Switzer v. Big Ticket Pictures CA2/2

Filed 1/11/24 Switzer v. Big Ticket Pictures CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KAYE SWITZER et al., B320513

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC690564)
v.
ORDER MODIFYING
BIG TICKET PICTURES INC. OPINION AND DENYING
et al., REHEARING

Defendants and NO CHANGE IN THE
Respondents. JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on December 21, 2023,
be modified as follows:

1. On page 5, in the first sentence of the paragraph that
 begins, “In February 2015,” delete the phrase “—which by
that time was a subsidiary of CBS Studios Inc. (CBS)—” so
the full sentence reads as follows:

In February 2015, Big Ticket and Sheindlin—who by
that time was negotiating through a company called
Her Honor Inc. (Her Honor)—signed a further
amendment to the 1996 Agreement (the 2015
Agreement).

2. On page 7, in the second sentence of the last paragraph on
that page that begins with “On January 19, 2018,” add the
phrase “Studios Inc. (CBS)” following “CBS”, so the phrase
reads as follows: “CBS Studios Inc. (CBS)”.

3. On pages 7 to 8, delete the language in footnote 2 and
replace the language with the following so the full footnote
reads as follows:

2 Plaintiffs assert in their briefing and in their
petition for rehearing that the trial court “incorrectly
meld[ed]” various CBS-affiliated entities involved in
the Library transactions, that this court made
unauthorized “factual findings” in looking at the
evidence on summary judgment regarding which
CBS-affiliated entities were parent entities of Big
Ticket, and that the ambiguity regarding corporate
ownership precludes summary judgment. The trial
court’s treatment of the corporate structure is
irrelevant in light of our de novo review of summary
judgment; our examination of the evidence itself for
triable issues of material fact is appropriate (as we
are not bound to accept allegations in plaintiffs’

2
 separate statement contradicted by that evidence);
and any disputes over who owns Big Ticket is
immaterial because what matters to the resolution of
plaintiffs’ claims is the terms of the sale, not which
corporation owns one of the parties to that sale (as
Big Ticket was indisputably the party to each of the
pertinent contracts).

4. On page 8, in the last sentence of the paragraph at the top
of the page, delete the phrase “CBS subsidiary” and replace
it with the phrase “then-affiliated with CBS” so the full
sentence reads as follows:

Plaintiffs sought a lump sum payment of at least
$4.95 million on the theory that the Library was sold
twice (first from Big Ticket to Sheindlin, and then
from Sheindlin to Big Ticket as then-affiliated with
CBS), and the second sale triggered their right to a
lump sum cash-out payment.

5. On page 9, in line 14, delete the phrase “a subsidiary of
CBS” and replace it with the phrase “then-affiliated with
CBS”.

6. On page 11, in footnote 3, add a sentence to the end of the
footnote as follows:

In a similar vein, because we are merely assuming
the Library was sold twice, we reject plaintiffs’
argument in their petition for rehearing that we
have somehow engaged in impermissible factfinding
by finding that the sales occurred.

3
7. On page 12, after the sentence that concludes in line 15,
add as footnote 4 the following footnote, which will require
renumbering of all subsequent footnotes:

4 In their petition for rehearing, plaintiffs assert
that we may not look to the August 4, 2017
Agreement because the trial court assumed that two
sales of the Library occurred; according to plaintiffs,
the August 4, 2017 Agreement is verboten because it
was designed to undo any sale. We reject this
assertion. Like the trial court, we are assuming two
sales occurred. And we are examining the August 4,
2017 Agreement to ascertain the identity of the buyer
in the second of the two sales. We see no
inconsistency in doing so.

8. On page 14, in the second sentence of what was previously
numbered as footnote 4, delete the phrase “it is nowhere in
the operative complaint” and replace it with the phrase
“contrary to the assertion in their petition for rehearing,
this theory is nowhere alleged as a breach in the operative
complaint” so the full sentence reads as follows:

Plaintiffs have waived this newly minted theory by
raising it for the first time during rebuttal at oral
argument on appeal; contrary to the assertion in
their petition for rehearing, this theory is nowhere
alleged as a breach in the operative complaint, and
cannot be used to evade summary judgment (which,
by definition, is framed by the operative pleadings).

