Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 1 of 20 Page ID #:719

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:
None Present

Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER RE DEFENDANTS’ MOTIONS TO
DISMISS AND STRIKE [20] [21]
Before the Court are Defendants’ Motion to Dismiss Claims 1-10 of the First
Amended Complaint (“Motion to Dismiss”) and Motion to Strike Claims 1 through 8
of the First Amended Complaint (“Motion to Strike”), both filed on February 10, 2016.
(Docket Nos. 20, 21). Plaintiff submitted Oppositions to both Motions on February 29,
2016, and Defendants’ Replies followed on March 16, 2016. (Docket Nos. 26, 27, 28,
29). The Court reviewed and considered the parties’ submissions, and held a hearing
on March 28, 2016.
The Motion to Dismiss is GRANTED in part and DENIED in part:
 The Motion is DENIED insofar as it seeks to dismiss Plaintiff’s claims
that do not specify each Defendant’s role in producing the motion picture
“Straight Outta Compton” (the “Film”). Such specificity is unnecessary at
this stage of the proceedings because it is at least plausible that each
Defendant was responsible for creating the Film’s content.
 The Motion is GRANTED with leave to amend as to Plaintiff’s first
claim for relief. To state a plausible claim for defamation in these
circumstances, Plaintiff must identify the exact statements made in the
Film that he believes are defamatory as well as plead that Defendants
made those statements with actual malice.
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 2 of 20 Page ID #:720

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

 The Motion is GRANTED without leave to amend as to Plaintiff’s
second and third claims for relief because those claims duplicate the
defamation claim.
 The Motion is GRANTED without leave to amend as to Plaintiff’s fourth
claim for relief. This misappropriation of likeness claim is barred by the
First Amendment because the Film concerns matters of public interest.
 The Motion is GRANTED with leave to amend as to Plaintiff’s seventh
and eighth claims for relief. These claims for breach of the nondisparaging clause of a settlement agreement reached in an unrelated
action are deficient because Plaintiff does not identify the precise
disparaging statements made in the Film.
 The Motion is GRANTED with leave to amend as to Plaintiff’s ninth and
tenth claims for relief because the alleged oral contract between Plaintiff
and Defendants regarding the ownership of certain screenplays is void
under the Copyright Act.
The Motion to Strike is DENIED in part as moot and GRANTED in part. The
Court will rule on a renewed Motion to Strike against the Second Amended Complaint,
in which Plaintiff will make allegations about the specific defamatory statements and
actual malice. However, because Plaintiff has patently failed to make a sufficient
showing with respect to his claims for interference with a prospective economic
advantage, his fifth and sixth claims for relief must be dismissed.
I.

BACKGROUND

The First Amended Complaint (“FAC”) makes the following allegations, which
the Court must accept as true for the purposes of ruling on the Motion to Dismiss:
Plaintiff is a highly successful business professional in the music industry. (FAC
¶ 22 (Docket No. 18)). In 1986, Plaintiff met Defendants Eric Wright (p.k.a. “Eazy
E”), Andre Young (p.k.a. “Dr. Dre”), and O’Shea Jackson (p.k.a. “Ice Cube”), who
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 3 of 20 Page ID #:721

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

subsequently formed a popular musical group known as N.W.A. (Id. ¶¶ 23-24). In
early 1987, Defendant Eazy E founded an independent record company called Ruthless
Records (“Ruthless”), and hired Plaintiff as the manager. (Id. ¶ 23). Ruthless then
entered into an exclusive recording contract with the members of N.W.A. (Id. ¶ 24).
Under Plaintiff’s management, N.W.A rose to stardom, generating many millions of
dollars in revenue to this day. (Id. ¶ 26).
In 2001, Plaintiff entered into an oral agreement with Defendants S. Leigh
Savidge, Alan Wenkus, and Xenon Pictures to collaborate on a screenplay relating the
story of Ruthless and N.W.A. (Id. ¶ 27). These Defendants created four draft
screenplays, entitled “Straight Outta Compton,” to which Plaintiff retained all rights.
(Id. ¶ 28). Defendants Savidge, Wenkus, and Xenon agreed to be compensated with a
portion of proceeds made from any film based on those screenplays. (Id ¶ 28). In
2006, Plaintiff also published a book, titled “Ruthless. A Memoir,” with similar
content as the screenplays. (Id. ¶¶ 29-30).
In August 2015, the Film was released throughout the world. (Id. ¶ 31).
Although the Film is based on Plaintiff’s screenplays and book, Plaintiff was never
compensated or even asked whether his name and likeness could be utilized. (Id. ¶¶
32, 34). To make matters worse, the Film is “littered with false statements that harm
the reputation of Plaintiff and aim to ridicule and lower him in the opinion of the
community.” (Id. ¶ 35). Such statements are not only defamatory, Plaintiff claims, but
they also constitute a breach of a settlement agreement reached in an unrelated action
between Plaintiff and Defendants Tomica Woods-Wright (Eazy E’s widow) and
Comptown Records. (Id. ¶ 37).
According to Plaintiff, the Film contains the following defamatory content:
 Plaintiff is the “bad guy” who is solely responsible for the demise of
N.W.A.;
 Plaintiff is a sleazy manager who took advantage of Defendants Eazy E,
Dr. Dre, and Ice Cube by stealing their money;
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 4 of 20 Page ID #:722

