*1 Dist., Two., Apr. Second Div. B074848. [No. 1996.] RODDENBERRY, v. Plaintiff and EILEEN A. Appellant, etc., RODDENBERRY, Executor, al., as et Defendants MAJEL Appellants.
Counsel Greene, Glusker, Fields, Michael A. Claman & Machtinger, Greenberg, Greines, Richland, Edwards, L. Richland and Stein & Kent Brian Martin W. Ravitz for Defendants and Appellants. Barbara Lui, Jones, and Laura M. McMahon Reavis & Elwood Thomas Pogue, Day, for A. Matz Plaintiff Appellant.
Opinion in contract is sometimes of a term used ZEBROWSKI, J. meaning The need for an that neither side sees so to the contracting parties obvious Later, and new finan circumstances have changed definition. after express arisen, different agreement. side wish it had a cial incentives have one may an combine to ascribe memories and new advice then Remanüfactured term. This is such a to the meaning uncontemplated updated previously case. Until (the first Mrs. Roddenberry). Eileen A. Roddenberry plaintiff husband, trial, was her former defendant death before the primary
his shortly television the Star Trek Gene created Roddenberry Gene Roddenberry. movies, animations, Rodden- series, Majel and other properties. as defendant in her is now a (the Roddenberry) capacity second Mrs. berry loan-out Gene Roddenberry’s of Gene estate. Roddenberry’s an executor is also a defendant. “Norway” corporation of the first issue is issues. A rough summary
The case two presents Gene created after generated by projects whether certain profits (while Rodden- and the first Mrs. divorced the second Roddenberry) belong was married to the second Mrs. berry estate, or to and Gene fraud were damages The second issue is whether Roddenberry. punitive death. after Gene Roddenberry’s awarded against Norway properly Summary Factual Star Trek television series. original *7 1960’s, Gene to Roddenberry, In the his the first Mrs. during marriage Trek. Star Trek a television Star Roddenberry series entitled developed seasons, from to (hereafter 1) on NBC for three appeared 1969. divorced in time Gene and the first Mrs. Roddenberry Roddenberry
the By seasons, three Star Trek 1 had rated third in its time slot for each of its deficit, a was considered had amassed a multimillion-dollar production failure, had been cancelled NBC. Efforts were underway commercial and rerun on television stations. Norway’s to local syndicate was Norway contract with the Star Trek 1 production company provided a set including pay- entitled to several of income from syndications, types if reruns ever yielded ment rerun and per “profit participation” payments to the contractual formula.1 profits according
The divorce settlement and agreement judgment. mid-1969, In and the first Mrs. to Roddenberry Roddenberry agreed a divorce settlement numerous issues and from covering resulting typical distrib- numerous trade-offs. assets typical Among many community uted was which held the rerun Norway, payment profit participation Trek.2 in “Star Trek.” also owned a interest Star rights Norway copyright The the first settlement allocated to Gene agreement Norway Roddenberry; received other marital The settlement agreement Roddenberry property. thus allocated to Gene all the community property previous Trek, interests, in Star with one the marital rights including copyright The “one-half interest in first Mrs. was allocated a exception: future first all income from ‘Star Trek’ to which profit participation [the Mrs. Roddenberry] and/or are entitled.”3 Roddenberry] [Gene
The the first Mrs. Roddenberry’s handwritten (mostly by read into the court record the first Mrs. attor- attorney), (by and entered as a ney), judgment subject 1969. judgment provided to its “all future income of each is that provisions, party party’s separate Thus for whatever was included in the category property.” except “profit Trek,” had income from Star bar- participation all interests she have had in Gene Roddenber- gained away property might ry’s income.4 postdivorce Norway’s production company, “profit partici 1In contract with the Star Trek 1 the term
pation” captioned defining Norway’s rights syndications. a section provided large growing production contract repay that Star Trek had to cost deficit any syndication profits payable Norway. before would be 2Norway copyrights production company, shared the with the Star Trek 1 Desilu. Desilu’s interest was later transferred to Paramount. actually Norway participation” 3It was Trek.” “profit that was entitled to income from “Star However, parties Roddenberry interchangeably. often to Norway referred and Gene to, received, many years alimony. 4She was entitled and for The issue here is whether she income, property family right retained opposed interest in his as to a law alimony. *8 in the settle- “Star Trek” used and participation”
The terms “profit were not defined. resulting judgment expressly ment and definition. because of this lack express was possible current dispute Trek Star projects. Postdivorce events, years devoted the remaining these
After Rodden- second Mrs. He married the Star Trek his life to various projects. until his death remained married to her divorce and within his days berry in his assisted postdivorce The second Mrs. Roddenberry in 1991. efforts. 1975, to a Star bore fruit. From 1973 efforts gradually
These postdivorce won an and Emmy on NBC. It series was broadcast Trek animation (Para- 1979, In rerun syndication. The Motion Picture Star Trek: Trek A new Star Five followed. Pictures) was released. sequels mount 2) series, (hereafter Star Trek Generation Trek: The Next television Star merchan- included television specials, Additional in 1987. projects appeared death, 1993, a music, Gene Roddenberry’s after etc. In January dising, (hereafter Star Nine Deep Space entitled Star Trek: television series spin-off 3) began. suit is Trek 1 into goes profits, Star filed. failure, financial its cancellation as a after years
By deficit, to receive “profit Norway began and its production had recouped to began making payments Norway payments. participation” Roddenberry. claiming— filed suit the first Mrs. Roddenberry
Near the end of she Initially, shorted. determined—to have been it was later correctly, Later, Trek 1. she in Star of Norway’s claimed half profit participation Roddenberry’s all of Gene to of all income from her claim half expanded and Gene She also sued Norway Star Trek efforts.5 to her. with Norway’s handling payments for fraud in connection Judgment Trial Court to and subject the court and in jury, After trial in part part here, the trial court detail necessary adjustments qualifications judgment. entered multipart college fees for she did not claim half of Gene exception: 5With minor Trek income. of all his Star lectures. Otherwise she claimed half
convention *9 The Star Trek 1 interest. “profit participation”
The the first entitled to half trial court found that was from Star Trek 1. Offsets claimed profit payments participation (This and the were disallowed. of the has estate Norway portion judgment event.)6 been and would be affirmed in appealed, any claim. fraud The trial court also entered on a verdict judgment jury against Norway $900,000 in for fraud in punitive damages Norway’s handling profit to the first Mrs. participation payments Roddenberry. Star Trek postdivorce projects.
On the first Mrs. claim to half of all income Roddenberry’s generated by Star Trek the trial court rendered Roddenberry’s postdivorce projects, and inconsistent decision. split the trial court Preliminarily, Roddenberry’s simply ignored that she was entitled to half of all Star Trek income. testimony postdivorce This to the of the settlement testimony contrary language express and and was inconsistent with all other resulting judgment, evidence. The trial court it and focused on the issue of properly ignored profit participation. issue,
In the trial identified six evaluating profit court participation (all 1) of Star Trek categories five of which projects, except divorce; 1, (1) (2) the Star Trek animations in postdated 1975, 1991, (3) (4) the six through motion from 1979 to pictures 1987, Star Trek 2 (5) television series the Star Trek 3 television beginning 1993, (6) series and various ventures on an beginning merchandising basis. ongoing (2)
With to the as the Star Trek regard postdivorce projects designated animations, movies, (3) the six Star Trek and ven- merchandising tures, the trial court a traditional contractual intent Based employed analysis. on this the trial court found no contractual intent that the first Mrs. analysis, would receive these generated by animations, to As movies and was there- projects. merchandising, judgment fore for defendants. far, 6According has to the first Mrs. brief filed in she “[t]hus March (Italics $13.8 original.)
