Not to be published in the official reports

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield and Susan Bryant-Deason, Judges. Affirmed.

In this idea submission case, plaintiff Eric Ryder challenges the trial court’s grant of summary judgment to defendants James Cameron and Lightstorm Entertainment, Inc. (Lightstorm), on claims that defendants fraudulently expressed interest in developing Ryder’s science fiction story KRZ and used parts of that story in Cameron’s 2009 film Avatar (20th Century Fox). As we explain, Ryder’s contract and fiduciary duty claims fail because we find no similarity between the projects as a matter of law. Ryder’s fraud claims fail because he has not offered evidence raising a triable issue of material fact. Finally, in light of those conclusions, his appeal of the court’s denial of his motion for discovery sanctions is moot. We therefore affirm.

The film begins as Jake Sully, a 22-year-old paraplegic ex-Marine, is brought to Pandora to replace his deceased twin brother as an avatar operator. Upon arriving, he meets Colonel Miles Quaritch, the imposing head of Sec-Ops, and Dr. Grace Augustine, head of the avatar program, among others. Jake begins training as an avatar operator, joyfully discovering his avatar allows him to experience walking again. Meanwhile, Quaritch recruits Jake to secretly provide intelligence on the Na’vi in exchange for expensive surgery to restore the use of his legs once back on Earth.

While out in the wilds of Pandora in his avatar form, Jake gets separated from his group when he is attacked by a panther-like predator, barely escaping by jumping into a rushing waterfall. As night falls, Neytiri, a Na’vi female, finds him and is about to shoot him when a jellyfish-like “woodsprite” lands on her arrow. She interprets that as a sign from Eywa and spares his life. Later that night, she saves Jake when he is attacked by a pack of “viperwolves.” She refuses to bring him back to her village until woodsprites land all over his body. She then brings him back to the gigantic “Hometree” where her clan lives and where her mother, the clan’s spiritual leader, tells her to train him in the ways of the Na’vi.

In his avatar form, Jake trains to become a Na’vi warrior, while in his human form he continues to provide intelligence to Quaritch. He also chronicles his experiences with the Na’vi through entries in a video diary. Eventually he falls in love with Neytiri and the Na’vi, which undermines his loyalty to Quaritch and the RDA. When he passes all the Na’vi tests, he is accepted into the clan, and he and Neytiri choose each other as life-long mates. At that point, Jake’s allegiance fully switches from the RDA to the Na’vi.

When Jake cannot convince the Na’vi to leave Hometree at the request of the RDA, which wants to mine the unobtainium at the site, Quaritch leads his forces into an attack on the Na’vi and Hometree. The Na’vi are defeated, Hometree is destroyed, and Jake’s secret deal with Quaritch is exposed to Neytiri and the clan. Although Quaritch holds Jake and Grace prisoner, they manage to escape. When Grace is mortally wounded in the ensuing shootout, the Na’vi try to save her by transferring her consciousness into her avatar body, but they are too late. She dies.

Once again linked with his avatar, Jake regains the Na’vi’s trust by taming a legendary flying dinosaur-like creature and rallies thousands of other Na’vi warriors from neighboring clans to fight Quaritch and Sec-Ops. Jake leads the Na’vi into battle. When it seems the Na’vi will be defeated, the Pandoran wildlife join the fight and overwhelm the Sec-Ops soldiers. Jake and Neytiri enter a final battle against Quaritch, who dons a robotic suit. In human form, Jake becomes exposed to deadly Pandoran air, and Neytiri kills Quaritch to save him. In the final scene, Jake undergoes the same Na’vi ritual used to try to save Grace, but this time it works—Jake’s consciousness is permanently transferred into his avatar body and he leaves his human form behind.

Cameron originally conceived of the story in 1995 in a detailed 102-page “scriptment,” which he describes as a “highly detailed script-length treatment that, like a treatment, was in a narrative rather than dialogue form, and laid out the story, characters, setting and many of the visual images for Avatar in great detail.” Starting in 1996, Cameron circulated the scriptment to generate interest, and between 1995 and 1997, he began to explore the technology necessary to make Avatar. By 1997, however, he decided not to move forward with the film because the technology was not sufficiently developed. In 2005, Cameron decided the technology was available to make Avatar, so he revisited the project. Between December 2005 and May 2006, he wrote the first draft of the screenplay. Principal photography began in April 2007. Both before and during filming, Cameron rewrote and refined the screenplay, although he “always remained true to [his] original vision of Avatar as expressed in the scriptment.”