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

 Plaintiff steered Defendants Dr. Dre and Ice Cube away from hiring an
attorney to review their agreements with Ruthless;
 Plaintiff intentionally withheld a $75,000 check that rightfully belonged to
Defendant Ice Cube;
 Plaintiff induced Defendant Dr. Dre to sign an unfavorable contract;
 Plaintiff made sure he was paid more than his fair share to the detriment
of N.W.A.;
 Plaintiff paid himself before paying numerous bills and expenses of
N.W.A.;
 Plaintiff abandoned Defendant Dr. Dre and another member of N.W.A.
after a car accident, but Suge Knight stepped in to take care of them;
 Plaintiff intentionally kept the members of N.W.A. in the dark regarding
the group’s finances;
 Plaintiff was enjoying “lobster brunches” while Defendants Dr. Dre and
Ice Cube were eating “Fatburger”;
 Defendant Dr. Dre accused Plaintiff of stealing money and stated that
Defendant Ice Cube was “right” about Plaintiff;
 Defendant Ice Cube stated in an interview at his home that the Jewish
Defense League should not condone Plaintiff’s behavior;
 Defendant Woods-Wright told Defendant Eazy E that Plaintiff took
advantage of him, leaving him with 2-3 years of unpaid bills;
 Defendant Eazy E fired Plaintiff after accusing him of illegal activity.
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 5 of 20 Page ID #:723

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

(Id. ¶ 36).
The FAC asserts eleven claims for relief against fifteen Defendants, most of
whom are alleged to be “credited producers” of the Film. (Id. ¶¶ 41-124). Only one
claim—that for copyright infringement—is brought under federal law. (Id. ¶¶ 118-24).
The remaining state-law claims are as follows: (1) defamation; (2) trade libel; (3) false
light; (4) misappropriation of likeness; (5) intentional interference with a prospective
economic advantage; (6) negligent interference with a prospective economic
advantage; (7) breach of settlement agreement; (8) breach of implied covenant of good
faith and fair dealing (settlement agreement); (9) breach of oral contract; (10) breach of
implied covenant of good faith and fair dealing (oral contract). (Id. ¶¶ 41-117).
Defendants seek to dismiss these state law claims under Rule 12(b)(6) and
California Code of Civil Procedure section 425.16, better known as the anti-SLAPP
statute. The Court analyzes the merits of Defendants’ Motions in turn, beginning with
the Motion to Dismiss.
II.

MOTION TO DISMISS

In ruling on a motion under Federal Rule of Civil Procedure 12(b)(6), the Court
follows Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (citation omitted). “All allegations of material fact in the
complaint are taken as true and construed in the light most favorable to the plaintiff.”
Williams v. Gerber Prods. Co., 552 F.3d 934, 937 (9th Cir. 2008) (holding that a
plaintiff had plausibly stated that a label referring to a product containing no fruit juice
as “fruit juice snacks” may be misleading to a reasonable consumer). The Court need
not accept as true, however, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements . . . .” Iqbal, 556 U.S. at 678. The Court,
based on judicial experience and common-sense, must determine whether a complaint
plausibly states a claim for relief. Id. at 679.
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 6 of 20 Page ID #:724

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.
A.