4
 9. On page 17, in what was previously numbered as footnote
6, add the following sentences to the end of the footnote:

In their petition for rehearing, plaintiffs assert that
they are entitled to rehearing because they were not
given sufficient opportunity to brief this issue. They
are wrong. Plaintiffs explicitly raised this issue in
their opening brief on appeal, but elected to give the
issue short shrift; in other words, plaintiffs had the
opportunity to brief the issue more fully but opted
not to take it. Their tactical choice does not entitle
them to rehearing.

* * *

There is no change in the judgment.

Appellants’ petition for rehearing is denied.

——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.

5
Filed 12/21/23 Switzer v. Big Ticket Pictures CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KAYE SWITZER et al., B320513

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC690564)
v.

BIG TICKET PICTURES INC.
et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kristin S. Escalante, Judge. Affirmed.

Cozen O’Connor, Erik L. Jackson, Thomas W. Casparian;
Chesnoff & Schonfeld and Richard A. Schonfeld for Plaintiffs and
Appellants.
 Loeb & Loeb, James A. Curry and Daniel J. Friedman for
Defendants and Respondents.

******
In this contract dispute, developers on the first season of
the Judge Judy television show sued on the ground that a recent
sale of the library of episodes triggered their right to a lump sum
cash-out payment of $4.95 million (rather than continuing to
receive an income stream of residuals). On summary judgment,
the trial court assumed that there was a sale of the library but
ruled that the undisputed facts did not establish that the
developers were contractually entitled to a cash-out. This was
correct, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The Judge Judy show
Big Ticket Pictures Inc. (Big Ticket) produced the Judge
Judy television show since its inception in 1995. Kaye Switzer
(Switzer) and Sandi Spreckman (Spreckman) helped develop the
show,1 which aired for 25 seasons. Judith Sheindlin (Sheindlin)
is the titular “Judge Judy.”
B. Rights of developers to share the show’s
residuals
1. 1995 Agreement
In August 1995, Big Ticket entered into a contract with
Switzer and Spreckman to compensate them for their role in
developing the Judge Judy show. Big Ticket agreed to pay them

1 Doug Llewelyn was a third developer, but is not a party to
this lawsuit and is therefore not mentioned further.

2
$25,000 for the one-hour pilot episode, and to give them a
“supervising producer” credit on all episodes in the show’s first
season. Big Ticket had the option to retain Switzer and
Spreckman as producers for each of the next five seasons. Big
Ticket promised to pay Switzer and Spreckman 10 percent of the
show’s “defined proceeds . . . in perpetuity” for any seasons in
which they were retained as producers, and 5 percent of the
show’s “defined proceeds” for any seasons in which they were not
retained as producers but “for the life of the series.”
2. 1999 Settlement
In 1996, Big Ticket opted not to retain Switzer and
Spreckman as producers on the show. In response to a lawsuit
Switzer and Spreckman filed against Big Ticket and Spelling
Entertainment Group, Inc. (with which Big Ticket was then
affiliated), the parties to that litigation entered into a settlement
agreement in April 1999 (the 1999 Settlement). Pursuant to the
settlement, Big Ticket agreed (1) to pay Switzer and Spreckman
$500,000; and (2) to amend the 1995 Agreement to add “Exhibit
1,” which defines the residual payments Switzer and Spreckman
will receive for the Judge Judy show on a going-forward basis.
The 1999 Settlement also affirmed that “[a]ll terms and
conditions of this Settlement Agreement shall be binding upon
and inure to the parties hereto and their respective heirs,
successors and assigns.”
As pertinent to this case, Exhibit 1 to the 1999 Settlement:
● Defines “Producer” as Big Ticket, and defines
“Producer Company” as “Producer and any subsidiary of Spelling
Entertainment Group, Inc. (other than Virgin Interactive
Entertainment, Inc.)” that engages in distribution of Judge Judy
episodes.

