Hansen v. The Coca-Cola Co. CA4/1

Filed 6/17/21 Hansen v. The Coca-Cola Co. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JEANNE E. HANSEN, as Co-trustee, D077588
etc. et al.,

Plaintiffs and Respondents,
(Super. Ct. No. 37-2016-
v. 00021046-CU-MC-CTL)

THE COCA-COLA COMPANY et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Reversed; remanded with directions.
Shook Hardy & Bacon, M. Kevin Underhill, Marc P. Miles and
Frank C. Rothrock, for Defendants and Appellants.
Higgs Fletcher & Mack, John Morris and Rachel Moffitt Garrard;
The Hamideh Firm and Bassil A. Hamideh, for Plaintiffs and Respondents.
 This case concerns who has the right to use Hubert Hansen’s publicity.

In 1935, Hubert1 founded a fresh juice company in Los Angeles that bore his
last name. After his death in 1951, his children and grandchildren continued
to operate and expand Hubert’s business. Some forty years later, in a series
of transactions, Monster Energy Company (Monster Energy) ultimately
purchased the two businesses that were run by Hubert’s descendants. After
doing so, Monster Energy used Hubert’s name and story to market some of its
juice, lemonade, and soda products.

In 2015, Monster Beverage Company2 sold certain brands to the Coca-
Cola Company (Coke). Among the brands sold was the Hansen brand
Monster had acquired from Hubert’s descendants. After the Monster/Coke
deal was announced but before it was completed, Hubert’s descendants
created the Hubert Hansen Intellectual Property Trust (Trust). Various
descendants of Hubert who claimed an interest in the right of publicity from

Hubert sold or assigned that interest to the Trust.3
The Trust then demanded that Monster Beverage pay it for Monster’s
use of Hubert’s publicity. Monster Beverage refused and filed a registration

1 Because of the number of Hansens involved in this matter, both as last
names for many individuals and names for various companies, we refer to
Hubert Hansen as Hubert to avoid any confusion. In addition, we generally
will refer to other individual Hansens by their first names as well.

2 Monster Energy is a wholly owned subsidiary of Monster Beverage
Company (Monster Beverage).

3 Guadalupe Hansen Krikorian, who claimed to have an interest in
Hubert’s publicity, did not transfer her interest to the Trust.

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of claim under Civil Code4 section 3344.1 with the California Secretary of
State. The Trust then registered a claim with the California Secretary of
State as well.
After Monster Beverage would not pay the Trust, the Trust, as well as
Jeanne E. Hansen, Timothy M. Hansen, and Maureen T. Todd, in their
capacities as co-trustees of the Trust (the Trust and co-trustees are
collectively Respondents), sued Coke and Monster Beverage for

misappropriation of Hubert’s right of publicity and declaratory relief.5 In
defense of the suit, one of Appellants’ arguments was that Monster Energy
acquired the right to use Hubert’s publicity through two asset transfer
agreements that included all intellectual and intangible property owned and
used by companies operated by Hubert’s descendants. These asset transfers
were memorialized in written documents.
The dispute proceeded to a bifurcated trial wherein the first phase was
tried to the superior court and the second phase to a jury.
After the first phase, the trial court found that the Trust owned 90

percent of Hubert’s right of publicity.6 In making this finding, the court
determined that the Trust’s successor in interest registration filed

4 Statutory references are to the Civil Code unless otherwise specified.

5 In the second amended complaint, Respondents, in addition to Coke
and Monster Beverage, named Monster Energy and Nexstep Beverage, LLC
(Nexstep) as Doe Defendants 1 and 2 respectively. Nexstep is a wholly owned
subsidiary of Coke. Coke, Monster Beverage, Monster Energy, and Nexstep
are parties to this appeal and will collectively be referred to as Appellants.

6 The trial court also found that Krikorian owned 10 percent of Hubert’s
right of publicity. Krikorian was not a party in the trial below and is not a
party to this appeal. The court found that Appellants did not own any
interest in Hubert’s right of publicity.

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June 5, 2015 was valid, and Monster’s successor in interest registration filed
April 8, 2015 was void. The court also interpreted two written asset transfers
detailing the purchase of businesses owned by Hubert’s descendants. In
doing so, the court considered extrinsic evidence and found that the right to
use Hubert’s publicity was not included in either of the two deals.
The remaining issues were tried before a jury, which found in favor of
Respondents and awarded them damages in the amount of $9,596,450.98.
Appellants appeal, claiming (1) the trial court abused its discretion by
bifurcating the trial; (2) the trial court committed multiple errors in the
bifurcated phase of the trial, including resolving conflicts in the extrinsic
evidence to interpret the agreements that Appellants contend transferred the
right to use Hubert’s right of publicity to them; (3) the trial court improperly
instructed the jury; (4) substantial evidence did not support the jury’s finding
that Hubert was a “deceased personality” under section 3344.1; (5) the
judgment violated Respondents’ right to create transformative works from
intellectual property they owned; (6) a new trial is warranted because of juror
misconduct; and (7) substantial evidence does not support the damage award.
We agree with Appellants that the trial court erred in resolving
conflicts in extrinsic evidence to interpret the two asset transfer agreements,
including making credibility determinations. Such determinations are the
province of the jury. In addition, in the event the parties retry this matter
after remand, we address Appellants’ claim that the court erroneously
instructed the jury and conclude that we cannot determine whether the
subject jury instruction was legally erroneous on the record before us. We do
not reach the remaining issues raised by Appellants.

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 FACTUAL AND PROCEDURAL BACKGROUND
Hubert founded the Hansen Fresh Fruit and Vegetable Juice Company
in 1935. He began by making small batches of fresh juice and selling it door
to door. As the business expanded, Hansen also set up juice stands near
Hollywood studio locations, and his customers included studio workers and
actors. He also sold his juices at outdoor vegetable markets.
Hubert was an innovator in the juice industry, making his juices all
natural and organic. He started a trade organization and was elected its first
president; he received a national award by the Public Health Association of
America; and he received an entrepreneur award from a fruit and vegetable
food magazine. He was “a legend” in Southern California, known in the
industry as the “Juice King.”
Hubert died in 1951. He was survived by his wife, Florence, and their
five children. In 1970, the company incorporated and changed its name to
Hansen’s Juices, Incorporated (Hansen’s Juices). Hansen’s Juices continued
Hubert’s goal to market fresh fruit and vegetable juices. Allegedly with
permission from family members in addition to those operating the company,

Hansen’s Juices used Hubert’s name and story in marketing its products.7
In 1977, Tim Hansen, Hubert’s grandson, left his job at Hansen’s Juices
and founded a new company, Hansen Foods, Incorporated (Hansen Foods).
Tim wanted to expand into production of beverages with a longer shelf life.
Tim negotiated for permission to use the Hansen’s trademark. Hansen Foods
also developed a line of natural carbonated drinks sold in cans and marketed
as “Hansen’s Soda.” Hansen Foods used Hubert’s name, his picture, and his

7 Apparently, there was no written contract providing Hansen’s Juices
with the right to use Hubert’s name and story. Instead, the permission was
granted orally.

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story in brochures and commercials. Tim grew Hansen Foods into a
profitable business with $50 to $60 million in annual sales.
However, in 1988, Hansen Foods experienced financial difficulties and
filed for Chapter 11 bankruptcy. Hansen Foods was unable to successfully
reorganize its business and ultimately sold “substantially all assets” to
California CoPackers (CoPackers) in July 1989 as part of a bankruptcy order,
which included a detailed asset transfer and incorporated various written
agreements (1989 Bankruptcy Order). Among other things, CoPackers paid

$14 million8 to purchase “[a]ll intangible personal property including, but not
limited to, labels, patents, trade secrets and proprietary know-how (whether
or not in written form), formulas, distribution rights, customer lists, chattel
paper, trademark rights and trademark license rights, licenses, contract
rights and good will and other general intangibles related to Hansen’s
business[.]”
In 1992, CoPackers sold its assets to Unipac, a company formed by
Rodney Sacks and Hilton Schlosberg. The sale was pursuant to a written
asset purchase agreement (1992 Asset Purchase Agreement), calling for the
sale of CoPackers’s entire business, including “all of [CoPackers’s] then
existing properties, assets and business as a going concern of every kind and
nature, personal or mixed, tangible or intangible, wherever located, and

8 Both parties assert that CoPackers paid the $14 million. However,
based on the record, of the $14 million paid, it appears CoPackers paid $1.5
million and the Rabin Brothers paid $12.5 million. Apparently, CoPackers
and the Rabin Brothers entered into an agreement whereby the Rabin
Brothers agreed to lease and give CoPackers the right to purchase its interest
in the assets purchased from Hansen Foods. The parties do not mention the
Rabin Brothers in their respective briefs; thus, it does not appear that they
played any role in the underlying dispute. Therefore, we will not discuss
them further.