Date: March 30, 2016

Group Pleading

Defendants challenge Plaintiff’s first six claims for relief on the ground of
improper “group pleading.” (Motion to Dismiss at 6). Those claims, Defendants
argue, lump twelve of the fifteen Defendants together without specifying their
individual roles in the production of the Film. (Id.). Such lumping, in Defendants’
view, violates the notice and plausibility requirements of Rule 8 by making it
impossible to tell which Defendant did what in creating the Film’s allegedly
defamatory content. (Id.).
The Court is not convinced. Plaintiff alleges that each of the twelve Defendants
“was responsible for the publication of the false, unprivileged statements in the Film.”
(See, e.g., id. ¶ 42). Defendants cannot reasonably contend that these allegations leave
them in the dark as to the conduct at issue in this action. It is not necessary for
Plaintiff to allege precisely how the Film was produced, and in what way each
producer contributed to the defamatory statements, in order for Defendants to
formulate appropriate defenses and conduct meaningful discovery. Any reasonable
reader of the FAC would understand that Plaintiff accuses each Defendant of
publishing false, defamatory statements against him. No more is required to provide
notice under Rule 8.
Nor is the Court persuaded that Plaintiff’s group allegations are implausible.
Defendants named in the first six claims for relief are alleged to have participated in
“creating, writing, directing, producing, editing and/or distributing” the Film in their
roles as “credited producers.” (Id. ¶¶ 1, 5-6, 8-10, 12-19). While it is doubtful that all
credited producers exercised control over the challenged aspects of the Film, the
allegations of wrongful conduct are certainly plausible with respect to any given
producer chosen at random. Contrary to Defendants’ argument at the hearing, nothing
in the FAC makes it implausible that Defendant Legendary Pictures, for example,
contributed to the content of the Film. If a particular Defendant had nothing to do with
the allegedly defamatory statements, he or she or it may bring a prompt motion for
summary judgment. Dismissal at this stage, however, is improper.
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 7 of 20 Page ID #:725

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

That the Ninth Circuit has used a heightened pleading standard in cases
implicating First Amendment rights does not detract from the Court’s conclusion. See
Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir. 2002) (“The First Amendment is
not irrelevant at the pleading stage. We have held that ‘where a plaintiff seeks
damages . . . for conduct which is prima facie protected by the First Amendment, the
danger that the mere pendency of the action will chill the exercise of First Amendment
rights requires more specific allegations than would otherwise be required.’”) (quoting
Franchise Realty Interstate Corp. v. S.F. Local Joint Executive Bd. of Culinary
Workers, 542 F.2d 1076, 1082–83 (9th Cir. 1976)). As the Court indicated at the
hearing, it is simply not possible for Plaintiff to be more specific about the role each
Defendant played in producing the Film without discovery. Indeed, if the FAC’s
allegations were deemed insufficient, any defamation claims against multiple
producers of patently defamatory films would have little chance of surviving a motion
to dismiss. A pleading burden generating such a result is neither wise nor imposed by
current law. All that is necessary for this action to move to discovery is for it to be
plausible that each Defendant engaged in wrongful conduct. That requirement is met
here.
The district court decisions Defendants cite to the contrary are unpersuasive, let
alone binding. In Harris v. Dillman, for example, the district court dismissed a
defamation claim pleaded against all four defendants, who allegedly “accused [the
plaintiff] of having committed crimes, both misdemeanors and felonies, molested
female students, padded school attendance figures, embezzled school property and
[committed] other offenses.” No. 2:08-CV-98-GEB-CMK, 2008 WL 2383939, at *5
(E.D. Cal. June 6, 2008). No plausible allegations, however, indicated that each of the
four defendants disseminated each of the statements at issue. Id. Here, on the other
hand, it is plausible that each Defendant contributed to the creation and production of
the challenged content of the Film. As discussed at the hearing, this crucial distinction
renders Defendants’ authority inapposite.
Accordingly, the Motion to Dismiss is DENIED insofar as it seeks dismissal of
the first six claims for relief on the ground of improper “group pleading.”
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 8 of 20 Page ID #:726

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.
B.

Date: March 30, 2016

Lack of Specific Defamatory Statements and Actual Malice
1.

Allegations of Specific Defamatory Statements

Plaintiff’s defamation claim is grounded in allegations of false statements made
in the Film. Consistent with the Ninth Circuit’s heightened pleading requirements in
cases implicating First Amendment rights, “[t]he words constituting libel or slander
must be specifically identified, if not pled verbatim.” See Silicon Knights, Inc. v.
Crystal Dynamics, Inc., 983 F. Supp. 1303, 1314 (N.D. Cal. 1997) (internal quotation
marks and citations omitted); Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198,
1216 (C.D. Cal. 2004) (“[T]he defamatory statement must be specifically identified,
and the plaintiff must plead the substance of the statement.”); Kechara House Buddhist
Ass'n Malaysia v. Does, No. 15-CV-00332-DMR, 2015 WL 5538999, at *5 (N.D. Cal.
Sept. 18, 2015) (“[The] complaint sets forth the statements made on the blogs in
unspecific, general terms. . . .These allegations are insufficient as a matter of law, since
they are so general that the court can only speculate about the actual words that
constitute the alleged defamatory statements.”). This obligation ensures that a plaintiff
would not base the complaint on his own subjective interpretation of the purportedly
defamatory statements when an objectively reasonable interpretation would result in
dismissal. See Thomas v. Los Angeles Times Commc'ns, LLC, 189 F. Supp. 2d 1005,
1013 (C.D. Cal. 2002) (stating that the plaintiff “must show that the words [Defendant]
wrote were reasonably capable of sustaining the alleged defamatory meaning”)
(alterations and internal quotation marks omitted).
Plaintiff’s allegations are deficient in this respect. Most of the “false statements”
listed in the FAC constitute Plaintiff’s own interpretations of various scenes depicted
in the Film. As Defendants correctly point out, Plaintiff must recite the challenged
statements or actions of the Film’s characters and then explain in what way those
statements or actions are defamatory. Only then will the Court be able to evaluate the
plausibility of the implications Plaintiff draws from the Film.