3
 ● Defines “Participants” as Switzer and Spreckman,
and entitles them to a percentage of the “Defined Proceeds,”
which is the amount left over after “Distribution Fees,”
“Distribution Expenses,” and “Cost of Production” are deducted
from “Gross Receipts.” “Gross Receipts,” in turn, are defined as
“all monies actually received by a ‘Producer Company’ as
consideration for the right to exhibit Episodes.”
● Obligates the Producer to give Switzer and
Spreckman written statements regarding their defined proceeds
as well as to allow inspection of its books upon demand.
● Regulates the Producer’s right to sell or dispose of the
rights in the episodes of the Judge Judy show. More specifically,
Exhibit 1 grants the “Producer” “the sole right and discretion to
sell or otherwise dispose of any or all of its rights in the Episodes
to any Person.” Further, Exhibit 1 delineates that any sale of
those rights must be either (1) “subject to the rights of [the]
Participant[s],” which means the buyer must continue paying
Switzer and Spreckman the income stream comprised of the
above-delineated percentage of defined proceeds; or (2) “including
any or all rights of [the] Participant[s],” which means the
Producer must pay Switzer and Spreckman a lump sum cash-out
constituting their percentage (between the two of them—5
percent) of the sale price. Helpfully, Exhibit 1 also spells out how
to distinguish a sale “subject to” the Participants’ rights from a
sale “including” them—namely, a sale is “subject to” the
Participants’ rights if the buyer “assumes the executory
obligations of Producer to Participant” (that is, if the buyer
agrees to continue paying the income stream).

4
 C. Right of Sheindlin to share the show’s residuals
1. 1996 Agreement
In June 1996, Big Ticket entered into a contract with
Sheindlin regarding her salary for appearing as Judge Judy in
the show (the 1996 Agreement).
2. 1999 Amendment
In April 1999, Big Ticket and Sheindlin amended the 1996
Agreement (the 1999 Amendment). Under this amendment,
Sheindlin was to be compensated in part by a salary and in part
by a percentage of the show’s “Defined Proceeds.”
3. 2015 Amendment
In February 2015, Big Ticket—which by that time was a
subsidiary of CBS Studios Inc. (CBS)—and Sheindlin—who by
that time was negotiating through a company called Her Honor,
Inc. (Her Honor)—signed a further amendment to the 1996
Agreement (the 2015 Amendment). In that amendment,
Sheindlin agreed to forego an increase in her salary for three
upcoming seasons in exchange for Big Ticket “agree[ing] to
transfer ownership of [the] existing [Judge Judy] episodes” and
the corresponding copyrights (“the Library”). The transfer was
not to occur until September 1, 2017, and could occur only after
the documents “reasonably necessary to effectuate such [a]
transfer” were “execute[d]” by the parties. However, that future
transfer of the Library would be “subject to all financial
obligations to third-party participants” such as Switzer and
Spreckman.
D. Status of the Library
1. Sheindlin tries to sell the Library
Sheindlin then sought to monetize her right to acquire the
Library in September 2017 by finding a buyer.

