Filed 12/15/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOHN MUSERO,

Plaintiff and Respondent,

v.

CREATIVE ARTISTS 

AGENCY, LLC, et al.,

Defendants and 

Appellants.

 B305066

 (Los Angeles County

 Super. Ct. No. 19STCV10435)

APPEAL from an order of the Superior Court of 

Los Angeles County, Yolanda Orozco, Judge. Affirmed. 

Lewis Brisbois Bisgaard & Smith, Craig Holden; Ballard 

Spahr, Louis P. Petrich and Robert S. Gutierrez for Defendants 

and Appellants Creative Artists Agency, LLC, Andrew Miller and 

Leah Yerushalaim. 

Doniger/Burroughs, Stephen M. Doniger and Kelsey M. 

Schulz for Plaintiff and Respondent. 

____________________
2

John Musero, a writer, sued his former talent agents,

Andrew Miller, Leah Yerushalaim and Creative Artists Agency, 

LLC (CAA), for breach of fiduciary duty, breach of contract and

breach of the implied covenant of good faith and fair dealing, 

alleging they had mishandled their representation of him in 

several different ways. Miller, Yerushalaim and CAA

(collectively CAA parties) moved pursuant to Code of Civil 

Procedure section 425.16 (section 425.16) to strike allegations in 

the complaint, repeated in each of the three causes of action,

accusing them of having misappropriated Musero’s creative work, 

a proposed television pilot titled Main Justice, and using that 

material to assist in the development of a competing project, also 

titled Main Justice, with another CAA client. The trial court

denied the motion, ruling, although the CAA parties’ alleged 

conduct was protected speech activity that concerned a matter of 

public interest, Musero had demonstrated the requisite minimal 

merit of the claim. 

Although we agree the challenged conduct arises from 

protected speech activity, when the context and content of the 

specific allegedly wrongful statements are considered, their 

degree of connection to a topic of public interest is insufficient to 

warrant protection under section 425.16, subdivision (e)(4). 

Accordingly, we affirm the order denying the CAA parties’ special 

motion to strike.

FACTUAL AND PROCEDUAL BACKGROUND

1. Musero’s Complaint

Musero filed a complaint for breach of fiduciary duty and 

confidentiality, breach of contract and breach of the implied 

covenant of good faith and fair dealing on March 26, 2019, 

naming as defendants CAA, Miller and Yerushalaim. Musero, a 
3

former prosecutor and in-house studio lawyer who had worked as 

a staff writer on the third season of Aaron Sorkin’s HBO series 

The Newsroom, alleged that in mid-2014 Miller and Yerushalaim, 

members of CAA’s literary department, agreed to represent him. 

He communicated to Miller and Yerushalaim his goals of working 

as a writer on another television series and supplementing that

income by selling his original work in the form of television 

pitches and pilots. 

Musero alleged the CAA parties mishandled his 

representation in a variety of ways, including not aggressively 

shopping a pilot script he prepared titled Influence, which he 

submitted to his agents in September 2014; failing to 

appropriately follow-up with potential buyers for a second pilot 

script he wrote titled Main Justice, a legal drama about the 

Attorney General of the United States and prosecutors working 

at the Department of Justice, which he submitted in September

or October 2015; not assisting in the timely payment and 

collection of fees to which he was entitled for additional work in 

connection with an option agreement for Main Justice he entered 

with The Mark Gordon Company in April 2016; and not 

submitting Musero’s name for staffing opportunities on another 

television series.

Musero further alleged that CAA and Miller represented 

producer Jerry Bruckheimer, his production company Jerry 

Bruckheimer TV and the writer Sascha Penn and that Miller 

initiated the development with Penn and Bruckheimer of a 

project also titled Main Justice that, like Musero’s pilot, was 

centered on the Attorney General of the United States. The 

complaint continued, “Upon information and belief, Miller and 

Penn created a pitch document which was used to sell 
4

Bruckheimer’s Main Justice to CBS during the summer of 2017. 

That pitch document was preceded by, borrowed from, and 

harvested the concept, pitch, series overview and pilot created by 

Musero under the same title, Main Justice, each of which was 

shared with, and represented by, Miller.” Although never 

ultimately broadcast, Musero alleged CBS approved production of 

the Bruckheimer pilot, which was “cast and produced for millions 

of dollars” and resulted in significant economic benefit to CAA. 

He additionally alleged that, by selling a competing project 

“under the same title about the same thing,” Miller foreclosed 

any possibility of Musero’s Main Justice being sold. (The Mark 

Gordon Company did not exercise its option to purchase Musero’s 

project; the option expired in June 2017; and the rights reverted 

to Musero.) “In so doing, Defendants advantaged its more 

power[ful] client, Jerry Bruckheimer and Bruckheimer TV, at the 

significant expense of its less powerful client, Musero.” 

Musero’s allegations the CAA parties misappropriated 

creative elements from his Main Justice project and used them to 

develop the Penn-Bruckheimer project are specifically realleged 

in each of the complaint’s three causes of action.