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whether on or off the books of [CoPackers] relating to the business of
[CoPackers].” Sacks and Schlossberg saw an opportunity to grow a “niche”
product into a national brand, given the 60-year history and the authenticity
of Hansen’s products. As part of that plan, Unipac formed a subsidiary to
run the new business it acquired from CoPackers. The subsidiary was named

Hansen Beverage Company (Hansen Beverage).9
Although Hansen Foods was no longer in business, Hansen’s Juices
was continuing to operate during this time. As such, both Hansen’s Juices
and Hansen Beverage were selling products using the Hansen name. To
clarify their respective rights, the two companies agreed to put all their
intellectual property relating to the Hansen name into the Hansen’s Trust
dated July 27, 1992, and then create licensing agreements defining how the
intellectual property would be used. At the Hansen’s Trust’s inception, two of
the three trustees, Gary Hansen and Anthony Kane, were members of the
Hansen family and Kane was the president of Hansen’s Juices. During the
time Gary was a trustee, Hansen Beverage was using Hubert’s name and the
company story on its labels, without objection.
The Hansen’s Trust was amended three times. In the first amendment,
made in July 1996, Hansen’s Juices and Hansen Beverage agreed to assign
their respective intellectual property rights to the trust, to the extent they
had not already done so, and to change trustees. With this amendment, Gary
and Sacks became the trustees.
In December 1996, Hansen’s Juices merged into the Fresh Juice
Company (Fresh Juice). Nearly three years later, in exchange for $775,010,

9 After Hansen Foods sold its assets to Unipac, Tim Hansen worked
extensively with Hansen Beverage for more than two decades, from 1994
until mid-2016.

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Fresh Juice assigned all of its rights, licenses, and other interests to Hansen
Beverage. In the subject contract, Fresh Juice represented that it was not
aware of any third party that had any rights in its intellectual property and
promised to cooperate as necessary to effect the transfer to Hansen Beverage
of all intellectual property that Fresh Juice held.
In March 2000, the Hansen’s Trust was amended a third time to reflect
Fresh Juice’s sale of its rights to Hansen Beverage. Following that sale,
Hansen Beverage owned all the assets in the trust, and the Hansen’s Trust
was dissolved.
In late 2009, Hansen Beverage employee Blair Owens had the idea to
create a lemonade brand. Owens was looking for a unique brand name, and
he ultimately chose the name “Hubert’s,” having seen the name “Hubert” on
juice labels and in internal presentations about the Hansen company history.
His “brief” for the product proposal discussed the authenticity of the
“Hansen’s” brand, and stated that “Hubert’s” was “a unique name likely to
stand out” that was also “authentically rooted in its founding.” Hansen
Beverage trademarked “Hubert’s” in 2011.
The back of some Hubert’s Lemonade labels included “romance copy”
mentioning the company history, including Hubert’s practice of selling juices
from a truck and/or at studio lots. Similar romance copy also appeared on the
back label of Hansen Beverage’s juices. Later versions of the labels omitted
specific references to Hubert but mentioned or pictured a truck. Some labels

also included a slogan, “Only the best will do.”10 The icon or logo for

10 Although this quote sometimes was attributed to Hubert, at trial, there
was no evidence presented that Hubert ever actually said those words.
Instead, the quote was a creation of Hansen Beverages.

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Hubert’s Lemonade, which appeared on the front of the bottle, was a picture
of the face of a cartoon lemon character, not a picture of Hubert.
While Hansen Beverage was launching Hubert’s Lemonade, it also
developed a new energy drink, which became very successful. Consequently,
Hansen Beverage changed its name to Monster Energy, sharing the name of
the company’s new energy drink.
At this time, members of the Hansen family were not actively involved
in the beverage industry and were not aware of the extent to which Monster
Energy was using Hubert’s name or story in connection with its products.
However, sometime in 2014 or 2015, Jeanne first saw Hubert’s Lemonade in
a supermarket. Soon thereafter, Jeanne saw a large yellow truck on the
freeway with Hubert’s name on it. Then the Hansen family consulted an
attorney and learned about the right of publicity under section 3344.1. Yet,
at that time, no one in the Hansen family took any action against Monster
Energy to make a claim based on their interest in Hubert’s right of publicity.
In 2014, Monster Beverage and Coke began negotiating a deal that
involved (among other things) a transfer of certain brands. The deal’s terms
were set forth in an asset transfer agreement dated August, 2014. The deal
would not be final until the closing conditions were met, but the deal terms
were made public, including its $2.1 billion estimated value on the day of the
signing of the agreement.
On February 26, 2015, before the Monster/Coke deal was completed,
counsel for certain Hansen family members sent a letter to Sacks, who was
chairman and chief executive office of Monster Beverage at the time, stating
that certain Hansen family members had the sole right to use Hubert
Hansen’s name and likeness and asked Sacks to “clarify . . . on what basis
Monster [was] using Hubert Hansen’s name and likeness.”

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 On March 1, 2015, certain Hansen family members established the
Trust. The trustees were Tim and his two sisters Jeanne and Maureen Todd.
Except for Krikorian, all those members of the Hansen family who claimed
an interest in a right of publicity deriving from Hubert then sold or assigned
their interest to the Trust.
Some three weeks later, on March 23, 2015, counsel for certain Hansen
family members sent another letter to counsel for Monster Beverage,
explaining that those Hansen family members believed they had the right to
Hubert’s name and likeness per section 3344.1 and Monster Energy was not
authorized to use Hubert’s name or life story in connection with its products.
Alternatively stated, these family members argued that Hansen Beverage
used Hubert’s name and his story without permission from anyone in the
Hansen family.
On April 8, 2015, Monster Energy filed a registration of claim as
successor in interest under section 3344.1 with the California Secretary of
State, averring that it made its claim under a contract. Moreover, Monster
Energy claimed a 100 percent interest in Hubert Hansen’s “[n]ame only.”
On June 5, 2015, the trustees of the Trust filed a registration of claim
as successor in interest under section 3344.1 with the California Secretary of
State. In the registration, the trustees claimed a 100 percent interest in the
use of “ ‘Hubert’s’, ‘Hubert Hansen’, ‘Hubert’, ‘Hub’, ‘his voice, signature,
photograph, and likeness.’ ” Further, the trustees claimed to acquire their
right by contract (i.e., the Trust).
The trustees and Monster Energy could not resolve their dispute; thus,
in June 2016, Respondents brought suit in San Diego Superior Court against
Monster Beverage and Coke, alleging causes of action for misappropriation of
right of publicity and declaratory relief. Monster Beverage and Coke

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removed the suit to federal court, but the district court ultimately remanded
the matter back to superior court. Respondents eventually filed a second
amended complaint, which added Monster Energy and Nexstep as doe
defendants.
The matter proceeded to a bifurcated trial wherein the court presided
over the declaratory relief claim to determine whether Monster Energy’s
registration of claim was valid. In answering this question in the negative,
the trial court found Hubert’s publicity rights did not become an asset of
Hansen’s Juices or Hansen Foods but, rather, became the property of
Hubert’s heirs when he died in 1951. As such, the court declared that the
Trust and Krikorian owned Hubert’s rights of publicity. Although the court
found that Respondents were the prevailing parties at the first phase of the
trial, the court explicitly noted it did not make any decisions on any
affirmative defenses as well as any of the following issues: “1. Whether
Hubert Hansen was a natural person whose name or likeness had
commercial value at the time of his death; [¶] 2. Whether [Appellants’] use
of Hubert Hansen’s right of publicity was directly connected to [Appellants’]
commercial purpose; [¶] 3. Whether [Respondents] were harmed; [¶]
4. Whether [Appellants’] conduct was a substantial factor in causing
[Respondents’] harm; or [¶] 5. Whether [Respondents] suffered any
damages, and if so, how much.”
At the second phase of the trial, the jury answered these questions in
favor of Respondents and awarded them a total of $9,596,450.98 in damages.
Appellants timely appealed.