5
 a. Sheindlin secures an amendment to
expedite the possible sale
In anticipation of a possible sale, Big Ticket and Sheindlin
signed a letter in January 2017 that amended the 1996
Agreement to facilitate “accelerat[ing] the ownership transfer” of
the Library. In that amendment, Big Ticket promised to take
“commercially reasonable efforts to have the copyright
assignment paperwork” attendant to a future transfer of the
Library “prepared to submit to the copyright office” once a
“binding agreement” between Sheindlin and a buyer was
“sign[ed].”
b. Big Ticket sends August 2, 2017 letter
By mid-2017, Sheindlin located a possible buyer—
Lionsgate. On August 2, 2017, Big Ticket sent a letter “in
connection” with the upcoming “assignment, transfer and sale by
[Sheindlin] of all of her rights in the [Library] to a buyer to be
designated by [Sheindlin].” In the letter, Big Ticket “hereby
transfer[red] and assign[ed]” to Sheindlin and Sheindlin “hereby
transfer[red] and assign[ed] to” the unidentified buyer all rights
to the Library—although each transfer was “in each case effective
at Closing.” Once effective, however, both transfers would be
“free and clear of any liens, encumbrances or obligations of any
kind to third parties or to [Big Ticket]”—“other than . . .
participation obligations to each person or entity entitled to a
participation in the receipts of the Judge Judy Show.” (Italics
added.) Switzer and Spreckman were listed as persons whose
“obligations” would continue to bind the buyer after the sale. Big
Ticket also promised to “provide each Participant with
participation statements,” even after the sale.
Sheindlin did not execute the August 2, 2017 letter.

6
 2. Sheindlin ultimately decides not to sell the
Library, and instead to allow Big Ticket to keep the Library
In an agreement signed on August 4, 2017, Big Ticket and
Sheindlin agreed to take three actions (the August 4, 2017
Agreement). First, Big Ticket paid Sheindlin approximately $99
million in exchange for Sheindlin’s agreement that the 2015
Amendment be modified to delete the paragraph that would have
transferred the Library to her effective September 1, 2017; Big
Ticket would “continue to own the copyright” and have the “sole
and exclusive right to exploit” the Library. Second, Big Ticket
and Sheindlin agreed that the August 2, 2017 letter was “revoked
and of no force or effect” because no sale to a third-party buyer
was ever consummated. Third, Sheindlin agreed to “negotiate in
good faith” to return as the talent for the 25th (and final) season
of Judge Judy.
E. Status of Payments
Switzer and Spreckman continued to receive their income
stream of residuals from the Judge Judy episodes. They were
never paid a lump sum cash-out payment.
II. Procedural Background
A. Pleadings
On January 19, 2018, Switzer and the trustee of The Sandi
Spreckman Trust (collectively, plaintiffs) filed suit. In the
operative first amended complaint, plaintiffs sued Big Ticket,
CBS, Sheindlin, and Her Honor (collectively, defendants)2 for (1)

2 Plaintiffs assert that the trial court “incorrectly meld[ed]”
various CBS entities involved in the Library transactions, but it
appears that it is plaintiffs who are creating confusion over CBS’s
corporate structure. In any event, plaintiffs’ assertion is
irrelevant because they did not name any CBS entity as a

7
breach of contract, (2) breach of the implied covenant of good
faith and fair dealing, (3) intentional interference with
contractual relations, (4) unjust enrichment, (5) accounting, (6)
declaratory relief, and (7) constructive trust. Plaintiffs sought a
lump sum payment of at least $4.95 million on the theory that
the Library was sold twice (first from Big Ticket to Sheindlin,
and then from Sheindlin to Big Ticket as a CBS subsidiary), and
the second sale triggered their right to a lump sum cash-out
payment.
B. Summary judgment
In August 2021, defendants filed a motion for summary
judgment on two grounds—namely, (1) the Library was never
sold, so there was no event triggering plaintiffs’ right to a lump
sum cash-out payment; and (2) even if the Library had been sold,
the sale was “subject to” plaintiffs’ rights to continue receiving an
income stream, so they were still not entitled to a lump sum cash-
out payment. After responsive briefing, a hearing, and a post-
hearing brief by plaintiffs, the trial court issued a 21-page order
granting summary judgment in favor of defendants.
The trial court sidestepped the first proffered ground for
summary judgment, electing to “assume[] without deciding” that
the Library had twice been sold. The court nonetheless granted
summary judgment on the second proffered ground after
concluding that “the undisputed evidence establishes that any
sale . . . was ‘subject to the rights of the Participant’”—that is,
that the sale contemplated that plaintiffs would continue to

defendant in their operative complaint other than CBS and its
subsidiary Big Ticket (which executed all of the contracts at
issue) and therefore it is only those defendants’ liability that is at
issue in this case.