2. The CAA Parties’ Special Motion To Strike

On May 21, 2019 the CAA parties filed a special motion to 

strike the allegations in Musero’s complaint that they had 

misappropriated his Main Justice pilot script and used his 

creative ideas to develop the Penn-Bruckheimer Main Justice

project.1 They cited case law holding the creation of a television 

1 Concurrently with their special motion to strike, the CAA 

parties demurred to the complaint. The trial court sustained the 

demurrer to Musero’s causes of action for breach of contract and 

breach of the implied covenant of good faith and fair dealing with 
5

program is constitutionally protected speech activity and argued, 

as widely disseminated expressive works, such programs are 

matters of public interest. They also explained the topics 

addressed in the Penn-Bruckheimer project involved real-world 

social and cultural issues. 

As to the merits of Musero’s claim of misappropriation, the 

CAA parties explained that ideas are not subject to common law 

or statutory copyright protection. Under Desny v. Wilder (1956) 

46 Cal.2d 715, however, state law protection for ideas as property 

rights may exist if there was an express or implied-in-fact 

contract to pay for the disclosure of an idea: “‘The policy that

precludes protection of an abstract idea by copyright does not

prevent its protection by contract. Even though an idea is not

property subject to exclusive ownership, its disclosure may be of

substantial benefit to the person to whom it is disclosed. That

leave to amend and overruled the demurrer to the cause of action 

for breach of fiduciary duty. The court explained as to the 

contract claim, “While Plaintiff has alleged the general nature of 

Plaintiff’s relationship with Defendants, the allegations as they 

stand do not indicate that Plaintiff ‘clearly conditioned’ his 

disclosure of the Main Justice script upon Defendants’ agreement 

to pay for it if used. . . . Nothing indicates that Defendants’ 

actions, communications, and history of representing [Musero] 

made it so that an implied in fact agreement was created wherein 

[Musero] clearly conditioned his disclosure of the Main Justice 

script upon Defendants’ agreement to pay for it if used.” 

The trial court permitted Musero to file his first amended 

complaint prior to ruling on the special motion to strike.

However, when considering the CAA parties’ motion, the court 

ignored the allegations in the amended pleading, relying for this 

hybrid approach on dictum from Dickinson v. Cosby (2017) 

17 Cal.App.5th 655, 677-678. 
6

disclosure may therefore be consideration for a promise to

pay . . . . Even though the idea disclosed may be “widely known

and generally understood” [citation], it may be protected by an

express contract providing that it will be paid for regardless of its

lack of novelty.’” (Id. at p. 733; see Spinner v. American

Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184

(Spinner) [Desny claim may be based on implied, as well as

express, contract].) The CAA parties argued Musero could not

provide any evidence his talent agents had agreed to pay for the

use of his idea, an essential element of a Desny claim.2

Beyond that threshold issue, citing Spinner, supra, 

215 Cal.App.4th 172 and Hollywood Screentest of America, Inc. v. 

NBC Universal, Inc. (2007) 151 Cal.App.4th 631, the CAA parties

asserted Musero could not prove misappropriation. Although

under established case law actual use may be inferred from 

evidence of access3and substantial similarity (Spinner, at p. 185; 

2 As noted, the trial court agreed with this argument in 

sustaining the CAA parties’ demurrer (with leave to amend) to 

Musero’s breach of contract cause of action. 

3

“Access means that the [writer of the allegedly offending 

work] had an opportunity to view or copy the plaintiffs’ work. 

[Citation.] More than a ‘“bare possibility”’ of access is required, 

however. [Citations.] When there is no direct evidence of access, 

the [writer] must have had a ‘“reasonable possibility”’ to view the 

plaintiffs’ work, which must be based on more than mere 

speculation.” (Spinner, supra, 215 Cal.App.4th at p. 186.) The 

CAA parties argued under Spinner, when, as here, access 

allegedly occurred through an intermediary, “[a] reasonable

possibility of access requires a sufficiently strong nexus between

the intermediary to whom the plaintiffs submitted their work and

the creator of the allegedly offending work. . . . In other words,
7

Hollywood Screentest, at p. 646), the CAA parties argued, “the

defendants may dispel that inference with evidence that

conclusively demonstrates the defendants independently created

their product. [Citation.] When the defendants produce evidence

of independent creation that is ‘“clear, positive, uncontradicted

and of such a nature that it cannot rationally be disbelieved,”’ the

inference of use is dispelled as a matter of law.” (Spinner, at

p. 185.)

Relying on this authority, the CAA parties contended 

Musero could not prove Penn or others who may have contributed 

to the creation of his Main Justice pilot had access to Musero’s 

Main Justice materials. To the contrary, the evidence 

conclusively established the Penn-Bruckheimer Main Justice

pilot was independently created. Miller and Yerushalaim 

submitted declarations in support of the motion denying they had 

provided any of Musero’s ideas, concepts or writings to Penn or 

had directed anyone else to do so. Miller also declared that Penn 

approached him with the idea for Main Justice; Miller did not 

initiate the idea. 

3. Musero’s Opposition and the Parties’ Supplemental 

Papers 

After the CAA parties filed their motion, the trial court 

granted Musero’s request to take limited discovery (the 

depositions of Miller and Penn and production of documents,

including a copy of Penn’s pilot script). Musero thereafter filed 

an opposition memorandum and supporting materials in which 

he argued there was substantial evidence that Penn had access to 

the intermediary and the alleged copier occupy positions such

that it is natural for one to impart information to the other.” 