received receive disbursements million.” She continues every six months. a markedly With to Star Trek trial court employed regard intent Instead the same traditional contractual different analysis. applying animations, resulted in a defense verdict on movies which analysis *10 the whether Star Trek and 3 were court instead merchandising, inquired Star that and 3 were of Trek 1. both Finding “continuations” first Rod- of Star Trek the trial court awarded the “continuations” Trek 2 half the from Star and 3.7 denberry profits Appeal This to the that she is entitled The first Mrs. Roddenberry appeals ruling movies, animations, and on the grounds from the profits merchandising, is not substantial evidence. ruling supported by this Trek award half the Star 2 and 3 and the estate the of Norway appeal on the that this award is not profits grounds the Norway punitive damage substantial evidence. also appeals supported grounds. award on several Appeal
Disposition on the which denies the first Mrs. Roddenberry That of judgment profits part animations, movies and affirmed. merchandising from the postdivorce $900,000 the Mrs. Roddenberry of the which awards first judgment That part for That in fraud is also affirmed. against Norway part damages punitive Star first Mrs. from Roddenberry profits the which awards the judgment 2 and 3 is reversed. Trek Regarding Contract
The Evidence and Contentions Interpretation I of trial relief limited Phase was a declaratory phase supposedly from Trek.” income Star determining participation meaning “profit and the fraud concerned and issues accounting damage Subsequent phases I and relevant to the contract inter- claim. The evidence contentions phase below. I alone consumed 15 days issue are summarized next Phase pretation entitled to half 7The court later added that the first Mrs. was also any programs that specials Trek television and from Trek television from two Star other Star post in the “Star Trek 2 3” is used include the might be made future. The term and any The trial also specials programs and future Star Trek television or series. court television any postdivorce other Star rights later ruled that the first Mrs. had no contract might as-yet- means projects developed, including any be exploitations animations, movies, post undeveloped technologies. postdivorce to the Reference merchandising and includes other forms of exploitation. However, and the record is hence voluminous. the evidence ranged far afield and is more than notable its bulk its relevance. irrelevant evidence and contentions are noted where necessary.8
The contentions regarding income meaning “profit participation Trek” Star settlement agreement judgment. estate Norway contended first that the term “profit participation” as used the settlement referred to the “Profit Participation” section of with contract the Star Trek 1 Norway’s production company. *11 Second, contended that the term “Star they Trek” as used in the 1969 settlement and agreement referred to the judgment only “Star Trek” property existence, then in or discussed the contemplated, settlement during negotia- tions, Star Trek 1. The first Mrs. contended that the settlement Roddenberry her agreement entitled to half the all projects, those including developed while he by postdivorce married to the second Mrs. Roddenberry.9 abstract,
In the the in the language agreement settlement reasonably to either susceptible trial court therefore meaning. correctly received evidence. & parol (Pacific Gas E. Co. v. G. W. Thomas etc. Drayage Co. 33, (1968) 561, 641]; 69 Cal.2d 37 442 P.2d v. Cal.Rptr. Appleton [69 (1994) 551, Waessil 27 554-555 See Cal.App.4th Cal.Rptr.2d [32 676]. al., et Wegner Cal. Practice Guide: 2 generally, Civil Trials and Evidence (The 1995) Rutter cited.) et and there Group cases seq., 18:3102 I
Categories phase evidence. of I evidence fell phase into three roughly categories. The first and largest category was evidence events after regarding the divorce: Gene long efforts, Roddenberry’s his postdivorce Star Trek contracts, Norway’s fraudulent of Star 1 handling profit participation payments, various entertainment etc. industry practices, Most accounting this evidence had no relevance the of what the intended question parties language used their 1969 settlement judgment, 8Current counsel on appeal during were not phase interpretation counsel I contract trial. evidence, Current counsel opportunity thus had no may or structure the issues and this account for presented disconnection between the evidence at trial and the issues advanced by the first Mrs. appeal. on actually 9The first Mrs. testified that she was entitled to half of all of Gene kind, postdivorce Star including Trek income of wages other payment or services, personal excluding only lectures. (See evidence was admitted I.10 phase
it is unclear much this why (1984) Center v. State Bd. Equalization Cedars-Sinai Medical at time of contracting Cal.Rptr. Cal.App.3d [208 837] [intention McClellan, Thomas v. Buttress & Inc. 141 Cal.App.2d is paramount]; intent is to be ascertained as of the time P.2d [297 768] [contractual made; unforeseen events do not control deter the contract was subsequent Code, intent]; must be interpreted give mination of Civ. [contract § at contract intention of the as it existed the time of effect to mutual parties ing].) I identified of evidence
The second largest category presented phase industry. of a idea in the entertainment forms of story possible exploitation “Star to which the term evidence defined the universe of meanings This universe was Within the broadest conceivable susceptible. Trek” is It was first Mrs. Roddenberry: advanced everything. meaning broad an term “Star Trek” was to so susceptible interpretation, because the defendants, that more limited advanced by as well as to the interpretation the meaning actually evidence was received to determine parol properly intended by parties. identifies meanings merely pos-
Evidence identifying range possible *12 meaning of which proving sibilities. Such evidence is inherently incapable was that one meaning If evidence is was intended. actually presented intended, does the mere existence of a contrary linguistic possibility actually choice. A theo- evidence the contrary not constitute substantial supporting evidence.11 Showing is not the of substantial retical possibility equivalent of to the admission parol the theoretical possibility merely prerequisite cannot be arbi- evidence meaning evidence. A theoretical unsupported alternative which is supported simply over an trarily meaning preferred universe is within the abstract of linguistic because the theoretical meaning the of contractual intent upon Hence the determination depended possibility. on what the of evidence: evidence bearing directly parties third category intended. actually contract.
The circumstances at the time of in existence the of in the “Star Trek” At time contract only property before the settlement Star Trek 1. the time it was cancelled shortly was By waiver, against expected estoppel or may preemptive 10Some of it have been a strike an defense, Roddenberry light perhaps years elapsed laches of the before may have Roddenberry’s postdivorce portions Star Other claimed half of Gene Trek income. not advanced earlier expectable been intended to rebut the inference that her claims were shortly In either only because her theories of entitlement had been conceived before trial. case, portions Those parties’ little of this voluminous evidence concerned the intent. arguably Roddenberry’s delay. were relevant directed toward Mrs. explaining seem the first case, evidence, regarding 11The law substantial and its is discussed more application in this fully below. $3 it had amassed a of negotiations, deficit million.12 No further production were or projects contemplated. development The negotiation agreement. the settlement would not allow the first Mrs. Roddenberry agree Roddenberry
share in his income The except by way alimony. first would Roddenberry with certain items of marital part property. scenarios, negotiations therefore considered various and one asset ultimately to Gene allocated Roddenberry was first Mrs. Norway.
