Mel Gibson Allowed Fraud Claim in 'Madman' Lawsuit

Mel Gibson  - Getty - H 2018
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Today's word of the day is "demurrer."

A Los Angeles Superior Court judge has mostly overruled one in a lawsuit over The Professor and the Madman and is letting Mel Gibson's Icon Productions continue to pursue claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory fraud over the adaptation of Simon Winchester's book about the origins of the Oxford English Dictionary.

Gibson sued Voltage Pictures back in July 2017 for allegedly jeopardizing his "labor of love," a film that Gibson and his producing partner Bruce Davey say they spent nearly two decades developing. According to the complaint, the film had stars — both Gibson and Sean Penn — as well as a director, Farhad Safinia (Apocalypto), but what it didn't have was a final budget and some "critical" scenes.

Harmless griping, suggested the defendants in the demurrer, a motion which amounts to, "We'll take your word for what happened (for now), but even if everything you say is true, that's not sufficient support for your legal claims."

With respect to fraud, though, L.A. Superior Court Judge Ruth Kwan does see enough for Gibson to continue there.

The complaint, she writes in a tentative that was adopted Thursday, alleges Voltage CEO Nicolas Chartier "made specific promises to Plaintiff while acting on behalf of the other Defendants, and that such promises were made to induce Plaintiff to enter into the agreement to spend its time and money, but Defendants had no intent to perform the promises when they made them. The [Second Amended Complaint] alleges, for example, that Defendants repeatedly presented they shoot critical scenes of the film in Oxford, England, but did nothing to shoot the scenes during the three limited seasonal windows in which Oxford University allows filming on campus."

On the other hand, the judge gets rid of a claim of breach of fiduciary duty — she concludes there's no allegation the parties entered into a joint venture — as well as all claims against Chartier personally. If Gibson wants to try again, he'll get that opportunity, but he'll have to file an amended complaint with more particularity within a couple of weeks.

Meanwhile, of the claims that remain, the most important could be one for declaratory relief. Gibson wants the court to decide that his production company may exercise its right under the agreement to terminate it and regain control of the film. The judge acknowledges a real controversy here and deems this claim to be separate from the other causes of action including a contract breach.

Gibson and Safinia are desperate to take control over the picture. The latter filed a separate lawsuit that contends his screenplay for the film is copyrighted and that the film would qualify as an unauthorized derivative work.

In reaction to both suits, Voltage has asserted its own claims against Gibson, Davey, and Safina for allegedly conspiring to "unlawfully hijack control of and/or interfere with [its] ability to exploit the rights to distribute the motion picture."

Voltage wants a declaration that the copyright Safinia is asserting is invalid and unenforceable and that the director committed fraud upon the U.S. Copyright Office. "He cannot bring a copyright infringement claim based on a script that he prepared as a work-for-hire and does not own," stated the counterclaim.