(Id. at pp. 186-187.) 
8

Musero’s script through Miller and there were overwhelming 

similarities between the two works.

As to access, Musero submitted evidence Miller had acted 

as Musero’s agent in discussions regarding Musero’s option 

agreement with The Mark Gordon Company in 2016; Miller and 

Penn in May 2017 discussed the idea of a show about the 

Attorney General; Miller was in regular communication with 

Penn from conception through pitch meetings at CBS; and CAA 

assisted Penn in writing the pilot by providing him a large 

volume of reference materials. Musero also provided the 

declaration of a former agent and entertainment industry 

executive who opined CAA had a significant financial incentive to 

market Penn’s Main Justice rather than Musero’s because of 

packaging fees that would be available on the Penn-Bruckheimer

project. A different industry expert described similarities 

between the scripts for the two projects, both of which involved a 

newly appointed Attorney General (Musero’s was a woman; 

Penn’s was young and Black and based on former Attorney 

General Eric Holder, who participated in Penn’s project); both 

included a car crash as an opening teaser scene followed by a 

basketball-related scene with a discussion regarding foul calls; 

and each ended with a cliff-hanger assassination attempt. He

concluded there were “just too many unique story similarities” for 

the CAA parties to credibly claim the Penn-Bruckheimer Main 

Justice had been created independently of Musero’s work. 

The CAA parties filed a reply memorandum with additional 

evidence regarding the development of Penn’s Main Justice. 

Following oral argument on the motion on October 1, 2019 and 

with the matter under submission, Musero filed an ex parte 

application to stay the court’s ruling and allow further discovery. 
9

The court granted the application; set a new hearing date; and 

allowed Musero to depose two CAA witnesses who had submitted 

declarations with the CAA parties’ reply papers, to re-depose 

Miller regarding packaging deals and to propound another 

document request for correspondence CAA exchanged with

Bruckheimer employees and Penn relating to Main Justice. The 

court also permitted the parties to file supplemental briefs.4 

By the time the trial court held its second hearing on the 

CAA parties’ motion, Musero had presented additional evidence 

that Miller and Penn had been personal friends for many years, 

not just business associates, and that CAA had a packaging fee 

arrangement with CBS Studies that would have (in Musero’s 

characterization) effectively made CAA a partner with an 

independent equity interest in Main Justice had CBS picked up 

the Penn-Bruckheimer pilot as a series for network broadcast. In 

addition, Musero’s evidence established that Miller had received 

drafts of Penn’s pitch, outline and pilot script during their 

development and provided ongoing feedback to Penn regarding 

the project.

The CAA parties’ evidence included Penn’s and Miller’s 

deposition testimony that Penn began working on an idea for a 

Department of Justice television series involving stories about 

hate crimes in 2004, more than 10 years before Musero submitted 

his Main Justice overview and pilot script to Miller and 

Yerushalaim. (Penn had written a treatment for his idea with 

the working title Hate Crimes.) In 2010 Penn, who was 

considering story ideas for a series with a female lead, suggested 

4

The trial court denied a subsequent request by Musero for 

yet more discovery. 
10

several career possibilities for the character in an email to Miller, 

including having her be a newly appointed Attorney General. In 

2016 Penn pitched his hate crimes idea, now titled DOJ: Special 

Section, to producers, and in August 2016 to NBC as The Untitled 

Department of Justice Project. One of the industry executives 

who reviewed the pitch advised Penn he needed to focus more on 

lawyers for a Department of Justice series. In a spring 2017 

telephone call with Miller, Penn shared his idea for a series about 

the Attorney General and suggested they try to attach former 

Attorney General Holder to the project. By July 2017 Penn had 

met with Holder, who responded positively to the proposal.

According to Penn, his pilot was built around Holder and the 

complexities of being a Black Attorney General: “That’s what the 

show was about.” “‘[I]f Eric Holder didn’t come on board, there 

was no show.’” 

4. The Trial Court’s Ruling Denying the Motion

The trial court again heard argument on January 17, 2020, 

took the matter under submission and later denied the motion in 

a 23-page order.

5

The court ruled the CAA parties had satisfied the first step 

of the two-step analysis for a special motion to strike under 

section 425.16, agreeing the alleged communications with Penn 

and Bruckheimer in connection with the creation, development 

and sale of the Penn-Bruckheimer Main Justice television project 

constituted protected speech or conduct in furtherance of 

protected speech and the production of Main Justice was a matter 

5

The trial court ruled on the multiple evidentiary objections 

filed by the CAA parties, sustaining some and overruling others.

Neither side challenges any of those rulings. 
11

of public interest. “[T]he asserted public interest here is the 

‘general topic’ of the Attorney General, and more specifically, Eric 

Holder. The Court finds that the topic itself is a matter of public 

interest, as the Attorney General, and Eric Holder are public 

figures regularly in the public eye. . . . Defendants participated 

in, or furthered, the discourse that makes the topic of the first 

[B]lack Attorney General, one of public interest by creating a 

show that was ‘built around the notion of the complexities of 

being a [B]lack Attorney General’ with story lines that can be 

said to be ‘ripped [from] the headlines’ of national news. Such a 

show would undeniably contribute to the public debate and 

discourse that makes the Attorney General and Eric Holder 

topics of public interest.” 

