Filed 4/1/14 NBCUniversal Media v. Superior Court CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

NBCU NIVERSAL MEDIA , LLC et al.
,
Petitioners
,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent,

L ARRY MONTZ et al.,

Real Parties in Interest. B 2 50892
(Los Angeles County Super. Ct. No. BC 475995 )

ORIGINAL PROCEEDINGS in mandate. Ernest M. Hiroshige
, Judge. Petition granted

. Katten Muchin Rosenman
, Gail Migdal Title, Joel R. Weiner
, and Gloria C.
Franke for Petitioners

. No appearance for Respondent. Law Offices of Martin N. Buchanan, Martin N. Buchanan ; Girardi & Keese, and Graham B. LippSmith for Real Par ties in Interest

.2 INTRODUCTION Petitioners NBCUniversal Media, LLC, f ormally known as NBC Universal, Inc. and Universal Television Network seek a writ of mandate directing the superior court to vacate its order denying their motion for summary judgment a nd to enter an order granting the motion of summary judgment against r ea l parties in
interest Larry Montz and Daena Smoller (RPIs)

. For the reasons stated below, we will issue a peremptory writ of mandate

.

PROCEDURAL HISTORY
On December 29, 2011, RPI s fi led a com plaint for damages against petitioners in Los An g e les County Superior Court , alleging (1) breach of implied contract, and (2) breach of confidence. According to RPI s, from 1996 through 2001, they presented ideas and co ncepts for a television prog ram, entitled Ghost Expeditions : Haunted
, (referred to as “Concepts”) to petitioners
, “consistent with
well

- establish ed customs and practices of the enterta inment industry

. . . . ” RPI s’ idea was a reality television series where “ professional paranormal investigators ”
would lead a team that included “ normal people with regular jobs ” to investigate haunted houses throughout the country. After informing RPI s they were not interested
, petitioners then teamed up with another company to “misappropriate,

use and e xploit Plaintiffs’ Concepts by producing the hit series Ghost Hu n t ers without Plaintiffs’ permission

. . . and/or without compensating Plaintiffs

. . . . ” 1

RPI s alleged petitioners breached an implied contractual obligation not to

“ disclose, use and /or exploit the Concepts without Plaintiffs’ permission and/or

1 Respondents also sued Pilgrim Films & Television, Inc

. , Craig Piligian
, and Jason C onrad Hawes, who produced the Ghost Hunters show. The trial court granted summary adjudication as to these defendants, and respondents did not appeal that ruling

.3

without compensating Plaintiffs in the form of payments, credit and other
consideration

. . . . ” RPI s further alleged that a s a result of their conduct, a confidential relationship formed betw een petitioners and them, and that petitioners “breached the confidential relationship by, among other actions, teaming up with and using [another company ] to disclose, misappropriate, use and exploit Plaintiffs’ Concepts by disclosing Plaintiffs’ Concepts and producing the hit series
Ghost Hunters , repackaged as Defendants’ own projects without Plaintiffs’ permission and/or without compensating Plaintiffs

. . . . ” RPI s sought injunctive and other equitable relief, petitioners’ profits, and punitive damage s. Petitioners filed an answer, generally denying the allegations. They also
asserted 20 affirmative defenses, including th e defense that each of the causes of
action was barred by the applicable two

- year stat ute of limitations set forth in Code
of Civi l Procedure section 339

. 2 On December 13, 2012, petitioners filed a motion for summary judgment, asserting (1) that RPI s’ claims were time

- barred by the applicable two

- year statute of lim i ta t i ons , and (2) th at the undisputed evidence demo n s trated that Gh ost
Hunters was created independent o f petitioners’ Concepts. In their s eparate

s tatement of u ndisputed m aterial f acts in support of the motion for summary judgment, petitioners asserted

-- and RPI s did not dispute: (1) that petitioners approved the Ghos t Hunters show in April 2004; (2) that the show premiered on the Syfy cable channel on October 6, 2004; (3) that RPI s first filed a lawsuit based upon the purported misappropriation of their ideas more than two years later in federal court on November 8, 2 006 ; and (4) that after a se rie s o f court proceedings (including voluntary dismissal of their copyright i n f ringement claim), RPI s re

- filed
the remaining state law claims in superior court on December 29, 2011

.

