The pair are locked in a bitter dispute over a film, Why Men Shouldn't Marry, that Mr Bing was due to produce and Mr Penn was due to star in.
Mr Penn is suing Mr Bing for $10m (€8.6m ), claiming he lost a role because of his high-profile opposition to the war in Iraq.
Mr Bing is counter-suing, saying the actor tried to blackmail him but on Monday, a judge ruled he could not sue Mr Penn for attempted civil extortion.
Los Angeles Superior Court Judge Irving Feffer said the claim did not exist in Californian law.
Mr Bing, better-known as the father of Elizabeth Hurley's child, claims Mr Penn threatened to release a potentially damaging audio recording unless he was paid $10m.
Mr Bing's lawyer said he would re-submit the extortion suit and may take the ruling to a state appeals court.
Mr Penn, the former husband of Madonna, was reportedly due to play a man who gets over a painful divorce by becoming an anti-marriage counsellor.
The actor said Mr Bing backed out of a deal for him to star in the film after Mr Penn travelled to Baghdad before the war.
In court papers, Mr Penn accused Mr Bing of "borrowing a page from the dark era of Hollywood blacklisting."
But Mr Bing said Mr Penn demanded payment after the part fell through, although no contract had been signed.
According to Mr Bing's lawsuit, Mr Penn said he would claim he was dropped because of his opposition to war in Iraq if he was not paid.
Mr Bing said the $15m he is seeking would cover pre-production costs and pay the salary of Woody Allen, who will work on the project.
Mr Bing, who has produced films like the 2000 remake of Get Carter and Night at the Golden Eagle, has recently moved into writing and directing bigger projects.
Mr Penn as received three Oscar nominations for Dead Man Walking, Sweet and Lowdown and I Am Sam.