As to the second step of the analysis, the court ruled 

Musero had carried his burden of showing a reasonable 

probability of success on the merits. The court found Musero had 

presented evidence of access by Penn through Miller to Musero’s 

Main Justice script or elements of it and substantial similarity 

between the two scripts sufficient to raise an inference of use. 

Although acknowledging the CAA parties had presented evidence 

that Penn’s process in developing his script was entirely 

independent of Musero’s ideas and work product, quoting 

Spinner, supra, 215 Cal.App.4th at pages 184 to185, the court 

concluded the evidence was not “‘clear, positive, uncontradicted 

and of such nature that it cannot rationally be disbelieved’”: 

“[G]iven Plaintiff’s evidence that points to access and the 

substantial similarity between the two scripts, a reasonable jury 

could find that Penn’s Main Justice was not independently 

created.” 
12

The CAA parties filed a timely notice of appeal. (Code Civ. 

Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13).) 

DISCUSSION

1. Governing Law and Standard of Review

Section 425.16, commonly known as the anti-SLAPP 

statute, makes available a special motion to strike certain 

meritless claims early in the litigation: “A cause of action against 

a person arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue shall be subject to a special motion to strike, unless 

the court determines that the plaintiff has established that there 

is a probability that the plaintiff will prevail on the claim.” 

(§ 425.16, subd. (b)(1); see Rand Resources, LLC. v. City of Carson 

(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of 

action only if the cause of action (1) arises from an act in 

furtherance of the right of petition or free speech ‘in connection 

with a public issue,’ and (2) the plaintiff has not established ‘a 

probability’ of prevailing on the claim”].)

Pursuant to section 425.16, subdivision (e), an “‘act in 

furtherance of a person’s right of petition or free speech under the 

United States or California Constitution in connection with a 

public issue’ includes: (1) any written or oral statement or 

writing made before a legislative, executive, or judicial 

proceeding, or any other official proceeding authorized by law, 

(2) any written or oral statement or writing made in connection 

with an issue under consideration or review by a legislative, 

executive, or judicial body, or any other official proceeding 

authorized by law, (3) any written or oral statement or writing 

made in a place open to the public or a public forum in connection 
13

with an issue of public interest, or (4) any other conduct in 

furtherance of the exercise of the constitutional right of petition 

or the constitutional right of free speech in connection with a 

public issue or an issue of public interest.”

In ruling on a special motion to strike under section 425.16,

the trial court engages in a two-step process. “First, the 

defendant must establish that the challenged claim arises from 

activity protected by section 425.16. [Citation.] If the defendant 

makes the required showing, the burden shifts to the plaintiff to 

demonstrate the merit of the claim by establishing a probability 

of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); 

accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 

1009 (Bonni); Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1061 (Park).) To make its 

determination the court must consider the parties’ pleadings and 

affidavits or declarations describing the facts on which liability or 

defenses are predicated. (§ 425.16, subd. (b)(2).) 

As to the first step of the analysis, “[a] claim arises from 

protected activity when that activity underlies or forms the basis 

for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063.) Thus, 

“[t]he defendant’s first-step burden is to identify the activity each 

challenged claim rests on and demonstrate that that activity is 

protected by the anti-SLAPP statute. A ‘claim may be struck 

only if the speech or petitioning activity itself is the wrong 

complained of, and not just evidence of liability or a step leading 

to some different act for which liability is asserted.’” (Wilson v. 

Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson); 

see Bonni, supra, 11 Cal.5th at p. 1009 [“[t]he defendant’s burden 

is to identify what acts each challenged claim rests on and to 
14

show how those acts are protected under a statutorily defined 

category of protected activity”]; see Park, at p. 1060.) 

A motion pursuant to section 425.16 need not challenge an

entire cause of action as pleaded in the complaint. (Bonni, supra, 

11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather, 

“courts should analyze each claim for relief—each act or set of 

acts supplying a basis for relief, of which there may be several in 

a single pleaded cause of action—to determine whether the acts 

are protected and, if so, whether the claim they give rise to has 

the requisite degree of merit to survive the motion.” (Bonni, at 

p. 1010; accord, Baral, at p. 395.)

When, as here, the special motion to strike is based on 

section 425.16, subdivision (e)(4), “plaintiffs’ causes of action 

must arise from defendants’ conduct ‘in connection with a public 

issue or an issue of public interest.’” (Rand Resources, LLC v. 

City of Carson, supra, 6 Cal.5th at p. 620; see Briggs v. Eden

Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-

1118.) “In articulating what constitutes a matter of public

interest, courts look to certain specific considerations, such as

whether the subject of the speech or activity ‘was a person or

entity in the public eye’ or ‘could affect large numbers of people

beyond the direct participants’ [citation]; and whether the

activity ‘occur[red] in the context of an ongoing controversy,

dispute or discussion’ [citation], or ‘affect[ed] a community in a

manner similar to that of a governmental entity.’” (FilmOn.com 

Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146 (FilmOn).)

