2d Civil No. B242089

IN THE COURT OF:53TE OF CALIFORNIA

lOSEt'rlSECOND-T^dPPLLLATE DISTRICT

DIVISION THREE

IN THE MATTER OF THE ESTATE OF

WILMA WYATT CROSBY, ET AL.

HLC Properties, Ltd., et al.

Appellants,

vs.

Bing Crosby, as Special Administrator ofthe Estate of Wilma Wyatt Crosby,

Respondent.

Appeal from Los Angeles Superior Court, Case No. P334700Honorable Michael I. Levanas, Judge Presiding, Dept. 11

APPELLANTS' OPENING BRIEF

GREINES, MARTIN, STEIN & HIGHLAND LLPKent L. Richland (SBN 51413)

krichland@gmsr.com*Cynthia E. Tobisman (SBN 197983)

ctobisman@gmsr.comFeris M. Greenberger (SBN 93914)

fgreenberger@gmsr.com5900 Wilshire Boulevard, 12th Floor

Los Angeles, California 90036Tel: (310) 859-7811 / Fax (310) 276-5261

Attorneys for AppellantsHLC PROPERTIES, LTD. and KATHRYN G. CROSBY

Court of AppealState of California

Second Appellate District, Division Three

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Court of Appeal Case Number: B242089

Case Name: HLC Properties, Ltd., et al. v. Bing Crosby, as SpecialAdministrator of the Estate of Wilma Wyatt Crosby

Please check the applicable box:

[ ] There are no interested entities or parties to list in this Certificate perCalifornia Rules of Court, Rule 8.208.

[X] Interested entities or parties are listed below:

Name of Interested Entity or Person Nature of Interest

Partners in HLC Properties, Ltd., Financial Interestincluding Hilisborough Productions,Inc. and Kathryn G. Crosby

Beneficiaries of the Wilma Wyatt Financial InterestCrosby Trust

Thomas E. 0’ Sullivan, as Trustee for Financial Interest for Trustthe Wilma Wyatt Crosby Trust

Please attach additional sheets with Entity or Person Information ifnecessary.

Signature of Attorney/Party Submitting Form

Printed Name: Cynthia E. TobismanGreines, Martin, Stein & Richiand LLP

Address: 5900 Wilshire Blvd., 12th FloorLos Angeles, CA 90036

State Bar No: 197983

1

TABLE OF CONTENTS

PAGE

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS i

INTRODUCTION 1

STATEMENT OF FACTS 3

A. Bing Crosby Marries Wilma Wyatt Crosby, Who DiesIn 1952. 3

B. Bing Marries Kathryn Crosby. Bing Dies In 1977. 4

C. Kathryn Crosby, HLC And The Wyatt Heirs All EnterInto A Global Settlement In 1999. 5

PROCEDURAL HISTORY 8

A. The Special Administrator Of The Estate Of BingCrosby Requests A Declaration That The Wyatt HeirsPossess An Interest In Bing’s Right Of Publicity. 8

B. The Trial Court Holds That The Wyatt Trust HasA Community Property Interest In Bing’s RightOf Publicity. 8

STATEMENT OF APPEALABILITY 10

STANDARD OF REVIEW 11

ARGUMENT 12

I. THE TRIAL COURT ERRED BECAUSE THE WYATTHEIRS RELEASED ALL CLAIMS RELATED TO BING’SINTERESTS—INCLUDING CLAIMS TO HIS RIGHT OFPUBLICITY—IN THE 1999 SETTLEMENTAGREEMENT. 12

A. The 2007 Amendment To Civil Code Section 3344.1Merely Clarified The Law; It Did Not Create A NewProperty Right. 12

1. A legislative clarification makes an enactmentconform to the lawmakers’ original intention. 13

11

TABLE OF CONTENTS

PAGE

2. SB 771’s legislative history unequivocallyindicates that the amendment was intended toenforce to the Legislature’s original intention,and thus to clarify, not modify, Civil Codesection 3344.1. 14

3. As Section 3344.1’s author pointed out insupporting SB 771’s clarification, Section3344.1’s original enactment was backed byheirs and representatives of already-deadcelebrities, who quite clearly sought enactmentof a law that would benefit themselves, not justfuture personalities. 18

A. Because Section 3344.1 Has Been In Place Since1985, Any Claim The Wyatt Heirs Might Have HadTo A Community Share Of Bing’s Right Of PublicityWas Resolved By The Settlement Agreement In 1999. 21

II. IN ANY EVENT, WILMA WYATT CROSBY NEVERPOSSESSED AN INTEREST IN BING’S RIGHT OFPUBLICITY SINCE AN INDIVIDUAL’S RIGHT OFPUBLICITY IS NOT A COMMUNITY PROPERTY ASSETAS A MATTER OF LAW. 22

A. Bing’s Right Of Publicity Was Not A CommunityProperty Asset; Rather, It Was A Separate PropertyAsset That Passed In Its Entirety To Appellants OnBing’s Death. 23

1. Every person has a right of publicity,irrespective of whether it is ever exploited formonetary gain. Since each person is born withsuch a right, single people necessarily bring thepublicity right into marriage—meaning that theright falls outside the statutory definition ofcommunity property. 24

2. In fact, the right of publicity fits squarely withinthe statutory and constitutional definition ofseparate property. 26

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3. In giving each person control over his or herright of publicity, the terms of Civil Codesections 3344 and 3344.1 underscore theseparate property character of the right ofpublicity. 27

4. The legislative histories of Sections 3344 and3344.1 reinforce the separate property characterof the publicity right. 30

5. Public policy likewise supports the conclusionthat the right of publicity constitutes a form ofseparate property. 33

III. RES JUDICATA BARS THE SPECIALADMINISTRATOR’S CLAIM TO A COMMUNITYPROPERTY SHARE OF BING’S RIGHT OF PUBLICITY. 36

A. Res Judicata Principles Preclude Re-Litigating ClaimsOr Issues Encompassed In Earlier Litigation. 36

B. Because They Dismissed The Earlier Lawsuit WithPrejudice, The Wyatt Heirs Are Barred FromRelitigating Their Entitlement To A Declaration OfBing’s Community Property Assets. 37

CONCLUSION 40

CERTIFICATE OF COMPLIANCE 42

iv

TABLE OF AUTHORITIES

PAGE

CASES

Alpha Mechanical, Heating & Air Conditioning, Inc. v.Travelers Cas. & Sur. Co. ofAmerica

(2005) 133 Cal.App.4th 1319 36, 37

Aroa Marketing, Inc. v. Hartford Ins. Co. ofMidwest(2011) 198 Cal.App.4th781 25

Carter v. Caltfornia Dept. of Veterans Affairs(2006) 38 Cal.4th 914 20

City ofRedlands v. Sorensen(1985) 176 Cal.App.3d 202 14

Comedy III Productions, Inc. v. Gary Saderup, Inc.(2001) 25 Cal.4th 387 25

Fleet v. CBS~, Inc.(1996)50 Cal.App.4th 1911 24

Guglielmi v. Spelling-Goldberg Productions(1979)25 Cal.3d 860 31

In re Estate ofRedjleld(2011) 193 Cal.App.4th 1526 10

In re Marriage ofRossin(2009) 172 Cal.App.4th 725 11

In re Marriage of Worth(1987) 195 Cal.App.3d 768 25

K]’/B Enterprises v. Matthews(2000) 78 Cal.App.4th 362 24, 25, 26

Kerner v. Superior Court(2012) 206 Cal.App.4th 84 39

Lugosi v. Universal Pictures(1979)25 Cal.3d 813 21, 24, 26, 31, 32

V

TABLE OF AUTHORITIES

PAGE

CASES

Mycogen Corp. v. Monsanto Co.(2002) 28 Cal.4th 888 36

Parsons v. Bristol Development Co.(1965)62 Cal.2d 861 11

Pereira v. Pereira(1909) 156 Cal. 1 33, 34

P.S. v. San Bernardino City Un~fled School Dist.(2009) 174 Cal.App.4th 953 11

The Milton H Greene Archives, Inc. v. CMG Worldwide, Inc.(C.D.Cal. 2008) 568 F.Supp.2d 1152 15