8
receive an income stream rather than a lump sum cash-out
payment. More specifically, the court pointed to the terms of the
2015 Amendment (which contemplated the transfer of the
Library from Big Ticket to Sheindlin) and the August 2, 2017
letter (which, based on the court’s assumption, transferred the
Library from Big Ticket to Sheindlin, and then from Sheindlin to
the as-yet-unnamed buyer)—and how both documents explicitly
stated that the sales were subject to plaintiffs’ right to a
continued income stream. The trial court rejected plaintiffs’
primary counter-arguments—namely, that (1) the 1999
Settlement only allowed the “Producer” to sell the Library subject
to their income stream; (2) the 1999 Settlement defined
“Producer” only as Big Ticket; and (3) the sale from Sheindlin
back to Big Ticket, as a subsidiary of CBS, was not a sale by a
“Producer,” and thus triggered plaintiffs’ right to a lump sum
cash-out payment. The court reasoned that whoever buys the
Library must “step[] into the role of ‘Producer’ under the” 1999
Settlement because plaintiffs’ view that “Producer” only ever
denotes Big Ticket would mean that whoever buys the Library
would not be required to pay plaintiffs any income stream
because the income stream itself is defined in part by the revenue
the “Producer” earns (and if the buyer were not a producer, the
“Producer” would be earning nothing). The court noted that no
extrinsic evidence contradicted its reading of the plain language
of the contract.
C. Appeal
Following the entry of judgment, plaintiffs filed this timely
appeal.

9
 DISCUSSION
Plaintiffs argue that the trial court erred in granting
summary judgment.
“A defendant is entitled to summary judgment if it can
‘show that there is no triable issue as to any material fact.’ (Code
Civ. Proc., § 437c, subd. (c).) The defendant bears the initial
burden of establishing that the plaintiff[s’] cause[s] of action
ha[ve] ‘no merit’ by showing that the plaintiff[s] cannot establish
‘[o]ne or more elements of [their] cause[s] of action.’ (Code Civ.
Proc., § 437c, subds. (o) & (p)(2).) If this burden is met, the
‘burden shifts’ to the plaintiff[s] ‘to show that a triable issue of
one or more material facts exists as to [those] cause[s] of action . .
. .’ (Id., subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 849 [citation].)” (Issakhani v. Shadow Glen
Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 924.) We
independently review the trial court’s grant of summary
judgment, considering all the evidence set forth in the moving
and opposing papers except that to which evidentiary objections
were sustained and not challenged on appeal, and construing the
evidence in the light most favorable to the party opposing
summary judgment. (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 286 (Hartford); Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 534-535.) We review de novo
questions of contractual interpretation. (Yahoo Inc. v. National
Union Fire Ins. Co. etc. (2022) 14 Cal.5th 58, 67.) To that end, we
are not bound by the trial court’s construction of the contract and
instead must make an independent interpretation of the contract.
(U.S. Bank National Assn. v. Yashouafar (2014) 232 Cal.App.4th
639, 646; see generally Atalla v. Rite Aid Corp. (2023) 89
Cal.App.5th 294, 307 [reviewing court is “‘not bound by the trial