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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 9 of 20 Page ID #:727

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

Plaintiff does not challenge this conclusion in the Opposition, stating only that
his defamation claims concern misstatements of facts. But before the Court can
determine whether Plaintiff’s interpretation of the Film is plausible, Plaintiff must
recite the scenes and dialogue that he believes create false and defamatory
implications. The Court views this defect as easily curable through amendment.
2.

Allegations of Actual Malice

Plaintiff’s defamation and related injurious falsehood claims—however labeled
and under whatever legal theory asserted—must comport with the First Amendment.
See Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir. 1990) (holding that claims
sufficiently similar to defamation, such as those for tortious interference with business
relationships and product disparagement, “are subject to the same first amendment
requirements that govern actions for defamation”). Under the First Amendment, a
“public figure” asserting a defamation claim must allege that the defendant made
defamatory statements with “actual malice.” See Makaeff v. Trump Univ., LLC, 715
F.3d 254, 265 (9th Cir. 2013) (“[If] Trump University is a public figure under New
York Times Co. v. Sullivan[, it] must demonstrate by clear and convincing evidence
that Makaeff made her allegedly defamatory statements with ‘actual malice’”). One
type of “public figure” subject to the actual malice requirement is a “limited purpose
public figure,” who becomes involved at “‘the forefront of particular public
controversies in order to influence the resolution of the issues involved.’” Id. (quoting
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)). To determine whether a
plaintiff is a limited purpose public figure, courts consider whether “(i) a public
controversy existed when the statements were made, (ii) whether the alleged
defamation is related to the plaintiff's participation in the controversy, and (iii) whether
the plaintiff voluntarily injected itself into the controversy for the purpose of
influencing the controversy’s ultimate resolution.” Id. at 266.
Defendants argue that all three of these factors point to the conclusion that
Plaintiff is a limited purpose public figure. The Court agrees. Plaintiff’s own
allegations show that his relationship with N.W.A. was the subject of great public
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 10 of 20 Page ID #:728

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

interest that prompted him to write a book recounting his side of the story. (FAC ¶¶
22-40). The very fact that the members of N.W.A. chose to cast their relationship with
Plaintiff in starkly different light shows the existence of a controversy that captured the
attention of millions of people throughout the world. By publishing a book on the
topic, Plaintiff injected himself into the public arena in an attempt to convince the
readers that his version of events is correct. See Live Oak Publ'g Co. v. Cohagan, 234
Cal. App. 3d 1277, 1289, 286 Cal. Rptr. 198 (1991) (“Generally, authors are
considered to have participated sufficiently in public controversies or otherwise
involved themselves in matters of public concern as to be public figures.”) (citations
and internal quotation marks omitted). Seeing that the alleged defamation relates
directly to Plaintiff’s central role in this controversy, the Court has no difficulty
concluding that he is a limited purpose public figure subject to the actual malice
requirement.
As to actual malice, Plaintiff must plead that Defendants created the Film’s
allegedly defamatory content with knowledge of its falsity or reckless disregard of the
truth. Makaeff, 715 F.3d at 265 (“Because Trump University is a limited purpose
public figure, to prevail on its defamation claim it must establish that Makaeff made
her statements with ‘actual malice,’ i.e., knowledge of their falsity or reckless
disregard of their truth.”). Plaintiff does not dispute that the FAC fails to make
allegations of actual malice but instead argues that he could cure that deficiency in the
Second Amended Complaint. (Opposition to Motion to Dismiss at 11-13). The Court
will provide Plaintiff an opportunity to do so. See Reader's Digest Assn. v. Superior
Court, 37 Cal. 3d 244, 257, 208 Cal. Rptr. 137 (1984) (“[A]ctual malice can be proved
by circumstantial evidence.”).
Accordingly, the Motion to Dismiss is GRANTED with leave to amend as to
Plaintiff’s first claim for relief.