received half-interest in from Star Trek. profit participation
In a handwritten the first proposal by Mrs. Roddenberry’s attorney, Jerry Edelman, in the he early negotiations, that the first Mrs. Rodden- proposed be berry allocated income “any or directly indirectly generated by ‘Star fees, whether in form rerun or royalties, profit participation, Trek’, otherwise.” Gene would not and the allocation to the agree, first Mrs. was limited to the negotiation “profit participa- tion” item Both sides only. had Star copies Norway’s contract with the Trek 1 production which “Profit company Participation” specific of revenue. category their
During negotiations, defined the parties regularly profit partici- pation interest as a percent interest. When Edelman read Attorney parties’ record, settlement into the Mr. Edelman referred to first Mrs. share of profit income from Star participation - Trek as “one-half of 30 percent was the percent.” Thirty percent figure both sides believed to be profit interest in Star Trek Norway’s participation *13 Later, 1 syndications. because of doubt about precise figure percentage (which was to subject interests) calculation because of competing percent was not included figure in judgment.13 showed, found,
The evidence thus and the trial court that in negoti- their ations the discussed parties in Trek specifically Star only profit participation 1. There was no evidence that the Star parties any postdivorce discussed or project, other Star Trek 1. project than
The Edelman declaration. item, for Except the first Mrs. had profit participation Nevertheless, traded all away her in marital interest Star Trek income. when 12The eventually grew $5 deficit million. 13It was later calculated proper that after allowance for star William Shatner’s actual share was 26 n A interest, Norway’s percent. rerun in she Roddenberry began receiving contended payments
that she was entitled to half. As of her effort to extract half the rerun part she filed the declaration of her former Edelman with the payments, attorney court in 1970. early
Mr. Edelman declared that he had almost continu- “negotiated personally chambers, corridor, in the and the cafeteria of the judge’s ously” with the courthouse for three of Gene Rodden- days representatives intention, Edelman declared that was and the berry. Attorney my “[i]t intention of that first Mrs. Rod- Roddenberry’s representatives] [Gene [the Trek, (1/2) in one-half of all of the income from Star so denberry] participate as that income was earned on account services as long already performed income services to be in which distinguished performed, [the first intention, It I Mrs. was not was am Roddenberry] participate. my informed and believe the intention of counsel and [Gene we in the that used which was language Stipulation, language advisers] Divorce, later in the Decree of would Interlocutory incorporated accomplish Trek, an even division of income from Star attributable services.“ past added.) (Italics Mr. Edelman therefore claimed that the Mrs. Rodden- first was entitled to half the rerun He declared that he had berry payments. his declaration at the of new counsel and understood that it prepared request would be used in an effort to obtain a new trial.
The new trial motion was denied in 1970. The minute order does early reasons, state but the settlement was in the negotiated partly chambers and at in the least judge’s presumably partly judge’s presence. evidence this action shows that the first Mrs. had initially demanded an interest rerun but later had that payments, bargained away item in the course of the settlement negotiations. trial,
At this Roddenberry was asked about Mr. Edelman’s declaration: “Is it belief or contention Mr. Edelman was your untruthful when he made this statement?” She answered: “Mr. Edel- being man was not untruthful.” The evidence was thus uncontradicted that the first had no contractual to income services right generated after the divorce. Her case thus performed dependent upon proving the income share she claimed was before generated services performed the divorce. *14 testified,
Mr. Edelman himself but could recall of nothing significance the events over 20 before. regarding years
The Mrs. Roddenberry’s testimony. first The first Mrs. claimed to have been unaware of the Star Trek animations, movies, and until evidence the merchandising litigation. unawareness, and was her claim of the trial strongly against court found that Nevertheless, she was aware of these as occurred. did developments they she not claim a share of the postdivorce income from Star Trek until projects divorce, after the then as and an addition to a lawsuit many years 1. from Star Trek initially seeking only profits
The first Mrs. testified that she was in the courthouse present the entire three on the during 1969 which settlement was days agreement Instead, but did not in the the negotiated, directly participate negotiations. were conducted negotiations Edelman and Gene by attorney Roddenberry’s outside advisers her immediate She did not read the presence. stipulation handwritten Mr. Edelman before Mr. Edelman read it into the court record. She did not remember of terms and conditions which he read to the court. Her demonstrated testimony with the continuing unfamiliarity terms of settlement and resulting judgment.
She nevertheless claimed half of all of Gene Roddenberry’s postdivorce income, income from of including rendition postdivorce personal services (the excluded (expressly rerun same judgment), royalties on the argument rejected 1970), new trial motion in all and other Star Trek income of kind.14It was the every baseless demand that would cause type all observers to prudent check for their wallet. Her was more in testimony genre wishful thinking than factual based on testimony personal knowledge. trial court or her ignored rejected most of testimony. The uniqueness Star Trek’s resurgence.
The evidence was uncontradicted Star Trek’s postdivorce resurgence unprecedented entertainment Never before industry history. had failed financially television series enjoyed such at- subsequent popularity, investment, tracted subsequent and inspired ventures. subsequent Even though was unfamiliar with terms the settlement she claimed to have agreement, anticipated success, projects their unprecedented have intended obtain an interest them via the settlement with agreement, which she was unfamiliar.
The judicial admissions. In the first Mrs. first amended filed in complaint trial), two (only years before her claim to participation” “Star “profit 14Excepting only college and convention lectures.
650 be defined as “all and income thereafter might Trek” was first Mrs. Roddenberry’s] from Gene [Roddenberry’s] [the generated in ‘Star Trek’ as it existed under the Contracts interest community property trial, (Italics added.) at The claims advanced at the time the Judgment.”15 contrast, it existed interest in Star Trek as went far a claim to an beyond by time of the divorce.16 at the 14 to the first Mrs. also contained references
The first amended complaint interest, clear interest as a 15 percent profit participation Roddenberry’s of the 30 percentage parties references to half percent profit participation contract with the Star Trek to Norway’s believed payable pursuant originally (Cf. Homeowners Assn. v. Magnolia Square 1 production company. Safeco consti- (1990) pleading Ins. Co. 221 1049 Cal.App.3d Cal.Rptr. 1] [a [271 admission, it be shown that the statements an although may tutes evidentiary stated that the divorce mistaken].) judgment For were example, pleading future (15%) “one-half interest in Mrs. awarded the first Roddenberry ” Trek,’ of the 30% consti- from ‘Star and “15% income profit participation and Defendant to which Plaintiff one-half of the community property tuting and 30 of the divorce decree.” The percent were entitled at the time in Star Trek 1. figures applied only profit participation percent provisions. carried different profit-sharing Star projects to delete Later, to amend her the first Mrs. moved complaint references, mistakes. The motion were claiming they the percentage claim to half tried as if the laid pleading denied. The case was nevertheless of all postdivorce profits. Regarding Participation Appeal Profit
Contentions on contentions the award concerning and the estate advance two Norway First, is not contend that the award supported Star Trek 2 and 3 they profits: evi- contend that the objective substantial evidence. Alternatively, they by conflict, and that we must contractual intent is not in dence regarding Witkin, (See novo review on generally, therefore conduct de appeal. Contracts, 615; 1987) Mission (9th of Cal. Law ed. p. Summary § East, v. Kern County Cal.App.3d Inc. Valley [174 counsel, essentially an different contained original complaint, 15The filed interest. profit participation identical definition of first trial, written on her behalf in 1982 was asked about a letter 16At son-in-law, knowledge to her she Attorney Compton. Richard The letter stated that her time and Gene “owned at the received half the Star Trek interest that she “Yes,” she was true. deposition, divorce.” In her she was asked whether that statement trial, had been the court her answer answered. At her then current counsel advised admission, text, However, to exist changed equivalent set forth in the continued to “no.” pleadings. in her
651 court must Cal.Rptr. [appellate determine the independently meaning 300] of conflict].) contractual if the extrinsic is language evidence not The first animations, contests the of denial her from the profits movies is contending there no substantial evidence to merchandising, this denial. support evidence,
After reviewing the record substantial evi- we find ample animation, dence to the denial of movie and support merchandising profits no We find substantial Roddenberry. evidence support of award half the 2 Star Trek and 3 to the first Mrs. We Roddenberry. therefore need not consider the law the nature of evidence regarding permit- or de novo ting requiring review on appeal.
The Substantial Evidence Test The verbal formulation.