2 All further statut ory citations are to the Code of Civil Procedure

.4

P etitioners also produced evidence that on J uly 22, 2004, Robyn Lattaker

Jo h nson , petitioner s’ director of development for alternative p rogramming at Syfy,

sent an e

- mail to Eric Mofford, RPI s’ producer, informing him about the Ghost
Hunters show. The e

- mail described the show as a “ docu soap about a group of plumbers

- by

- day/ghost

- hunters

- by

- night that set out on missions to disprove ghosts or paranormal activity.” Mof ford immediately forwarded the e

- mail to
Montz. In his de position, Montz admitted speaki n g with Mofford about the e

- mail : “I [] ask ed him if he had found out if this was our show that was stolen or not, and he replied by saying that Robyn says it’s not our show, that it’s a docu

- soap.” Montz stated that he did not know what a “docu

- soap” was; he asked Mofford, but

was not enlightened

. Montz also admitted that at that time it seemed possible that
the show Ghost Hunter s was an improper use of his idea for a television s how.
Montz and Mofford continued to discuss Ghost Hunters on two su bsequent occasions, and at one point, Mofford told Montz that “ he had pitched the s h ow directly to [petitioners], as well as others

. . . , and it looked like our show had been lifted from us.” Petitioners argued that the statute of limitations on RPIs’ claims began to run, at the latest, when the Ghost Hunters series premiered on the Syfy channel on
October 6, 2004 (more than two years before RPIs filed suit), and that RPIs were on inquiry notice months before that date.
RPI s opposed the motion for summary judgment, arguing that their claims

were not precluded by the statute of limitations, and that there were triable issues
of material fact regarding petitioners’ independent creation defense. As to the statute of limitations, RPI s contended that they were entitled to delayed accrual of
their claims u nder discovery rule , as they did not discover their claims until sometime in 2005, when Smoller saw “an episode of the show

. . . upon which she5

realized that Ghost Hunters was not a fictional show.” They noted that Montz could not recall the exact date “ he was made aware of Defendants’ Ghost Hunters series when [ sic ] he believed Plaintiffs’ concepts [ were ] being used improperly.” RPIs further asserted that they were not put on inquiry notice by the July 22, 2004

e

- mail from Lattaker

- Johnson , as they did not know the meaning of the term “docu

- soap. ” In support of their opposition
, RPI s produced transcript excerpts from the depositions of Montz and Smoller. Montz testified that he “believe[d]” he saw two episodes of Ghost Hunters after the lawsuit was fi led. Before the lawsuit was filed, he saw “segments” while he was “changing channels, [when he] stopped on that show for like a minute and a half, and that was it.” Montz stated he did not watch more because he was not interested in seeing a show “sto len from me” that “duplicated our treatment.” He knew the show had copied his idea from “reading the review or a few of their shows on the Internet and in watching the promos and a few segments.” Smoller testified that after she first saw an episode of Ghos t
Hunters in 2005, she discussed the show with Montz. The substance of their
discussion was that the show “apparently

. . . wasn’t a soap opera, and it wasn’t portrayed as something fictional, and it seemed shockingly similar to what we had been pitching. ”
P etitioners ’ reply argued that RPI s had filed their claims more than a month
after the stat ute of limitations had expired. Petitioners asserted that RPI s were not entitle d to delayed accrual under the discovery rule. T hey contended that delayed
disco very was inapplicable because the offending work

-- Ghost Hunters

-- had
been pu blicly televised. Moreover, even if the discovery rule applied, RPI s were on inquiry not ice before the show premiered on Syfy

.6

In a tentative ruling, the trial court found t hat RPI s had met their burden to show a triable issue of fact as to whether they should have suspected a factual basis for their claims prior to November 8, 2004. The court noted that RPI s had
submitted evidence : (1) that they were informed in July 2004 that Ghost Hunters

w as a “docu soap,” but that they did not know the meaning of the term “docu soap”; (2) that Montz could not recall that date he was made aware that RPI s’ Concepts were being used improperl y; and (3) that Smoller did not see an episode
of the show until 2005. On July 31, 2013, the trial court denied petitioners’ motion for summary judgment. Regarding the statute of limitations , the court ruled: “In this case, Plaintiffs originally filed their action on November 8, 2006, only a month a fter the two

- year statute of limitations would have expired based on the public release date of October 6, 2004. As discussed in the tentative ruling and in Plaintiffs’ papers, there is evidence to explain that one

- month delay that must be considered by t he trier of fact. The cases cited by Defendants generally involved public release of a movie in theaters, which would draw more attention than
release of a television series on a cable television network. Those cases also generally involved much longer d elays in filing suit after public release of the defendant’s work.”
On August 27, 2013, petitioners filed a verified petition for writ of mandate, seeking a peremptory writ of mandate directing the superior court to set aside and vacate its order denying petitioner’s motion for summary judgment and enter a new order granting the motion in its entirety. On November 21, 2013, this court issued a request for a preliminary response from RPI s and a reply from petitioners
, on the sole issue of the statute of l im i t ations