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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 11 of 20 Page ID #:729

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.
C.

Date: March 30, 2016

Duplicative Claims

Defendants argue that the second, third, and fifth through eighth claims for relief
should be dismissed because they are duplicative of Plaintiff’s defamation claim.
(Motion to Dismiss at 14). The Court agrees as to Plaintiff’s claims for trade libel and
false light. These claims are asserted against the same Defendants, are based on the
same allegations, and implicate the same evidence as Plaintiff’s defamation claim. See
Sarver v. Hurt Locker LLC, No. 2:10-CV-09034-JHN, 2011 WL 11574477, at *10
(C.D. Cal. Oct. 13, 2011) (“Plaintiff's false light claim and his defamation claims are
redundant because they are based on the same publication or utterance.”); Brooks v.
Physicians Clinical Lab., Inc., No. CIV. S-99-2155WBSDAD, 2000 WL 336546, at *4
(E.D. Cal. Mar. 20, 2000) (“Plaintiff's false light claim is duplicative of his libel claim
and should, accordingly, be dismissed.”); Smith v. Santa Rosa Democrat, No. C 1102411 SI, 2011 WL 5006463, at *6 (N.D. Cal. Oct. 20, 2011) (“The other claims
plaintiff attempts to raise—false light, intrusion on solitude, public disclosure of
private facts and civil conspiracy—rest on the same facts as her defamation claim. As
such, they are all duplicative and must be dismissed as well.”).
But the Court cannot agree that Plaintiff’s claims for breach of settlement
agreement and interference with a prospective economic advantage are equally
redundant. These claims consist of different elements, are based on different
allegations, and implicate different types of evidence than the defamation claim.
Accordingly, the Motion to Dismiss is GRANTED without leave to amend as
to Plaintiff’s second and third claims for relief. The Motion to Dismiss is DENIED as
to Plaintiff’s fifth through eighth claims for relief, but only insofar as it argues that
those claims are duplicative of the defamation claim.
D.

Misappropriation of Likeness

Plaintiff brings a “misappropriation of likeness” claim based on the Film’s
depiction of him without his permission. As all recognize, however, “no cause of
action will lie for the publication of matters in the public interest.” Montana v. San
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 12 of 20 Page ID #:730

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

Jose Mercury News, Inc., 34 Cal. App. 4th 790, 793, 40 Cal. Rptr. 2d 639 (1995)
(affirming dismissal of misappropriation of likeness claims under the “public interest”
exception). The “public interest” defense to misappropriation of likeness claims is
rooted in the First Amendment, which permits film producers to depict matters in the
public arena without fear of liability. See Dora v. Frontline Video, Inc., 15 Cal. App.
4th 536, 542, 18 Cal. Rptr. 2d 790 (1993) (“Public interest in the subject matter of [a
documentary film chronicling events and public personalities in the early days of
surfing] gives rise to a constitutional protection against liability.”); Daly v. Viacom,
Inc., 238 F. Supp. 2d 1118, 1122 (N.D. Cal. 2002) (dismissing misappropriation of
likeness claims because “a defense under the First Amendment is provided where the
publication or dissemination of matters is “in the public interest”)
As already discussed, the subject matter of the Film involves matters of public
interest. The Film concerns a public controversy over Plaintiff’s tumultuous
relationship with the “hugely successful” N.W.A. (FAC ¶¶ 22-30). Because there is
little doubt that N.W.A. has had an immense influence on popular culture both
domestically and internationally, the role Plaintiff played in N.W.A.’s rise to stardom
is certainly a matter of public interest. The First Amendment, therefore, insulates
Defendants of any liability for misappropriation of likeness.
Accordingly, the Motion to Dismiss is GRANTED without leave to amend as
to Plaintiff’s fourth claim for relief.
E.

Claims for Breach of Settlement Agreement

Plaintiff alleges that Defendants Woods-Wright and Comptown records made
“tortious statements” that violated the non-disparagement clause in a settlement
agreement they reached with Plaintiff in an unrelated action. (FAC ¶ 94). The nondisparagement clause prohibits these parties from making “any statements, directly or
indirectly in writing, orally, or in any other form, which disparage in any way the
other.” (Id.). As is the case with Plaintiff’s defamation claim, these claims must be
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 13 of 20 Page ID #:731

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

dismissed because they fail to identify the “statements” Plaintiff interprets to be
disparaging or defamatory.
Defendants also contend that the term “disparaging” is unenforceable to its
ambiguity, and that the non-disparagement clause was not intended to prohibit First
Amendment activity such as film production. (Motion to Dismiss at 21). These
arguments, however, are not properly addressed on a motion to dismiss because they
will likely implicate extrinsic evidence bearing on the proper interpretation of the
settlement agreement.
Accordingly, the Motion to Dismiss is GRANTED with leave to amend as to
Plaintiff’s seventh and eight claims for relief insofar as it argues that Plaintiff has not
identified specific disparaging statements.
F.

