Norman v. Ross

California appellate court holds defendants’ anti-SLAPP motions to strike should have been granted in plaintiff’s suit accusing creators of television show Mixed-ish of stealing her ideas, concluding plaintiff’s claims arose from protected activity and there were no substantial similarities between plaintiff’s treatment and defendants’ show. 

Hayley Marie Norman developed a television comedy series in 2014 and 2015 based on her experiences growing up as a mixed-race woman in the suburbs. The show focused on themes around mixed-race identity, told through both flashbacks to the protagonist’s coming-of-age in the white suburb of Agoura Hills and present-day scenes of the protagonist’s life with her white fiancé in East Hollywood. Norman filed a treatment of the show with the Writer’s Guild in 2016. Initially, the treatment was titled Mixed but was later called Tragic and The Girl with the Hair. 

Norman approached Big Breakfast LLC about her treatment in 2017, allegedly with the understanding that the ideas would be kept confidential and would not be used without payment. After Norman completed a presentation deck for Tragic, a producer at Big Breakfast sent the deck to defendant Tracee Ellis Ross, an actress who played a biracial character on the ABC show Black-ish. Norman and Big Breakfast agreed to develop Tragic and sell it to a broadcaster, network, distributor or other financier, with Ross’ involvement. In November 2018, the parties pitched Tragic to financiers, who passed on the show.

Meanwhile, in August 2018, a producer pitched an idea for a spinoff to the television show Black-ish, featuring Ross’ character Rainbow (Bow). The idea became Mixed-ish, a show exploring Bow’s coming-of-age as a mixed-race person in a white suburb. Bow’s hippy parents raised her in a commune where she had been largely unaware of racial identity. When Bow was 12 years old, her family moved to the suburbs, where she attended a racially diverse school. Mixed-ish debuted on ABC in September 2019. 

Norman filed a complaint in 2020 against Ross, Artists First, Kenya Barris, Brian Dobbins, ABC Studios and Big Breakfast. She asserted claims for breach of written contract, breach of the implied covenant of good faith and fair dealing, breach of implied-in-fact contract, breach of confidence, promissory estoppel, intentional misrepresentation, and intentional interference with contract, among others. All defendants except Big Breakfast filed anti-SLAPP (strategic lawsuits against public participation) motions to strike. The trial court granted the anti-SLAPP motions as to all causes of action except the claims for implied-in-fact contract and breach of confidence against Ross and Artists First. The parties appealed. The California Court of Appeal, Second Appellate District reversed, holding that all of Norman’s claims arose from a protected activity and that she had not shown a probability of success on any of her claims. 

Upon reviewing defendants’ anti-SLAPP motions, the appellate court concluded the trial court erred in denying defendants’ motion as to Norman’s cause of action for breach of implied-in-fact contract and breach of confidence against Ross and Artists First, but correctly held defendants established that all of Norman’s other causes of action arose from a protected activity. 

Resolution of an anti-SLAPP motion involves a two-step analysis. First, a defendant must establish that the challenged claim arises from a protected activity. If the defendant does so, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. The parties did not dispute that making a television series constitutes a protected activity. Instead, Norman argued that her claims arose from defendants’ failure to pay her for their use of her ideas. The court noted, however, that while lack of payment for Norman’s ideas is one element of a cause of action for breach of implied-in-fact contract, the claim still requires her to show that defendants actually used her ideas. Accordingly, defendants established that Norman’s breach of implied-in-fact contract claim for the use of her ideas without payment arose from a protected activity. In so holding, the court held that the trial court mistakenly relied on Jordan-Benel v. Universal City Studios, Inc., in which the Ninth Circuit held that, in an analogous scenario, the “overall thrust” of plaintiff’s claim was failure to pay, an unprotected activity, and not the making of the film that plaintiff alleged to have been based on his idea. The court pointed out that Jordan-Benel was decided without the guidance of subsequent California rulings that all elements of a cause of action should be considered in determining whether it arises from a protected activity. 

Norman’s claim for breach of confidence alleged that she disclosed her ideas for Tragic to defendants with the understanding that they would treat them as proprietary and confidential, and that defendants nevertheless used those ideas for their own benefit. The court held that this claim, too, arose out of the protected activity of making Mixed-ish. Like Norman’s cause of action for implied-in-fact contract, her breach of confidence claim required a showing that defendants had actually used her ideas. Similarly, the court held that communications supporting Norman’s intentional misrepresentation and promissory estoppel causes of action also involved the alleged use of her ideas to develop a television series.

The court next analyzed Norman’s probability of success on her claims. First, the court concluded that the evidence did not establish the existence of an implied-in-fact contract, because Norman had entered into a contract giving Big Breakfast exclusive rights to Tragic before the idea was shared with any other defendant. Accordingly, there was no implied-in-fact contract to pay Norman for her idea. Instead, Tragic was submitted to defendants for the purpose of collaborating and finding a financier. 

Further, Norman did not establish that defendants actually used her ideas to create Mixed-ish. Even with a clear theory of access, Norman was still required to show substantial similarity between the shows to establish the use of her ideas, and she failed to do so. The court held that no elements of Mixed-ish that were already present in Black-ish should be considered, including basic elements of Bow’s character, because they predated Norman’s creating or sharing Tragic with any of the defendants. In addition, the overall tone and feel of the works differed—while Tragic is an edgy adult comedy set in the present, centering on a mixed-race adult woman, Mixed-ish is set in 1985 and centers on the character of Bow as a 12-year-old child. Whereas the main character in Mixed-ish has a white father and black mother who are happily married and generally provide a loving and supportive environment, the main characters in Tragic’s white and black families do not get along. Accordingly, the court found no substantial similarity between the works and therefore concluded that Norman had not established that defendants had actually used her ideas. 

The fact that Norman had not shown that defendants actually used her ideas proved fatal to all of her other claims. In addition, the court found no probability of success on Norman’s breach of confidence cause of action because there was no evidence that defendants understood themselves as having a confidential relationship with her. There was no confidentiality agreement in place or evidence of discussions between parties regarding Norman’s desire for defendants to keep her ideas confidential.

The court also found that Norman could not show a probability of success on her promissory estoppel and intentional misrepresentation claims against Ross because there was no evidence that she altered her actions based on Ross’ promises or that Ross had no intention of following through when she made such promises. Finally, the court ruled that Norman failed to demonstrate a probability of success on her claim for intentional interference with her contract with Big Breakfast because she had not shown that Big Breakfast failed to perform or breached its contract with her; rather, Big Breakfast had helped develop Tragic and pitched the idea to financiers, albeit unsuccessfully. There was no evidence that Big Breakfast would have successfully placed Norman’s series with a network if not for the production of Mixed-ish. 

Summary prepared by Tal Dickstein and Erin Shields