Torrey Pines Bank v. Superior Court(1989) 216 Cal.App.3d 813 37

Tyler v. State ofCaflfornia(1982) 134 Cal.App.3d 973 14

Wells Fargo Bank v. Bank ofAmerica(1995) 32 Cal.App.4th 424 20

Western Security Bank v. Superior Court(1997) 15 Cal.4th 232 14

STATUTES

California Constitution

Article 1, § 21 26

Civil Code

Section 990 16

Section 1542 6

vi

TABLE OF AUTHORITIES

PAGE

STATUTES

Civil Code

Section 3344 passim

Section 3344.1 passim

Family Code

Section 760 9, 23, 24, 26

Section 770 26, 27

Probate Code

Section 850 9, 10, 41

Section 1300 10

OTHER AUTHORITIES

Nimmer, The Right ofPublicity (1954)19 Law & Contemp. Probs. 203 25

Rothman, The Inalienable Right ofPublicity (2012)101 Geo.L.J. 185 25, 28

vii

INTRODUCTION

For many years, the families of legendary performer Bing Crosby’s

first and second wives fought over who owned Bing’s rights. In 1999, they

finally put their dispute behind them.

The terms of the settlement were simple: The family of Bing’s

second wife, Kathryn Crosby, paid the family of Bing’s first wife, Wilma

Wyatt Crosby, over $1.5 million. In exchange, the Wyatt family waived

“all claims from any source whatsoever of royalties, income or monies due

the Wilma Wyatt Crosby Trust and all beneficiaries of the Trust, arising

from property interests acquired by Wilma Wyatt Crosby, as a result of her

marriage to Bing Crosby, through the date of this Agreement.” (1 AA 19.)

A decade later, the Wyatt family came back for more. Through

a special administrator, they asserted that despite previously settling

“all claims from any source whatsoever,” they were entitled to a share of

Bing’s “right of publicity.” They sought confirmation under Probate Code

section 850 that Bing’s right of publicity was a community property asset

that had passed to Wilma and then to her heirs.

The trial court granted the Wyatt family’s petition. It reasoned that

when the Legislature amended Civil Code section 3344.1 in 2007, it created

•a new right that could not have been waived in the 1999 settlement.

The trial court erred. Section 3344.1, which made the right of

publicity descendible, was enacted in 1985, long before the settlement

agreement was entered into. The 2007 amendment to section 3344. 1—in

1

making it explicit that the statute applied to people who were already dead

at the time of the statute’s 1985 enactment—merely clarified what the

statute was always meant to accomplish. It created no new right. Thus,

assuming arguendo that the right of publicity was a community property

asset, the treatment of Wilma’s share of Bing’s publicity right was bound

up in and resolved by the parties’ settlement and complete release of all

claims.

In any event, Wilma never possessed a community property share of

Bing’s right of publicity in the first place, because the right of publicity is

separate property under California law that passes in its entirety at the time

a person dies. The right of publicity is the right of a person to use his or her

name or likeness in a commercial endorsement. Every person is born with

a right of publicity. As a result, the right of publicity necessarily

constitutes separate property that each person brings to a marriage. Unlike

a separate property bank account, however, the right of publicity cannot be

intermingled or transmuted into community property. Rather, statutory law

dictates that it remains with the personality throughout his or her lifetime.

A contrary result would run afoul not only of statutory law, but also

the California Constitution. Treating the right of publicity as a community

property right would mean that a spouse or former spouse could effectively

control when and how a person could use his or her own voice or image.

Stated differently, no person could allow anyone to use that person’s name

or likeness in a commercial endorsement without the consent of one’s

spouse or former spouse. This, of course, makes no sense and demonstrates

2

that the Legislature did not intend such a result. The practical problems of

dividing and valuing that right upon divorce provide yet other reasons why

the Legislature never intended it to be treated as a community property

asset.

Because Bing’s publicity right was his separate property, Wilma did

not own any community interest in it. No part of Bing’s publicity right

passed under her will. The trial court’s determination to the contrary is

erroneous and should be reversed.

STATEMENT OF FACTS

A. Bing Crosby Marries Wilma Wyatt Crosby, Who Dies

In 1952.

Bing Crosby’s recording career began in 1925. Five years later,

Bing married Wilma Wyatt Crosby. (2 AA 206; 2 AA 225-226.)

He remained married to Wilma until she died on November 1, 1952. (2 AA

206, 226.) She was survived by four sons, all of whom are now deceased.

(Ibid.)

Wilma’s will provided that the residue of her estate would be

distributed in trust for the benefit of her four sons. (Ibid.) The final order

distributing Wilma’s estate was entered on October 3, 1957, distributing the

assets of her trust to a testamentary trust: the Wilma Wyatt Crosby Trust.

(2 AA 207; 2 AA 226.) It did not mention Bing’s right of publicity.

(See 2 AA 207.)

3

B. Bing Marries Kathryn Crosby. Ring Dies In 1977.

Bing married Kathryn Crosby on October 24, 1957. He remained

married to her until he died on October 14, 1977. (See 1 AA 48; 2 AA

226.)

Bing’s will distributed the residue of his estate to a marital trust for

Kathryn’s benefit. (1 AA 46-114.) That will did not provide for Wilma’s

heirs (2 AA 207), since her estate had already received her one-half share

of the community property owned by Bing and Wilma as of her date

of death.

The order settling Bing Crosby’s estate authorized the executor to

enter into a limited partnership agreement and to transfer the estate’s

interests in certain assets—including Bing’ s “right of publicity”—into that

partnership. (2 AA 226; 1 AA. 51, para. 6.) The order stated that the

appraised value of that right of publicity was one dollar. (2 AA 226; 1 AA

51, para. 6(a).)

HLC Properties, Ltd. (“HLC”) was subsequently formed to hold and

manage Bing’s surviving interests, including his right of publicity. (2 AA

226.)

4

C. Kathryn Crosby, HLC And The Wyatt Heirs All Enter

Into A Global Settlement In 1999.

In 1996, the Trustee of the Wilma Wyatt Crosby Trust, along with

the Trust’s beneficiaries (collectively, “the Wyatt heirs”),’ filed a complaint

asserting causes of action against HLC and Kathryn Crosby claiming that

the Wyatt heirs were entitled to certain of Wilma’s community property

interests and their share of the income derived from those interests

allegedly held by HLC and Kathryn. (See 1 AA 18 [Recitations Of

Settlement Agreement]; see also p. 36, post [quoting and discussing the

allegations in the Wyatt heirs’ 1996 complaint].)

On January 14, 1999, the Wyatt heirs entered into a settlement with

HLC and Kathryn. (1 AA 18-36.) The parties’ agreement (“Settlement

Agreement”) created a comprehensive scheme for dividing income derived

from Bing’s property. (See ibid.) Under it, HLC and Kathryn paid the

Wyatt heirs $1,548,494.55 to settle “all claims from any source whatsoever

of royalties, income or monies due the Wilma Wyatt Crosby Trust and all

beneficiaries of the Trust, arising from property interests acquired by

Wilma Wyatt Crosby, as a result of her marriage to Bing Crosby, through

the date of this Agreement.” (1 AA 19.)

‘The plaintiffs in the 1996 lawsuit were Thomas E. O’Sullivan in hiscapacity as Trustee of the Wilma Wyatt Crosby Trust; Thomas E. Sullivanin his capacity as Executor of the Estate of Gary E. Crosby; Philip LangCrosby; Patricia Susan Crosby individually and as Executrix of the Estateof Lindsay Harry Crosby; Arlen Crosby; Kelly G. Fernandez and ErinCrosby. (2 AA 166.)