. After consider ing the preliminary response and reply, o n January 24, 2014, this court issued an alter native writ of7

mandate directing the superi o r court either to grant the relief requested by petitioners or to show cause why it should not be ordered to do so. 3 On February 13, 2014, RPIs filed a return to the alternative writ. RPIs attempted to distinguish the cases cited in this court’s alternative writ and contended that the holdings in Shively and Hebrew Academy addressing the discovery r ule were limited to claims governed by the Uniform Single Publication Act (USPA); as RPIs’ claims were not governed by the USPA, they contended the holdings in those cases did not control. Alternatively, RPIs argued that even if the USPA applied, it would bar only those claims based on episodes of Ghost Hunters broadcast more than two years before the lawsuit was filed. Finally, RPIs contended that under “continuing

- wrong principles,” the statute of limitations did
not bar their claims. On February 27, 2014, petitioners filed their reply, arguing that RPIs had
failed to demonstrate their claims were not time

- barred. Petitioners asserted that the Supreme Court’s holdings regarding the discovery rule in Shively and Hebrew Academy were not limited to cases governed by the USPA, and that the statute of limitations thus began to run no later than the public disclosure of the material, i.e.,

3 In our alternative writ, we cited Davies v. Krasna (1975) 14 Cal.3d 502 ( Davies ) [statute of limita t i ons a ccrues no later than date of public dissemination o f disputed material]; Benay v. Warner Bros. Entertainment, Inc . (9t h Cir. 2010) 607 F.3d 620 ( Benay ) [generally, accr ual date for breach of implied contract is date on which work is released to public]; Shively v. Bozanich (2003) 31 Cal.4th 1230 ( Shively ) [discovery rule inapplicable once alleged defamatory material published]; Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883 ( Hebrew Academy ) [discovery rule did not extend statute of limitations beyond publication of alleged defamatory statements although dissemination to public was extremely limited]; and Long v. Walt Disney Co . (2004) 116 Cal.App.4th 868 ( Long ) [statute of limitations for exploitation of likeness accrued when disputed images were broadcast on national television; discovery rule inapplicable].8

the October 6, 2004 broadcast. They further contended that RPIs had forfeited their “continuing wrong” arguments by fai ling to raise them in the trial court or in RPIs’ preliminary response.

DISCUSSION
A. Standard of R eview An order denying summary judgment is reviewable by a petition for writ of mandamus. ( Transport Ins. Co. v. TIG Ins. Co . (2012) 202 Cal.App. 4th 984,
1011

. ) “‘ Where the facts are undisputed and the law establishes the right of a party
to an order or to the relief which the court has refus ed, the writ will lie.’” ( Whitney’ s at the Beach v. Superior Court (1970) 3 Cal.App. 3d 25 8, 265, quoting Californi a Pine Box & Lbr. Co. v. Superior Court (1910) 13 Cal.App. 65, 70. ) “A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’ s asserted causes of action can prevail. [Citation.]” ( Molko v. Holy Spirit Assn . (1988) 46 Cal.3d 1092, 1107.) Generally, “the party moving for summary judgm ent bears an initial burden of production to make a prima facie showing of the nonexistence o f any triable issue of material fact; if he carries his burden of produc tion, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” ( Aguilar v. Atlantic Richfield Co

. (2001) 25 Cal.4th 826, 850 .) Here, petitioners contend that on the undisputed facts, they are entitled to summary judgment, as RPIs’ claims were filed after the statute of limitations had run. For the reasons explained below, we agree.9

B. Statute of L imitations
RPI s’ cause s of a ction are governed by the two

- year limitations period set
forth in section 339. (§ 339 , subd. (1) [claims based o n a contract, obligation or liability not founded upon an instrument of writing] ; Blaustein v. Burton (1970)
9 Cal.App.3d 161, 185 ( Blaustein ) [breach of implied contract claim governed by

tw o

- year limitations period of section 339
, subdivision 1 ]; Davies , supra , 14 Cal.3d at p. 511 [assuming actio n for breach of confidence is valid cause of action, it is governed by two

- year limitations period of section 339, subdivision 1 .) 4 Generally, the limitations period starts running when the last element of a cause of action is complete. ( Fox v. Ethicon Endo