Claims for Breach of Oral Contract

Plaintiff claims that Defendants Savidge, Wenkus, and Xenon breached an oral
agreement with Plaintiff by selling the screenplays he allegedly owns to a third-party.
(FAC ¶ 110).
Defendants argue that the alleged oral agreement is unenforceable under the
Copyright Act. “As a general rule, the author is the party who actually creates the
work, that is, the person who translates an idea into a fixed, tangible expression entitled
to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737
(1989) (citing 17 U.S.C. § 102). The only exception is work made for hire, in which
case the copyright vests in “‘the employer or other person for whom the work is
prepared,’ unless there is a written agreement to the contrary.” Id. (quoting 17 U.S.C.
§ 201(b)). A “work made for hire” is “‘(1) a work prepared by an employee within the
scope of his or her employment; or (2) a work specially ordered or commissioned for
use as a contribution to a collective work, . . . if the parties [so] expressly agree in a
written instrument . . . .’” Id. (quoting 17 U.S.C. § 101). In all other instances,
copyright ownership stays with the author unless it is transferred through a written
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 14 of 20 Page ID #:732

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

agreement. 17 U.S.C. § 204(a). The requirement that every transfer be effected
through a written instrument “not only bars copyright infringement actions but also
breach of contract claims based on oral agreements.” Valente-Kritzer Video v.
Pinckney, 881 F.2d 772, 774 (9th Cir. 1989).
There is no dispute that Plaintiff did not author the screenplays—Defendants
Savidge, Wenkus, and Xenon did. Because no allegations indicate that these
Defendants were Plaintiff’s employees, the alleged oral contract transferring all rights
to the screenplays to Plaintiff is void. Although the Court doubts that Plaintiff can cure
this deficiency, it will provide him an opportunity to do so.
The Motion to Dismiss is therefore GRANTED with leave to amend as to
Plaintiff’s ninth and tenth claims for relief.
G.

Doe Defendants

Finally, Defendants seek to dismiss Doe Defendants 11-100 because Local
Rules of this District permit the FAC to include no more than “ten (10) Doe or
fictitiously named parties.” Local Rule 19-1. Defendants’ request is GRANTED.
III.

MOTION TO STRIKE

Defendants seek to strike Plaintiff’s first through eighth claims for relief under
California’s anti-SLAPP statute, which is codified at Code of Civil Procedure section
425.16. The anti-SLAPP statute “was enacted to allow early dismissal of meritless
first amendment cases aimed at chilling expression through costly, time-consuming
litigation.” Metabolife Int’l v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001) (holding
that discovery provisions of section 425.16 do not apply in federal court).
The Court notes that the applicability of the anti-SLAPP statute in federal court
at all has recently been questioned. See Makaeff, 715 F.3d at 274 (Kozinski, C.J.,
concurring) (“Federal courts have no business applying exotic state procedural rules
which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules,
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 15 of 20 Page ID #:733

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

our jurisdictional statutes and Supreme Court interpretations thereof.”). Nonetheless,
under existing precedent, Defendants have the right to bring their Motion.
Anti-SLAPP motions are evaluated in two steps:
First, the movant must make a threshold showing that the act or acts giving rise
to the claim were in furtherance of the right of petition or free speech, or in connection
with a public issue. See, e.g., Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir.
2010) (applying California’s anti-SLAPP law to suit regarding greeting cards using a
public figure’s likeness).
If the movant is successful, the burden shifts to the nonmovant to show a
probability of prevailing on the challenged claim. Id. A nonmovant satisfies this
burden by making an evidentiary showing that the claim is legally sufficient. See
Navellier v. Sletten, 29 Cal. 4th 82, 88–89, 124 Cal. Rptr. 2d 530 (2002) (“[I]n order to
establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the
[nonmovant] need only have stated and substantiated a legally sufficient claim.”)
(citation and quotation omitted). “The anti-SLAPP statute requires only a minimum
level of legal sufficiency and triability.” Jarrow Formulas, Inc. v. LaMarche, 31 Cal.
4th 728, 738, 3 Cal. Rptr. 3d 636 (2003) (internal citations and quotation marks
omitted).
A.