“. . . extrinsic evidence been [W]here has admitted as an properly conflicts, aid to the of a interpretation contract and the evidence a reasonable construction of the agreement by trial court which is supported (In substantial evidence will be upheld.” (1976) re Marriage 17 of Fonstein 738, 873, Cal.3d 1169].) 746-747 552 P.2d Cal.Rptr. [131 “Substantial evidence” is of evidence ponderable legal evidence that significance, is reasonable, credible and of solid value. v. Department General {Kuhn of 1627, (1994) 22 Services 191], 1633 Cal.App.4th Cal.Rptr.2d [29 quoting 638, (1952) Estate Teed 112 54].) Cal.App.2d 644 P.2d “Substantial [247 ‘“ Instead, evidence ... with evidence.” synonymous ‘any’ it is “sub ” stantial” of the proof essentials which the law (Toyota Motor requires.’ U.S.A., Sales 864, Inc. v. Superior (1990) Court 220 871-872 Cal.App.3d 647]; 38, (1988) Kruse v. Bank Cal.Rptr. [269 America 202 51 Cal.App.3d 217].) The focus is on the Cal.Rptr. [248 rather than the quality, quantity, ‘substantial,’ evidence. little solid evidence be “Very while lot of may ” weak extremely evidence be might ‘insubstantial.’ Sales (Toyota Motor U.S.A., Court, 864, Inc. 871-872.) v. Superior supra, 220 Infer Cal.App.3d evidence, ences may constitute substantial but must be the they product and reason. or logic Speculation conjecture alone is not substantial evidence. Diederich, (Louis & (1987) Inc. v. Inc. Cambridge Imports, 189 European 1574,1584-1585 889]; Cal.App.3d Marshall v. CaLRptr. [234 Parkes 657].) Cal.App.2d Cal.Rptr. Expert opinion testimony [5 constitutes substantial evidence if or on conclusions only based assumptions evidence in the supported by record. testimony which is Opinion conjectural or speculative “cannot rise to the evidence.” (Pacific of substantial dignity Gas & Electric Co. Zuckerman (1987) v. Cal.App.3d [234 630].) Cal.Rptr. *17 make the for a trier of fact to it is reasonable test is whether
The ultimate (Kuhn v. Department the whole record. in of light in ruling question 1627, 1633.) “A formulation of the Services, 4th 22 Cal. App. supra, General evidence of isolated the importance rule which stresses evidence substantial its abdicating the court into misleading . . . risks the judgment, supporting Chief Justice Traynor explained, whole record. As to duty appraise in this be distorted evidence rule may substantial sensible’ ‘seemingly observes, ‘an he fashion, ‘Occasionally’ twists.’ strange to take ‘some tom from on isolated evidence the trier of fact court affirms appellate from an acceptable premise, Such a court leaps whole record. context of the evidence, to the isolated fact could reasonably believed] a trier of [have everything rejected trier of fact reasonably that the dubious conclusion examined the court appellate evidence. Had the the isolated that controverted trier of fact could record, that a reasonable it have found whole might of review is One of the very purposes in issue. finding have made of affirming the risk and thus findings preclude such irrational just uncover (Traynor, as a matter of law.’ that should be disaffirmed a finding omitted.)” v. Johnson 27.) (Fns. (1969) (People Riddle of Harmless Error p. 738, 431, 16 557, 606 P.2d (1980) 577-578 Cal.Rptr. 26 Cal.3d [162 1255].) A.L.R.4th incantation an is therefore not merely appellate
Substantial evidence to the it is essential To the contrary, an affirmance. designed conjure up evidence be supported that a judgment of the judicial process integrity seize “blindly need not An court appellate at least substantial. that is ‘was not of Appeal The Court judgment. in order to affirm evidence ... A decision of the trial court. the determinations . . . to echo merely created ” be affirmed on review.’ evidence need not a mere scintilla of supported 1627, Services, 1633 22 (Kuhn supra, Cal.App.4th v. General Department of (1984) 155 Commissioners v. Board Pension Bowman quoting part 937, 505].) Cal.Rptr. 944 Cal.App.3d [202 in case law. evidence test as applied The substantial Cases above general guidance. The verbal formulation set forth provides In the to proper application. the test additional guideposts applying provide contra- context, which a declaration simply for example, summary judgment as substantial normally admission is not acceptable dicts a discovery prior 1, (1974) 11 Cal.3d Medical Examiners (D’Amico evidence. v. Board 786, 10].) against This is because “admissions 21-22 520 P.2d Cal.Rptr. [112 are “entitled to and should value” and credibility interest have very high allegations kind of deference not accorded normally evidentiary receive a 22; (1989) 211 v. Williams (D’Amico, affidavits.” at see also Thompson p. 566, 573-574 Cal.App.3d Cal.Rptr. [259 518] attempts [“[a]fter-the-fact reverse admissions are impermissible because cannot on prior party rely own contradictions his to create a triable issue of testimony fact. [Cita The assertion of facts to prior does not contrary testimony tions.] constitute ‘ ’ “substantial evidence of of a ”].) the existence triable issue fact.” other (See, Numerous cases have followed D’Amico's lead. Roth v. e.g., 706]; Rhodes Cal.App.4th Cal.Rptr.2d Visueta v. [30 (1991) Corp. General Motors Cal.App.3d Cal.Rptr. [286 *18 402]; (1990) Rivera v. Southern Co. 217 Transportation Cal.App.3d Pacific 294, 11]; 559, Cal.Rptr. (1989) 299 v. R’Bibo 211 [266 Cal.App.3d Nunez 1]; 563 Leasman v. Beech Cal.Rptr. (1975) 48 Corp. [260 Aircraft 376, 768].) 382 Cal.App.3d Cal.Rptr. [121 1485, v. (1987) Niederer Ferreira 1503 Cal.App.3d Cal.Rptr. [234 779], Niederer, a variation and an provides valve. In escape testified plaintiff at that she had not been a deposition The fact assigned promissory note. true Later, was she that had been the note. in assigned moving summary filed a judgment, plaintiff declaration her contradicting deposition testimony and that she had not understood the of explaining at the concept assignment time of and had deposition, hence answered The evidence was incorrectly. clear otherwise that the note in had fact been to The assigned her. defendant opposed summary judgment, contending plaintiff’s prior contrary testi mony established triable a issue of fact. After noting holdings “ D’Amico and Leasman that ‘the of admissions so credibility valued [is] irrelevant, that the highly controverting may affidavits be as disregarded ” evasive,’ inadmissible or the Niederer court noted the reasons for the (Id., conflict were in explained declaration. at plaintiff’s The court p. 1503.] accepted explanation, disregarded prior conflicting testimony, Niederer, affirmed the summary Thus in was judgment. it the second version of the facts—but a version an accompanied by innocent explanation—that was as substantial accepted evidence. context,
In the nonsuit law In similar. Mikialian v. Los City of Angeles 794], Cal.App.3d Cal.Rptr. plaintiff [144 tow truck driver sued city, that the to contending breached police duty flares around his place truck while he installed a under a car be dolly to towed. In his he deposition, testified that no one him told to his truck at park trial, however, the location At involved. he testified inconsistently—he testified that he been had told by where to that he had police park decided where to He himself. made no to or park withdraw attempt explain the admissions in his deposition. trial court nonsuit. Court granted of Appeal affirmed on the ground that the was not contradictory testimony evidence, substantial “If stating: plaintiff’s this as respect testimony given error, to trial within which he had nine months prior was his deposition so, he would have been called upon explain Had he done to correct it. answers, his a mistake on his or part, as a misreporting former testimony have created Such an would of a misunderstanding. explanation the product chose, instead, He did not choose this course. issue. But a fact plaintiff he was directed statements to the effect that make contradictory simply that the corroborative admissions to make continuing where to while park circumstances, we conclude that there Under these was his own. decision directed where that the officers plaintiff no substantial evidence 150, 160.) Los (Mikialian Angeles, supra, Cal.App.3d v. City park.” but rather a testimony, is not in the instant case prior deposition Involved court, declaration, admissions in to the plead representations prior attorney the nature of the of conduct. Whatever and a long history ings, evidence, bald assertion value in Not every truth is an ascendant litigation. is not evidence. Transparent prevarication rises to the substantial dignity *19 such evidence In an context basis for decision. appropriate an acceptable context, In the courts without trial. every even be summarily may rejected tailored financial to base an award on testimony must be not diligent America, (See supra, also Kruse v. Bank rather than truth. expediency Diederich, 38, Cambridge European Inc. v. and Louis & 202 Cal.App.3d Inc., of cases examining for examples 189 1574 supra, Cal.App.3d Imports, substance.) it in lacking evidence and finding Burden of Proof Evidence and the Substantial in evidence test this case A of the substantial correct application as the first of the burden of inasmuch a clear understanding proof, requires the facts to reverse it. Although consistently attempts ex complaint in the first Mrs. Roddenberry’s operative actually pleaded interest in Star Trek the 15 refer to percent profit participation pressly 1, a contract interpretation case was tried as if the she had pleaded her a seeking Trek 1. Normally, plaintiff far Star reaching beyond on which she relies must the contract terms contract recovery plead Witkin, 508.) (3d 1985) (4 p. Cal. Procedure ed. Pleading, recovery. § (1 is is to plead, plaintiff obligated prove. Whatever plaintiff obligated Witkin, 1986) Proof and (3d Presumptions, Evidence ed. Burden of Cal. what the must rule is that a must prove party 116 p. party [basic § Code, the burden of all facts Evid. 500 has proving plead]; party [a § essential to the relief sought].)