- Surgery, Inc . (2005) 35 Cal.4th 797, 806 ( Fox ).) As used in this context, the “‘elements’” o f a cause of action are the “‘generic’” elements of wrongdoing, causation, and injury. ( Id . at p. 807.) “ A suit for breach of an implied contract not to exploit an idea without paying for
it

. . . arise [s] only with the sale or exploitation of the idea. ” ( Davies , supra , 14 Cal. 3d at pp. 511

- 512. ) Whether and when an idea has been exploited

-- as understood and intended by the parties

-- may be difficult to ascertain

. For example, exploitat ion of an idea may occur the moment a preliminary script is
writ ten embodying the idea, even if no subsequent publicly

- disclosed work based upon such script is ever produced

. On the other hand, the exploitation may occur

4 RPIs alleged a claim for “breach of confidence,” as opposed to a claim for breach of a confiden tial relationship. (See Davies , supra , 14 Cal.3d at pp. 510, 511 [noting difference between two claims; no support for a finding of existence of confidential relationship where defendant was not a trusted friend or adviser, but rather “a prospective purch aser or exploiter of Davies’ idea”].) Although several lower C alifornia courts have recognized a breach of confidence cause of action (see Balboa Ins. Co. v. Trans Global Equities (1990) 218 Cal.App. 3d 1327, 1345), the California Supreme Court has not yet ruled on the validity of such a cause of action. ( Poo s hs v. Philip Morris USA, Inc . (2011) 51 Cal.4th 788, 79 8 , fn. 5.)10

upon defendants’ “ disclosure of the idea to a substantial segment of the public
since such use wou ld tend to destroy any fur ther marketability of the idea.” ( Blaustein
, supra , 9 Cal.App. 3d at p. 186.) Due to the difficulty in ascertaining the parties’ intent in implied contract cases, “ California courts generally assume that
the accrual date is the d ate on which the work is released to the general public
, ” as the public release would destroy any further marketability. ( Benay v. Warner Bros. Entertainment, Inc . (9th Cir. 2010) 607 F.3d 620, 633.) For a breach of confidence cause of action, the accrua l date is easier to ascertain: the statute of limitations runs from the date of the first unauthorized disclosure. ( Davies , supra , 14 Cal.3d at p. 512.)

“ While resolution of the statute of limitations issue is normally a question of fact, where the un contradicted facts established throug h discovery are susceptible
of only one legitimate inference, summary judgment is proper

. ” ( Jolly v. Eli Li l ly
& Co . (1988) 44 Cal.3d 1103, 1112 ( Jolly ); see also Norgart v. Upjohn Co . (199 9) 21 Cal.4th 383, 405 ( Norga rt ) [affirming summary judgment on statute of limitations ground]; Gutierre z v. Mofid (1985) 39 Cal.3d 892, 902

- 903 [same]; Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 103 [same].)

C. Motion for S ummary J udgment
In their motion for summa ry jud gment, petitioners made a prima facie showing that RPI s’ causes of action were time

- barred as a matter of law. With regard to both RPI s’ breach of implied contract and breach of confidence claims
, the causes of action accrued no later than the date when t he Ghost Hunters show was released to the general pu blic, i.e., October 6, 2004

. Thus, RPI s had until October 5, 2006 to file their lawsuit. They did not do so until November 8, 2006. Accordingly, RPI s’ causes of action were time

- barred, unless an excep tion applies.11

D. The R ationales for A pplying the D iscovery R ule to D elay A ccrual

. The most important exception to th e general rule regarding accrual of a cause of action is the “ ‘ discovery rul e. ’ ” ( Pooshs v. Philip Morris USA, Inc
., supra , 51 Cal. 4th a t p. 797

. ) “ It may be expressed by the Legislature or implied by
the courts. ” ( Norgart , supra , 21 Cal.4th at p. 397.) The discovery rule “ postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover,
the cause of actio n. ” ( Fox , supra , 35 Cal.4th at p. 807 .) RPIs contend they are entitled to delayed accrual of their causes of action under the discovery rule because they did not see an episode of Ghost Hunters until sometime in 2005. We disagree

. RPIs have the burden of demonstrating their entitlement to delayed accrual
of their causes of action. (See Aguilar v. Atlantic Richfield Co