5

The Settlement Agreement contained a “Mutual General Release of

All Claims” and expressly waived Civil Code section 1542 which, when

in effect, preserves unknown claims.2 (1 AA 25-26, para. 5.) And the

agreement confirmed that it was intended to be a full and complete

disposition of the parties’ claims with respect to property rights in Bing and

his works. (1 AA 29, para. 7(c).)3 To that end, the Settlement Agreement

states: “This Agreement constitutes a full, complete, unconditional and

immediate substitution of any and all rights, claims, demands, and causes of

action whatsoever, which heretofore have or might have existed between

the parties as a result of any obligation pre-dating this Agreement.” (Ibid.)

The parties to the Settlement Agreement warranted that “all parties

who claim or are entitled to any property interests arising from Wilma

Wyatt Crosby’s marriage to Bing Crosby are before the Court” and

“are parties to this Agreement.” (1 AA 27-28, para. 6(d).) The agreement

also made clear that other than as described, “there are no other

royalties/income due or payable to the Trust or to Plaintiffs with respect to

Bing Crosby in any medium.” (1 AA 25, para. 3(G).)

2 Civil Code section 1542 states: “A general release does not extend to

claims which the creditor does not know or suspect to exist in his or herfavor at the time of executing the release, which if known by him or hermust have materially affected his or her settlement with the debtor.”~ The Settlement Agreement states: “This Agreement constitutes a full,

complete, unconditional and immediate substitution of any and all rights,claims, demands and causes of action whatsoever, which heretofore mighthave existed between the parties as a result of any obligation pre-dating thisAgreement.” (1 AA 29, para. 7(c).)

6

The Wyatt heirs dismissed their lawsuit against HLC and Kathryn

Crosby with prejudice on May 3, 1999. (2 AA 229.)

7

PROCEDURAL HISTORY

A. The Special Administrator Of The Estate Of Bing Crosby

Requests A Declaration That The Wyatt Heirs Possess An

Interest In Ring’s Right Of Publicity.

Eleven years after signing the Settlement Agreement, the Wyatt

heirs brought an action to establish an interest in Bing’s right of publicity.

Specifically, on June 23, 2010, the Special Administrator for the Estate of

Wilma Wyatt Crosby filed a petition under Probate Code section 850 for

an order confirming that Wilma had possessed a community property

interest in Bing’s right of publicity, and that the community property share

in that right had passed to Wilma’s heirs pursuant to the terms of her will.

(See 1 AA 1-6.)

HLC and Kathryn Crosby opposed the petition on multiple grounds,

including (1) that the 1999 settlement barred it, (2) that Wilma never had

a community property interest in Bing’s right of publicity, and

(3) resjudicata barred the petition. (See, e.g., 1 AA 9-14; 2 AA 223-225.)

B. The Trial Court Holds That The Wyatt Trust Has

A Community Property Interest In Bing’s Right

Of Publicity.

The trial court granted the Special Administrator’s petition and

entered an order finding that Wilma had “a community property interest in

Bing Crosby’s right of publicity [that she] acquired during their marriage

and that this community property interest passed by her testamentary

8

dispositions” to her heirs. (2 AA 310 [Minute Order, April 26, 2012].)

The trial court subsequently filed a statement of decision explaining the

reasons for that ruling. (2 AA 312-317.)

The trial court reasoned that the Settlement Agreement did not

dispose of the claim to an interest in the right of publicity because that right

did not exist in 1999. In the court’s words, the 2007 amendment to Civil

Code section 3344.1 “created a right that did not exist before by including

deceased personalities who died before January 1, 1985 among those

entitled to exercise the right of publicity.” (2 AA 312-313; see also 2 AA

310.) The court also reasoned that the claims disposed of in the 1999

settlement were unrelated to the petition under Probate Code section 850

for confirmation of the existence of a community property interest in the

right of publicity. (2 AA 316.)

Finally, in concluding that the right of publicity was a community

property asset, the trial court reasoned that, “Civil Code section 3344.1

makes no mention of the community property aspects of the right of

publicity, much less any mention that the right of publicity is separate

property, or purports to be an exception to the general rule of Family Code

section 760” that “there is a community property interest unless otherwise

specified.” (2 AA 3 13-314.)

9

STATEMENT OF APPEALABILITY

The trial court entered the order granting the Wyatt heirs’ Probate

Code section 850 petition on April 26, 2012. (2 AA 310.) The court filed

a statement of decision explaining the grounds for that order on June 15,

2012. (2 AA 3 12-317.) HLC and Kathryn Crosby filed their notice of

appeal on June 22, 2012. (2 AA 319.)

A Probate Code section 850 order is appealable under Probate Code

section 1300, which provides, as relevant: “In all proceedings governed by

this Code, an appeal may be taken from the making of~, or the refusal to

make, any of the following orders: . . . (k) Adjudicating the merits of

a claim made under Part 19 (commencing with Section 850) of Division 2.”

(See, e.g., In re Estate ofRedfield (2011)193 Cal.App.4th 1526, 1534

[“Orders of the probate court adjudicating the merits of a section 850 claim

and authorizing a compromise of a contest are appealable”].)

10

STANDARD OF REVIEW

All key facts are undisputed. Accordingly, the Court reviews

de novo the central issues in this appeal, including:

1. What is the effect of the 1999 Settlement Agreement—i.e.,

whether the Wyatt heirs released their claims to Bing’s right of publicity.

(See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866 [when

extrinsic evidence not in conflict, interpretation of contract is question of

law reviewed de novo].)

2. Whether SB 771, which amended Civil Code section 3344.1

in 2007, created a new right or simply clarified the existing effect of the

original 1985 enactment. (See P.S. v. San Bernardino City Un~fied School

Dist. (2009) 174 Cal.App.4th 953, 959 [“Questions of statutory

construction, and consideration of the legislative history of the

amendments, raise issues of law which we review de novo”].)

3. Whether, as a matter of law, an individual’s right of publicity

can become a community property asset, or whether it at all times is

a person’s separate property. (See In re Marriage ofRossin (2009)

172 Cal.App.4th 725, 734 [“de novo review is appropriate where resolution

of ‘the issue of the characterization to be given (as separate or community

property) . . . requires a critical consideration, in a factual context, of legal

principles and their underlying values, the determination in question

amounts to the resolution of a mixed question of law and fact that is

predominantly one of law”].)

11

ARGUMENT

I. THE TRIAL COURT ERRED BECAUSE THE WYATT

HEIRS RELEASED ALL CLAIMS RELATED TO RING’S

INTERESTS—INCLUDING CLAIMS TO HIS RIGHT OF

PUBLICITY—IN THE 1999 SETTLEMENT AGREEMENT.

The trial court concluded that in settling their intra-family dispute in

1999, the parties did not resolve the question of the ownership of Bing’s

right of publicity. The trial court erred. HLC and Kathryn Crosby paid

over $1.5 million to the Wilma Wyatt Crosby Trust and the Wyatt heirs in

exchange for a waiver of “all claims from any source whatsoever.”

(See pp. 5-6, ante.) That broad waiver necessarily encompassed Bing’s

right of publicity. On this basis alone, the Court should reverse.

A. The 2007 Amendment To Civil Code Section 3344.1

Merely Clarified The Law; It Did Not Create A New

Property Right.

In concluding that the 1999 settlement did not encompass the right

of publicity, the trial court misconstrued the effect of the 2007 amendment

to Civil Code section 3344. 1—the statute making the right of publicity

descendible. The trial court reasoned that the 2007 amendment created

a new right that could not have been waived by the 1999 settlement. (2 AA

312-313.)