10
court’s stated reasons or rationales’” for granting summary
judgment].)
We independently agree with the trial court’s grant of
summary judgment for defendants because, even if we assume
that the Library was sold twice (from Big Ticket to Sheindlin and
from Sheindlin back to Big Ticket), the undisputed evidence
establishes that each of those sales was “subject to” plaintiffs’
rights to continue receiving an income stream (rather than a sale
that “included” plaintiffs’ rights and thus entitled them to a lump
sum cash-out payment). At most, three documents effectuated
the sales of the Library that we are assuming occurred—namely,
(1) the 2015 Amendment that granted Sheindlin the right to
acquire the Library on September 1, 2017, (2) the August 2, 2017
letter in which Big Ticket agreed to transfer the Library to
Sheindlin, and Sheindlin agreed to transfer her rights to an
unnamed “Buyer,”3 and (3) the August 4, 2017 Agreement in
which Big Ticket and Sheindlin agreed that Big Ticket would re-
acquire its rights in the Library. All three documents explicitly—
and undisputedly—contemplate that each sale of the Library
would be “subject to” plaintiffs’ rights because such a sale is
defined in the 1999 Settlement as being “subject to” plaintiffs’
rights when the buyer “assumes the executory obligations” of
continuing to pay the income stream, and because all three
documents contemplate that the buyer will assume those
obligations. (Civ. Code, § 1636 [contract must be interpreted “to
give effect to the mutual intention of the parties as it existed at

3 Because we are assuming, for purposes of our analysis, that
the Library was twice sold, we need not respond to defendants’
argument that the August 2, 2017 letter was never executed by
Sheindlin and therefore cannot constitute a valid contract.

11
the time of contracting”]; Hartford, supra, 59 Cal.4th at p. 288
[contract must be interpreted “‘in context [and] with regard to its
intended function’”].) The 2015 Amendment specifies that Big
Ticket’s sale to Sheindlin shall vest Sheindlin with rights in the
Library “subject to all financial obligations to third-party
participants” (like plaintiffs); the August 2, 2017 letter specifies
that the sales from Big Ticket to Sheindlin and from Sheindlin to
the unnamed buyer will be “free and clear” of “obligations” “other
than . . . participation obligations to each person . . . entitled” to
participate in the show’s receipts; and the August 4, 2017
Agreement effectively identifies the unnamed buyer as Big
Ticket, but does so by eliminating the pertinent provisions of the
2015 Amendment and August 2, 2017 letter—thereby placing
plaintiffs in precisely the position they were in prior to any sale,
which is as recipients of an income stream.
Plaintiffs resist this conclusion with what we view as four
categories of arguments.
First and foremost, plaintiffs argue that the 1999
Settlement prohibits anyone but Big Ticket from selling the
Library “subject to” their rights because that agreement (1)
defines “Producer” as Big Ticket, and (2) grants only the
“Producer” “the sole right and discretion to sell” the Library—
either through a sale “subject to” plaintiffs’ income stream or a
sale that “includ[es]” a lump sum cash-out payment for plaintiffs.
Like the trial court, we reject this construction of the 1999
Settlement as unreasonable for two reasons. To begin, if we were
to accept plaintiffs’ argument that only Big Ticket is a
“Producer,” then once Big Ticket sold the Library to Sheindlin
“subject to” plaintiffs’ income stream, Sheindlin would have been
free not to pay plaintiffs anything because their income stream is

12
a calculation of a proportion of “Gross Receipts,” which is the
money that the “Producer” receives—yet it would be Sheindlin
(and not Big Ticket) receiving that money; if “Producer” were
limited to Big Ticket, then the gross receipts would be zero, and a
fraction of zero is still zero. Along similar lines, if “Producer”
could only mean Big Ticket, Sheindlin would have also been free
not to give plaintiffs a written statement of the gross receipts and
to ignore their demands for inspecting the company records
pertinent to those receipts. These are absurd results, and yet
they flow inexorably from plaintiffs’ construction of the word
“Producer”—a definition we must apply consistently across the
entirety of the 1999 Amendment. (Civ. Code, § 1638 [language of
contract must be interpreted to avoid “absurdity”]; Eith v.
Ketelhut (2018) 31 Cal.App.5th 1, 19 [courts must construe
contract to avoid an interpretation which would result in
absurdity]; Civ. Code, § 1653 [“inconsistent” interpretation of the
same word must be rejected].) Further, if we were to accept
plaintiffs’ construction of “Producer” and limit the right to sell the
Library “subject to” plaintiffs’ income stream solely to Big Ticket,
we would be chipping away at the rights that Big Ticket’s
assigned buyer would have to sell the Library—in derogation of
the 1999 Settlement’s mandate that the contract is to “inure[] to
the benefit” of Big Ticket’s “assigns” to the same extent as Big
Ticket itself. (Civ. Code, § 1641 [“The whole of a contract is to be
taken together, so as to give effect to every part, if reasonably
practicable, each clause helping to interpret the other”];
Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1507 [courts
“give effect to all of a contract’s terms, and . . . avoid
interpretations that render any portion superfluous, void or
inexplicable”].)