. , supra , 25 Cal.4th at p. 850 [once party moving for summary judgment makes a prima facie case showing nonexistence of any triable issu e of material fact , burden shifts to opposing party to show a triable issue of material fact] .) “ In order to rely on the discovery rule for delayed accrual of a cause of action, ‘ [a] plaintif f whose complaint shows on its face that his claim would be barr ed without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. ’ ” ( Fox , supra , 35 Cal.4th at p. 808, quoting McKelve y v. Boeing North American, Inc . (1999) 74 Cal.App.4th 151, 160
, superseded in part by statute, as
stated in Grisham v. Philip Morris U.S.A., Inc . (2007) 40 Cal.4th 623, 637, fn. 8
, italics omitted ; accord, April Enterprises, Inc. v. KTTV (1983) 147 Cal. A p p. 3d 805, 832 ( April Enterprises ) [“ plaintiff must plead facts sufficient to convince the trial judge that delayed discovery was justified”] .)12

A plaintiff’s inability to discover a cause of action may occur “ when it is particularly difficult for the pla intiff to observe or understand the breach of duty, or when the injury itself (or its cause) is hidden or beyond what the ordinary person could be expected to understand. ” ( Shively
, supra , 31 Cal.4th at p. 1248 ; accord April Enterprises
, supra , 147 Cal.Ap p.3d at p. 831 [“ A common thread seems to run through all the types of actions where courts have applied the discovery rule. The injury or the act causing the injury, or both, have been difficult for the plaintiff
to detect. ”] .) For example, where a prof essional, such as a doctor or a lawyer,
brea ches a duty of care
, “ delayed accrual is justified on the basis that the expertise expected of professionals is beyond the ability of laypersons to evaluate, and on the further basis that it may be impossible for a layperson even to observe the professional’s application of this expertise.” ( Shively
, at p. 1248 , citing Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188 [legal malpractice claim] .) 5 Although delayed accrual under the discov ery rule generally applies to most tort actions, it has been held applicable to certain types of breach of contract
actions , such as those involving fraud or misrepresentation by the defendant

. ( April Enterprises
, supra , 147 Cal.App.3d at p. 830 [citing c ases]; cf. Bernson v. Browning

- Ferris Industries (1994) 7 Cal. 4th 926, 936 [“[A] defendant may be equitably estopped from asserting the statute of limitations when, as the result of intentional concealment, the plaintiff is u nable to discover the defendant ’ s actual

5 The disc o v ery rule has also been applied to “ causes of action involving the bre ach of a fiduciary relationship” ( April Enterprises
, supra , 147 Cal.App.3d at p. 827) on the rationale that in fiduciary relationships, a plaintiff is often unable to observe or understand a breach of fiduciary duty because the fiduciary is “in full control of [the plaintiff’s] affairs and of the expenditure of its funds

. ” ( San Leandro Canning Co. , Inc. v. Perillo (1931) 211 Cal. 482, 487).13

identity ”].) For example, s ection 339 provides that in “[a] n action based upon the rescission of a contract not in writing,” “[w]here the ground for rescission is fraud or mistake, the time does not begin to run until the discovery by t he aggrie ved party of the facts constituting the fraud or mistake .” (§ 339, subd. 3.) 6 Finally, for “certain, rather unusual breach of contract actions,” “ the discovery rule may be applied to breaches which can be, and are, committed in secret and, moreover, wh ere the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time. ” ( April Enterprises,

supra , 147 Cal.App. 3d at p. 832 [breach of contract claim]. ) 7 In April En t er p rises
, the court provided the following rati onale for this holding: “ In most instances [where the discovery rule has been applied] , the defendant has been in a far superior position to comprehend the [wrongful] act and the injury. And in many, the defendant had reason to believe the plaintiff rema ined ignorant he had been wronged. Thus, there is an underlying notion that plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed. And often this is accompanied by the corollary notion that defendants should not be
allowed to know ingly profit from their injuree’ s ignorance. ” ( Id . at p. 831.)

6 S ection 339 also provides that a c ause of action “upon a contract, obligation or liability
, evidenced b y a certificate, or abstract or guaranty of title of real proper ty, or by a policy of title insurance” “shall not be deemed to have accrued unt il the discovery of the loss or damage suffered by the aggrieved party thereunder .” (§ 339, subd. 1.) Respondents’ causes of action, however, are not based on a contract, obli gation or liability evidenced by a writing.