The trial court got it wrong. The legislative history shows that

the 2007 amendment only clarUied existing law. It merely cleaned up

12

section 3344.1 to make it operate as had always been intended—to apply to

personalities (like Bing) who were dead when Section 3344.1 took effect on

January 1, 1985. It did not create a new right.

1. A legislative clarification makes an enactment

conform to the lawmakers’ original intention.

The trial court found that the 2007 amendment, “SB77 1 [,] was not

merely a clarification of Civil Code section 3344.1.” (2 AA 310, 312-313.)

It reasoned, “[t]he Court finds that SB77 1 created a right that did not exist

before” because “the bill does not state SB77 1 is a clarification but rather

specifically states the law is retroactive which is inconsistent with a mere

clarification.” (Ibid.)

But the trial court’s stated premise—that retroactivity is inconsistent

with a mere clarification—is incorrect. A statutory clarification operates

retroactively whether or not the enactment says so. In fact, retroactive

application is a hallmark of clarification:

“Where an amendment to a statute is remedial in nature and

merely serves to clarify the existing law, the Legislature’s

intent that it be applied retroactively may be inferred.

‘The rationale of this exception is that in such an instance, in

essence, no retroactive effect is given to the statute because

the true meaning of the statute [or law] has always been

the same.”

13

(City ofRedlands v. Sorensen (1985) 176 Cal.App.3d 202, 211, quoting

Tyler v. State ofCal~fornia (1982) 134 Cal.App.3d 973, 976-977; see

Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243

[“(A) statute that merely clarifies, rather than changes, existing law does

not operate retrospectively even if applied to transactions predating its

enactment. We assume the Legislature amends a statute for a purpose, but

that purpose need not necessarily be to change the law” (original

emphasis)].)

2. SB 771’s legislative history unequivocally indicates

that the amendment was intended to enforce to the

Legislature’s original intention, and thus to clarify,

not modify, Civil Code section 3344.1.

The legislative history of SB 771 confirms that the Legislature

sought to clarify its original intention, not to create any new rights. Courts

often look to legislative history in determining whether an amendment

constituted a clarification or a real change. (E.g., Western Security Bank v.

Superior Court, supra, 15 Cal.4th at p. 243 [“Our consideration of the

surrounding circumstances can indicate that the Legislature made material

changes in statutory language in an effort only to clarify a statute’s true

meaning”].) A review of Senate Bill 771’s legislative history points

unerringly to the conclusion that the amendment was merely a clarification.

Senator Sheila James Kuehl introduced Senate Bill 771 after two

federal district courts, one in California and one in New York (both

14

addressing commercial usage of the image of Marilyn Monroe), interpreted

Civil Code section 3344.1 to apply only to personalities who died after

the statute took effect in 1985. In her decision in the California case,

Judge Margaret Morrow reached that interpretation reluctantly and

expressly invited the Legislature to fix the statute by making clear its

application to personalities who died before 1985. (See 2 Request For

Judicial Notice [“RJN”], Exh. C, pp. 397-401.)~

The bill makes clear the intention to overturn the two Marilyn

Monroe decisions. Section 2 of Stats.2007, ch. 439 (S.B. 771) provides:

“It is the intent of the Legislature to abrogate the summary judgment orders

entered in The Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc.,

United States District Court, Central District of California, Case No. CV

05-2200 MMIVI (MCx), filed May 14, 2007, and in Shaw Family Archives

Ltd. v. CMG Worldwide, Inc., United States District Court, Southern

“ After SB 771 was enacted, Judge Morrow granted a motion for

reconsideration, noting “that SB 771 clearly expressed the Californialegislature’s intent to clarif~r § 3344.1 as originally enacted, explicitlyoutlining that intent in the bill and emphasizing it in the legislative history.The court observed that the bill had been passed promptly after, and inresponse to, the court’s May 14, 2007 order, a factor of significance underCalifornia Supreme Court law addressing when subsequently passed billsshould be considered clarifications, rather than modifications, of existinglaw. Finally, in light of SB 771, the court reconsidered the text of § 3344.1as originally enacted, and found there was a potential ambiguity that theclarifying legislation addressed.” (Milton H Greene Archives, Inc. v. CMGWorldwide, Inc. (C.D.Cal. 2008) 568 F.Supp.2d 1152, 1157.) In itsApril 26, 2012, order, the trial court here expressly disagreed with thatruling, for reasons that, as this brief demonstrates, are erroneous.(See 2AA 310.)

15

District of New York, Case No. 05 Civ. 3939 (CM) dated May 2, 2007.”

(2 RJN, Exh. C, p. 372.)

The legislative history, in turn, repeatedly states explicitly that the

amendment was a clarification. For instance:

(1) The Senate Judiciary Committee’s summary explains, under

the heading “Stated need for the bill,” that “The author states this bill is

necessary to clarify the Legislature ‘s intent, when it enacted Civil Code

§ 3344.1 (then § 990 of the Civil Code) in 1984 to create post-mortem

publicity rights for celebrities, to extend those rights back to 50 years from

the date the statute became effective and to enable the transfer of such

publicity rights to the deceased personality’s designated beneficiaries. This

legislative intent, according to the sponsor of the bill, was further evidenced

by the Legislature’s amendments to the statute in 1999, extending the

protection of § 3344.1 even further back, to 70 years from the date the

statute first became effective.” (2 RJN, Exh. C, p. 399, emphasis added.)5

(2) The Assembly Judiciary Committee, in its bill synopsis,

identifies SB 77 l’s key issue this way: “Should the law be clar~fiedto

~ In case the passage is unclear on the point, Section 3344.1 as originally

enacted extended post-mortem publicity rights back to 50 years from thestatute’s 1985 effective date, and a 1999 amendment took the protectionfurther back another 20 years, to 1915. (See Civ. Code, § 3344.1, subd. (h)[“A ‘deceased personality’ shall include, without limitation, any suchnatural person who has died within 70 years prior to January 1, 1985”].)That the statute always included this feature is further strong indication thatthe Legislature always intended it to apply to personalities who werealready dead when the statute was enacted.

16

make explicit that the post-mortem right of publicity established by the

legislature in 1985 applies to all celebrities regardless whether they died

before or after 1985?” Elaborating, the synopsis reiterates, “This bill,

sponsored by the Screen Actor’s [sic] Guild, seeks to clari~Ij~’ Cal(fornia ‘s

right ofpublicityfor deceased celebrities.” (2 RJN, Exh. C, p. 420,

emphasis added.)

(3) The Assembly Judiciary Committee’s bill synopsis declares

further, “This bill also clarifies that unless the testamentary instrument

contains an express disposition of publicity rights, those rights will be

transferred to the residuary beneficiaries. This explicit language is not

a change to existing law, but, rather; only clarifies it in order to prevent

needless litigation.” (2 RJN, Exh. C, p. 428, emphasis added.)

(4) From Senator Kuehi’s Memo to the Legislature, after noting that

the amendment would abrogate the two federal district court Marilyn

Monroe decisions: “The court invited the Legislature to clarify whether the

law regarding the right of publicity applies equally to all celebrities,

whether or not their death preceded the effective date of the law. SB 771

follows the court’s invitation and clarifies that a deceased celebrity’s

right of publicity applies to all individuals who died within 70 years

before January 1, 1985.” (4 RJN, Exh. C, p. 1048, original emphasis; see

4 RIN, Exh. C, p. 1045 [“Fact Sheet”—same].)

(5) And from Senator Kuehl’s press release upon enactment:

“The bill reaffirms California’s protection of post-mortem publicity rights

17

for deceased California celebrities and artists by clar~y5’ing that these rights

may pass to beneficiaries under a deceased celebrity’s will, even ~f that

celebrity died before January 1, 1985. . . . ‘With the Governor’s signature

on SB 771, we now have clarity that individuals who died before Jan. 1,

1985 have the same rights as those who died after that date so that those

who inherited the rights can continue to protect the images of great

American icons like John Wayne, Alfred Hitchcock, Mae West, Bela

Lugosi, and Marilyn Monroe,’ said Senator Sheila Kuehl.” (5 RIN, Exh. C,

p. 1313, emphasis added.)