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 DISCUSSION
I
SECTION 3344.1
The fulcrum of the dispute between the parties in the instant matter is
Hubert’s right of publicity. “The right of publicity, like copyright, protects a
form of intellectual property that society deems to have some social utility.”
(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387,
399 (Comedy III); see Aroa Marketing, Inc. v. Hartford Ins. Co. of Midwest
(2011) 198 Cal.App.4th 781, 788 (Aroa Marketing) [“the right of publicity is
an intellectual property right”].)
“In this state the right of publicity is both a statutory and a common
law right.” (Comedy III, supra, 25 Cal.4th at p. 391.) The statutory right
originated in section 3344, enacted in 1971, which allows recovery of damages
by any living person whose, name, photograph, or likeness has been used for
commercial purposes without his or her consent. Eight years later, our high
court recognized a common law right of publicity, which the statute was said
to complement. (See Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 818
(Lugosi).) However, because the court determined that the common law right
was derived from the law of privacy, it concluded that the cause of action in
Lugosi did not survive the death of the person whose identity was exploited
and was not descendible to his or her heirs or assigns. (Id. at pp. 819-821.)
“In 1984 the Legislature enacted an additional measure on the subject
[section 990], creating a second statutory right of publicity that was
descendible to the heirs and assignees of deceased persons. (Stats. 1984,
ch. 1704, § 1, p. 6169.) The statute was evidently modeled on section 3344:
many of the key provisions of the two statutory schemes were identical.”

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(Comedy III, supra, 25 Cal.4th at pp. 391-392.) Effective January 1, 2000,
section 990 was renumbered as section 3344.1. (Sen. Bill No. 209 (1999-2000
Reg. Sess.) ch. 998.)
Section 3344.1 declares broadly that “[a]ny person who uses a deceased
personality’s name, voice, signature, photograph, or likeness, in any manner,
on or in products, merchandise, or goods, or for purposes of advertising or
selling, or soliciting purchases of, products, merchandise, goods, or services,
without prior consent from the person or persons specified in subdivision (c),
shall be liable for any damages sustained by the person or persons injured as
a result thereof.” (§ 3344.1, subd. (a)(1).) The amount recoverable includes
“any profits from the unauthorized use,” as well as punitive damages,
attorney fees, and costs. (Ibid.)
The statute defines “deceased personality” as a person “whose name,
voice, signature, photograph, or likeness has commercial value at the time of
his or her death,” whether or not the person actually used any of those
features for commercial purposes while alive. (§ 3344.1, subd. (h).) In
addition, the statute explicitly states that a deceased personality includes,
“without limitation, any such natural person who had died within 70 years
prior to January 1, 1985.” (Ibid.)
The statute further declares “[t]he rights recognized under this section
are property rights” that are transferable before or after the personality dies,
by contract or by trust or will. (§ 3344.1, subd. (b).) Consent to use the
deceased personality’s name, voice, photograph, etc., must be obtained from
such a transferee or, if there is none, from certain described survivors of the
personality. (Id., subds. (c), (d).) Any person claiming to be such a transferee
or survivor must register the claim with the California Secretary of State
before recovering damages under the statute. (Id., subd. (f).)

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 In 2008, “ ‘to prevent needless litigation[,]’ ” section 3344.1 was
amended to clarify that the Legislature had intended for the law to be applied
retroactively. (See Crosby v. HLC Properties, Ltd. (2014) 223 Cal.App.4th
597, 608; see id. at pp. 605-608 [discussing legislative history of the 2008
amendment]; § 3344.1, subd. (p) [“The rights recognized by this section are
expressly made retroactive, including to those deceased personalities who
died before January 1, 1985”].)
II
PHASE ONE OF THE TRIAL
A. Appellants’ Contention Regarding Bifurcation
Appellants contend the trial court abused its discretion in granting
Respondents’ request to bifurcate the trial. We disagree.
B. The Trial Court’s Decision to Bifurcate
In the operative complaint, Respondents alleged a cause of action for
declaratory relief. In that claim, they asked the court to determine whether
their registration of claim as successor in interest under section 3344.1 or
Appellants’ registration of claim as successor in interest under section 3344.1
was valid. In addition, Respondents filed a motion in limine to bifurcate the
trial to allow the court to first determine the declaratory relief action. To this
end, Respondents maintained they were seeking equitable relief and, thus,
the court rather than a jury should be the trier of fact, determining the
credibility of witnesses, weighing the evidence, and determining the intent of
the contracting parties. (See Walton v. Walton (1995) 31 Cal.App.4th 277,
287; Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 285; Raedeke v.
Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671.) Respondents further
argued that if they proved successful at the first phase of the trial then the
jury would be instructed that Respondents had been determined to be the

14
owner of Hubert’s right of publicity, and the jury would then decide the
remaining legal issues. If Respondents were unsuccessful in the first phase,
then there would be no need for a second phase.
Appellants opposed bifurcation of the declaratory relief claim. They
argued the question of who owned Hubert’s right of publicity was a necessary
and dispositive element of Respondent’s primary cause of action for
misappropriation of the right of publicity under section 3344.1. By
bifurcating and determining the ownership⎯binding the jury with the court’s
ownership determination⎯Appellants maintained they would be deprived of

their constitutional right to a jury trial on the misappropriation claim.11
In the trial court’s written tentative ruling, it framed the issue
presented by Respondents’ motion in limine as follows: “Count 2 of the SAC
seeks a declaration by the court as to which of the competing 2015 ‘Successor-
In-Interest Registrations’ under Civil Code section 3344.1 is valid. This
question is, in turn, bound up in the question whether the 1992 ‘Asset
Purchase Agreement’ transferred Hubert Hansen’s publicity rights to
[Appellants] (as they contend).” Thus, the court clearly viewed the ownership
determination as one of contract⎯whether the 1992 Asset Purchase
Agreement transferred Hubert’s right of publicity, or, at least, allowed
Appellants to use Hubert’s right of publicity in connection with the products
and assets they had purchased from the two Hansen companies. Consistent
with this framing, the court observed that if the relevant contracts were
ambiguous and interpretation involved the determination of the credibility of

11 Despite advancing this argument below, Appellants do not claim on
appeal that the court deprived them of their right to a jury trial to determine
ownership of Hubert’s right of publicity. As such, we do not consider this
issue here.

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extrinsic evidence then the jury would make that determination. However,
the court stated, “the threshold question of ambiguity, and the presence or
absence of conflicting extrinsic evidence, [should] be addressed first, without
a jury.” Finally, the court noted that Appellants had previously tried to
resolve the ownership issue of Hubert’s right of publicity without a jury (by
bringing a motion for summary judgment) and that it agreed with
Respondents that their declaratory relief action was akin to a quiet title
action.
During oral argument regarding Respondent’s motion in limine to
bifurcate the trial, the court explained its tentative ruling as establishing a
first phase for the court to decide “what the contracts did or did not say.” The
court explained:
“[Respondents] want declaratory relief on the issue of
whose registration is effective. Bound up in that is what
[Appellants] purchased . . . in the two transactions that are
at issue, one out of bankruptcy and one had assets; right?
[¶] I have to look at those contracts once they’re in
evidence and discern whether I think there is ambiguity;
and if there is ambiguity, receive conditionally evidence on
how to clear up that ambiguity. If I find there is no
ambiguity, I go down one path. If I find there is ambiguity,
I go down another path. If I find that clearing up that
ambiguity requires me to make credibility determinations,
I stop, I give that to the jury a second time.”