7 Where a breach of contract is also a breach of a fiduciary duty, a plaintiff is entitled to delayed accrual of the breach of contract action. ( April Enterprises, supra , 147 Cal.App. 3d at p. 832; Lee v. Escr ow Consultants , Inc. (1989) 210 Cal.App.3d 915, 9 22

- 923 [same].)14

E. RPIs H

ave F ailed to S how T

hey A re E ntitled to D elayed A ccrual U nder the
D iscovery R ule. Here, while RPIs have pled facts showing the time and manner of their discovery of their causes of action (Smoller’s viewing of an episode of Ghost
Hunters in 2005), they have not pled facts showing an inability to discover their claims earlier despite reasonable diligence. RPIs a lleged that the Ghost Hunters series, including its in itial episode, constituted an unlawful appropri ation of the
C oncepts they shared in confidence with petitioners. As a matter of law, t he ir
causes of action were complete no later than the date of the initial broadcast, October 6, 2004 , because on that dat e, the marketability of the Concepts was destroyed due to its disclosure to the public

. ( Blaustein
, supra , 9 Cal.App.3d at

p. 186.) Due to the initial broadcast, petitioners’ alleged breach of the implied
contract or breach of confidence was no longer “ p articula rly difficult for [RPIs] to observe or understand .” ( Shively
, supra , 31 Cal.4th at p. 1248) Likewise, the injury itself (or its cause) was no longer “ hidden or beyond what the ordinary person could be expected to understand. ” ( Ibid. )
R PIs do not contend, nor does the evidence show, that petitioners fraudulently concealed the broadcast from them , or that they lacked a meaningful ability to view it

. ( Long , supra , 116 Cal.App. 4th at p. 875 [“A llowing these plaintiffs to sue years after the broa dcasts ceased, without any indication of fraud or a meaningful inability to discover the broadcasts, would violate the principal policy that underlies the [discovery] rule. ”].) Thus, there were no “ circumstances prevent [ing] them from knowing they ha [d] b een harmed. ” ( April Enterprises,

supra , 147 Cal.App. 3d at p. 831 ; cf. Perez

- Encinas v. Amerus Life Ins. Co

. (N.D. Cal. 2006) 468 F. Supp.2d 1127, 1136

- 1137 [declining to apply disc overy rule to delay accrual of breach of contract action because alleged br each of contract not15

difficult to detect, breach was not secretive, and defendant not responsible for circumstances preventing plaintiffs from knowing about alleged breach].)
The mere fact that RPIs did not personally view the program until sometime
aft er the first broadcast is irrelevant , as 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 o f the public. ” ( Shively
, supra , 31 Cal.4th at p. 1253 [ notwithstanding fact that plaintiff was not aware of defamatory statements in book until December
1996 , statute of limitations ran from when book was published in October 1996 ] ; see also Christoff v. Nestle USA, Inc . (2009) 47 Cal.4th 468, 48 3 ( Christoff ) [no delayed accrual for misappropriation of likeness cause of action where the likeness of the plaintiff appeared on a product label that wa s “ ‘ not published in an inherently secretive manner
, ’ ” but w a s distributed widely to the public ]; Hebrew Academy
, supra , 42 Cal.4th at p. 895 [“ Because plaintiffs in the present case had
access to the [defamatory] document from the time it was published, the discovery rule does not apply ”]; Long , supra , 116 Cal.App .4th at p. 874 [discovery rule inapplicable where plaintiffs’ images were broadcast on national television].)
Even in non

- US P A cases, the Supreme Court has declined to delay accrual under the discovery rule where the cause of action could be ascertained f rom publicly
available information . (See Utility Cost Management v. Indian Wells Valley Water
Dist . (2001) 2 6 Cal. 4th 1185, 1197 [declining to delay accrual of statutory

- based action to recover alleged overcharges paid to public utility because inf o r matio n about excessiveness of the charges was in the public record] .) We reject the trial court’s ruling that RPIs are entitled to delayed accrual under the discovery rule because Ghost Hunters was broadcast on the Syfy channel
rather than released in theatr es. Regardless of whether the trial court was correct in16

surmising that release in theaters would attract more attention than release of a series on a cable television network, p ublic disclosure to even a limited audience is sufficient to preclude a plain tiff from arguing that the breach and injury were
secretive and diff

ic ult to detect. (See Hebrew Academy
, supra , 42 Cal. 4th at
p p

. 888, 895 [discovery rule inapplicable despite fewer than 10 copies of transcripts containing defamatory statements being pub lished and distributed to a
limited audience ].) RPIs’ reliance on Nelson v. Indevus Pharmaceuticals, Inc . (2006)
142 Cal.App. 4th 1202 ( Nelson ) is misplaced. There, the appellate court rejected the argument that the statute of limitations on a product l iability claim began to run when the danger s of the product were publicized in media reports. ( Id . at pp. 1205, 1208.) The Nelson court held that inquiry notice could not be imputed based solely on media reports. ( Ibid