Alleged Conduct Falls within the Scope of anti-SLAPP

The first substantive element of an anti-SLAPP Motion requires the movant to
establish that her conduct falls within the scope of the statute. In evaluating this
requirement, the anti-SLAPP statute is to be construed broadly. Cal. Code Civ. Proc.
§ 425.16(a) (“[T]his section shall be construed broadly”). “In the anti-SLAPP context,
the critical consideration is whether the cause of action is based on the defendant’s
protected free speech or petitioning activity” that is connected to a “public issue.”
Navellier, 29 Cal. 4th at 89. California courts have identified three types of “public
issues”: those involving (1) an individual who is “in the public eye”; (2) “conduct that
could affect a large number of people beyond the direct participants,”; and (3) “a topic
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 16 of 20 Page ID #:734

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

of widespread, public interest.” Rivero v. Am. Fed'n of State, Cty., & Mun. Employees,
AFL-CIO, 105 Cal. App. 4th 913, 924, 130 Cal. Rptr. 2d 81 (2003).
It cannot be reasonably disputed that Defendants’ conduct falls into at least the
first and third categories described in Rivero:
As the Court already discussed in connection with the Motion to Dismiss, there
is little doubt that Plaintiff is an individual “in the public eye.” Rivero, 105 Cal. App.
4th at 924. It bears repeating that Plaintiff was at the epicenter of the rise and fall of
N.W.A., a group so popular that Plaintiff’s memoir describes it as the “black Beatles.”
(Declaration of Vincent H. Chieffo (“Chieffo Decl.”), Ex. 2). It is perplexing that
Plaintiff would even attempt to argue that he was never in the “public’s eye,” given
that he wrote the memoir to tell the “truth” about his management of N.W.A. and to
respond to the public criticism he had received. (Id.).
Plaintiff’s role in N.W.A., moreover, is patently a topic of public interest. The
internal dynamics of the group, and the way in which Plaintiff influenced those
dynamics, are of immense significance to the public in light of the impact N.W.A. has
had on American popular culture. See Stewart v. Rolling Stone LLC, 181 Cal. App. 4th
664, 677, 105 Cal. Rptr. 3d 98 (2010) (holding that a five-page editorial about indie
rock concerned topics of public interest simply because it discussed “an extremely
popular genre of music [and included] commentary on the many bands whose musical
works have contributed to the development of the genre”); Sarver v. Chartier, 813 F.3d
891, 902 (9th Cir. 2016) (concluding that a film’s portrayal of the Iraq War implicated
matters of public concern). The relationship between Plaintiff and members of N.W.A.
also raises public issues concerning inter-racial and inter-generational relations
depicted in the Film. An older, white man with extensive experience in the music
business is contrasted with young, black men who feel underpaid, undervalued, and
exploited. Even Plaintiff’s memoir acknowledges that his relationship with N.W.A.
has been characterized as being “one of plantation master and field slave, oppressor
and oppressed, exploiter and victim.” (Chieffo Decl., Ex. 2). Those types of issues
permeate our society, including the entertainment sector, as shown by the recent
#OscarsSoWhite controversy, which itself arose in part because of the Film.
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

Accordingly, the Court concludes that Plaintiff’s public persona places his
claims within the scope of the anti-SLAPP statute.
B.

Likelihood of Success on the Merits

Under the second prong of the anti-SLAPP test, the burden shifts to Plaintiff to
show that the complaint is both legally sufficient and supported by an adequate prima
facie showing of facts. See Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 821,
123 Cal. Rptr. 2d 19 (2002) (discussing the second prong of the anti-SLAPP analysis).
“[T]hough the court does not weigh the credibility or comparative probative strength of
competing evidence, it should grant the motion if, as a matter of law, the defendant’s
evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary
support for the claim.” Id.; Cal. Code Civ. Proc. § 425.16(b)(2); See also Navellier, 29
Cal. 4th at 88–89 (“[I]n order to establish the requisite probability of prevailing under
(§ 425.16 (b)(1)), the [nonmovant] need only have stated and substantiated a legally
sufficient claim.”) (citation and internal quotation marks omitted); see also
Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 699, 61 Cal.
Rptr. 3d 29 (2007) (stating that the nonmovant’s burden in establishing a probability of
prevailing is not onerous); Gallagher v. Connell, 123 Cal. App. 4th 1260, 1275, 20 Cal.
Rptr. 3d 673 (2004) (holding that a nonmovant “need only make a minimal showing”
to withstand an anti-SLAPP motion).
1.