The court also clarified that the issue of “ownership” was to be decided
in the first phase. Over Appellants’ arguments that ownership should be
determined by the jury, the trial court affirmed its tentative ruling as to
Respondents’ motion in limine to bifurcate the trial.
C. Analysis of the Bifurcation Issue
A trial court has broad discretion to order bifurcation in the interest of
justice, and we will not disturb its discretion on appeal absent a manifest

16
abuse of that discretion. (Royal Surplus Lines Ins. Co. v. Ranger Ins. Co.

(2002) 100 Cal.App.4th 193, 205.) Code of Civil Procedure section 59812
provides for the bifurcation of issues at trial in the interest of economy and
efficiency. “Its objective is avoidance of the waste of time and money caused
by the unnecessary trial of damage questions in cases where the liability
issue is resolved against the plaintiff.” (Horton v. Jones (1972) 26 Cal.App.3d
952, 955.)
In claiming the court abused its discretion in bifurcating the trial,
Appellants dedicate a single paragraph of their 76-page opening brief. They
argue that the declaratory relief action asked the court to determine which
registration under section 3344.1 was valid but note that the existence of
multiple registrations is not improper. Further, they assert the trial court
was wrong to focus on the issue of ownership because “a valid claim [under
section 3344.1] need not involve ‘ownership’ at all[.]”
Although we agree with the concept that multiple registrations are not
necessarily improper, we observe that the court anchored its decision to
bifurcate the trial on the threshold issue of determining any ambiguity and
the existence of any extrinsic evidence for the interpretation of the various
asset purchase agreements. Such an approach appears practical and

12 Code of Civil Procedure section 598 provides, in relevant part: “The
court may, when the convenience of witnesses, the ends of justice, or the
economy and efficiency of handling the litigation would be promoted thereby,
on motion of a party, after notice and hearing, make an order, no later than
the close of pretrial conference in cases in which such pretrial conference is to
be held, or, in other cases, no later than 30 days before the trial date, that the
trial of any issue or any part thereof shall precede the trial of any other issue
or any part thereof in the case, except for special defenses which may be tried
first pursuant to Sections 597 and 597.5. The court, on its own motion, may
make such an order at any time.”

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efficient. Appellants claimed the right to use Hubert’s name by way of
contract. In general, a court, not a jury, interprets a contract. (See Wolf v.
Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126
(Wolf) [“The interpretation of a contract is a judicial function”].) And, the
court made clear, in responding to Appellants’ argument against bifurcation
of the declaratory relief action, that it believed it should first interpret the
contracts at issue before calling a jury. Moreover, the court noted that if it
found for Appellants on the contract issue then there would be no need to
proceed to a jury trial because Respondents’ claims would necessarily fail.
On the record before us, we cannot say such a decision was an abuse of
discretion. Indeed, this matter appears to be a classic case for severance
under Code of Civil Procedure section 598, at least considering the contract
issue as framed by the court. The declaratory relief claim was focused on a
single issue, the estimated length of a jury trial was 20 days, and, as the trial
court observed, Appellants did not claim that the trial time savings suggested
by Respondents in their motion in limine was “unrealistic.” In addition,
Respondents admitted that a declaratory judgment in favor of Appellants
would end their case, and there would be no need to proceed to a jury trial,
further supporting the trial court’s bifurcation of the trial. (See Equitable
Life Assurance Society v. Berry (1989) 212 Cal.App.3d 832, 836.)
D. Appellants’ Contentions Regarding the Interpretation of the Asset
Transfers

In addition to arguing the trial court abused its discretion in
bifurcating the proceedings, Appellants insist the court erred in interpreting
the asset transfers as a matter of law. Indeed, they assert the court “should
have found for [Appellants] as a matter of law[ ] because the contracts
transferred all intellectual property that had been held by [Hansen Foods]
and [Hansen’s Juices] to [Appellants].” They also argue the trial court’s
18
interpretation of the contracts retroactively deprived them of the benefits for
which they contracted in violation of the Contracts Clause of the United
States Constitution.
We agree with Appellants that the trial court erred in interpreting the
asset transfers. As we explain post, during phase one, the trial court
admitted conflicting extrinsic evidence and made credibility determinations.
Such decisions are the province of the jury. (See City of Hope Nat. Medical
Center v. Genetech, Inc. (2008) 43 Cal.4th 375, 395 [“when, as here,
ascertaining the intent of the parties at the time the contract was executed
depends on the credibility of extrinsic evidence, that credibility determination
and the interpretation of the contract are questions of fact that may properly
be resolved by the jury”].) However, we stop short of agreeing with
Appellants that the trial court should have found for Appellants as a matter
of law.
E. The Trial Court’s Interpretation of the Asset Transfers
Phase one began on November 18, 2019, with oral argument on motions
in limine and opening statements. Evidence began the next day and
concluded before noon on November 25. In all, the court heard from 20
witnesses and “was exposed to dozens of exhibits.” Despite the number of
witnesses and exhibits presented during the first phase, we focus on the
evidence presented regarding the asset transfer agreements as Appellants
claim error as to the trial court’s interpretation of them.
Evidence was offered at trial that Hubert’s descendants had used
Hubert’s publicity rights to advertise and promote Hanson’s Juices and
Hansen Foods. Specifically, Hubert’s “ ‘name, photograph, likeness, identity,
and/or persona were used at certain times during the 1980s with permission

19
in marketing brochures for Hansen’s Juices . . . and Hansen[ ] Food . . . .”
Part of Appellants’ theory of their case was that they had acquired all the
assets, intellectual property, intangible property, and rights of both Hansen’s
Juices and Hansen Foods. Because those two companies used Hubert’s name
and story, Appellants believed they had purchased the right to do so as well
through the subject asset purchase agreements. However, according to the
testimony at trial, oral permission was granted for these uses before
Appellants had acquired the assets of the Hansen companies, and there is no
evidence in the record that any such permission was reduced to writing.
Further, the permission granted was only given to the individual asking for
permission. Permission was not granted to the company in general (although
Hubert’s publicity was used by either Hansen’s Juices or Hansen Food). That
said, there was some disagreement between trial testimony and discovery
responses regarding the scope of the permission granted as well as whether it
was the company or an individual who received permission to use Hubert’s
publicity.
In addition, in the early 2000’s, some decedents of Hubert started a
company called “Hub’s Family Juice Company.” Hub was a family nickname
for Hubert. And Jeanne testified that she was asked permission to use the
name Hubert and talked to other family members to ensure they gave their
permission to use Hubert’s name as well in connection with this new
company. However, Hubert did not fit on the label so the company shortened
the name to Hub. In addition to using the name Hub’s on the product labels,
the labels also included the story of Hubert’s business. Like previous other
uses by the Hansen companies and relatives of Hubert’s name and story, the
permission does not appear to have been reduced to writing. Further, there
is no indication that there was any payment made to use Hubert’s name.