The legislative history contains dozens of additional “clarification”

references. Indeed, nowhere does the bill’s history manifest any different

intention. In sum, the legislative history shows unambiguously that the

Legislature sought merely to clarif~’ Section 3344.1 to enforce the statute’s

original, always-intended application.

3. As Section 3344.1’s author pointed out in

supporting SB 771’s clarification, Section 3344.1’s

original enactment was backed by heirs and

representatives of already-dead celebrities, who

quite clearly sought enactment of a law that would

benefit themselves, not just future personalities.

Retired Senator Bill Campbell, who authored the original bill that

was enacted as Civil Code section 3344.1, submitted a letter in support of

SB 771. His letter provides convincing demonstration that the statute was

18

always meant to apply to personalities who had died before 1985. Senator

Campbell wrote:

“Dear Senator Kuehl:

As the author of landmark legislation that was enacted as

California’s civil code section 3344.1 in 1985, I wanted to

write and commend you for your introduction of legislation to

clarify that law’s intent. At no time did I or any of the bill’s

supporters anticipate only prospective application of this

important right of publicity for deceased celebrities. In point

of fact, the overwhelming testimony on my bill throughout

the legislative process came from heirs or representatives of

celebrities who had already past (sic), such as, the widow of

Elvis Presley, the son of John Wayne, and the grandson of

WC Fields. There was even written testimony from the

widow of the great American General, Omar Bradley.

Had I known about the litigation involving Marilyn Monroe

LLC, I would have gladly filed an amicus brief to state the

unequivocal intent of my 1984 legislation.

19

If I, or my former chief of staff’, Jerry Haleva, who worked on

the legislation with me can be of any assistance to you as you

pursue this statutory clarification, please don’t hesitate to

contact us.

Sincerely,

Senator Bill Campbell (Retired)”

(2 RJN, Exh. C, p. 561, original emphasis; see Carter v. Cal~förnia Dept. of

Veterans Affairs (2006) 38 Cal.4th 914, 928 [statements of bill’s author

regarded as evidence of legislative intent where they appear to have been

communicated to other legislators]; Wells Fargo Bank v. Bank ofAmerica

(1995) 32 Cal.App.4th 424, 434 [comments by the author of a bill properly

considered where they were before the legislative body and presumably

entered into deliberations in passing the bill].)

Senator Campbell’s letter shows that Section 3344.1 was always

intended to apply to personalities who died before 1985. The heirs and

representatives who came forward in the legislative process obviously

sought to better their own situation, to give them control over use of their

dead forebears’ publicity rights. At the least, if they had not been looking

to benefit their own situations, the legislative history of the original

enactment surely would reflect that. But it does not.

Likewise, if the lawmakers knew and intended that the statute as

originally enacted would not aid the heirs and representatives of

personalities who were already gone, again, the legislative history would

20

almost certainly reflect that intent. But again it does not. Rather, implicit

in the history of the enactment—including the fact that its impetus was to

overturn the Supreme Court’s Lugosi v. Universal Pictures (1979) 25

Cal.3d 813 (see pp. 30-3 1,post)—is the premise that the statute would

surely benefit the heirs and representatives who came forward to support it.

Because courts were reading Section 3344.1 in a manner that left those

people unprotected, a clarification was necessary—and that’s precisely

what the 2007 amendment, SB 771, is.

A. Because Section 3344.1 Has Been In Place Since 1985, Any

Claim The Wyatt Heirs Might Have Had To

A Community Share Of Bing’s Right Of Publicity Was

Resolved By The Settlement Agreement In 1999.

Because the 2007 amendment merely clarified Section 3344.1 to

reflect the statute’s original intent, Bing Crosby’s statutory right of

publicity existed as of 1985. The 1999 Settlement Agreement, in releasing

all claims, therefore encompassed and released any claims relating to that

right. Indeed, the terms of the Settlement Agreement could not be broader

or clearer in their effect.

The very first page of the Settlement Agreement recites: “This

payment [of $1,548,494.55] is in complete and final settlement of all claims

from any source whatsoever of royalties, income or monies due the Wilma

Wyatt Crosby Trust and all beneficiaries of the Trust, arising from property

interests acquired by Wilma Wyatt Crosby, as a result of her marriage to

21

Bing Crosby, through the date of this Agreement.” (1 AA 19.) And the

release makes clear that “[t]his Agreement constitutes a full, complete,

unconditional and immediate substitution of any and all rights, claims,

demands, and causes of action whatsoever, which heretofore have or might

have existed between the parties as a result of any obligation pre-dating this

Agreement.” (See 1 AA 29, para. 7(c); see also pp. 5-6, ante.)

The bottom line: The parties settled all disputes over Bing’s rights

that existed in 1999. Bing’s right of publicity existed as of 1985. The

Settlement Agreement, in releasing all claims, therefore encompassed and

released any claims relating to Bing’s publicity right. The trial court erred

by concluding otherwise, and permitting the Wyatt heirs to circumvent

the settlement. This Court should reverse.

II. IN ANY EVENT, WILMA WYATT CROSBY NEVER

POSSESSED AN INTEREST IN BING’S RIGHT OF

PUBLICITY SINCE AN INDIVIDUAL’S RIGHT OF

PUBLICITY IS NOT A COMMUNITY PROPERTY ASSET

AS A MATTER OF LAW.

Even if the Wyatt heirs had not waived their right to seek an interest

in Bing’s right of publicity, reversal is mandated because as a matter of

law, Wilma never possessed any community property share of that right.

This is so because Bing’s right of publicity was not community property,

but rather was separate property, personal to Bing. As a result, Wilma had

22

no share to bequeath to her heirs, and the entirety of Bing’s publicity right

passed through his estate to HLC.

A. Bing’s Right Of Publicity Was Not A Community

Property Asset; Rather, It Was A Separate Property

Asset That Passed In Its Entirety To Appellants On

Bing’s Death.

Whether the right of publicity can be a community property asset is

a question of first impression in California. The key to the answer can be

found in an analysis of whether the statutes that establish the statutory right

of publicity in California—Civil Code sections 3344 and 3344. 1—create

a property right that is subject to Family Code section 760, which provides

that “all property.. . acquired by a married person during the marriage...

is community property.” As we explain below, the right of publicity—by

its nature—is necessarily a purely personal right that predates any marriage

and therefore cannot be “acquired.. . during the marriage.”

23

1. Every person has a right of publicity, irrespective

of whether it is ever exploited for monetary gain.

Since each person is born with such a right, single

people necessarily bring the publicity right into

marriage—meaning that the right falls outside the

statutory definition of community property.

Family Code section 760 gives a married person community

property rights only in property “acquired. . . during the marriage.”

(Fam. Code, § 760.)

But the body of California statutory and decisional law regarding the

right of publicity makes clear that it attaches to each person, presumably at

birth, and thus necessarily predates marriage. Therefore, the publicity

right is not property acquired “during the marriage,” but rather is property

brought to the marriage.

To elaborate, the right of publicity is the right of every person—not

just a celebrity—to control the use of his image for commercial purposes.

It encompasses the right to recover damages and other relief for the

unauthorized commercial appropriation of that image. (KNB Enterprises v.

Matthews (2000) 78 Cal.App.4th 362, 366; Fleet v. CBS~ Inc. (1996)

50 Cal.App.4th 1911, 1918; see Lugosi v. Universal Pictures (1979)25

Cal.3d 813, 824 [“The so-called right of publicity means in essence that

the reaction of the public to name and likeness, which may be fortuitous or

24

which may be managed or planned, endows the name and likeness of the

person involved with commercially exploitable opportunities”].)