2. Ryder’s KRZ

Between 1996 and 1998, Ryder, a 3-D computer animator, wrote a science fiction short story entitled KRZ 2068 based on Joseph Conrad’s classic story Heart of Darkness (1899). In 1998, Ryder and his wife created a business proposal surrounding KRZ to finance the project as a 3-D animated film for distribution via the Internet, television, or through DVD and video sales. As relevant here, the proposal had a “Notice to Recipients” that stated the proposal was being “delivered to a limited number of parties for informational purposes only. By your receipt of this document, you agree that (i) this Proposal and its contents are confidential; (ii) neither you, nor any person or entity with which you are associated, nor any of their . . . respective agents, representatives or employees will copy, reproduce, or distribute to others this Proposal, in whole or in part, at any time without the prior written consent of Channel Modus;^[1] (iii) you and they will keep permanently confidential all information contained herein not already in the public domain; and (iv) you and they will use this Proposal for the sole purpose for which it is intended and not in any manner detrimental to the interests of Channel Modus or the respective partners, advisors, or retainees.”

In early 1999, Ryder sent the KRZ story and proposal to Andrew Wald, a movie producer and friend of his father-in-law. Wald believed KRZ had potential as a feature film and agreed to help Ryder get it made into a movie. In early 2000, Wald contacted a development executive at Lightstorm, Jay Sanders, about KRZ, and he, Ryder, Sanders, and another independent producer Toni Baffo met at the Lightstorm offices in February 2000. Wald provided Sanders a copy of the KRZ story, and, according to Ryder, the proposal.² At this meeting Sanders told Ryder “how unique and really cool he thought the KRZ story was, that it presented an excellent development opportunity for [Lightstorm], and that [Lightstorm] and [Ryder] should do this together and develop the KRZ project. [Ryder] agreed.”

Although Sanders liked the story, he felt it needed to be refined. So between that initial meeting and either December 2000 (according to defendants) or December 2001 (according to Ryder), Ryder, Wald, and Baffo met with Sanders and Sanders gave them notes on the story and coached them on crafting a pitch that would appeal to his bosses, Rae Sanchini and Jon Landau. If Sanchini and Landau liked the story, they would present it to Cameron for final approval. During the development period, Ryder met with Sanders four times, while Wald and Baffo had additional meetings and calls with him. Sanders felt “passionate” about the project, devoting 30-40 hours to it while he was employed at Lightstorm. Ryder researched and compiled reference material relevant to KRZ, including information on mining practices and environmental devastation, Jupiter and its moons, and strange and unique flora and fauna.

During this period Ryder continued to revise the KRZ story, and in mid-2000 Wald brought in screenwriter Stuart Hazeldine to write a treatment for KRZ on “spec” (i.e., without upfront payment, on speculation the project might later sell). After Hazeldine finished the treatment, Ryder, Wald, Baffo, and Hazeldine had a meeting with Sanders, Sanchini, and Landau, during which Hazeldine pitched KRZ to them. Cameron did not attend the pitch meeting. Lightstorm passed on the project. At no point did anyone at Lightstorm disclose the existence of the Avatar scriptment to Ryder.

Ryder, Wald, and Baffo continued developing and trying to sell KRZ. Sanders left Lightstorm in March 2001 and took his KRZ file with him. He joined Ryder, Wald, Hazeldine, and Baffo in seeking to sell KRZ elsewhere. Hazeldine wrote two drafts of a screenplay for KRZ, which the group submitted to various studios and directors without success. In 2004, Hazeldine retitled KRZ as The Adjuster and resubmitted it to Lightstorm, which again passed. Shortly after, Ryder and his group stopped pitching the project. Lightstorm’s records indicate the submission entry for The Adjuster in Lightstorm’s database was “[m]odified” in January 2006.

As set forth in the drafts of Ryder’s short story and Hazeldine’s later screenplays, KRZ takes place in the future mostly on Europa, an ice-covered moon of Jupiter. It tells the story of corporate assassin Kate Shepherd—named Marlowe in Ryder’s short stories—who Ryder described in the KRZ proposal as a “strong, sexy, intelligent cyberbabe.” She works for the Malloc super-corporation, which harvests organisms from ocean vents beneath Europa’s icy surface. To do so, the corporation uses humans as well as organic-bionic hybrid robots called “KRY’s,” which have “Y’s” on their foreheads and “limitation chips” that block emotions and free will. Kurtz, the foreman on Europa, is a robot called a “KRZ,” which has a smaller limitation chip than KRY’s and is self-aware and self-motivated.