20
 Appellants’ claim the right to use Hubert’s name and story
predominately based on two transactions: the 1989 Bankruptcy Order and
1992 Asset Purchase Agreement.
During phase one, the trial court took judicial notice of the 1989
Bankruptcy Order. Although the subject order describes a somewhat
complicated deal that includes the assumption of assets, an additional buyer,
and a lease with an option to purchase, the trial court and the parties focused
on what CoPackers acquired from Hansen Foods. The assets purchased
included all “accounts receivable[,]” “all inventory[,]” “all intangible personal
property including, but not limited to, labels, patents, trade secrets and
proprietary know-how (whether or not in written form), formulas,
distribution rights, customer lists, chattel paper, trademark rights and
trademark license rights, licenses, contract rights and good will and other
general intangibles related to [Hansen Food’s] business[.]” The 1989
Bankruptcy Order also included an agreement wherein Hansen’s Juices,
Richard Hansen, Vincent P. Hansen, Thomas P. Hansen, and Anthony Kane
transferred to CoPackers “all of the right, title and interest of Hansen[’s]
Juices, Inc. (and Richard[ ] Hansen, Vincent P. Hansen, Thomas P. Hansen
and Anthony Kane) in and to the HANSEN’s trademark, subject to a license
back to Hansen[’s] Juices, Inc. for the use of the HANSEN’s trademark for
fresh fruit juices having a shelf life of less than twenty-one days . . . .”
The 1992 Asset Purchase Agreement between CoPackers and Unipac,
which later operated as Hansen Beverage, included a very broad provision to
encompass all of CoPackers’s assets:
“[A]ll of [CoPackers’s] then existing properties, assets and
business as a going concern of every kind and nature,
personal or mixed, tangible or intangible, wherever located,
and whether on or off the books of [CoPackers] relating to

21
 the business of [CoPackers] . . . including, without
limitation, the following:

“[¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] (g) (1) all Marks (as
defined in subparagraph 6.12(a)) and registrations thereof
and applications thereof, including, without limitation,
[CoPackers’s] right to use the name ‘Hansen’s’ in
connection with [CoPackers’s] business, whether or not
registered and wherever located, including, without
limitation, any rights to the Hansen’s Mark in Canada and
Mexico; (2) all Copyrights (as defined in subparagraph
6.12(a)), industrial designs, and registrations thereof and
applications therefor; (3) all formulae, processes,
technologies, know-how and other intellectual property
owned, used or held in connection with [CoPackers’s]
business; (4) all other Intellectual Property Rights (as
defined in subparagraph 6.12(a)), including, without
limitation, those set forth on Schedule 6.12 hereto; (5) all
licenses and assignments, and renewals, modifications and
extensions of the Marks and all other Intellectual Property
Rights; (6) all claims or causes of action with respect to the
ownership or use of the Marks or other Intellectual
Property Rights; and (7) all rights under agreements to
license or sublicense the Marks[.]”

In turn, subparagraph 6.12(a) of the 1992 Asset Purchase Agreement
defined “Intellectual Property Rights” as follows:
“As used herein and as set forth or described on Schedule
6.12 hereto, ‘Intellectual Property Rights’ shall mean (i) all
trademarks, service marks and brand names and trade
names (including logos), whether or not registered, owned,
used, licensed or held by [CoPackers] and all pending
applications for any such rights (collectively, ‘Marks’),
including for each such Mark, the registration or
application number, country, filing and expiration dates (if
any) and classes(es) and, and for unregistered Marks not
under application for registration, the products with
respect to which they are used; (ii) all copyrights owned,
used or held by [CoPackers] (collectively, ‘Copyrights’); and
(iii) all trade secrets, technology or know-how used in

22
 connection with the Business. [CoPackers] does not own or
license any patents or registered Copyrights or have any
pending applications therefor used or usable in connection
with the Business.”

Sacks, who was the chairman of both Unipac and Hansen Beverage,
signed the 1992 Asset Purchase Agreement. He testified that he believed he
was purchasing “all of the rights relating to or encompassing[,] which in any
way[,] affected the business.” He also explained what he believed was meant
by the phrase, “whether on and off the books.” Sacks stated:
“It meant to me that things that were—that were not
recorded in a document but which existed in fact, in
practice, that if you used anything in connection with the
business, if it happened to be used, it was something that I
needed and I wanted to ensure was—we acquired because
we—again, we were not acquiring any hard assets, really,
that you could—like a building that you could touch and
feel and inspect.

“This was—this was all the rights, the bundles of rights
and assets and benefits that went to make up this brand
and the history of the brand and what it was that we were
buying and paying the 14 1/2 million for . . . .”

In addition, Sacks illuminated what he believed Unipac was acquiring
regarding “marks” as defined in the 1992 Asset Purchase Agreement. He
testified:
“It was, again, everything that was in connection with the
Hansen’s name and the Hansen’s marks. And, again, we
were concerned to ensure that it was not limited to—to
registered marks. So we made that clear, that it would be
whether or not registered, anything, again, used with the
name Hansen’s relating to the business, registered or not
registered, and wherever located, and then also included
and expanded upon that all copyrights.

23
 “Again, I believe it would be, registered or unregistered, all
formulae, processes, technologies, and other—know-how,
other intellectual property owned, used, or held in
connection with the business, again, trying to make it as
expansive as we could.”

On cross-examination, Sacks claimed that he was not aware of the
right of publicity at the time he signed the 1992 Asset Purchase Agreement,
but thought that the language used in the agreement was “all encompassing
and covered all rights, tangible, intangible, that covered the intellectual
property of the business[.]” Although Sacks stated the first time he read
about the right of publicity was in 2015, Respondents’ counsel offered
evidence during Sacks’s cross-examination that Sacks had been involved in
deals to purchase and/or sell assets that specifically mentioned the right of
publicity, one in 2000 and another in 2014.
Yet, Sacks was not the only witness offered to aid the court in the
interpretation of the relevant agreements. The parties also called expert
witnesses to opine about custom and practice in licensing publicity rights.
Respondents called Kevin Greene, a professor at Thomas Jefferson School of
Law who teaches, writes, speaks, and researches about, among other topics,
intellectual property, including the right of publicity. Greene explained that
he was retained to review certain transactions, specifically the 1992 Asset
Purchase Agreement, to determine, “pursuant to custom and practice of
drafting and transactions if rights of publicity were transferred[.]” Greene
opined that the right of publicity in the name of Hubert Hansen was not
transferred “based on the custom and practice of acquiring and transferring
rights.” He explained that in terms of intellectual property transactions, it
would be “very important” for the rights transferred to be “clearly
articulate[d].” Greene further agreed that a “sophisticated drafts person”
would not omit “key rights, such as the right of publicity,” if the drafter
24
intended those rights to be conveyed. He stated that he did not see any
documents that indicated any right of publicity was transferred. Essentially,
Greene opined that if the parties had intended to include the right of
publicity among the assets transferred, they would have specifically used the

words “right of publicity.”13
Appellants’ expert witness was Jennifer Rothman. Rothman is a
professor at Loyola Law School who is known for her work in intellectual
property and the first amendment. She has written extensively about the
right of publicity and is “recognized as the leading expert on the right of
publicity.” She testified that she believed Greene was too focused on the 1992
Asset Purchase Agreement and should have considered more documents:
“Certainly it needs to be read in the context of the initial bankruptcy order,
but then there’s the whole other line of corporations that flowed into what
ultimately now are the—the defendants, and I didn’t see him consider those
at all.”
Rothman also pointed out the Greene’s opinion was very narrow,
focusing only on whether the words “the right of publicity” appeared in the
1992 Asset Purchase Agreement “rather than considering broader transfers
of intellectual property, which would encompass the right of publicity.”
Rothman further opined that within the type of deal at issue (purchasing “a
whole company”) she would expect a “very broad” intellectual property
transfer to avoid leaving “anything out,” and, as such, the subject agreement
included expansive language like “without limitation.”

13 Greene’s testimony was concise. The trial court noted he provided
“about 8 minutes of substantive testimony,” and Appellants did not cross-
examine him.

