Wolf

Petitioners Gary K. Wolf and his company Cry Wolf!, Inc. (hereinafter referred to collectively as Wolf), seek a writ of mandate to compel the trial court to vacate its order sustaining, without leave to amend, the demurrer of real party in interest, Walt Disney Pictures and Television (Disney), to Wolfs cause of action for breach of fiduciary duty. At issue is whether one contracting party’s right to contingent compensation in the form of a percentage of future revenues in the control of the other contracting party creates a fiduciary relationship in an otherwise arm’s length business transaction. Because a contingent entitlement to future compensation within the exclusive control of one party does not make that party a fiduciary in the absence of other indicia of a confidential relationship, we deny the request for a writ of mandate.

Factual and Procedural Background

The operative second amended complaint 1 alleges that Gary Wolf is the author of the novel entitled Who Censored Roger Rabbit? (1981). In or about August 1983, Wolf entered into a written agreement with Disney (the 1983 *28 Agreement) 2 in which Wolf assigned to Disney the rights to the novel and the Roger…

I agree with that portion of part 2.d. of the majority opinion suggesting the burden of proof will shift to Disney with respect to whether it accurately reported and paid Wolf the full royalties owed for its exploitation of Wolfs characters. In my view, this holding as a practical matter cures much of Wolfs concern about the difficulty of proving the remainder of his case in the face of possible lost, destroyed, or inadequate records.

I write separately, however, to register my disagreement with the majority opinion affirming the trial court’s order sustaining a demurrer to Wolfs breach of fiduciary duty cause of action. This ruling is based on a finding Disney owed no fiduciary duty, as a matter of law, to accurately and honestly account to Wolf for his 5 percent share of the gross receipts attributable to the company’s exploitation of Wolfs intellectual product. Unavoidable circumstances already have delayed unduly the issuance of our opinion, and also required decision by a partially reconstituted panel in this writ proceeding. I thus will keep this dissent brief, even though it raises some fundamental issues.

I tend to agree with the majority opinion’s conclusion Waverly…

Akin, Gump, Strauss, Hauer & Feld, Martin D. Katz, Edward P. Lazarus and Ann B. Clark, Los Angeles, for Real Party in Interest.

Petitioners Gary K. Wolf and his company Cry Wolf!, Inc. (hereinafter referred to collectively as Wolf) seek a writ of mandate to compel the trial court to vacate its order sustaining, without leave to amend, the demurrer of real party in interest, Walt Disney Pictures and Television (Disney), to Wolfs cause of action for breach of fiduciary duty. At issue is whether one contracting party's right to contingent compensation in the form of a percentage of future revenues in the control of the other contracting party creates a fiduciary relationship in an otherwise arm's length business transaction. Because a contingent entitlement to future compensation within the exclusive control of one party does not make that party a fiduciary in the absence of other indicia of a confidential relationship, we deny the request for a writ of mandate.

The operative second amended complaint [1] alleges that Gary Wolf is the author of the novel entitled Who Censored Roger Rabbit? In or about August 1983, Wolf entered into a written agreement with Disney (the…