothing of People Productions.

Additionally, the judgment in favor of Waku has to be reversed since Waku never moved for summary judgment.

DISPOSITION

The summary judgment appealed from is reversed and the cause is remanded to the trial court for further proceedings. Costs on appeal to plaintiff.

NOT TO BE PUBLISHED

CROSKEY, J.

We concur: KLEIN, P.J., and KITCHING, J.

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