13
 Plaintiffs respond with two further points. They assert
that a buyer of the Library may “assume the Producer’s executory
obligations” without itself becoming the “Producer,” which means
that Scheindlin could buy the Library from Big Ticket but—
because she is not the “Producer”—could not sell it to anyone else
without paying plaintiffs a lump sum cash-out. We reject this
assertion. For starters, it leads to a result that cuts against the
result plaintiffs want. If, as plaintiffs urge, Sheindlin is not a
“Producer,” then she could not sell the Library at all because the
1999 Settlement vests the “sole” power to sell in the “Producer”;
and if there can be no second sale, plaintiffs are left receiving an
income stream from the first sale until the end of time.4 To the
extent plaintiffs are suggesting that Sheindlin is the “Producer”
for purposes of a sale of the Library a second time—but only a

4 For the first time at oral argument, plaintiffs argued that
Sheindlin breached her contract by selling the Library at all.
Plaintiffs have waived this newly minted theory by raising it for
the first time during rebuttal at oral argument on appeal; it is
nowhere in the operative complaint, and cannot be used to evade
summary judgment (which, by definition, is framed by the
operative pleadings). (People v. Crow (1993) 6 Cal.4th 952, 960,
fn. 7 [argument raised for the first time at oral argument
waived]; Heritage Marketing & Ins. Services, Inc. v. Chrustawka
(2008) 160 Cal.App.4th 754, 764 [“[t]he pleadings frame the
issues on a motion for summary judgment”].) But even if we were
to excuse plaintiffs’ waiver, this new theory is wholly
irreconcilable with plaintiffs’ position elsewhere in the litigation,
which is predicated upon Sheindlin’s valid sale of the Library.
What is more, plaintiffs’ new theory is also irrelevant because
their decision to try to plead multiple, inconsistent theories about
the meaning of the 1999 Settlement in no way affects our
independent examination of what it must mean as a matter of
law for purposes of summary judgment.

14
sale “including” a cash-out to plaintiffs—then plaintiffs are
saying that Sheindlin is a “Producer” when it comes to effecting a
sale that “includes” a cash-out but not a “Producer” when it comes
to effecting a sale “subject to” a continuation of plaintiffs’ income
stream. In other words, Sheindlin would have to be a producer
and not a producer at the same time. (E.M.M.I. Inc. v. Zurich
American Ins. Co. (2004) 32 Cal.4th 465, 475 [contract must be
interpreted so that “same word” is given the “same meaning”
throughout the contract]; but see Mirpad, LLC v. California Ins.
Guarantee Assn. (2005) 132 Cal.App.4th 1058, 1071 [“same
meaning” rule does not apply where same words are used
separately and distinctly].) Sheindlin is a talented actor, but she
is not Schrödinger’s cat.5 Plaintiffs further assert that the fact
that the 1999 Settlement grants Big Ticket a release (which
plaintiffs characterize as a “novation” without any citation to
authority) if Big Ticket sells the Library “subject to” their income
stream (but not if Big Ticket pays out a lump sum) somehow
“confirms that the [buyer] does not implicitly become the
Producer,” but the provision releasing Big Ticket from “any
further obligation to” plaintiffs reflects nothing more than the
fact that a sale “subject to” a continuing duty to pay an income
stream would necessitate identifying who is on the hook for that
stream—whereas a sale that had a continuing duty would not.
We do not see how the release otherwise supports plaintiffs’
assertion.