Here, relied on a contract the first Mrs. Roddenberry interpretation Trek the contractual which included all Star within profits postdivorce income from Star Trek.” She language “profit participation should have (FPI clearly that claim. Inc. v. pleaded Development Nakashima 367, must Cal.App.3d Cal.Rptr. plaintiff plead [282 508] [contract issue].) terms contract which establish the no obligation Although plead on issue raised this ing appeal, examination contract pleading require ments shows where the burden of falls. The first Mrs. proof failure to not does reduce her burden of plead clearly proof. She bore the burden of that the contract was her proving intended allocate to profits projects.
Even though she bore the burden of proof, argues on that the appeal Star Trek and 3 be award must affirmed because there is no evidence of the no evidence negative: parties not to her agreed such Her pay profits. argument as if there were a proceeds she presumption that is entitled to all types payments expressly excluded. She the settlement emphasizes during negotiations failure, was considered that there nowas that Gene contemplation divorce, further the Star idea might after as if this develop rather than supported refuted her claim. She that “nowhere in argues Divorce preservation Decree’s first Mrs. Roddenberry’s] interest [the ‘Star Trek’ did the exclude television parties continuations of the Original . . Series. . Nor did of the correspondence, the drafts of Divorce Decree or the oral description of its terms in court exclude television continuations of the Series from the Original of the to be scope property (Italics divided.” The failure original.) exclude uncontem- expressly *20 and plated nonexistent is The projects immaterial. burden was on the first to establish the Roddenberry she now money demands was in- cluded within her contractual rights. that,
The 1969 states judgment clearly to its terms subject regarding Trek,” income” in “profit “Star all is participation income This separate is consistent with property. normal law. community property only way could have the breached settlement agree- ment or ifwas judgment income from Star Trek” in “profit participation fact did include profits In order of postdivorce projects. to breach the prove 3, contract with to Trek 2 respect Star and Roddenberry had prove that Star Trek 2 and were included within profits the contractual A of lack evidence of of language. exclusion does not her burden satisfy proof.17An absence of evidence is not the of substantial evidence. equivalent (Louis Diederich, Inc., & Cambridge Inc. v. supra, European Imports, 1574, 1591.) an Cal.App.3d If absence of evidence the could burden satisfy proof, concept burden of meaning. would have no proof 17Whether record does does or not contain depends upon evidence exclusion what one chooses to consider evidence of the only exclusion. The evidence is conclusive that Star on whether Trek 2 and 3 issue therefore depends of the Star Resolution the proposition evidence affirmatively supporting substantial record contains in the contractual were included 2 and 3 profits language.18 Animations, Test and Evidence
The Substantial Merchandising and Movies animations. Star on the first Mrs. Roddenberry postdivorce In denying series, noted that the statement of decision the trial court’s animation counsel, settlement for the in the marital stating Mrs. Roddenberry’s first in the record, referred to the Star Trek interest stated that court was the profit and that this percent,” of 30 percent—15 was “50 percent A different Trek 1. attributable to Star thought percentage participation series, which was created postdi animation to the percentage applied profit in the discussed that “the only subject court also noted vorce. The trial series, that otherwise in the TV courthouse was profit participation in contemplated Mr. Norway of all interest transfer of the contract on the history court also relied discussions." The those all but the away Mrs. Roddenberry bargained the first which negotiations, Mrs. Rodden that the first noted finally item. The court profit participation mid-1970’s, made no in the yet of the cartoon series had been aware berry been could have evidence which later. Additional until years claim profits ownership left the copyright marital settlement agreement cited is that the Gene Roddenberry. became the separate property which Norway, offered essentially first Mrs. this evidence the Against demand, both the settlement agreement inconsistent with her naked (See income. Tahoe National to half of all postdivorce judgment, 480 P.2d Cal.Rptr. 320] 4 Cal.3d Bank v. Phillips [92 to which an instrument interpretation inconsistent with any [evidence *21 evidence]; City Baseball Co. v. Golden West is not substantial susceptible of [same; 11, 21, 2fh. (1994) Cal.Rptr.2d 378] 25 Cal.App.4th [31 Anaheim Trek” in the settlement the term “Star that the bare semantic possibility plus that she 1.) finding Trek The court’s mean more than Star could profit Star Trek 1. It is true included was contemplated conciously item or Trek income uncontemplated. expressly parties did not exclude the nonexistent that the Roddenberry the first Mrs. proof, to reverse the burden of attempt 18In another skillfull 248], 568, Marriage P.2d re Cal.Rptr. 683 cites In 36 Cal.3d 469 [204 of Vomacka may be waived. in which it Vomacka involved spousal support, and the limited circumstances spousal support is alimony. Alimony or many years, Mrs. received For the first not an issue in this case.
657 the had no contractual interest in animation series was the conclusion substantial evidence The first Mrs. record. Roddenber- supported was, described, most no more than ry’s testimony charitably testimony (See, This 1 undisclosed contractual intent. is not substantial evidence. e.g., Law, Witkin, Contracts, supra, Cal. Summary p. [expressed § determined, intent be standard & to be Gas objective applied]; Pacific Zuckerman, 1113, 1141; Co. v. supra, Electric Mission Cal.App.3d East, Kern, 89, 98.) Inc. v. Valley County supra, Cal.App.3d The movies. court’s
The trial denial of on the movies was based on postdivorce profits the same evidence discussed above the fact the first plus Mrs. Rodden- well was aware of the movies but made no until berry profits many claim later. The evidence more than years sufficiently was substantial to sup- ruling; there was no substantial evidence to port support contrary conclusion.
Merchandising.
In denying Roddenberry postdivorce merchandising profits, noted the court contract the fact that the history negotiations plus divorce, first knew of at the time of but merchandising make a did not claim to later. merchandising until The relevant profits years was evidence otherwise as noted was ruling above. more than well there was no substantial evidence to supported; the contrary.
The Substantial Test Trek 2 Evidence and Star and 3 The lack the “continuation” theory. of foundation for award of Star and 3 to the first Mrs. intent, based on evidence of contractual rather but on plaintiff’s that Star Trek 2 are theory and 3 “continuations” of Star Trek 1. Depending what elements one choose to upon theory include in “continuation” might and how it they be be might might finding that the applied, and 3 are “continuations” of Star Trek 1 is by substantial evi supported However, dence. this an of an old “Ask the merely example adage: wrong will question, you answer.” get wrong *22 or
Whether not Star 2 and 3 Trek are “continuations” of Star Trek 1 is relevant, In order irrelevant. to be would question “continuation” have to be the second of a step two-step The foundational would be analysis. step that the first Mrs. receive of contractual intent Roddenberry profits
proof Trek 1. The from “continuations” of Star second would be step postdivorce that Star Trek and 3 are fact “continuations” of Star Trek 1. proof record here contain but it does not contain certainly might arguably step l.19 step evidence. similarity”
The “theatrical intent, the evidence of contractual the “continuation” Instead of examining examined a different of evidence—evidence of the body analysis completely characters, themes, etc., of Star storylines, costuming, settings, technology, 1, 2 3. This of “theatrical evidence have body might similarity” However, been in a case. this was a infringement appropriate copyright case. In view of the lack of foundational of an contract interpretation proof that the first Mrs. would receive from “con- profits agreement tinuations,” the “theatrical evidence had no on the issue similarity” bearing of contract interpretation.
