Ferguson v. Writers Guild of America, West, Inc.

Citations: 226 Cal. App. 3d 1382; 277 Cal. Rptr. 450; 91 Cal. Daily Op. Serv. 566; 91 Daily Journal DAR 872; 1991 Cal. App. LEXIS 52Docket: B031656

Court: California Court of Appeal; January 17, 1991; California; State Appellate Court

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Larry Ferguson appeals a superior court judgment denying his petition for a writ of mandate against the Writers Guild of America, West, Inc. Ferguson, a screenwriter, sought to have the Guild's April 27, 1987, credit determination for the film "Beverly Hills Cop II" revised. The credits assigned were "Screenplay by Larry Ferguson and Warren Skaaren; Story by Eddie Murphy." Ferguson's petition, filed on May 15, 1987, requested sole credit for both screenplay and story. The superior court denied his petition and his motion for reconsideration.

The appeal, pending for nearly three years, continued despite Ferguson’s request to dismiss it shortly before oral argument, as the court found the issues substantial and ongoing. The credit determination process is governed by a 1985 basic agreement between numerous production companies and the Writers Guild and an 11-page credits manual from the Guild. The agreement mandates that production companies inform writers of tentative credit decisions and allows writers to request arbitration with a deadline for resolution. The arbitration committee can conduct investigations and hearings, and the definitions of "screenplay" and "story" are provided in the agreement, distinguishing between contributions to the final script and narrative elements.

Schedule A establishes the finality of decisions made by the Writers Guild's arbitration committee regarding writing credits. Such decisions are binding on the Company and all writers, who must accept the screen credits designated by the committee. Neither the writers nor the Company can seek damages or injunctive relief based on these decisions. By signing contracts that reference this Basic Agreement, writers and Companies waive their rights to claims against the Guild or its arbiters under libel or slander laws concerning the arbitration proceedings and any related publications.

The Writers Guild's credit manual reiterates these provisions and outlines the arbitration process. The credit arbitration is overseen by the Guild's credit arbitration secretary, who provides parties with a list of potential arbitrators—experienced Writers Guild members. Each party can disqualify a certain number of arbitrators from this list. The secretary selects three arbitrators, aiming for those experienced in the relevant writing type. 

The arbitrators receive all relevant materials, including scripts and source documents, which the production company supplies. Writers involved can verify the completeness of their submissions. Disputes regarding the authenticity or completeness of materials are settled by a special committee that conducts a prearbitration hearing. The arbitrators also review the production company’s tentative credits and statements, which are kept confidential. A member of the Writers Guild's screen writers' credits committee assists the arbitrators on procedural matters, while the three arbitrators deliberate independently without knowledge of each other’s identities until after they reach their decisions. Each arbitrator then communicates their determination to the secretary.

The secretary communicates the majority decision of the arbitrators to the involved parties. Within 24 hours, any party may request a policy review board, composed of three members from the Writers Guild's credits committee, including the chairman or vice-chairman. This board is prohibited from reviewing scripts or source materials and focuses solely on identifying significant deviations from Writers Guild policy or procedural guidelines. It may direct the arbitration committee to reconsider the case or initiate a new arbitration but cannot reverse arbitration decisions based on judgment. Any decision by the policy review board that approves the credit determination is final.

Ferguson provided the superior court with screenplay and story materials to facilitate proper credit decisions per Writers Guild standards. The court was tasked with identifying contributions that constituted distinct narrative elements and determining which writers contributed more than 33 percent of the final script. On appeal, Ferguson seeks sole screenplay and story credit, alternatively claiming procedural irregularities in the Writers Guild's credit determination process and requesting a new arbitration. The alleged procedural defects include: 1) the arbitration secretary improperly acted as a consultant to the committee, 2) denial of a postponement for Ferguson to gather materials, 3) insufficient time for arbitrators to review submitted materials, 4) lack of assurance of arbitrators' impartiality, 5) failure to provide arbitrators with the credits manual, 6) misclassification of a memorandum as story material, and 7) denial of Ferguson's request to provide a second memorandum regarding the screenplay rewriting.

Ferguson also challenges the superior court's denial of his requests to depose writer Warren Skaaren and to compel the Writers Guild to disclose the arbitrators' identities. Before addressing these issues, the court considers the appropriate scope of judicial review of the Writers Guild's credit determinations, agreeing with the Guild that such disputes are nonjusticiable under schedule A and the credits manual.

Judges possess the capability to analyze screenplays and other literary works to evaluate writers' contributions. However, the Writers Guild has established that disputes regarding credits should be resolved by arbitration committees of experienced members, as agreed in their credits manual and the basic agreement with producers. This process is deemed more efficient and cost-effective than litigation. Judicial review of these arbitration decisions is limited to assessing whether there has been a material breach of the credits manual, paralleling the review standards for traditional arbitration cases.

The court typically does not evaluate the merits of the arbitrators' decisions but focuses on whether the parties consented to arbitration, if fair procedures were followed, and if arbitrators acted within their authority. In this instance, the Writers Guild's policy review board has already examined the procedures used in the arbitration, and the court defers to this board's expertise. Furthermore, the principle of exhaustion of administrative remedies requires that a party first seek correction from the Writers Guild before pursuing judicial remedies.

Ferguson sought a review from the policy review board after the arbitration committee's decision, but the record lacks details on his attorney's presentation. Ferguson claimed misapplication of Guild policy regarding the disqualification of certain contributors and the insufficient contribution of another. However, he did not preserve for judicial review several contentions because they were not presented to the policy review board. Even if considered, those claims were found to lack merit, as the court determined there was no material or prejudicial deviation from the credits manual's procedures.

Ferguson's complaint centered on his belief that he should have been informed of the arbitrators' names and allowed to question them and Skaaren. This claim was rejected. Skaaren, as a party to the arbitration, had the option to make concessions, and his evaluation of contributions did not enhance Ferguson's claim to exclusive credit for the story and screenplay. The credits manual prohibits revealing the identities of the arbitrators to ensure they remain free from pressure and potential retaliation. This practice is supported by longstanding rules within the Writers Guild and aligns with confidentiality protections seen in other professional evaluations. Although it is atypical for parties not to meet with arbitrators or know their identities, disclosing the arbitrators' names would serve no legitimate purpose in this context. Ferguson’s intention to question the arbitrators about their reasoning is not permissible, even under standard arbitration rules. The appeal was denied, and the judgment was affirmed.