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Paramount Pictures chief Brad Grey remains free of legal responsibility for the wiretapping of Scary Movie executive producer Bo Zenga. On Wednesday, a California appeals court affirmed the trial judge’s ruling that Zenga waited too long to file his lawsuit.
The dispute traces back to separate litigation in 2000 between Zenga and Grey over an alleged breach of a producer partnership agreement on Scary Movie, a huge box-office hit. During the course of Zenga’s earlier lawsuit, Grey and his attorneys at Greenberg Glusker hired infamous private eye Anthony Pellicano to dig into Zenga.
Only later did Pellicano’s wiretapping of telephones become public.
The question in Zenga’s appeal — as well as other Pellicano-related matters such as a magazine editor’s lawsuit against Tom Cruise — was whether legal claims were brought within the statute of limitations.
To figure out the answer, judges examined when Zenga began to suspect that his phone had been tapped. Spooky apparitions can cause suspicions, but not necessarily duties to do anything. On the other hand, the appearance of a ghost can trigger a mandate to investigate — that is, if a lawsuit is forthcoming. It all depends on what’s reasonable.
Zenga admitted that he knew during the Scary Movie litigation that Grey had retained Pellicano. His attorney took steps back then to determine if wiretapping was happening, and in 2003, Zenga went to the FBI, reporting among other things that his neighbor reported someone from PacBell had come to set up phone service at Zenga’s home. Afterward, Zenga says he began to hear “weird noises” on his line.
“Zenga’s argument on appeal that he offered evidence from which a jury could conclude that he ‘did not suspect’ a factual basis for his wiretapping claims earlier than [the] one-year period before he filed his lawsuit simply denies the existence of the undisputed facts in the record,” writes California appeals justice Patricia Bigelow.
Nevertheless, the appellant pointed to a 2005 decision (Fox v. Ethicon Endo-Surgery, Inc.) that dealt with suspicions and what a reasonable investigation would have revealed.
According to the latest ruling, “We agree with Greenberg, Grey and PacBell that Zenga reads too much into Fox in relying upon the case to support the proposition that, until a reasonable investigation obtains hard evidence of a cause of action, the cause of action does not accrue. We do not read Fox as broadly as does Zenga. Fox did not change the Supreme Court’s prior discovery rule jurisprudence that the statute of limitations begins to run when a plaintiff ‘suspects’ the ‘generic’ elements of a claim.”
In short, if you see something scary, don’t wait too long to do something about it.
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