The lack established the term “continuation.” meaning had estab- There was no evidence that the “continuation” concept of this lished at the time 1969. Evidence meaning negotiations type, existed, that the of “continu- if it have been offered to might prove concept The evidence ation” was implicit parties’ dealings. actually presented, however, was that it was for a cancelled and financially unprecedented commercial rise from failure and to unsuccessful television series to inspire reveals, further So far as the record the “continuation” projects. concept as a tactic this and had no litigation, developed litigation during connection to contractual intent in 1969.
The inherent in the “continuation” ambiguity theory. When the trial detoured off the course of contractual intent analysis onto the course of “continuation” it embarked on a mission to analysis, truly the land of new world. The inevitable destination was explore strange error, because the contractual intent remains unanswered regardless question of how the “continuation” is answered. Parties might agree question “continuations,” will be on or profits paid they might agree postdivorce pointing showing 19Rather than to evidence an that the first Mrs. “continuations,” profits postdivorce that—contrary would receive so to normal commu nity property law—she would share in the income from Gene efforts, argues uncontemplated is entitled to instead that she these parties’ agreement expressly A because did not exclude them. failure to exclude uncontemplated equivalent supporting is not the of substantial inclusion. evidence *23 will be profits paid not on “continuations.” even They might that will be on agree postdivorce projects whether are paid they or “continuations” not. Until the terms of the foundational are is not the case advanced toward resolution about proven, by determinations “continuations.”
The the inconsistencies created “continuation” by analysis. in the flaws “continuation” heralded analysis are the inconsisten- by cies this created. It analysis yielded inconsistent with judgment law, evidence objective and normal also but with community property internal gross inconsistencies. contractual traditional intent analysis animations, resulted in a defense verdict on movies and merchandising. that verdict did not find Tellingly, that the first Mrs. had animations, waived her contractual and rights movies nor merchandising, that she estopped, was barred laches or barred the statute limitations Instead, from them. the verdict that she had asserting never such contractual This same contractual intent even rights. was not analysis ap- to Star Trek 2 and even there was no that plied though evidence settlement negotiations this manner forms distinguished among various possible exploitation. direction,
Viewed from the also reciprocal record fails to disclose why “continuation” if it analysis, to Star Trek 2 and did properly applied not also to the movies to apply same of “continuation.” The yield finding movies are much more similar to Star Trek 1 are than Star Trek 2 and 3. Star Trek 2 used different actors and characters than 1. The Star Trek is on the same setting but later. Star Trek 3 Starship Enterprise, years used different actors and at characters takes an even time on later place a new and more advanced their differences starship. Despite 1, Star Trek 2 and 3 were found to test. the “continuation” satisfy By actors, all comparison, six movies used the same the same and the characters similarities, same as Star setting Trek 1. Despite these were not movies even subjected “continuation” analysis.
These anomalies cannot be reconciled on the theory the parties agreed all split profits on postdivorce television There was no evidence projects. the parties or agreed upon even discussed such distinctions alterna- among tive or media. competing The first Mrs. Roddenberry did not to such testify a distinction Instead, and does not make such a on distinction she appeal. claims a contractual her interpretation entitles to half of all profits, Moreover, without regard to media. the animations used the characters same television, as Star Trek 1 setting and also appeared on were not even yet *24 to “continuation” The subjected analysis. only characteristic distinguishing here was rather than live A animated action. search for rational explanation thus leads to the inevitably that the determinative supposition supposedly distinction was a the first Mrs. triple qualification: was in- Roddenberry tended to receive (1) so as profits postdivorce were projects long they “continuations,” television, (2) (3) on but not animations. This is proposition of There dubious is no evidence that it was bom parentage. absolutely of the contract in At that time no further parties’ negotiations 1969. of kind were and there was no projects any contemplated consequently discussion different or media forms of regarding presentation.
The “literary property” argument. On raises a new of appeal, argument support her (as claim to Star Trek and 3 well as half of profits all other she profits): claims that she “retained” a interest in the profit participation generic entitled Star Trek. While “literary property” this imaginative, merely another of a semantical As example possibility evidence. unsupported by below, discussed there was no evidence of “retention” her of an interest or also Norway’s “literary property” copyright. theory ignores record, avalanche of evidence in the contrary and the trial court’s finding, 1, that the discussed a division of from Star Trek rather parties than some it conflicts generic literary with property concept. Additionally, the evidence that all interests became the of copyright separate property his of Roddenberry through Norway. ownership the settlement
During negotiations, first Mrs. Roddenberry proposed her, that an interest in Norway’s be allocated to but she “royalties” later bargained claim. final did not allocate away Star Norway’s to her. The term royalties refers to “royalties” normally made for the payments (In use material. re Worth copyrighted Marriage of 135].) fn. 2 There was no Cal.App.3d Cal.Rptr. [241 evidence at trial of a different in this context. meaning might apply
The first Mrs. nevertheless contends that she “retained” a right to be for paid of the Star Trek While exploitations she does concept. interest, appear claim an actual it is clear that she claims the copyright exact of a equivalent interest. She cannot claim an actual copyright copyright interest, because such an interest could not have been “retained” clearly her, since she never owned a interest in the first instance. Instead copyright assets, interest in separate each of various the first ownership Norway’s Mrs. owned a Roddenberry simply interest in community property Norway itself. law Community does not one property give spouse continuing interest in allocated to the other a divorce property spouse instance, estate, If settlement. owned a of real the first Norway, parcel “retain” no would residual interest in that real estate after was transferred to her former husband. If she were to retain a Norway half-interest in all owned residual reason- property by Norway, by parity *25 would retain a residual interest in all ing Roddenberry property A allocated to her. marital settlement would have no if meaning this were the law.
