Filed 2/10/23 Mosher v. Warner Bros. Pictures CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

 

MICHAEL D. MOSHER,

Plaintiff and Appellant,

 v.

WARNER BROS. PICTURES et 

al.,

Defendants and 

Respondents.

 B312661

 Los Angeles County

Super. Ct. No. 

20STCV11096

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Stephen I. Goorvitch, Judge. Affirmed.

 Michael D. Mosher, in pro.per.; Law Offices of Scott E. 

Schutzman and Scott E. Schutzman for Plaintiff and Appellant.

King & Spalding, Arwen R. Johnson and Laura Lively 

Babashoff for Defendants and Respondents.

____________________
2

Michael D. Mosher claims he wrote a novel he could not get 

published. He finished it sometime around 2001. Thereafter, 

Mosher asserts, he provided his manuscript to a relative—who is 

a well-known producer—and entered into an option agreement 

with her to make his novel into a movie. Mosher claims his story 

somehow got into the hands of several entities and an individual 

who turned it into a major movie, The Accountant (Warner Bros. 

Pictures 2016). These defendants are Warner Bros. Pictures, 

RatPac Dune Entertainment, LLC, Electric City Entertainment, 

Zero Gravity Management, and Bill Dubuque, among others. We 

refer to them collectively as Warner Brothers.

Mosher sued Warner Brothers in March 2020, claiming he 

was entitled to compensation for his contribution to the movie. 

He says he discovered the movie on a flight “[a]pproximately two 

years prior to the initial filing of this Complaint.” 

After the case made a quick trip to federal court, Mosher 

amended his complaint to assert a single cause of action for 

breach of implied contract. 

Warner Brothers demurred on two bases: (1) Mosher’s 

action was time-barred, and (2) he did not and could not state 

facts to satisfy several elements of his claim. The trial court 

sustained the demurrer without leave to amend on the first 

ground. 

We affirm. Our review is independent. (Cavey v. Tualla

(2021) 69 Cal.App.5th 310, 326 (Cavey).) 

Litigants can raise the statute of limitations by demurrer. 

(Cavey, supra, 69 Cal.App.5th at pp. 325–326; see also id. at 

p. 326 [demurrer appropriate where lawsuit’s untimeliness 

clearly and affirmatively appears on the complaint’s face or from 

matters judicially noticed].)
3

The statute of limitations for an implied contract claim is 

two years. (Code Civ. Proc., § 339, subd. (1); NBCUniversal 

Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1230 

(NBCUniversal).) Claims like Mosher’s accrue, at the latest, 

when the ideas are disclosed to the general public. (See id. at pp. 

1227, 1234 [as a matter of law, plaintiffs’ implied contract claim 

was complete “no later than the date of the initial broadcast” 

because that was when the marketability of plaintiffs’ ideas for a 

ghost-hunter television show “was destroyed due to its disclosure 

to the public”]; see also id. at pp. 1229, fn. 3 & 1231.) In other 

words, the release date starts the clock. At this point, the basis 

for the claim is open and apparent.

The release date for The Accountant in the United States 

was October 14, 2016. The trial court judicially noticed this fact, 

and Mosher does not dispute it. This is when the statute of 

limitations period began to run. It ran out two years later in 

October 2018. Mosher’s original complaint shows a filing date of 

March 20, 2020. His lawsuit is therefore time-barred. 

Mosher argues his suit is timely because the discovery rule 

tolled the statute of limitations. NBCUniversal forecloses his 

argument. As that case and others have explained, courts 

typically apply the discovery rule in tort actions; some have 

extended the rule to contract actions involving fraud, a fiduciary 

relationship, or a hidden breach or injury. (See NBCUniversal, 

supra, 225 Cal.App.4th at pp. 1233–1234 & fns. 5, 7; see also, , 

April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 828–

832.) This is not such a case. 

The nationwide release of The Accountant, plus Mosher’s 

failure to assert he was prevented from viewing the movie, 

renders the discovery rule inapplicable. (See NBCUniversal, 
4

supra, 225 Cal.App.4th at pp. 1227, 1234–1236 [discovery rule 

inapplicable where the challenged television show premiered on 

the Syfy channel more than two years before plaintiffs filed suit 

and plaintiffs did not assert they were prevented from viewing 

the program]; see also id. at p. 1234 [“the discovery rule does not 

operate to delay accrual of a cause of action ‘beyond the point at 

which their factual basis became accessible to plaintiff to the 

same degree as it was accessible to every other member of the 

public.’”], id. at p. 1235 [“public disclosure to even a limited 

audience is sufficient to preclude a plaintiff from arguing that the 

breach and injury were secretive and difficult to detect”].) 

NBCUniversal also explains why the date Mosher first saw 

The Accountant is irrelevant. (See NBCUniversal, supra, 225 

Cal.App.4th at pp. 1234–1235.) 

Mosher maintains NBCUniversal is distinguishable 

because that case ended at summary judgment, not demurrer. 

This is of no moment when the law forecloses Mosher’s claim on 

undisputed facts. Mosher tellingly does not specify how he would 

replead to cure the defect here. 

Mosher also argues a key fact distinguishes NBCUniversal

from this case: the plaintiffs there discovered facts relating to 

their claim before the show’s first broadcast, and he made no 

similar discovery here. This fact means the statute of limitations 

could have run earlier in NBCUniversal. (See NBCUniversal, 

supra, 225 Cal.App.4th at p. 1236, fn. 9.) It does not change the 

outcome here.

In light of our holding, we need not reach Mosher’s other 

arguments regarding the discovery rule’s elements. Nor do we 

address the parties’ arguments regarding the merits of Mosher’s 

cause of action. 
5

DISPOSITION

We affirm the judgment sustaining the demurrer without 

leave to amend and award costs to Warner Brothers.

WILEY, J.

We concur: 

GRIMES, Acting P. J. 

VIRAMONTES, J.