“As to the second step inquiry, a plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its 

complaint, even if verified; instead, its proof must be made upon 

competent admissible evidence.’” (Sweetwater Union High School 
15

Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940;

6

accord, 

Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “‘We 

have described this second step as a “summary-judgment-like 

procedure.” [Citation.] The court does not weigh evidence or 

resolve conflicting factual claims. Its inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. It accepts the plaintiff’s evidence as true, 

and evaluates the defendant’s showing only to determine if it 

defeats the plaintiff’s claim as a matter of law.’” (Monster 

Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714

[the court should grant the section 425.16 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’”].) 

6 Although the Supreme Court in Sweetwater Union High 

School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931

referred generally to “competent admissible evidence,” the Court 

held evidence that is potentially admissible at trial, but not 

presented in admissible form, could be considered in determining 

whether the plaintiff had demonstrated a probability of success 

on the merits: “[A]t the second stage of an anti-SLAPP hearing, 

the court may consider affidavits, declarations, and their 

equivalents if it is reasonably possible the proffered evidence set 

out in those statements will be admissible at trial. Conversely, if 

the evidence relied upon cannot be admitted at trial, because it is 

categorically barred or undisputed factual circumstances show 

inadmissibility, the court may not consider it in the face of an 

objection. If an evidentiary objection is made, the plaintiff may 

attempt to cure the asserted defect or demonstrate the defect is 

curable.” (Id. at p. 949.)
16

We review de novo an order granting or denying a special 

motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th 

at p. 884; Park, supra, 2 Cal.5th at p. 1067.)

2. The Challenged Conduct Is in Furtherance of Protected 

Speech Activity

Creating a television show is an exercise of constitutionally 

protected expression. (Hunter v. CBS Broadcasting, Inc. (2013) 

221 Cal.App.4th 1510, 1521; Tamkin v. CBS Broadcasting, Inc.

(2011) 193 Cal.App.4th 133, 143; see De Havilland v.

FX Networks, LLC (2018) 21 Cal.App.5th 845, 860 [the First

Amendment “‘safeguards the storytellers and artists who take 

the raw materials of life—including the stories of real 

individuals, ordinary or extraordinary—and transform them into 

art, be it articles, books, movies, or plays’”].) Steps taken to 

advance such constitutionally protected expression are properly 

considered “conduct in furtherance of” the exercise of the right of 

free speech within the meaning of section 425.16, 

subdivision (e)(4). (See Ojjeh v. Brown (2019) 43 Cal.App.5th 

1027, 1039-1040 [“defendants’ hiring and use of a 

cinematographer to obtain on-location footage and their 

maintaining an online journal of refugees’ stories to gather ideas 

for the production are reasonably viewed as conduct ‘in 

furtherance’ of the documentary”]; Lieberman v. KCOP 

Television, Inc. (2003) 110 Cal.App.4th 156, 166 [newsgathering 

is conduct in furtherance of the news media’s exercise of their

right of free speech]; see also Symmonds v. Mahoney (2019) 

31 Cal.App.5th 1096, 1106 [musician’s selection of supporting 

band members is conduct preliminary to, and in furtherance of, 

protected activity of performing or recording music]; Hunter, at
17

p. 1522 [selection of weather anchor is conduct in furtherance of 

protected activity of reporting the weather].)

The alleged wrong acts underlying Musero’s 

misappropriation claim, challenged by the CAA parties in their 

special motion to strike, fall squarely within this category of 

conduct in furtherance of protected expression. As discussed, 

Musero alleged that Miller and Penn “created a pitch document 

which was used to sell Bruckheimer’s Main Justice to CBS during 

the summer of 2017. That pitch document was preceded by, 

borrowed from, and harvested the concept, pitch, series overview 

and pilot created by Musero.” A claim of misappropriation is 

central to each of the three causes of action in Musero’s 

complaint. He alleged in paragraph 63, part of his first cause of 

action, “Defendants breached their fiduciary duties to Plaintiff 

by, inter alia, [¶] . . . [¶] (f) misappropriating Plaintiff’s original 

and creative work in Main Justice, developing it with producer 

Jerry Bruckheimer, production company Bruckheimer TV and 

writer Penn, selling it to, and getting it made at CBS, thereby 

conferring a significant economic benefit to CAA, Miller and 

Yerushalaim.” An identical subparagraph is alleged as one of the 

seven bases for his cause of action for breach of the implied 

covenant of good faith and fair dealing and in slightly truncated 

form as a basis for his breach of contract cause of action. 

Musero disputes his lawsuit, or any claim within it, arises 

from conduct in furtherance of the right to free speech, asserting

“the gravamen of Musero’s complaint is his agents’ breaches of 

their contract and fiduciary duties which resulted in Musero’s 

work being used to make that show [the Penn-Bruckheimer Main 

Justice] without compensation or credit to him.” By relying on 

the now-disfavored gravamen test to determine whether the anti-
18

SLAPP statute applies, Musero mistakes the proper first-step 

analysis. (See Bonni, supra, 11 Cal.5th at p. 1011 [“[t]he attempt 

to reduce a multifaceted cause of action into a singular ‘essence’ 

would predictably yield overinclusive and underinclusive results 

that would impair significant legislative policies”]; Baral, supra, 

1 Cal.5th at pp. 393, 396 [“courts may rule on plaintiffs’ specific 

claims of protected activity, rather than reward artful pleading 

by ignoring such claims if they are mixed with assertions of 

unprotected activity”; as long as a “court determines that relief is 

sought based on allegations arising from activity protected by the 

statute, the second step is reached” with respect to these claims].) 