25
 Additionally, Rothman testified that, in 1992, it would not have been
industry practice to use the terms “right of publicity” in a purchase
agreement like the one at issue. Rothman explained she would not have
expected to see the specific phrase “right of publicity” because: (1) “the right
of publicity was not at the forefront of people’s minds at this time”; (2) the
agreement covered a “broad sale of a company” so a “broad transfer[ ] of
intellectual property rights . . . would capture the rights of publicity”; (3) the
transfers included transfers of whatever rights the business had; and
(4) Hubert already had passed away at the time the deal was negotiated and
it was unclear whether the right of publicity would even attach to him. Also,
Rothman explained that when a purchaser buys “a company that’s named
after a particular person” the purchaser “would expect that person’s name
and identity” would transfer along with “trademarks and goodwill.”
In addition, Rothman addressed the transfer of assets contained in the
1989 Bankruptcy Order. She observed that all intangible personal property
was transferred, which “include[d] broadly any intellectual property that was
held by the bankrupt company.” She explained if Hansen Food had the right
to use Hubert’s publicity, the broad language of the bankruptcy order “would
have transferred certainly the use of [Hubert’s] name and identity in the
context of th[e] business transferred.” Rothman enumerated some examples
of the types of intangible property that would be included under the words
“ ‘all intangible personal property, including, but not limited to’ ”: “[I]t picks
up intangible or intellectual property they have, including patents, trade
secrets, proprietary know-how, trademark rights, trademark licenses, any
other licenses, any other contract rights and goodwill, and any other general
intangibles related to Hansen’s business.” Rothman also testified that,

26
during the subject time period, the industry practice was for right of publicity
to be considered intellectual property and an intangible right.
Ultimately, Rothman opined that the 1992 Asset Purchase Agreement
had language consistent with the industry practice for acquiring the use of
Hubert Hansen’s name. She reiterated that if the right of publicity was held
by CoPackers, the language of the 1992 Asset Purchase Agreement would
have encompassed such a right, especially because Hubert’s name and
likeness were used in the context of the business.
In the trial court’s very thorough statement of decision, the court
addressed the use of Hubert’s publicity by Hansen’s Juices and Hansen Food.
The court stated:
“The evidence preponderates in favor of a finding that
Hubert Hansen’s publicity rights did not become an asset of
either Hansen’s Juices, Inc. or Hansen Foods. The fact that
there were sporadic uses of Hubert Hansen’s likeness and
name and history by the two entities over the history of the
two companies did not, in the court’s view, create a
property interest in Hubert Hansen’s right of publicity.
Use within the family (or even within enterprises bearing
the family name), with express or tacit permission, did not,
in the court’s view, transmute the publicity right into
property of the companies. The owners of the companies
were not all the same people who had the ownership rights
to Hubert Hansen’s right of publicity; only the owners of
the rights could transfer or license them. Timothy Hansen
testified the permissions he received were personal to him.”

Therefore, the court found that certain heirs of Hubert owned his right
of publicity by right of descent. Further, it concluded that neither Hansen’s
Juices nor Hansen Foods had any ownership in Hubert’s right of publicity;
thus, the companies could not transfer such right in any asset purchase
agreement. In reaching this conclusion, the court resolved a dispute between
conflicting extrinsic evidence, which ultimately impacted the interpretation of

27
the asset transfer agreements. Appellants offered evidence that Hansen’s
Juices and Hansen Foods used Hubert’s name and story in selling and
marketing their products, but the court found credible Respondents’ evidence
that only certain individuals at the company had permission to personally
use Hubert’s right of publicity, and therefore, the companies never acquired
any interest in that right.
In interpreting the two asset transfers, among other evidence, the trial
court considered the testimony of the expert witnesses. To this end, it noted
that the experts agreed on the “key point” that none of the documents
contained the words “rights of publicity.” The court then made a credibility
determination to disregard the opinion of Appellants’ expert witness. The
court explained:
“Professor Rothman (who did not practice law during the
time period she was opining on, having not finished law
school until 2002) testified that she would not expect to see
the right of publicity expressly referenced in the 1989-1999
documents because the law was not clear until 2007
whether the right of publicity was retroactive. The court
reaches the opposite conclusion. A fact finder is not
required to accept an expert’s opinion. As with any other
witness, it is up to the fact finder to decide whether to
accept the expert’s testimony and choose whether to use it
as a basis for decision.”

The court found Respondents’ expert, Greene, more credible than
Rothman. In noting the uncertainty regarding the retroactivity of
section 3344.1 at the time the contracts were negotiated and executed, the
court found: “A skilled drafter in 1989-1999 would have resolved the
uncertainty and eliminated all doubt by including the language ‘rights of
publicity’ if that had been the intention of the parties.” This finding mirrors
Greene’s opinion during his trial testimony that a “sophisticated drafts
person” would have included the phrase “right of publicity” instead of just the
28
broader reference to all intellectual property if the parties intended to
transfer the right of publicity. Moreover, the court also considered other
contracts Sacks signed in 2000 and later that explicitly referenced “rights of
publicity and privacy” to buttress its finding.
In addition, the trial court made clear that it did not find any
ambiguity in the contracts offered by Appellants: “The court finds all of the
documents used by [Appellants] to support their claim of ownership of the
Hubert Hansen right of publicity to be unambiguous: none of them
transferred the right of publicity to [Appellants].”
The court ultimately found that the Trust owned 90 percent of Hubert’s
right of publicity and its registration under section 3344.1 was valid.
Consequently, the court determined Monster Energy’s registration under
section 3344.1 was void.
F. Relevant Law
“ ‘The rules governing the role of the court in interpreting a written
instrument are well established. The interpretation of a contract is a judicial
function. [Citation.] In engaging in this function, the trial court “give[s]
effect to the mutual intention of the parties as it existed” at the time the
contract was executed. [Citation.] Ordinarily, the objective intent of the
contracting parties is a legal question determined solely by reference to the
contract’s terms.’ ” (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432
(Brown), quoting Wolf, supra, 162 Cal.App.4th at pp. 1125-1126.)
“Terms set forth in a writing intended by the parties as a final
expression of their agreement with respect to the terms included therein may
not be contradicted by evidence of a prior agreement or of a contemporaneous
oral agreement.” (Code Civ. Proc., § 1856, subd. (a); accord, Brown, supra, 34
Cal.App.5th at p. 432 [“ ‘The court generally may not consider extrinsic

29
evidence of any prior agreement or contemporaneous oral agreement to vary
or contradict the clear and unambiguous terms of a written, integrated
contract.’ ”].) “ ‘Extrinsic evidence is admissible, however, to interpret an
agreement when a material term is ambiguous.’ ” (Brown, at p. 432; see
Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37,
39-40 [notwithstanding the plain and unambiguous language on the face of a
contract, if extrinsic evidence is “relevant to prove a meaning to which the
language of the instrument is reasonably susceptible,” the extrinsic evidence
may be admitted to determine the contracting parties’ objective intent].)
“When the meaning of the words used in a contract is disputed, the
trial court engages in a three-step process. First, it provisionally receives any
proffered extrinsic evidence that is relevant to prove a meaning to which the
language of the instrument is reasonably susceptible. [Citations.] If, in light
of the extrinsic evidence, the language is reasonably susceptible to the
interpretation urged, the extrinsic evidence is then admitted to aid the court
in its role in interpreting the contract. [Citations.] When there is no
material conflict in the extrinsic evidence, the trial court interprets the
contract as a matter of law.” (Wolf, supra, 162 Cal.App.4th at p. 1126; see
Brown, supra, 34 Cal.App.5th at pp. 432-433; Winet v. Price (1992) 4
Cal.App.4th 1159, 1165 (Winet).) If the extrinsic evidence creates such a
question of fact, the jury must decide that question before the contract can be
interpreted. (Wolf, at p. 1127.)

30
 The custom and practice in an industry is a fact that is relevant to the

interpretation of a contract and may inform its meaning.14 (Ecco–Phoenix
Electric Corp. v. Howard J. White, Inc. (1969) 1 Cal.3d 266, 271; Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1114; Midwest
TV v. Scott, Lancaster, Mills & Atha (1988) 205 Cal.App.3d 442, 451.) In
accordance with the rules stated above, if evidence regarding custom and
practice is in conflict, the jury must resolve the conflict before the contract is
interpreted. If such evidence is not in conflict, however, and there is no other
conflict in the extrinsic evidence, the interpretation of a contract in light of
the custom and practice, and in light of any other extrinsic evidence, is a
question of law for the court alone to decide.
On appeal, a “trial court’s ruling on the threshold determination of
‘ambiguity’ (i.e., whether the proffered evidence is relevant to prove a
meaning to which the language is reasonably susceptible) is a question of
law, not of fact. [Citation.] Thus[,] the threshold determination of ambiguity
is subject to independent review.” (Winet, supra, 4 Cal.App.4th at p. 1165;
see Brown, supra, 34 Cal.App.5th at p. 433.) The “ultimate construction
placed upon the ambiguous language . . . may call for differing standards of
review, depending upon the parol evidence used to construe the contract.”
(Winet, at pp. 1165-1166.)