The human base commander, Drew Welles, turns up dead in what appears to be an accident, so Malloc sends Shepherd to investigate. She travels to Europa with a KRY named Kary and meets Kurtz, who knows she has come to investigate Welles’s death. Kurtz and Shepherd tour the underwater harvesting fields and the surrounding exotic flora and fauna, and Kurtz tells Shepherd that Welles died in a harvesting accident. Kurtz allows Shepherd to experience his memories through a cord connected to a jack in the back of his head, and she learns Welles had become obsessed with increasing the organism yield from the ocean vents by using explosives that cause massive damage to the vents and KRY’s. To stop him, Kurtz reprogrammed himself, killed Welles, and took over operations.³

Kurtz tells Shepherd he wanted to protect Europa from the devastating over-harvesting and urges her to cover up his murder of Welles. Instead, she reveals the murder to her Malloc supervisor Jeb Fulford. Fulford instructs her to kill Kurtz, but she fails. Kurtz lets her live, imploring her to join him in protecting the Europan ecosystem. She declines, but decides not to oppose his efforts.

Fulford arrives on Europa with a replacement crew of KRZ’s. It is revealed Fulford conspired with Welles to use explosives in the mining process and now Fulford wants to replace all the humans with KRZ’s. When Kurtz learns this, he rallies the humans to fight back. Kary, Shepherd’s KRY companion, reveals he is a KRZ loyal to Malloc and Fulford, and reprograms some of the KRY’s to create an army to fight Kurtz.

As the battle rages, Shepherd removes Kurtz’s limitation chip, which allows him to feel the human emotions necessary to defeat Kary, but which will also kill him. Kurtz pursues and kills Kary, dying in the process. Meanwhile, Shepherd joins the battle against Fulford, who is threatening to freeze the humans to death by shutting down the nuclear reactor powering the base. She overtakes Fulford and forces him to tell Malloc she should be put in charge of operations. She gives him the opportunity to leave Europa, but he shoots at her, and the ricocheting bullets kill Fulford. In the end, Shepherd becomes the head of operations on Europa.⁴

Ryder filed suit against defendants, alleging claims for (1) breach of fiduciary duty, (2) breach of express contract, (3) breach of implied contract, (4) promissory fraud, (5) fraud and deceit, and (6) negligent misrepresentation. Defendants moved for summary judgment. In a minute order, the trial court granted the motion on the ground that Cameron independently created Avatar. It later expanded that ruling by adopting defendants’ proposed order, finding (1) Ryder failed to create an inference of use, (2) Cameron independently created Avatar, (3) there was no triable issue of fact as to the existence of a joint venture or express contract, and (4) there was no triable issue of fact as to fraud. The court also found a pending motion for discovery sanctions against defendants moot, given defendants produced the documents at issue and Ryder had the opportunity to review them and file a supplemental brief opposing summary judgment. Ryder timely appealed.

Before we compare the works, we must decide the level of actionable similarity necessary to raise an inference of use. For implied contract and fiduciary duty claims, the works must be substantially similar. (Benay, supra, 607 F.3d at p. 630 [“The requirement of substantial similarity for implied-in-fact contract claims ‘aligns this field with copyright infringement . . . [and] also means that copying less than substantial material is non-actionable.’”]; Spinner, supra, 215 Cal.App.4th at p. 185; see Fink v. Goodson-Todman Enterprises, Ltd. (1970) 9 Cal.App.3d 996, 1010-1011 (Fink) [applying substantial similarity test to breach of confidence claim]; Nimmer, supra, The Law of Ideas, § 19D.08[A], p. 19D-97 [“In implied contract and confidential relationship cases, the weight of California authority is that there must be ‘substantial similarity’ between plaintiff’s idea and defendant’s production to render defendant liable.”].) For an express contract claim, however, the level of similarity permitting an inference of use is keyed to the language of the parties’ agreement. (Benay, supra, at p. 630; see Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 792; Fink, supra, at p. 1008.) For both types of claims, the material claimed to be similar need not be protectible under copyright law. (Fink, supra, at p. 1008.)