Musero alleged Miller and CAA actively assisted in the 

development of the Penn-Bruckheimer Main Justice project by 

misappropriating his original material. Although each of his 

three causes of action is also supported by allegations of 

nonprotected activity, that claim of misappropriation—that 

Musero’s creative ideas were improperly conveyed to Penn as

part of, or preliminary to, the creation of a television program—

supplies an element of all three causes of action, regardless of 

what the Bonni Court referred to as the metaphysical essence of 

those causes of action. (See Bonni, supra, 11 Cal.5th at p. 1011.)

The Ninth Circuit’s decision in Jordan-Benel v. Universal 

City Studios, Inc. (9th Cir. 2017) 859 F.3d 1184, on which Musero

primarily relies, does not support a different result. The plaintiff 

in that case, a writer, sued a talent agency, one of its writer 

clients, a film production company and a motion picture studio 

for copyright infringement and breach of an implied contract, 

alleging they had stolen his idea for a screenplay and used it to 

make two successful motion pictures. The state law contract 

claim alleged the defendants had failed to compensate plaintiff 
19

for the use of his idea (id. at p. 1186)—a Desny idea theft claim. 

The district court denied the defendants’ special motion to strike 

the implied-in-fact contract claim, ruling the claim was based on 

the defendants’ failure to pay, not their creation, production or 

distribution of the motion pictures. (Ibid.) The court of appeals 

affirmed, agreeing with the district court “the conduct or act 

underlying [plaintiff’s] breach of implied-in-fact contract claim is 

Defendants’ failure to pay for the use of the screenplay idea. This 

conclusion is compelled by the fact that the failure to pay was the 

specific act of wrongdoing alleged by [plaintiff] to give rise to a 

legal claim. . . . Because the ‘overall thrust of the complaint’

challenges Defendants’ failure to pay for the use of his idea, we

hold that the failure to pay is the conduct from which the claim

arises.” (Id. at p. 1191.) 

Rejecting the argument the plaintiff would have no claim

for payment but for the defendants’ production and release of the

films and, therefore, his claim necessarily arose from that

expressive activity, the Ninth Circuit explained, “Because the 

target of [the plaintiff’s] claim is not actually the expressive 

works (The Purge films), applying a ‘but for’ analysis in this case 

would threaten to subject plaintiffs to the burden and expense of 

litigating anti-SLAPP motions in cases where protected free 

speech activity is not the focus of the claim.” (Jordan-Benel v. 

Universal City Studios, Inc., supra, 859 F.3d at p. 1192.) “The 

California courts,” the Ninth Circuit continued, “have said 

nothing to suggest that the State intended its anti-SLAPP law to

apply when protected activity is not the target of a claim.” (Id. at 

p. 1193.)

We need not parse the difference between a Desny claim

challenging the failure to pay for an idea, as in Jordan-Benel, and
20

a claim alleging liability for the actual use of the idea, as here—a

distinction the CAA parties urge us to make—to decline to apply

the Ninth Circuit’s reasoning. As the quoted language makes

clear, the Ninth Circuit’s Jordan-Benel opinion, like Musero’s

argument in this court, is based on a pre-Baral “principal thrust

or gravamen” approach to determining whether an entire cause

of action arises from protected activity, and is inconsistent with

Baral, as well as the Supreme Court’s recent reiteration of the

proper first step analysis in Bonni, supra, 11 Cal.5th 995.7 As

Bonni and Baral instruct, whatever the purported “target” of a 

cause of action, if protected speech activity supplies an element of

the claim, the burden shifts to the plaintiff to demonstrate a 

reasonable probability of prevailing on the merits. 

Unquestionably in the case at bar, Miller’s alleged participation 

in the creation and development of Penn’s version of Main 

Justice, protected activity, is “not just evidence of liability or a 

step leading to some different act for which liability is asserted” 

(Park, supra, 2 Cal.5th at p. 1060), but provides an element of 

Musero’s breach of fiduciary duty and breach of contract causes of 

action. 

7

In a footnote the Ninth Circuit recognized the Supreme 

Court in its then-recent decision in Baral, supra, 1 Cal.5th 376 

“explained that an anti-SLAPP motion may strike distinct claims 

within a cause of action, even if the entire cause of action is not 

subject to anti-SLAPP.” Although the court did not explain why 

it failed to apply the Baral analysis, it advised the district court 

to be aware of Baral “[s]hould the district court re-visit antiSLAPP on remand.” (Jordan-Benel v. Universal City Studios, 

Inc., supra, 859 F.3d at p. 1189, fn. 4.)
21

Musero’s additional argument that section 425.16 does not 

apply because his complaint was filed after CBS elected not to 

pursue the proposed Main Justice series and the Main Justice

pilot was never broadcast is equally flawed. It has been clear for 

nearly two decades that a defendant moving under section 425.16 

need not demonstrate the challenged claim was brought with the 

intent of chilling his or her exercise of constitutionally protected

speech (Equilon Enterprises v. Consumer Cause, Inc. (2002)

29 Cal.4th 53, 58) or prove the cause of action complained of has 

had, or will have, the actual effect of chilling the defendant’s 

exercise of speech or petition rights. (City of Cotati v. Cashman

(2002) 29 Cal.4th 69, 75.) That Musero’s lawsuit was filed after 

the expressive activity in this case, therefore, is immaterial. 