14 How particular terms are used or interpreted within a particular
industry is a type of extrinsic evidence that may establish an ambiguity in
the language of a written instrument. (See Wolf v. Superior Court (2004) 114
Cal.App.4th 1343, 1355.) Indeed, parties are presumed to contract pursuant
to a fixed and established usage and custom of the trade or industry
(Ermolieff v. R.K.O. Radio Pictures (1942) 19 Cal.2d 543, 550), and contract
terms must be interpreted according to any special meaning given to them by
usage, and technical terms are interpreted as generally understood in the
industry (§§ 1644, 1645).

31
 G. Analysis of Contract Interpretation Issues
The primary dispute between the parties during phase one was
whether the subject transactions conveyed Hubert’s right of publicity or
otherwise allowed Appellants to use Hubert’s name and story in connection
with their products. Appellants maintained they had a right to use Hubert’s
name and story. Respondents argued they did not. The court admitted
extrinsic evidence to aid in the interpretation of the contracts. Appellants
contend the court erred in making credibility determinations while
considering conflicting extrinsic evidence. Respondents counter that the
court did not need to consider the extrinsic evidence because the court made a
“critical ruling” that “ ‘all of the documents used by [Appellants] to support
their claim of ownership of [Hubert’s] rights of publicity are unambiguous:
none of them transferred the rights of publicity to [Appellants].’ ” Appellants
have the better argument.
It is undisputed that neither the 1989 Bankruptcy Order nor the 1992
Asset Purchase Agreement contained the phrase “right of publicity.” But the
lack of this phrase does not end our inquiry into the trial court’s
interpretation of the contracts. Because Appellants offered extrinsic
evidence, we must analyze whether the proffered extrinsic evidence was
relevant to prove a meaning to which the instruments were reasonably
susceptible. (See Wolf, supra, 162 Cal.App.4th at p. 1126; Winet, supra, 4
Cal.App.4th at p. 1165.)
During phase one, Appellants asserted that the broad language of the
1989 Bankruptcy Order (“all intangible personal property including, but not
limited to . . . trademark rights and trademark license rights, licenses,
contract rights . . . and other general intangibles related to [Hansen Food’s]
business)” and the 1992 Asset Purchase Agreement (“all of [CoPackers’s] then

32
existing . . . assets . . . of every kind and nature . . . tangible or intangible,
wherever located, and whether on or off the books . . . relating to the business
of [CoPackers] . . . including, without limitation . . . .”) encompassed the right
of publicity. In other words, Appellants maintain that phrases like
“intellectual property,” “all intangible personal property,” and “general
intangibles” included the right of publicity. We agree that the broad
language in the subject transactions is susceptible to such a meaning.
The right of publicity is a type of intellectual property. (See
Comedy III, supra, 25 Cal.4th at p. 399; Aroa Marketing, supra, 198
Cal.App.4th at p. 788.) Therefore, it would not be unreasonable to conclude
the reference to “other intellectual property” along with the other broad
language in the 1992 Asset Purchase Agreement could include the right of
publicity.
As the trial court noted in its statement of decision, the parties did not
provide any California authority concluding that “intangible personal
property” or “other general intangibles” include statutory rights of publicity.
They also did not provide any such authority in this appeal. Our
independent research did not discover any as well. That said, we are not
troubled by the lack of authority on this single issue. “Intangible” is defined
as “not tangible: impalpable” or “an asset (such as goodwill) that is not

corporeal.”15 In the context of California tax law, courts have defined
intangible property “ ‘ “as property that is a “right” rather than a physical
object.” ’ ” (Microsoft Corp. v. Franchise Tax Bd. (2012) 212 Cal.App.4th 78,
88; Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 208.)

15 (See [as of
June 17, 2021], archived at .)

33
Moreover, in the context of the 1989 Bankruptcy Order, the phrase
“intangible personal property” was followed by the words “including, but not
limited to” and the list of specific types of intangible property that followed
included certain types of intellectual property, like patents, trade secrets, and
licenses. The inclusion of intellectual property as part of a list of kinds of
intangible property makes sense. (Cf. Coast Hematology-Oncology Associates
Medical Group, Inc. v. Long Beach Memorial Medical Center (2020) 58
Cal.App.5th 748, 756 [“intellectual property is intangible”].) And because the
1989 Bankruptcy Order states that the specific list of intangible personal
property was not all inclusive and the list included some intellectual
property, the terms “intangible personal property” and “other general
intangibles” is language reasonably susceptible to include the right of
publicity. (See Wolf, supra, 162 Cal.App.4th at p. 1126.)
Having determined that the language of the subject contracts is
reasonably susceptible to the meaning urged by Appellants, we turn to the
extrinsic evidence considered by the court. In support of Appellants’
interpretation of the contracts, they offered Sacks’s testimony regarding what
he believed was being acquired under the language of the contracts.
Further, Appellants offered Rothman who opined that when a
purchaser buys “a company that’s named after a particular person,” the
purchaser “would expect that person’s name and identity” to transfer along
with “trademarks and goodwill.” Rothman further opined that the broad
language of the contracts captured the right of publicity and, at the time the
contracts were negotiated and signed, it was not the custom and practice of
the industry to specifically refer to the right of publicity as opposed to
intellectual property in general. Finally, Rothman also opined that if Hansen
Food had the right to use Hubert’s publicity, the broad language of the

34
bankruptcy order “would have transferred certainly the use of [Hubert’s]
name and identity in the context of th[e] business transferred.”
In support of their position that the contracts did not transfer Hubert’s
right of publicity, Respondents offered the testimony of their expert, Greene,
who opined that it was the custom and practice of the industry at the time
the subtract contracts were executed to explicitly set forth the phrase “right
of publicity” if the parties intended to transfer that type of intellectual
property. Respondents also called several witnesses who explained that they
had used Hubert’s name and story in marketing and advertising products
sold by Hansen’s Juices and Hansen Foods. However, the individuals
testified that they always received oral permission (it was never in writing) to
use Hubert’s publicity, but the permission was limited to the individual and
was not given to the company at large (despite the fact it was the company
that used Hubert’s name and story).
In reviewing the extrinsic evidence, at the very least, the expert
opinions of Greene and Rothman were conflicting. And it is clear the court
made a credibility determination, rejecting Rothman’s opinion: “The court
reaches the opposite conclusion. A fact finder is not required to accept an
expert’s opinion.” Moreover, while the court did not find Rothman credible, it
adopted part of Greene’s opinion in its statement of decision, declaring: “A
skilled drafter in 1989-1999 would have resolved the uncertainty and
eliminated all doubt by including the language ‘rights of publicity’ if that had
been the intention of the parties.” This was error. When the extrinsic

35
evidence creates a material conflict, like in the instant action, the jury must

resolve the conflict before the contract can be interpreted.16 (Wolf, supra,
162 Cal.App.4th at p. 1127.)
However, during oral argument, Respondents maintained that the trial
court’s interpretation of the contracts did not matter because the court
determined that Hubert’s heirs owned his right of publicity. Therefore,
neither Hansen’s Juices nor Hansen Foods owned Hubert’s right of publicity
and could not transfer such right in any asset sale. In other words, with this
factual finding, there was no reason for the court to even consider the asset
purchase agreements. Moreover, Respondents pointed out that Appellants
did not challenge the trial court’s factual finding of ownership.
In response, Appellants conceded that they were not directly
challenging the trial court’s ownership finding. Instead, they argued that
they were not claiming to own Hubert’s right of publicity outright but,
through the various asset purchases, they had acquired a right to use
Hubert’s name and story in connection with their products. To this end,
Appellants emphasized that Hansen’s Juices and Hansen Foods both used

16 We summarily reject Respondents’ argument that we need not consider
the extrinsic evidence because the trial court determined the contracts were
unambiguous. We review a trial court’s determination of contract ambiguity
de novo. (See Winet, supra, 4 Cal.App.4th at p. 1166; Brown, supra, 34
Cal.App.5th at p. 433.) As discussed ante, the 1989 Bankruptcy and the 1992
Asset Purchase Agreement contained broad language that could have
encompassed a right of publicity. As such, we conclude the language was
ambiguous and could be reasonably interpreted as argued by Appellants.
Therefore, the conflicting extrinsic evidence bearing on the interpretation of
the contracts created a question of fact for the jury. (Wolf, supra, 162
Cal.App.4th at p. 1127.) Our analysis does not change because the trial court
made certain credibility determinations of the extrinsic evidence to conclude
the contracts were not ambiguous.