Since she cannot claim an actual interest after copyright bargaining away all claims and and its royalty to Gene transferring Norway copyrights the first Mrs. Roddenberry, instead claims some form of Roddenberry entitlement to when ex- noncopyright “literary property” payment Norway the ploits she claims would her in the of copyrights. right place position interest, an owner and licensor of a entitled to be her copyright paid by licensee, of from putative Norway, upon Norway’s receipt exploita- tion of the material. But it is that owns the copyrighted Norway copyright. Just as with the allocation of burden of the first Mrs. proof, rules, to reverse the time again attempts this applicable legal by terming a claim a claim. Abraham Lincoln once said: “You can copyright copyright to, call a horse if a cow want but it’s still a That here. you horse.” applies The first Mrs. not, is a interest she does clearly claiming copyright did,
and never own. shies her Although away directly terming claim, claim a she does note that of the copyright exclusive that “any rights another,” make a be transferred in or in up whole copyright may part 17 United citing 201(d). States Code section This is correct under current clear, however, It copyright law. no means this type separation of copyright interests could have been effected taken in actions under the law that when were interests applied copyright generally (See, indivisible. 3 Nimmer on 10.01 Doc- e.g., Copyright [“The § trine of Act”].) Under the Indivisibility There was no offered at proof trial in of the current that the interests were divided support theory copyright in 1969 rule then notwithstanding indivisibility applied.20
Moreover, to the extent that current law aids in copyright interpretation transaction, this 1969 current law the transferor requires writing signed by suggests 20Nimmer techniques achieving separation copyright for a de interests facto rule, indivisibility even primarily by licensing, under but use of there is no evidence that Moreover, parties technique. any here utilized such techniques use of of Nimmer’s quite unique. copyright (Norway) this situation would be The effect would be that the owner pay has to for the copyright, use of its own rather more in which than the common situation copyright paid allowing exploit portion owner is someone else to some of the transaction, copyright interests. Nimmer does not discuss such a and it is difficult to conceive might a situation in which one want to achieve it. (17 204(a).) In the absence of a transfer. U.S.C. to effect copyright § who the exclusive it is the owner has writing, copyright right produce (17 106(2); Video v. Pinckney derivative works. U.S.C. Valente-Kritzer § 772, 776.) (9th 1989) 881 F.2d As Kozinski said Judge Cir. Effects Associates, 555, 556, (9th 1990) F.2d law Inc. v. Cohen Cir. “[t]he . . . has the exclusive rights couldn’t be clearer: The owner copyright While work distribute or display copyrighted publicly. copy, [Citation.] else, to someone section owner can sell or license his rights the copyright Act invalidates a transfer ownership 204 of the Copyright purported 556.) (Id. unless it is in at writing.” p. “The
A under former law. statutory requirement was also writing required of the conveyed, of an instrument in the owner signed by rights writing, *26 (3 supra, also Act.” Nimmer on Copyright, contained in the 1909 alternative, Act could be 10.03[A].) In a transfer under the 1909 § ” “ (3 ‘note or memorandum of the transfer.’ confirmed aby subsequent at [A].) Nimmer 10.03 No evidence was supra, presented on Copyright, § confirmation of an that written or a trial either a conveyance subsequent case. earlier transfer occurred this copyright clear that owned of what law it is Norway Regardless copyright applies, Roddenberry. became the of Gene the copyrights. Norway separate property to them. As owner of the had the exclusive right exploit copyrights, Norway is not owner of such as a copyright, It is self-evident that an property, to use owned. The right to another for use of obligated pay property of the another is an integral part owned without compensating property be is right The first Mrs. Roddenberry claiming meaning ownership. owned, and in which the use of which Norway paid Norway’s property first Mrs. had no interest. Roddenberry ownership
The “all are argument. profits predivorce profits” that all are The first Mrs. also on argues appeal profits effort to attributable to work. This an argument apparently predivorce The Edelman avoid the effect of the Edelman declaration. devastating had no right declaration established that the first Mrs. Roddenberry (See, efforts. e.g. income Gene Roddenberry’s postdivorce generated by Smith v. Walter E. Heller & Co. Cal.App.3d [147 admission is not evidence of a fact by merely Cal.Rptr. [judicial attorney 1] but rather a conclusive concession of truth which has the effect removing issue]; that and Evidence et al. Cal. Practice Guide: Civil Trials Wegner ‘¶8:1252, court 8D-55 supra, normally p. stipulations open [counsel’s controverted].) conclusive on client and cannot be assuming Even first Mrs. could have Edelman’s admis- repudiated Attorney sion, Instead, she did not it. she at trial that it was true repudiate agreed (even as she demanded half of all income in the same brazenly postdivorce On she now states that it “has been her testimony).21 appeal, always posi- that she is not entitled to services.” She tion” profits “post-divorce contention, however, the remarkable all are advances postdivorce profits to Gene attributable services. Roddenberry’s predivorce The “all are contention profits profits” again ignores pre-divorce evidence that the over division of uncontradicted parties negotiated profits however, from Star Trek 1 More it is inconsistent only. significantly, simply with the evidence. If it were true that all were postdivorce profits generated work, it would follow that all by predivorce tautologically postdivorce could have been realized without work Gene any postdivorce by shows, The evidence to the extensive Roddenberry. contrary, postdivorce work Gene Did this work contribute Roddenberry. nothing postdivorce The record contains no evidence that all the profit? postdivorce profits would have materialized without effort miraculously any postdivorce All the evidence is to the contrary. Roddenberry. declaration,
In her effort to avoid the effect of the Edelman relies on an that the heavily expert’s opinion *27 service fees to Gene were and the personal paid adequate, conclusion that all must therefore be following profits additionally paid attributable to services. This does not constitute sub- predivorce testimony stantial evidence of contractual intent in This evidence was not even 1969. I, offered in the when contract was but rather in a later phase interpreted, It damages was not the basis on which the court the phase. interpreted contract. The court’s contract on the dis- was instead based interpretation Moreover, credited “continuation” the had no theory. expert obviously 1969, of the contractual intent in and the actual evidence knowledge parties’ of contractual intent the that half the Star Trek 1 supports only finding were profits allocated to the first Mrs. Without the Roddenberry. grounding that the first Mrs. to share in from proof was profits postdi- vorce projects, (Pacific can Gas & Electric expert testimony prove nothing. Zuckerman, 1113, 1135.) Co. v. the supra, 189 Cal.App.3d Additionally, expert testimony fails establish that the were profits paid predivorce work. The was made testimony not based on evidence of valuations actually the to the contracts but by parties which the yielded postdivorce profits, City Angeles, supra, testimony As in Cal.App.3d Mikialian v. Los her own was internally testifying inconsistent when she ratified the Edelman declaration as true while also contrary inconsistency supporting claims. The Mikialian court cited such as one its factor finding testimony of no substance to the there involved. not proven
rather on observations of market conditions which were general failed to Finally, to be standard and uniform. the establish testimony simply without all the would have been Gene generated postdivorce profits have received or that would Roddenberry’s postdivorce input, Norway Gene amount even without work Rodden- by same profits postdivorce To contention efforts accept Roddenberry’s postdivorce berry. face of in the this absolutely nothing profits contributed Justice by would be to of “irrational decried accept type finding” record Johnson, 557, 577-57S.)22 (See v. 26 Cal.3d Traynor. People supra, Trek evidence. judgment supported by The Star 2 and 3 is not substantial “all are profits” Both the “literary property” profits pre-divorce as theo- might are abstract be arguments. They adequate arguments simply trial more is needed—evidence needed. ries of but at than pleading, theory evidence, but parol Semantical theories the admission may justify of a theoretical cannot be based on arbitrary ultimate judgment acceptance meaning which no while an alternative evidentiary has meaning support arbitrarily evidence is rejected. supported here, however, on either the verdict based The inconsistent Rather, or “all are profits” arguments. “literary property” pre-divorce if 2 and 3 can mistaken that Star Trek it was the of the product assumption that the of Star it must follow necessarily be called “continuations” This owns a share of the Star Trek 2 and profits. first Mrs. Roddenberry and should have not follow. The was one of contractual intent does question that resulted to the intent analysis been decided same contractual according animations, merchandising. in a defense verdict on the movies and deviation contractual intent yielded of the verdict inconsistency the error. highlights analysis
The Punitive Award for Fraud The facts. receiving
When Norway began profit participation payments forwarded full half to first Trek 1 a syndications, Norway initially Star to Roddenberry lay a for entitlement 22If the first had been able to foundation prove have to some something beyond profits, might possibly been able she concept, postdivorce profits predivorce allocation creation of the fractional to copyrights to assuming quasi-copyright licensor claim survive the allocation of the this could However, right attempt contractual Roddenberry Norway. prove she made no a Gene via Instead, everything, despite lack of evidence to she claimed a fractional contribution. sought plaintiff proof. bore the burden of She support that broad claim. She was and everything; loses. everything; prove she failed to she therefore however, felt that he should receive Roddenberry, Mrs. Roddenberry. from her for his efforts. It was a compensation postdivorce promotional efforts created a common fund in claim. His plausible postdivorce arguably in such a fund without contributing which she was For her to share sharing. could enrichment. Gene to the of its creation constitute unjust expenses would not and his advisers therefore concluded that Norway Roddenberry a full half to the first Mrs. but instead one-third. Roddenberry, only pay abstract, in the it enrichment was was Although unjust theory plausible First, flawed in both and it was directly contrary conception implementation. to the terms of the settlement and both of judgment, express which for the first Mrs. to receive her half “without provided Second, deduction or offset of kind.” when Norway began remitting one-third rather than one-half to the first Mrs. only Roddenberry, Norway or at least concealed that fact. The initial letter from Nor- misrepresented she accountant advised the first Mrs. was way’s receiving received,” “one-half of the monies and second told her that she was gross The first letter stated that “no deduction” had been receiving “fifty percent.” efforts, made for Gene nor for “legal, accounting incurred,” or other at this time and that “no has been made expenses attempt to seek or reimbursement to Mr. for his compensation personal Later, efforts over the when the expenditures years.” portion being paid one-third, was reduced to the accountant’s letters stated that a check was enclosed No advice per my prior correspondence.” given “[a]s the amount of the check one-third of the was only profit participation made to before trial did payments Norway. Only shortly Norway pay withheld sums interest. plus
Liability.