Nor is it significant in determining whether an element of 

the misappropriation claim is conduct in furtherance of 

constitutionally protected speech that the creative efforts in this 

case did not result in a public airing of the Penn-Bruckheimer 

pilot: “[C]onduct can assist and help to advance the exercise of 

the right of free speech, even if that assistance did not result in a 

completed exercise of free speech at the time the lawsuit is filed.” 

(Ojjeh v. Brown, supra, 43 Cal.App.5th at p. 1042; see San 

Diegans for Open Government v. San Diego State University 

Research Foundation (2017) 13 Cal.App.5th 76, 106 [lawsuit that 

sought to void contracts between radio station and investigative 

organization that shaped the way news would be gathered and 

reported arose from protected activity].) 

3. The Challenged Conduct Does Not Concern an Issue of 

Public Interest

As the Supreme Court instructed in FilmOn, supra,

7 Cal.5th at pages 144 to 145, “In protecting ‘any other conduct’
22

that meets the requirements laid out in its text (§ 425.16, subd.

(e)(4), italics added), subdivision (e)(4) proves both broader in

scope than the other subdivisions, and less firmly anchored to

any particular context. [Citations.] This provision consequently 

suggests that courts should engage in a relatively careful 

analysis of whether a particular statement falls within the ambit 

of ‘other conduct’ encompassed by subdivision (e)(4).” More 

specifically, “within the framework of section 425.16, 

subdivision (e)(4), a court must consider the context as well as the 

content of a statement in determining whether that statement 

furthers the exercise of constitutional speech rights in connection 

with a matter of public interest.” (Id. at p. 149; accord, Serova v. 

Sony Music Entertainment (2020) 44 Cal.App.5th 103, 117, 

review granted Apr. 22, 2020, S260736.)

The FilmOn Court explained the appropriate analysis for 

determining whether challenged speech has a sufficient 

connection to a public issue to warrant anti-SLAPP protection. 

“First, we ask what ‘public issue or . . . issue of public interest’ 

the speech in question implicates—a question we answer by 

looking to the content of the speech. [Citation.] Second, we ask

what functional relationship exists between the speech and the

public conversation about some matter of public interest. It is at

the latter stage that context proves useful.” (FilmOn, supra,

7 Cal.5th at pp. 149-150.) Context includes the identity of the

speaker, the audience and the purpose of the speech. (Id. at

pp. 142-143, 145.) As our colleagues in Division Eight of this

court held in Jeppson v. Ley (2020) 44 Cal.App.5th 845, under

FilmOn, connecting a broad and amorphous public interest to a 

specific dispute is not enough. “The proper focus of the inquiry 

instead must be on ‘the specific nature of the speech,’ not on 
23

‘generalities that might be abstracted from it.’” (Jeppson, at 

p. 856; see FilmOn, at p. 152 [“[d]efendants cannot merely offer a

‘synecdoche theory’ of public interest, defining their narrow

dispute by its slight reference to the broader public issue”]; Rand

Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 625 [“[a]t

a sufficiently high level of generalization, any conduct can appear

rationally related to a broader issue of public importance”].)

As discussed, the trial court, applying FilmOn, found the 

creation and production of the Penn-Bruckheimer Main Justice

pilot was a matter of public interest, reasoning that the Attorney 

General and, more specifically, Eric Holder are public figures 

regularly in the public eye and that the CAA parties “participated 

in, or furthered, the discourse that makes the topic of the first 

[B]lack Attorney General, one of public interest.” “Such a show,” 

the court concluded, “would undeniably contribute to the public 

debate and discourse that makes the Attorney General and Eric 

Holder topics of public interest.” The CAA parties echo this 

argument on appeal, contending there is a direct and close 

connection between the creation and production of Main Justice

and the public interest topic of the Attorney General. 

It is undoubtedly correct that a proposed television series 

not only based on the life of former Attorney General Holder but 

also apparently created in part by him would be a topic of 

widespread public interest. (See FilmOn, supra, 7 Cal.5th at 

p. 145 [a public issue is generally implicated if the subject of the 

statement or activity was a person or entity in the public eye]; 

Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254 [same].) 

But when the context and content of the specific, allegedly 

wrongful statements at issue here are considered, the degree of 

connection between those statements and that topic of public
24

interest is insufficient to warrant protection under

section 425.16, subdivision (e)(4), as construed in FilmOn. 

As to context, the alleged misappropriation of Musero’s 

ideas was done privately and, according to Musero’s theory, from 

Miller to Penn during the many telephone conversations that 

took place between them while Penn was developing 

Main Justice. Although communications between private

individuals may qualify as protected activity in some

circumstances (see FilmOn, supra, 7 Cal.5th at p. 146; Navellier

v. Sletten (2002) 29 Cal.4th 82, 91), the private nature of the

communications “makes heavier [a defendant’s] burden of

showing that, notwithstanding the private context, the alleged

statements nevertheless contributed to discussion or resolution of

a public issue for purposes of subdivision (e)(4).” (Wilson, supra,

7 Cal.5th at p. 903; see FilmOn, at pp. 146, 150-151.)

As to content, significantly, Musero’s creative work that 

Miller allegedly misappropriated and conveyed to Penn did not 

relate in any way to Eric Holder or to the first Black Attorney 

General of the United States; Musero’s pilot script protagonist 

was an entirely fictional female Attorney General. 