Ryder argues the terms of his KRZ proposal imposed a standard less than “substantial” similarity,⁶ pointing to two clauses under the “Notice of Recipients” section: the term that Lightstorm would not “copy, reproduce, or distribute to others this Proposal, in whole or in part, at any time without the prior written consent of Channel Modus”; and the term that Lightstorm would “use this Proposal for the sole purpose for which it is intended and not in any manner detrimental to the interests of Channel Modus.” Neither clause imposes a standard other than substantial similarity.

Ryder argues he incurred “detriment” when Sanders developed KRZ while concealing the existence of the Avatar scriptment, relying on expert testimony that standard industry practice should have prompted Lightstorm to disclose the existence of Avatar. But this evidence has nothing to do with whether defendants used elements of KRZ to his detriment. Instead, the prohibition against detrimental use presupposes there is enough similarity between elements in Avatar and KRZ to result in some conceivable harm to Ryder. That standard is consistent with substantial similarity.

Likewise, the clause preventing “copy[ing] . . . in whole or in part” (italics added) did not mean Lightstorm could not use any part of KRZ in Avatar, no matter how trivial or minor. This clause mirrors the touchstone inquiry of “copying” in copyright cases, which is circumstantially proved by access plus substantial similarity. (Funky Films, supra, 462 F.3d at p. 1076.) As noted, that standard parallels the inquiry of use in idea submission cases. (Spinner, supra, 215 Cal.App.4th at p. 186.) Thus, this clause also imposed a standard of substantial similarity. (Compare Fink, supra, 9 Cal.App.3d at p. 1010 [applying substantial similarity test to express oral agreement that defendants would pay plaintiff for any television program “based on” his submission].)⁷

Turning to the question of substantial similarity, Ryder points to a host of allegedly similar elements between Avatar and KRZ that were already present in Cameron’s 1996 Avatar scriptment, as well as 12 elements that were added to the Avatar film. The preexisting elements in the Avatar scriptment are not actionable because defendants would not have “used” those same elements from Ryder’s later-created KRZ. Thus, we “filter out” those preexisting elements in assessing the similarity of the works. (See Murray Hill Publications, Inc. v. Twentieth Century Fox Film Corp. (6th Cir. 2004) 361 F.3d 312, 326 (Murray) [explaining in the context of copyright infringement, “Logic also supports the filtering of independently-created elements. The purpose of the substantial-similarity analysis is to answer the question whether the defendant copied the work of the plaintiff. Ordinarily, similar elements between known work of the plaintiff and the defendant’s work will, depending on the degree of uniqueness and originality of the element, support such an inference. However, where defendant owns a prior work containing the same elements, he has no reason, beyond the illicit thrill of copyright infringement, to copy wrongfully from another what he could legally copy from himself. Therefore, where an element occurs both in the defendant’s prior work and the plaintiff’s prior work, no inference of copying can be drawn. [Citations.] Such elements should be removed from consideration.”].)⁸

Ryder claims defendants are estopped from relying on the scriptment to filter out preexisting elements because defendants concealed the existence of the Avatar scriptment when Sanders claimed KRZ was “unique” and agreed to develop it. (Evid. Code, § 623 [“Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”].) Ryder’s argument fails because equitable estoppel “acts defensively only. It operates to prevent one from taking an unfair advantage of another but not to give an unfair advantage of one seeking to invoke the doctrine.” (Peskin v. Phinney (1960) 182 Cal.App.2d 632, 636; see 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 190, p. 527.) In other words, “the theory of estoppel is invoked as a defensive matter to prevent the party estopped from alleging or relying upon some fact or theory that would otherwise permit him to recover something from the party asserting estoppel.” (Green v. Travelers Indemnity Co. (1986) 185 Cal.App.3d 544, 555, italics added; see In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, 658 [explaining estoppel “acts defensively only; it can never be used as [a] sword to gain unfair advantage by the one seeking to assert it”].) Here, Ryder improperly seeks to use the doctrine offensively to establish his contract claims by barring defendants from relying on the preexisting Avatar scriptment to undermine the inference of use. (See Green, supra, at p. 555 [refusing to apply estoppel to preclude defendant from relying on case law defeating plaintiff’s claims].)