Defamation Claims

The issue is whether Plaintiff’s defamation and related injurious falsehood
claims carry a “minimum level of legal sufficiency.” Jarrow Formulas, Inc., 31 Cal.
4th at 738. If these claims were already sufficiently pleaded, then the Court might
deny the Motion. Contrary to Defendants’ suggestion, most of the implications
Plaintiff derives from the Film are grounded in fact, not opinion. It is true, of course,
that the Film is a docudrama and not a documentary. And as the Ninth Circuit has
explained,

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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 18 of 20 Page ID #:736

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

Docudramas, as their names suggests, often rely heavily upon dramatic
interpretations of events and dialogue filled with rhetorical flourishes in
order to capture and maintain the interest of their audience. We believe
that viewers in this case would be sufficiently familiar with this genre to
avoid assuming that all statements within them represent assertions of
verifiable facts. To the contrary, most of them are aware by now that parts
of such programs are more fiction than fact.
Partington v. Bugliosi, 56 F.3d 1147, 1155 (9th Cir. 1995). Indeed, when an “author
writing about a controversial occurrence fairly describes the general events involved
and offers his personal perspective about some of its ambiguities and disputed facts,
his statements should generally be protected by the First Amendment. Otherwise,
there would be no room for expressions of opinion by commentators.” Id.
But even permitting Defendants some breathing room as to the events portrayed
in the Film, the implications the Film seems to make could at least possibly support a
meritorious claim for defamation. Plaintiff testifies, for example, that in stark contrast
to the Film’s alleged implications:
 He did not steal money from Defendants Eazy E, Dr. Dre, and Ice Cube;
 He did not steer Defendants Dr. Dre and Ice Cube away from hiring an
attorney to review their contracts;
 He did not withhold a $75,000 check from Defendant Ice Cube;
 He did not induce Defendant Dr. Dre to sign an unfavorable contract;
 He did not overpay himself to the detriment of N.W.A.;
 He did not intentionally keep the members of N.W.A. in the dark
regarding finances;

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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 19 of 20 Page ID #:737

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

 He did not take advantage of Eazy E by leaving him with 2-3 years of
unpaid bills; and
 He was not fired from his position as the manager of Ruthless.
(Declaration of Gerald Heller ¶ 5 (Docket No. 26-1)).
There is no point in ruling on the Motion as to these claims in the absence of
allegations of specific defamatory statements and actual malice. The Court will
therefore rule on a renewed Motion directed at the Second Amended Complaint.
2.

Claims for Interference a With Prospective Economic
Advantage

To state a claim for intentional interference with a prospective economic
advantage, a plaintiff must satisfy the following elements:
(1) an economic relationship between the plaintiff and some third party,
with the probability of future economic benefit to the plaintiff; (2)
defendant's knowledge of the relationship; (3) the defendant's intentional
acts designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm to the plaintiff proximately caused by
the defendant's acts.
O'Connor v. Uber Techs., Inc., 58 F. Supp. 3d 989, 996 (N.D. Cal. 2014). The
elements are the same for negligent interference, except the plaintiff must also allege
that the defendant owed her a duty of care, and that the defendant was negligent, rather
than intentional, in its conduct. J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 805, 157 Cal.
Rptr. 407 (1979) (analyzing negligent interference claims).
Even assuming that the Film’s portrayal of Plaintiff negatively affected his
future job prospects, Plaintiff neither alleges nor presents any evidence showing that
(1) some specific relationship with a third-party was harmed due to the Film; (2)
Defendant knew of that unidentified relationship; (3) the relationship was actually
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CIVIL MINUTES—GENERAL
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 Case 2:15-cv-09631-MWF-KS Document 32 Filed 03/30/16 Page 20 of 20 Page ID #:738

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-15-09631-MWF-KS
Title:
Gerald E. Heller -v- NBCUniversal, Inc., et al.

Date: March 30, 2016

harmed. Plaintiff does not address any of Defendants’ arguments, in effect abandoning
his claims.
The Motion to Strike is therefore GRANTED as to Plaintiff’s fifth and sixth
claims for relief.
IV.

CONCLUSION

For the reasons stated above, the Motions are GRANTED in part and DENIED
in part. Plaintiff shall file a Second Amended Complaint on or before April 25, 2016.
Any amendments in the Second Amended Complaint will be for the sole purpose of
correcting the deficiencies identified in this Order. The addition of any new parties or
claims must be approved pursuant to Rules 15 and 16.
While there may be a Second Amended Complaint, there will be no Third. Any
future successful motion to dismiss will granted without leave to amend.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
20