In California, there is a statutory right to publicity and a common

law right. The statutory right, set forth in Civil Code section 3344 (enacted

1971), is meant to complement, not supplant, the common law right.

(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387,

391.)

The right of publicity is uniquely personal. As one scholar recently

noted, the right of publicity “has sometimes been described as a property

right in one’s personality.” (Rothman, The Inalienable Right ofPublicity

(20 12) 101 Geo. L.J. 185, 187; see Nimmer, The Right ofPublicity (1954)

19 Law & Contemp. Probs. 203, 216 [noting that the right of publicity has

been regarded as “the right of each person to control and profit from the

publicity values which he has created or purchased”].)

Although it has been called an intellectual property right, like

a copyright or patent (Comedy III Productions, Inc. v. Gary Saderup, Inc.,

supra, 25 Cal.4th at p. 399; see Aroa Marketing, Inc. v. Hanford Ins. Co. of

Midwest (2011)198 Cal.App.4th 781, 788), it has also been significantly

distinguished from those types of rights. A copyright becomes community

property if the work being copyrighted was created during the marriage.

(In re Marriage of Worth (1987) 195 Cal.App.3d 768, 773.) By contrast,

a persona is not “created” in the way that a copyrightable work is created,

and it has no “author,” per Se. (KJ’/B Enterprises v. Matthews, supra,

25

78 Cal.App.4th at p. 374.) Rather, as our Supreme Court has explained, the

right of publicity is necessarily personal because the right to publicize one’s

image is innate to one’s existence, like its flip side, the right to privacy, out

of which it grew. (Lugosi v. Universal Pictures, supra, 25 Cal.3d at p. 822

[“The very decision to exploit name and likeness is a personal one”].)

The bottom line: The right of publicity is constituted out of an

individual’s innate personal qualities and talents—precisely what one

brings to marriage. The right of publicity is therefore the antithesis of

property acquired during marriage. Accordingly, the right to publicity is

not “community property” within the meaning of Family Code section 760.

2. In fact, the right of publicity fits squarely within

the statutory and constitutional definition of

separate property.

That the right of publicity is not a community property right is

buttressed by the plain meaning of the separate property statute.

Specifically, Family Code section 770 provides, “(a) Separate property of

a married person includes all of the following: (1) All property owned by

the person before marriage. . . . (3) The rents, issues, and profits of the

property described in this section.” (See Cal. Const, art. 1, § 21 [“Property

owned before marriage or acquired during marriage by gift, will, or

inheritance is separate property”].)

Publicity rights fall readily within the statutory and constitutional

definition. As discussed, every person is born with the right to publicize

26

(or not to publicize) his or her name and likeness, i.e., a right of publicity.

Since every person possesses the right to publicity at birth, such property is

“owned by the person before marriage.” That makes the right to publicity,

and all profits derived from it, separate property under Section 770.

3. In giving each person control over his or her right

of publicity, the terms of Civil Code sections 3344

and 3344.1 underscore the separate property

character of the right of publicity.

Family Code section 770, defining “separate property,” provides

that, “(b) A married person may, without the consent of the person’s

spouse, convey the person’s separate property.” By their terms, Civil Code

sections 3344 (establishing the statutory right of publicity) and 3344.1

(making the right of publicity descendible) underscore the separate property

character of the right of publicity by stressing the individual’s personal

control of the right in a manner wholly consonant with the definition of

“separate property” in Family Code section 770.

Section 3344. This statute creates the statutory right of publicity.

Significantly for present purposes, it gives control over the right to the

individual whose persona is appropriated without consent.

Specifically, the statute provides that any person “who knowingly

uses another’s name, voice, signature, photograph, or likeness, in any

manner. . . ,without such person ‘s prior consent,” shall be liable for

damages. (Civ. Code, § 3344, subd. (a), emphasis added [going on to

27

provide, “or, in the case of a minor, the prior consent of his parent or legal

guardian”—reinforcing that, as discussed ante, the right attaches

throughout one’s life].)

There is not the slightest suggestion in Section 3344 that a spouse

can give the consent required for exploitation of a person’s publicity right.

As the quoted passage shows, the person himself must give consent.

(See Rothman, The Inalienable Right ofPublicity, supra, 101 Georgetown

L.J. at p. 202 [“No court.. . has given a nonidentity-holding spouse any

rights to use, waive, license, or transfer publicity rights”].) This

demonstrates further that the right is separate and not community property.

Why? Because, under Family Code section 751, “[t]he respective interests

of the husband and wife in community property during continuance of the

marriage relation are present, existing, and equal interests.” In providing

for personal, individual control only, Civil Code section 3344 establishes

a separate property right.

Section 3344.1. This statute was enacted to establish that the

statutory right of publicity is descendible. By its terms, Civil Code

section 3344.1 provides for the right of publicity to pass at the death of

a “personality” under the terms of the deceased personality’s testamentary

instrument. (See Civ. Code, § 3344.1, subds. (b), (e), (h).)

Further, Section 3344.1 details how the right descends, and it does

so in terms clearly inconsistent with a spouse’s retention of a community

property interest. Specifically, section 3344.1 describes how the right

28

descends in the event the personality either failed to specif~’ a beneficiary of

that right in a testamentary instrument. In defining how the right of

publicity passes upon death in such circumstances, the statute provides that

the “entire interest” in the right recognized by the statute descends in

accordance with the terms of subdivision (d). These provisions are plainly

inconsistent with the notion that a spouse acquires a community property

interest in the right of publicity.

For example, section 3344.1, subdivision (d) provides: “[Tihe rights

under this section shall belong to the following person or persons and may

be exercised, on behalf of and for the benefit of all of those persons, by

those persons who, in the aggregate, are entitled to more than a one-half

interest in the rights: (1) The entire interest in those rights belongs to the

surviving spouse of the deceased personality unless there are any surviving

children or grandchildren of the deceased personality, in which case one

ha~fof the entire interest in those rights belongs to the surviving spouse.”

(Emphasis added.)

This provision indicates, again, that the statutory right was intended

to be controlled exclusively by the personality during his or her lifetime,

and thus not subject to California’s community property regime. (See Civ.

Code, § 3344.1, subd. (h).)6 Indeed, if the spouse was already a 50%

6 Civil Code section 3344.1, subdivision (h) defines “deceased personality”

to mean “any natural person whose name, voice, signature, photograph, orlikeness has commercial value at the time of his or her death, or because ofhis or her death, whether or not during the lifetime of that natural person

29

owner (by virtue of a community property interest), the statute would not

and could not direct that the “entire interest in those rights” passes to the

surviving spouse or anyone else. Similarly, if the Legislature intended that

a spouse attains a community property interest in the right of publicity,

section 3344.1 would not and could not direct that one-half of the person’s

right of publicity passes upon death to the surviving spouse, and “one-half

of the entire interest in those rights” passes to surviving children or

grandchildren. (Emphasis added.) The Legislature must have intended that

the right of publicity is separate property and retains its character as

separate property notwithstanding California’s community property regime.

4. The legislative histories of Sections 3344 and 3344.1

reinforce the separate property character of the

publicity right.

The legislative histories of both Civil Code sections 3344 and 3344.1

bespeak a clear intent to create a wholly individual, separate property right;

neither history reflects even the shadow of an intention to create a form of

community property.

The legislative history of Section 3344 is replete with references to

the individual character of the publicity right; the Legislature’s intent to

establish a purely individual right is thus made readily apparent.

the person used his or her name, voice, signature, photograph, or likenesson or in products, merchandise, or goods, or for purposes of advertising orselling, or solicitation of purchase of~, products, merchandise, goods, orservices.”