Ryder also contends, even if estoppel does not apply, Lightstorm expressly agreed not to use preexisting elements in the Avatar scriptment that were similar to elements in KRZ. Nothing in the record remotely supports such an expansive interpretation of the parties’ alleged agreement. Contrary to the authority Ryder cites, this is not a case in which defendants could have come up with the common or unprotected ideas in KRZ but did not, thereby obligating them to pay Ryder for disclosing his ideas. (See, e.g., Chandler v. Roach (1957) 156 Cal.App.2d 435, 441-442 [“We believe that if a producer obligates himself to pay for the disclosure of an idea, whether it is for protectible or unprotectible material, in return for a disclosure thereof he should be compelled to hold to his promise. There is nothing unreasonable in the assumption that a producer would obligate himself to pay for the disclosure of an idea which he would otherwise be legally free to use, but which in fact, he would be unable to use but for the disclosure.” (Italics added.)].) To confer rights on Ryder over the elements already created in the Avatar scriptment under these circumstances would turn idea submission law on its head.

Thus, because the 12 elements Ryder claims were added to the Avatar film beyond the scriptment were not substantially similar to elements in KRZ as a matter of law, the trial court properly granted summary judgment on Ryder’s contract and fiduciary duty claims.

To prove fraud, a plaintiff must present evidence of “‘“(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.”’” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1452-1453.) Promissory fraud is a species of fraud requiring proof of “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e].” (Id. at p. 1453.)

Ryder offered no evidence supporting an inference defendants made any intentional misrepresentations or false promises. For Sanders, there was no evidence his interest in KRZ was anything but genuine. In fact, Sanders believed so strongly in KRZ that when he left Lightstorm in March 2001 he took the KRZ file with him and joined Ryder, Wald, Hazeldine, and Baffo in seeking to sell KRZ elsewhere. It defies logic that he would have continued to pursue KRZ after leaving Lightstorm if he had been misrepresenting Lightstorm’s interest in KRZ simply to either feed ideas from KRZ to Cameron for use in Avatar years later or keep KRZ off the market while Avatar was dormant. As for Sanchini and Landau, there was no evidence they were ever interested in developing KRZ, let alone using KRZ either to obtain ideas for Cameron for Avatar or to remove KRZ from the market. At most, there was evidence suggesting Landau, Sanchini, and others attended weekly meetings when KRZ was on the agenda and knew Sanders was enthusiastic about the project. But when Ryder and his group officially pitched KRZ to Sanchini and Landau in 2001 (according to Ryder), they passed on it.

Ryder has also failed to offer any evidence of resulting harm. Even if defendants concealed their use of the KRZ development process to obtain ideas for Avatar, defendants never actually used any of those ideas because, as we outlined above, the elements added to the Avatar film beyond the scriptment were not substantially similar to any elements in KRZ. Likewise, even if defendants sought to keep KRZ out of the market between 2000 and 2001, Ryder offered no evidence he could have sold KRZ elsewhere or otherwise missed any other development opportunities during that time. Indeed, the undisputed evidence showed Sanders, Wald, Baffo, and Ryder unsuccessfully attempted to sell KRZ for years after Lightstorm passed but before Avatar was released, including by resubmitting it to Lightstorm, which again passed.

Thus, summary judgment was proper on Ryder’s fraud claims.¹¹

2. Motion for Sanctions

Prior to the hearing on defendants’ summary judgment motion, Ryder filed a motion for discovery sanctions based on defendants’ failure to produce documents as previously ordered by the court. At a status conference, the court stated it was tentatively inclined to grant the motion. In response, defendants produced more than 19,000 pages of documents. By that point, defendants’ motion for summary judgment was pending, so the court continued the hearing and ordered the parties to file supplemental summary judgment briefing addressing the new documents. The parties did so. The trial court thereafter found the motion for sanctions moot because Ryder had the opportunity to brief the newly produced documents and suffered no prejudice.

We affirm the court’s ruling, but for a different reason—the motion remains moot because it implicated the issue of access and we have affirmed summary judgment on the lack of similarity as a matter of law. Ryder argued to the trial court and again on appeal that the newly produced documents shed light on the issue of Cameron’s indirect access to KRZ through the involvement of Landau, Sanchini, and others in the Avatar development process. On appeal, he claims he was prejudiced because he was unable to use those documents in depositions to explore that issue. These contentions do not implicate the issue of similarity, which is independent of access. Thus, even if Ryder were permitted to depose witnesses with the new documents, it would not change the outcome of this appeal. (Cf. Funky Films, supra, 462 F.3d at pp. 1081-1082 [denying plaintiff’s request to take additional discovery on access because summary judgment was proper on lack of substantial similarity].)

The judgment is affirmed. Respondents shall recover costs on appeal.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.