. ; accord Unruh

- Haxton v. Regents o f Uni versity of California (2008) 162 Cal.App.4th 343, 364.) As the Nelson court noted, it s holding was bolstered by section 340.8, subdivision (c)(2), which expressly provides that: “ ‘ Media reports regarding the hazardous material or toxic substance

con tamination do not, in and of themselves, constitute sufficient facts to put a reasonable person on inquiry notice that the injury or death was caused or contributed to by the wrongful act of another

. ’ ” ( Nelson , at pp. 1208

- 1209 [section 340.8 applies to c laims alleging injury from prescription drugs] .) As RPIs’ claims
do not involve hazardous materials or toxic substance contamination and they identify no statute with comparable language applicable to their claims
, Nelson is
of no assi s tance to them

. M ore important , RPIs were on inquiry notice prior to the public broadcast of
the Ghost Hunters show. A plaintiff is on inquiry notice when she “ suspects or should suspect that her injury was caused by wrongdoing, that someone h as done17

something wrong to he r.” ( Jolly
, supra , 44 Cal.3d at p. 1110.) Montz had asked Mofford “if he had found out if this was our show that was stolen or not, and he replied by saying that Robyn says it’s not our show, that it’s a docu

- soap.”
Mofford’s reply was based on a July 2 2, 2004 e

- mail from Robyn Lattaker

Johnson, which he forwarded to Montz the same day. Thus, at the latest, by July 22, 2004, Montz suspected wrongdoing on the part of petitioners. That RPIs did not understand the meaning of the term “docu

- soap” and did n ot view an episode
of the Ghost Hunters show until 2005 is legally irrelevant. 8 Once RPIs were on inquiry notice, they were charged with information that could have been gained by examining public records

. ( Miller v. Bechtel Corp

. (1983) 33 Cal.3d 868, 8 75.)
As Ghost Hunters was publicly released and RPIs have not asserted that they were prevented from viewing the program, they are charged with knowledge of it. Accordingly, the discovery rule did not operate to delay accrual of RPIs’ causes of
action be yond October 6, 2004. 9

8 RPIs do not argue

-- nor do the allegations in the complaint support

-- that Lattaker

- Johnson was in a fiduciary relationship with Montz that could have relieved him of an obligation to ma ke further inquiry. (See Hobbs v. Bateman Eichler, Hill Richards, Inc . (1985) 164 Cal.App.3d 174, 201

- 202 [“W here a fiduciary relationship exists, facts which ordinarily require investigation may not incite suspicion [citation] and do not give rise to a d uty of inquiry [citation]” ; h owever, “once a plaintiff becomes aware of facts which would make a reasonably prudent person suspicious, the duty to investigate arises and the plaintiff may then be charged with knowledge of the facts which would have been di scovered by such an investigation.” ].)

9 RPIs’ conten tion that Davies supports their argument that the statute of limitations did not run until they actually discovered the breach turns the holding of Davies on its head. There, the Supreme Court held tha t the statute of limitations on a breach of confidence claim began to run on the date the plaintiff actually discovered the breach, not a later date when the offending work was publicly released. This was because the plaintiff’s actual knowledge of the br each preceded18

F. Continuing

- W

rong A ccrual P rinciples
In their return to the alternative writ
, RPI s argue d for the first time that under continuing

- wrong accrual principles, a new cause of action accrued for each new episode of Ghost Hunters using their ideas without compensation. (See Aryeh v. Canon Business Solutions, Inc . (2013) 55 Cal.4th 1185, 1197

- 1198 ( Aryeh ) [explaining continuing

- wrong accrual principles].) RPI s con cede they did not raise
this issue in their opposition to the motion for summary judgment. Nor did they raise it in their preliminary response. At the hearing on the motion for summary judgment, RPI s’ counsel discussed a case, Goldberg v. Cameron (N.D. Cal. 2007) 482 F.Supp.2d 1136 ( Goldberg ), where “because there were contin uing instances of infringement, it could not be concluded that the claim was time barred in its entirety.” However, Goldberg wa s a copyright infringement case , and RPI s do not have a copyright infringement claim. T hus, counsel’s state ment was insufficien t to invoke the continuing

- wrong accrual principles , and RPI s have forfeited th is argument. ( Perez v. Grajales (200 8 ) 169 Cal.Ap p.4th 580, 591 [arguments raised for first time on appeal are generally deemed forfeited] ; Di Cola v. White Bro ther s Performa n c e Products, Inc . (2008) 158 Cal.App .4th 666, 676 [ possible theories that were not fully developed or factually presented to t he trial court cannot create a “triable issue” on appeal ] .) Moreover, resolution of the argument requires application of equitable principles to a factual record that RPIs have failed to develop. Thus, we decline RPIs’ invitation to exercise our discret ion to consider this new argument

. ( Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App. 4th

the public release. ( Davies , supra , 14 Cal.3d at p p . 51 1

- 512.) No similar facts are present here, except to the extent RPIs should or could have discovered their claims earlier than the initial broadcast.19

1466, 1488 [ argument d eemed forfeited “ if it was not raised below and requires consideration of new factual questions ” ]; Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 983 [“As a general rule, a new theory may not be presented for the first time on appeal unless it raises only a question of law and can be decided based on undisputed facts

. ”].) 10

10 In addition
, on the facts alleg ed, continuing

- wrong accrual principles do not assist RPIs. Those principles include the continuing violation doctrine and th e theory of continuous accrual. ( Aryeh
, supra , 55 Cal. 4th at p. 1197. ) The continuing violation doctrine applies to aggregate a series of small harms, any one of which may not be actionable on its own, into a single cause of action. The statute of limitations would run from the date of the last harmful act. Here, even were acts such as disclosure, screenwriting and filming not ac tionable on their own, the premiere of Ghost Hunters on Syfy on October 6, 2004 would be the last act necessary for a discrete cause of action against petitioners. As to the theory of continuous accrual, the statute of limitations runs from each breach o f a continuous or recurring obligation. ( Aryeh
, supra , 55 Cal.4th at p. 1199.) However, RPIs alleged that petitioners exploited their idea for a reality television series . Thus, each broadcast of a new episode of the Ghost Hunters series is part of a si ngle breach. Each broadcast of Ghost Hunters would constitute not a new breach, but rather additional harm. (See Blair v. Nevada Landing Partnership (Ill.Ct.App. 2006) 859 N.E.2d 1188, 1193 [ misappropriation of likeness for use in advertising campaign fr om 1995 to 2004 not a continuing violation, as it constituted a single overt act with continuing ill effects; “To hold otherwise would cause an attendant problem of an endless tolling of the statute of limitations

. . . . ”]; see also Kourtis v. Cameron (9t h Cir. 2005) 419 F.3d 989, 1000

- 10 01 [ in case alleging breach of implied contract for uncompensated use of plaintiffs’ concept in a film, court declined to apply continuing wrong theory to delay accrual of claim beyond date of film’s public release, despit e later release of film on DVD and use of same concept in sequel ], abrogated on other grounds by Taylor v. Sturgell (2008) 553 U.S. 880; cf. Christoff
, supra , 47 Cal.4th at p. 478, 482 [ declining to address continuing wrong argument and remandi ng for devel opment of factual record whether use of likeness in advertising campaign constituted single publication under USPA].) The situation is analogous to a case where there has been an injury but the amount of resulting harm is uncertain. There, the statute o f limitations runs from20

In sum, the undisputed facts and the law e stablished the right of petitioners

to an order granting their motion for summary judgment.

DISPOSITION It is ordered that a peremptor y writ of ma ndate issue commanding responden t superior court to set aside and vacate its o rder d enying m otion for

s ummary j udgment signed and filed July 31, 2013 , and to enter an order granting

the infliction of “appreciable and actual harm.” ( Davies , supra , 14 Cal.3d at p. 514.) In Davies , the plaintiff suffered appreciable and actual harm when the defendant first disclosed the writer’s confidential idea in 1955 and des troyed the marketability of the idea, though the defendant earned no profits from the disclosure until 1958. ( Id . at p. 511; see also Pooshs v. Philip Morris USA, Inc.
, supra , 51 Cal.4th at p. 797 [“ Must the plaintiff sue even if doing so will require the jury to speculate regarding prospective damages? Or can the plaintiff delay suit until a more accurate assessment of damages becomes possible? Generally, we have answered those questions in favor of prompt litigation, even when the extent of damages rem ains speculative. ”].) Similarly, here, respondents suffered appreciable and actual harm at the latest, by October 6, 2004, when the Ghost Hunters show premiered on Syfy, and destroyed any marketability for their idea of a paranormal investigation reality television series . Thus, under continuing

- wrong accrual principles, the two

- year statute of limitations began running on October 6, 2004. Because RPIs’ claims were filed more than two years later, they are time

barred.21

summary judgment as prayed for in petitioner s ’ n otice of m ot ion filed December 13, 2012

. Petitioners shall have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

EDMON, J.*

___________________________________________ ___ __________________________ * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.