5 In 1935, Austrian physicist Erwin Schrödinger
hypothesized that a cat placed in an opaque box that would, in
the future, poison the cat half the time was (until the box was
opened and it was observed whether the poison was triggered)
both alive and dead.

15
 Second, plaintiffs argue that the August 4, 2017 Agreement
constitutes extrinsic evidence of what the parties were thinking
when they drafted the 1999 Settlement—specifically, the August
4, 2017 Agreement is proof that the parties were trying to erase
their earlier transactions that would have triggered a duty to pay
plaintiffs a lump sum cash-out. This argument lacks merit for a
number of reasons. To begin, the trial court ruled that plaintiffs
did not offer up the August 4, 2017 Agreement as extrinsic
evidence at any point during the summary judgment proceedings.
Plaintiffs challenge that ruling on appeal by collaterally
attacking the trial court’s settled statement—but this is beyond
our purview to review. (Marks v. Superior Court (2002) 27
Cal.4th 176, 195 [trial court has “‘full and complete power’” to
make a final determination of the content of the settlement
statement, absent a showing the court acted arbitrarily];
Sidebotham v. Superior Court (1958) 161 Cal.App.2d 624, 628
[appellate court has “no familiarity with the oral proceedings”
from the trial court and therefore has no basis to “measure the
adequacy or inadequacy” of the settled statement].) This
argument also fails on its merits. Plaintiffs’ chain of logic seems
to be that Big Ticket and Sheindlin schemed to deprive plaintiffs
of their lump sum cash-out payment, which plaintiffs argue is
shown by the August 4, 2017 Agreement’s rescission of the
transfer provisions in the 2015 Amendment and the August 2,
2017 letter, which thus raises questions of fact about whether Big
Ticket and Sheindlin engaged in the scheme because they knew
their prior actions required a lump sum cash-out payment. But
this chain of logic assumes its own conclusion—namely, that Big
Ticket and Sheindlin concocted a scheme. What is more, the
parties to the August 4, 2017 Agreement are not the same as the

16
parties to the 1999 Settlement, so their actions have no bearing
on the intent of the 1999 Settlement.
Third, plaintiffs argue that there are questions of fact
regarding whether the Library was sold. Yet we have assumed
for purposes—and the benefit—of plaintiffs’ claim to a lump sum
cash-out payment that the Library was sold, so any questions of
fact are immaterial and hence not a bar to summary judgment.
Fourth and lastly, plaintiffs argue that they are third-party
beneficiaries of the contracts between Big Ticket and Sheindlin
effectuating sales of the Library, and hence have a right to insist
that the sales require a lump sum cash-out or a right to stop the
purported rescission of the transfer provisions in the 2015
Amendment and August 2, 2017 letter effectuated by the August
4, 2017 Agreement.6 This argument lacks merit. The 1999
Settlement makes crystal clear that the “Producer” has “the sole
right and discretion to sell or otherwise dispose of any or all of its
rights in the Episode to any Person.” (Italics added.) This
language unambiguously refutes any notion that plaintiffs have
any input—let alone a veto power—on the terms of any future
sale. And plaintiffs’ asserted right to object to any rescission
effected by the August 4, 2017 Agreement would, in the end,
leave the two-step sale of the Library intact, yet the undisputed
facts show that plaintiffs are not entitled to any lump sum cash-

6 It is not entirely clear what plaintiffs are arguing because
they raise this issue in passing without any citation to the record
or any legal authority; we therefore have done our best to
articulate what plaintiffs may be attempting to argue.

17
out by virtue of that sale, so a right to object—even if it exists—
does them no good.7
DISPOSITION
The judgment is affirmed. Defendants are entitled to their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT
We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

7 For the same reason, plaintiffs’ argument that the August
2, 2017 letter, which we have assumed effectuated sales of the
Library from Big Ticket to Sheindlin and from Sheindlin to an
unnamed buyer, also states that those sales could not be
“rescind[ed], cancel[led] or terminate[d]” fares no better.

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