These facts on at least a theory support finding liability Code, concealment, (Civ. if not affirmative as well. misrepresentation 1710.) §§ on a
“. . . elements of an action for fraud and deceit based [T]he (1) concealment are: the defendant must have concealed or suppressed fact, disclose the material the defendant must have been under a duty *29 (3) or fact to the the defendant have concealed plaintiff, intentionally must (4) the the fact with the intent to defraud the suppressed plaintiff, plaintiff he if he must have been the fact not have acted as did unaware of and would fact, a result of the had known of the concealed or and as suppressed fact, of the sustained or the must have plaintiff concealment suppression West, (BAJI (7th 1986).)” ed. Inc. v. (Marketing Sanyo No. 12.35 damage. 603, 859].) (USA) (1992) 612-613 Cal.Rptr.2d Fisher Corp. Cal.App.4th [7 to disclose Each is satisfied here. was under a Norway duty element the first Roddenberry. it Mrs. handling money belonging because was involved, arises is a nondisclosure claim if a fiduciary relationship Even but fails to additional makes disclose representations when the defendant disclosed, or render the the facts which facts which materially qualify (Warner v. Angeles Constr. Los Corp. City to mislead. disclosure likely Code, 285, 444, 996]; Civ. 466 P.2d (1970) Cal.3d Cal.Rptr. [85 1710, Norway the that 3.) The evidence supported finding subd. amply § Mrs. would in the the first hope the true facts that concealed receiving only and that she was never discover Norway’s payments accept third. To the and is damage lacking. that evidence of reliance contends
Norway first Mrs. the conclusion that the evidence supports substantial contrary, delayed and misled or at least confused consequently constitute full can payment for Delay receiving full payment. pressing actual damage. award. punitive trial, first
Since she been time had paid statute, claim. on her fraud damages By punitive was awarded only punitive (Former estate. were not available against damages Code, Norway. 573.)23 were assessed only against Prob. Punitive damages § after damages ban on punitive contends that statutory
Norway corpora loan-out to awards a decedent’s against death should be extended such awards first This is an issue of impression. proposition tion. exemplary punitive banned rests on a distinction between should be The distinction was recognized of a award. punitive/exemplary aspects 389], stated (1934) 220 Cal. P.2d which v. Gibson Evans [31 . the is to the wrongdoer “. . punitive damages punish since purpose acts, motive, him from the commission evil and to deter his accompanied future, with to exist damages like for such ceases wrongs reason It serves as a deterrent his death. that the infliction of punishment true section repealed replaced by Code of Civil Procedure 23Probate Code section 573 was 377.42, estate, only to applies or punitive damages against which a decedent but likewise bars January actions commenced after 1993. *30 others, of the wrongdoer, the commission future as well as but wrongs by of to others should be on punitive damages by way example imposed only 490.) (Id. actual at wrongdoers.” exemplary Thus the function p. although award can be award still an punitive/exemplary performed by against estate, not function without the punitive wrongdoer’s exemplary dam- considered sufficient to justify punitive/exemplary imposition Hence the has outlawed such awards. ages. Legislature Here, however, estate, we deal not with an award an but rather against an award with held various against continuing legal entity. Norway contractual at the time of Gene All rights death. evidence is Roddenberry’s that it to continues hold contractual and to conduct business rights exploiting them after his death.24 We find no evidence in the record that a punitive/ award is not exemplary against Norway its deterrent capable serving in function both and the punitive exemplary aspects. punitive award is therefore affirmed. damage
Conclusion This is a case that should never have been. It was clear from the outset that the first Mrs. was entitled to half the profit participation on Star Trek 1 “without deduction or offset of kind.” It was payments clear that she had no interest in equally other Star and “was projects in income from Gene efforts. It is participate” Roddenberry’s postdivorce now clear that she is to the award for Each additionally entitled fraud. jury’s side to bear its own costs on appeal.
Nott, J., concurred. FUKUTO, J., in the P. I concur Acting Concurring Dissenting. the extent of the which it affirms that majority opinion portion judgment animations, movies, and denied Eileen Roddenberry profits $900,000 and awarded her for fraud. merchandising, damages punitive However, I her dissent from the insofar as it reverses respectfully opinion 2” Trek 3.” award of income from “Star Trek and “Star profit participation Gene and Eileen with their community came into the divorce which, turn, interests in held an interest in a property Norway, ownership grant judicial 24We request first Mrs. notice that the second $200,000 Roddenberry petitioned probate payment per year compensation court for Norway’s Norway’s business president. ongoing for services as This illustrates the nature of Norway’s continuing susceptibility punishment. *31 ” Trek television Trek.’ The Star entitled ‘Star fiction “science property on its three series, during years multimillion-dollar deficit a after generating series, the Eileen Rodden- air, the failure of canceled. Despite had been the she would retain whereby settlement agreement to a divorce consented berry interest in “any profit participation interest community property her ” Consis- ‘Star—Trek,’ all interest in Norway. while otherwise relinquishing one-half inter- therewith, transfer her Gene Roddenberry agreed “[a] tent to which from ‘Star Trek’ income [Eileen participation est in all future profit are entitled.” Roddenberry] and/or Roddenberry] [Gene intention of trial, it had been the contended Eileen Roddenberry At that she settlement agreement, their 1969 when they negotiated parties, all in one-half of interest community property would retain her Trek, their of Star regardless exploitations future profits generated hand, defendants, had intended maintained the parties on the other form. Rodden- for Eileen Roddenberry, except to Gene all of Norway to transfer then-defunct in the original, interest retention of a participation berry’s profit series. Star Trek television to define pre- had failed settlement agreement the Roddenberrys’ Since “ ”1 ‘Star-Trek,’ of the the language what was meant by phrase
cisely was reasonably susceptible that agreement divorce decree incorporating Thus, others. as well as asserted by parties, either of the interpretations in determining to aid it extrinsic evidence admitted the trial court properly After was negotiated. the time the settlement intent at the parties’ evidence, conflict- to multiple, which was subject the extrinsic considering issues, court the trial credibility resolution of and required inferences ing participation to receive profit was entitled Eileen concluded “successors, sequels series and any Star Trek original income from movies, animations, or merchan- Trek-related but not from Star spin-offs,” it decree as reasoned basis for construing The court dising. provided on under an affirmance appeal to warrant that is all that is required did and test. the substantial evidence court, on whether trial in focusing
I that the am unpersuaded Trek, of the underlying lost sight of the Star a “continuation” original i.e., case, of the rights [Eileen “the extent and scope issue in the as income from in Norway’s profit participation Roddenberry] Star Trek defendants argued decree.” The the divorce and delineated by determined to include be construed reasonably that the decree could not below ” concepts “literary properties, one numerous merely identified as 1"‘Star-Trek’ was contracts, .” submissions . . . writing, commitments and written reduced to The court rejected series. original” do with “nothing 2 because it had be considered notion, should in detail Star why explaining Trek 2. to Star and Star Trek 3 a sequel of the series original continuation *32 series fit into that these was relevant in demonstrating analysis The court’s intended which the had parties of Star Trek exploitations the category income. receive profit participation Eileen 3, 1996, and the petition denied May A for a rehearing petition Court was Supreme for review Eileen A. appellant denied 1996. July