30

For example, the Senate Committee on Judiciary’s background

information sheet for AB 826, which became Civil Code section 3344,

notes that “[t]he bill was suggested to the author by people who had their

names used in connection with a magazine advertising scheme” (1 RJN,

Exh. A, p. 35) and author Assemblyman Vasconcellos’s March 8, 1971,

press release (addressing a series of bills) notes that “[t]he last bill, AB 826,

is aimed at protecting individuals from having their names or likenesses

used for commercial purposes without their consent” (1 RJN, Exh. A,

p. 42). Any notion that one’s spouse would own or be entitled to control

the statutory right being enacted—as is characteristic of community

property (see Fam. Code, § 751 [“The respective interests of the husband

and wife in community property during continuance of the marriage

relation are present, existing, and equal interests])—is antithetical both to

the language of the enactment and to the legislative history supporting it.

The separate property character is perhaps even clearer with regard

to Civil Code section 3344.1. The Legislature enacted that statute

(originally numbered section 990) in 1984 (effective January 1, 1985) in

reaction to the California Supreme Court’s decisions in Lugosi v. Universal

Pictures, supra, 25 Cal.3d 813 and Guglielmi v. Spelling-Goldberg

Productions (1979) 25 Cal.3d 860. Those decisions had held that the right

of publicity died with the individual and lapsed into the public domain.

Prevailed upon by the heirs and transferees of dead celebrities whose

publicity interests were being exploited without limitation or remuneration,

the Legislature stepped in and made the statutory publicity right inheritable.

31

Thus, the Legislative Counsel’s Digest to Senate Bill 613 noted that,

“Existing case law has held that the right to prohibit commercial

exploitation of a person’s name, photograph, or likeness does not generally

survive that person’s death. ¶ This bill would. . . enact a provision setting

forth the statutory right to recover damages for the unauthorized

commercial use of. . . a deceased personality’s name, voice, signature,

photograph, image, or likeness,. . . and would specify that right is

a property right which is transferable, and, if not transferred, exercisable

after a person’s death by the person’s wife, children, or parents, as

specified.” (1 RJN, Exh. B, pp. 138-139, emphasis removed.)

Likewise, the bill analysis provided by the Senate Committee on

Judiciary observed that SB 613 would overturn Lugosi “and provide instead

that, absent an inter vivos transfer, a deceased personality’s right of

publicity would be descendible to his immediate family. . . whether or not

the right was exercised during his lifetime. It would make the right of

publicity freely descendible.” (1 RJN, Exh. B, p. 192.)

Lugosi described a purely personal, individual right that evaporated

upon the right-holder’s death—characteristics utterly inconsistent with

a community property right that vested in a spouse. Section 3344.1 was

enacted to make it possible for the individual to hand down his or her right

of publicity to his or her heirs, but there is no hint in the enactment or its

history that by making the right inheritable, the Legislature intended also to

change its fundamental character as a separate and personal, non

community right. As with section 3344, the notion that the right created

32

was anything but wholly personal and individual contravenes both the letter

and spirit of the enactment. Again, the legislative history bolsters the

conclusion that the right to publicity was enacted to be, and is, a separate

property interest.

5. Public policy likewise supports the conclusion that

the right of publicity constitutes a form of separate

property.

It would be impracticable for the right of publicity to be treated as a

community property interest in a personality’s right of publicity. Treating

the right as a form of community property that must be traced and

appended to a specific time period, and somehow divided every time an

individual married or divorced or was widowed (and remarried—and

perhaps divorced or was widowed again) would create an administrative

nightmare.

Indeed, there is no reason to believe the Legislature intended

a regime under which a spouse acquires some community property interest

in the increase in value of the right during marriage, such as the case in

which a spouse uses community property time, effort and skill to enhance

the value of a separate-property business. (See, e.g., Pereira v. Pereira

(1909) 156 Cal. 1.) First, the provisions of Civil Code section 3344.1

concerning the transferability of the right and the regime for its

descendibility are entirely inconsistent with such a theory. (See, supra,

Section II.A.3.) Second, there is no case in California that has ever applied

33

a Pereira-type valuation to the right of publicity or any other intellectual

property interest. Third, the imposition of a Pereira-type interest in the

context of the right of publicity would result in speculations as to valuation

that would constitute an insurmountable burden on the parties and the

courts. Fourth, to the extent a spouse exploits her right of publicity during

marriage, the profits therefrom may well have been commingled with

community assets, thereby eliminating the right of the spouse in any value,

and complicating the already heady if not impossible task of valuation and

tracing. There is every reason to believe the Legislature had no intention to

create such a regime.

Moreover, treating the right ofpublicity as a community property

asset would lead to absurd results. For example, could a husband compel

his wife to exploit her name and likeness because it is a community

property asset—or simply exploit her name and likeness against her wishes

and without her consent? In a divorce proceeding, could the husband get

the value of that asset in the event it were to be exploited, whether or not

the wife had ever exploited it and whether or not she had any intention of

doing so in the future? Indeed, could the ex-husband choose to exploit his

one-half interest in his ex-wife’s right of publicity even against her wishes?

These issues, in turn, raise constitutional questions: Could a performer be

compelled to endorse a product or participate in a commercial without

running afoul of his First Amendment rights? These issues also raise

privacy concerns—indeed, how could a spouse enforce the right without

running afoul of the personality’s right to privacy?

34

Treating the right of publicity as a community property asset would

mean that a person who marries loses her right to control her own name and

likeness. No married person and no divorced person could use her own

image for any commercial purpose whatever without the prior consent of

her spouse or former spouse or others. At least in the commercial realm,

the act of marrying would essentially be to deprive herself of one half of

herself. In the event of divorce or death, when community property was

divided, the one half interest in her personal attributes that she gave up by

marriage would be controlled by her former spouse (in the case of divorce),

and the spouse’s own beneficiaries (in the event of death). Thus, by

marrying, she would be leaving the decisions whether to publicize her own

personal attributes to a potentially unknown class of persons with whom

she may have no relationship. Even while alive, a person would be unable

to make such decisions without the consent of (1) her spouse, (2) if

divorced, her former spouse, or (3) if her spouse or former spouse is

deceased, the deceased spouse or former spouse’s heirs or beneficiaries.

This is precisely the meaning of the trial court’s decision and cannot be

what the Legislature intended.

For these reasons, the right of publicity must be separate property,

not community property. Because Bing’s right of publicity was his

separate property, Wilma did not own any community interest in it.

No part of Bing’s publicity right passed under her will. The trial court’s

determination to the contrary is erroneous and should be reversed.

35

III. RES JUDICATA BARS THE SPECIAL ADMINISTRATOR’S

CLAIM TO A COMMUNITY PROPERTY SHARE OF

BING’S RIGHT OF PUBLICITY.

Res judicata principles preclude the re-litigation of claims that were

previously dismissed with prejudice. These rules apply here to bar the

Special Administrator’s claim to a portion of Bing’s right of publicity.

By voluntarily dismissing their 1996 lawsuit against Kathryn Crosby and

HLC, the Wyatt heirs waived the right to sue for a declaration of Wilma’s

community property interests—including an entitlement to a community

property share in Bing’s right of publicity.

A. Res Judicata Principles Preclude Re-Litigating Claims Or

Issues Encompassed In Earlier Litigation.

The doctrine of res judicata “describes the preclusive effect of a final

judgment on the merits.” (Mycogen Corp. v. Monsanto Co. (2002) 28

Cal.4th 888, 896.) It “precludes piecemeal litigation by splitting a single

cause of action or relitigation of the same cause of action on a different

legal theory or for different relief.” (Id. at p. 897, internal quotation marks

omitted.)

The doctrine has two aspects: “[T]he first is claim preclusion,

otherwise known as res judicata, which ‘prevents relitigation of the same

cause of action in a second suit between the same parties or parties in

privity with them.’ The second is issue preclusion, or collateral estoppel,

which ‘precludes relitigation of issues argued and decided in prior

proceedings.” (Alpha Mechanical, Heating & Air Conditioning, Inc. v.