Communicating the general idea of a legal drama (a “procedural,” 

in television industry parlance) involving the Attorney General 

and prosecutors in the Department of Justice is not significantly 

different from the second 30 minutes of each episode of the Law 

& Order franchise that ran on NBC for 20 years, which focused 

on the Manhattan District Attorney’s Office and its prosecutors, 

and is not closely linked to any ongoing public interest that might 

exist with respect to former Attorney General Holder or even to 

the Penn-Bruckheimer series itself. Indeed, the CAA parties 

essentially make that very point, albeit for an entirely different 
25

reason, arguing the two projects are not substantially similar

because the “defining element of Penn’s script” was that it was 

“built around the complexities of being a [Black] Attorney 

General.” As the CAA parties emphasize in their reply brief, 

“[T]he undeniable fact remains that Musero’s MAIN JUSTICE 

lacks the defining focus of Penn’s script, which is inspired and 

influenced by the creative input of Eric Holder himself. Musero 

also cannot change the fact that the Attorney General in his work 

was a female.” 

The other creative elements allegedly misappropriated by 

Miller and CAA for Penn’s benefit are even further removed from 

any public interest in the professional and personal life of former 

Attorney General Holder or, indeed, any nonfictional individual 

who actually held the office. The title of the two pilots, 

Main Justice, for example, is simply the frequently used 

nickname for the Department of Justice’s headquarters in 

Washington, D.C. (as well as the title of a book published in 1996 

concerning the Department’s criminal division and one of the 

six episodes of The Newsroom on which Musero worked as a staff 

writer). Car crashes, assassination attempts, cliffhanger endings

and analogies—direct or subtle—between the justice system and 

the rules of basketball, whatever they may indicate about the 

similarity between the two pilot scripts, contribute nothing to the

discussion of the issue of public interest identified by the CAA 

parties or the trial court.

In sum, the creative aspects of his work that Musero claims 

Miller misappropriated, privately communicated to a targeted 

audience of one, whatever its purported impact on Penn’s work, 

did not contribute to the public conversation about a matter of 

public interest. (See Rand Resources, LLC v. City of Carson,
26

supra, 6 Cal.5th at p. 625 [“we reject the proposition that any 

connection at all—however fleeting or tangential—between the 

challenged conduct and an issue of public interest would suffice 

to satisfy the requirements of section 425.16, subdivision (e)(4)”; 

“[w]hat a court scrutinizing the nature of speech in the antiSLAPP context must focus on is the speech at hand, rather than 

the prospects that such speech may conceivably have indirect 

consequences for an issue of public concern”].) The public 

interest requirement of section 425.16, subdivision (e)(4), has not

been met.8

8 At oral argument the CAA parties, quoting the statement 

in Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,

1042 that an issue of public interest “is any issue in which the 

public is interested” (italics omitted), expanded their argument 

and asserted, because of television’s broad appeal, any statement 

regarding television programming is in the public interest within 

the meaning of subdivision (e)(4). Nygard’s sweeping 

pronouncement, made 11 years before FilmOn, is at odds with 

the Supreme Court’s caution that determining whether the 

subject of speech or other conduct constitutes a matter of public 

interest requires an evaluation of specific contextual 

considerations, such as whether a person or entity was in the 

public eye or whether the activity occurred in the context of an 

ongoing controversy, dispute or discussion. (FilmOn, supra, 

7 Cal.5th at p. 145; see, e.g., Bernstein v. LaBeouf (2019) 

43 Cal.App.5th 15, 22 [“‘“[p]ublic interest” does not equate with 

mere curiosity’”]; D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 

[“[n]o authority supports the [defendant’s] broad proposition that 

anything said or written about a public figure or limited public 

figure in a public forum involves a public issue”]; see also Seelig 

v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807 

[finding comments on an on-air radio broadcast were in the 

public interest because they concerned “a television show [Who 
27

Because the CAA parties did not carry their threshold 

burden under section 425.16, we need not consider whether 

Musero demonstrated a probability of prevailing on the merits of 

any of his claims based on allegations of the misappropriation of 

his work. (See City of Cotati v. Cashman, supra, 29 Cal.4th at 

pp. 80-81; Shahbazian v. City of Rancho Palos Verdes (2017) 

17 Cal.App.5th 823, 830.)

DISPOSITION

The January 17, 2020 order denying the CAA parties’

special motion to strike is affirmed. Musero is to recover his costs 

on appeal.

PERLUSS, P. J.

We concur:

FEUER, J.

IBARRA, J.*

Wants to Marry a Multimillionaire] of significant interest to the 

public and the media”].) As discussed, Miller’s private 

conversations with Penn in which Miller allegedly communicated 

Musero’s ideas for a legal drama centered on the Attorney 

General is only tangentially connected to any topic that can 

properly be considered to be of public interest. 

*

Judge of the Santa Clara Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.