36

Travelers Cas. & Sur. Co. ofAmerica (2005) 133 Cal.App.4th 1319, 1326,

internal citations omitted.)

To determine whether claim preclusion applies, courts examine

whether the two proceedings involve the same cause of action — that is,

whether the two actions involve invasion of the same “primary right.” (Id.

at p. 1327.) To determine whether issue preclusion applies, courts look to

whether “the decision in the initial proceeding was final and on the merits

and the issue sought to be precluded from relitigation is identical to that

decided in the first action and was actually and necessarily litigated in that

action.” (Ibid.)

Res judicata principles apply even in the absence of a final

judgment. A dismissal of an action with prejudice “bars any future action

on the ,same subject matter. Dismissal with prejudice is determinative of

the issues in the action and precludes the dismissing party from litigating

those issues again.” (Torrey Pines Bank v. Superior Court (1989) 216

Cal.App.3d 813, 820-821, internal citations omitted.)

As we now show, these principles apply to bar the Special

Administrator’s claim here.

B. Because They Dismissed The Earlier Lawsuit With

Prejudice, The Wyatt Heirs Are Barred From

Relitigating Their Entitlement To A Declaration Of

Bing’s Community Property Assets.

Overlapping claims and issues. The 1996 lawsuit broadly asserted

nine different claims to Wilma’s community property share of Bing’s

interests. (See 2 AA 166-194.) The gravamen of that lawsuit was that the

defendants had failed to “fully, accurately and properly, account for and

37

distribute to [the Wyatt heirs] all the interest, dividends, royalties and other

monies to which they were entitled under the terms of the [Wilma Wyatt

Crosby Trust].” (2 AA 176.) The Wyatt heirs asserted that the defendants

withheld money “properly derived from the community assets of Bing

Crosby and Wilma Wyatt Crosby.” (2 AA 181.)

Among their numerous claims, the Wyatt heirs asserted a claim for

declaratory relief that sought a declaration regarding the nature of the Wyatt

heirs’ community property interests. (See 2 AA 184-185, 192-193.)

The Wyatt heirs alleged there was a dispute “concerning the rights, duties

and obligations of defendants to plaintiffs with respect to immediately and

expeditiously returning monies from the community property of Bing

Crosby and Wilma Wyatt Crosby” and involving “plaintiffs[’] entitlement

in the future to monies including interest, dividends, royalties and other

income derived from the community property.” (2 AA 185, capitalization

normalized.) And, the Wyatt heirs asked for a declaration of the rights,

obligations and duties to them under Wilma’s trust. (2 AA 192.)

Thus, the 1996 lawsuit encompassed a request for a declaration as to

the nature of Wilma’s community property rights and her heirs’ entitlement

to them—a scope that necessarily encompassed the right of publicity. (See

pp. 11-2 1, ante [Bing’s right of publicity existed in 1996].)

Privily. Nor can there be any doubt that the Special Administrator

was in privity with the parties that sued HLC and Kathryn Crosby in 1996.

Privity refers “to an interest in the subject matter of litigation acquired

38

after rendition of the judgment through or under one of the parties, as by

inheritance, succession or purchase.” (Kerner v. Superior Court (2012)

206 Cal.App.4th 84, 125.) It can also mean “a mutual or successive

relationship to the same rights of property.” (Ibid.)

Here, the Trustee of the Wilma Wyatt Crosby Trust and all of the

beneficiaries of that trust sued in 1996. (2 AA 166.) Those parties carried

the same standard that the Special Administrator carries in the present

lawsuit. Indeed, by the Probate Code section 850 petition, the Special

Administrator of the Estate of Wilma Wyatt Crosby sought a declaration

that Wilma had inherited a community property share in Bing’s right of

publicity and that such share had passed through Wilma’s trust to her heirs.

(See 1 AA 2 [petition].) In other words, the Special Administrator was

appointed for the purpose of—and essentially acted on behalf of the Wyatt

heirs in—funneling an alleged trust asset to those heirs.

Moreover, the Special Administrator acquired his “interest in the

subject matter of the litigation after” dismissal of the 1996 lawsuit. (See

Kerner v. Superior Court, supra, 206 Cal.App.4th at p. 126; 2 AA 221

[Special Administrator with general powers was appointed on or about

December 11, 2008].)

Dismissal with prejudice. The Wyatt heirs dismissed their lawsuit

against HLC and Kathryn with prejudice in 1999. (See p. 6, ante.) That

dismissal bars the Special Administrator from now prosecuting any claims

alleging a community property interest in Bing’s right of publicity.

39

For this reason, too, the Court should reverse and enter judgment in

favor of defendants.

CONCLUSION

Wilma never had any community property interest in Bing’s right of

publicity and, if she had, she waived any claims to it in 1999.

On the purely legal key issues in this case—( 1) whether the right of

publicity is a community property asset, and (2) whether the 2007

amendment to Civil Code section 3344.1 clarified existing law—the plain

language of governing statutory law and the legislative history behind that

statutory law are clear. They establish that (1) the right of publicity is

a separate property interest that is not subject to California’s community

property rules, and (2) no new right arose in 2007 when Civil Code section

3344.1 was amended—rather, the amendment was intended to clarifS’

existing law.

40

One way or the other, this Court should reverse. In so doing, it

should direct the trial court to enter a new order, denying the Special

Administrator’s Probate Code 850 petition.

March 28, 2013

GREINES, MARTIN, STEIN &RICHLAND LLPKent L. RichiandCynthia E. TobismanFeris M. Greenberger

_

Cynthia E. Tobisman

Attorneys for AppellantsHLC PROPERTIES, LTD. andKATHRYN G. CROSBY

41

CERTIFICATE OF COMPLIANCE

Pursuant to California Rules of Court, rule 8.204 (c)(1), the attached

Appellants’ Opening Brief was produced using 13-point Times New

Roman type style and contains 9,253 words not including the tables of

contents and authorities, caption page, Certificate of Interested Entities or

Persons, or this Certification page, as counted by the word processing

program used to generate it.

Dated: March 28, 2013

Cynthia E. Tobisman

42

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I amover the age of 18 and not a party to the within action; my business address is5900 Wilshire Boulevard, 12th Floor, Los Angeles, California 90036.

On March 28, 2013, I served the foregoing document described as:APPELLANTS’ OPENING BRIEF on the interested parties in this action byserving:

Henry Workman Clerk for:Sullivan, Workman & Dee Hon. Michael I. Levanas800 S. Figueroa Street, 12th Floor Los Angeles Superior CourtLos Angeles, California 90017-252 1 111 North Hill St., Dept. 11Attorneys for Respondents Los Angeles, California 90012Wilma Wyatt Crosby and Bing LASC Case No. P334700Crosby

Clerk for:The Supreme Court of California350 McAllister StreetSan Francisco, California 94102(Served electronically pursuant toSecond Appellate Districtelectronic brief filing program.See Cal. Rules of Court,rule 8.212(c)(2).)

(~) By Envelope - by placing a true copy thereof enclosed in sealedenvelopes addressed as above and delivering such envelopes:

(~[) By Mail: As follows: I am “readily familiar” with this firm’s practiceof collection and processing correspondence for mailing. Under that practice,it would be deposited with United States Postal Service on that same day withpostage thereon fully prepaid at Los Angeles, California in the ordinary courseof business. I am aware that on motion of party served, service is presumedinvalid if postal cancellation date or postage meter date is more than 1 dayafter date of deposit for mailing in affidavit.

Executed on March 28, 2013, at Los Angeles, California.

(~[) (State) I declare under penalty of perjury under the laws of the State ofCalifornia that the foregoing is true and correct.

Chance L. awrie