36
Hubert’s name and story in selling and marketing their products. In other
words, Appellants contended they purchased a nonexclusive right to use
Hubert’s right of publicity in connection with the sale and marketing of
Hansen products. The use of Hubert’s name and story in connection with
products sold by Hansen’s Juices and Hansen Foods thus was additional
extrinsic evidence relevant to the interpretation of the subject asset purchase
agreements. Alternatively stated, Appellants believed that they had
purchased all the rights, intellectual property, and intangible property owned
by Hansen’s Juices and Hansen Foods. Because those companies used
Herbert’s publicity, Appellants thought they had acquired the right to do the
same through the asset purchase agreements.
This disagreement at oral argument between the parties highlights
additional conflicting extrinsic evidence bearing on the interpretation of the
subject contracts. Appellants assert terms like “intellectual property,”
“intangible personal property,” and “other general intangibles” contained in
the asset purchase agreements encompassed the use of Hubert’s name and
story because: (1) the right of publicity is intellectual property; (2) the two
companies (Hansen’s Juices and Hansen Foods) that sold their assets used
Hubert’s name and story to sell and/or market their products; and
(3) Appellants acquired those rights. Respondents attempt to undercut this
argument by offering evidence that neither Hansen’s Juices nor Hansen
Foods had permission to use Hubert’s right of publicity, but, instead, limited
oral permission was given to certain individuals. So, per Respondents’
theory, the two Hansen companies could not transfer a right they never had.
And the court believed the testimony offered by Respondents. In doing so,
the court made an additional credibility determination impacting the
interpretation of the subject agreements. This credibility determination of

37
extrinsic evidence as well was a question for the jury. (See Wolf, supra, 162
Cal.App.4th at p. 1127.) Framed in this light, the determination that the
Trust owned Hubert’s right of publicity does not prevent Appellants from
prevailing on their theory that they had acquired the right to use Hubert’s
name and story in connection with their products, at least as it relates to
what Appellants acquired from Hansen’s Juices and Hansen Foods.
In addition, the conflicting extrinsic evidence offered to aid in the
interpretation of the transactions undercuts the trial court’s primary
justification for bifurcating the trial: interpreting the contracts before
empaneling the jury. Once the conflicting extrinsic evidence was offered, the
prudent approach would have been to end phase one, empanel a jury, and
move on to phase two. Such an approach is warranted because the
declaratory relief action here was subsumed in Respondents’ first cause of
action under section 3344.1.
That statute gives a “deceased personality’s” heirs and their assignees
a cause of action against someone who uses the deceased person’s “name,
voice, signature, photograph, or likeness . . . on or in products, merchandise,
or goods, or for purposes of advertising or selling, or soliciting purchases of,
products, merchandise, goods, or services, without prior consent.” (§ 3344.1,
subd. (a)(1).) However, before a plaintiff can recover damages in an action
under section 3344.1, subdivision (a), he or she must register a claim of right
with the California Secretary of State. (See § 3344.1, subd. (f)(1).) Thus, to
maintain their cause of action against Appellants, Respondents needed only
to show that they filed the required claim. They would not have had to show
that Monster Energy’s registration of claim under section 3344.1 was invalid.
Nonetheless, had Respondents then proved successful in phase two, the trial
court necessarily would have granted them the requested declaratory relief

38
(indeed, that cause of action involved many of the same witnesses and much
of the same evidence as was offered during phase two).
Finally, Appellants were prejudiced by the court’s error. During phase
two, Appellants were effectively prevented from arguing they had consent to
use Hubert’s name and story. They had claimed the consent came from the
subject contracts. With the court’s erroneous finding that the contracts could
not have transferred to Appellants a right to use Hubert’s name and story,
Appellants were placed at a severe disadvantage in presenting their case to
the jury. As Respondents argued to the jury, “[T]he judge looked at these
contracts already in the first phase. That’s what happened in the first phase.
Contracts don’t give them any consent, any rights at all. They don’t own the
rights. They don’t have consent.” (Italics added.) Further, the importance of
the interpretation of the contracts cannot be ignored. As the parties agreed
before trial, if Appellants’ urged interpretation of the contracts prevailed in
phase one, Respondents’ case was over. Thus, any error in interpreting the
contracts is of paramount importance. Therefore, this single error merits

reversal of the judgment.17
III
SECOND PHASE
Although we reverse the judgment based on the trial court’s error in
resolving conflicting extrinsic evidence instead of presenting that question to

17 Appellants also claim the trial court’s interpretation violates the
Contracts Clause of the Unites States Constitution. We decline to reach this
novel argument for two reasons. First, we are reversing the judgment based
upon the trial court’s error in dealing with conflicting extrinsic evidence.
Second, Appellants’ theory is based on the conclusion that the subject
contracts allowed them to use Hubert’s right of publicity. We cannot make
that determination on the record before us.

39
the jury, we also address one of Appellants’ challenges to the second phase
involving jury instructions in the event this case is retried.
A. Appellants’ Contentions
Appellants claim the trial court committed reversible error in
instructing the jury regarding the statute of limitations and the single-
publication rule. As we discuss post, the law on the application of the single-
publication rule in product label cases is not very developed, and, on the
record before us, we cannot determine if the special instruction that was
given was legally erroneous.
B. Statute of Limitations and the Single-Publication Rule
A claim based on the right of publicity is subject to a two-year
limitations period. (Code Civ. Proc., § 339; Christoff v. Nestle USA, Inc.
(2009) 47 Cal.4th 468, 472, 476, fn. 7 (Christoff).) Such a claim accrues at the
time of publication, whether the plaintiff was aware of the publication or not.
(Christoff, at pp. 482-483; see Shively v. Bozanich (2003) 31 Cal.4th 1230,
1247-1253 (Shively).)
Although the parties agree that two years is the proper statute of
limitations for Respondents’ claim here, the parties disagree regarding how
to the apply the single-publication rule to the relevant statute of limitations.
“The single-publication rule was created to address the problem that arose
with the advent of mass communication from the general rule in defamation
cases that ‘each time the defamatory statement is communicated to a third
person . . . the statement is said to have been “published,” ’ giving rise to a
separate cause of action. [Citation.]” (Christoff, supra, 47 Cal.4th at p. 477.)
In California, the single-publication rule is codified in section 3425.3, and
provides that “[n]o person shall have more than one cause of action for
damages for libel or slander or invasion of privacy or any other tort founded

40
upon any single publication . . . , such as any one issue of a newspaper or

book or magazine.”18 A cause of action that is governed by the single-
publication rule accrues from the date of the “ ‘first general distribution of the
publication to the public’ ” (Shively, supra, 31 Cal.4th at p. 1245), thereby
“ ‘ “spar[ing] the courts from litigation of stale claims” ’ ” filed years after an
initial publication is issued. (Christoff, at p. 479.) Thus, the single-
publication rule prevents any meaningful application of the “discovery rule,”
which usually provides that a cause of action only begins to run from the time
that the plaintiff knew or reasonably should have known that the cause of
action had accrued. (Id. at pp. 482-483; Shively, at p. 1237.)
Our high court concluded the single-publication rule applies to a cause
of action for unauthorized commercial use of likeness. (See Christoff, supra,
47 Cal.4th at p. 476.) The claim at issue here, misappropriation of the right
of publicity, is not unlike a claim for unauthorized commercial use of likeness
and would fall under the “any other tort” language of section 3425.3.
(Cf. ibid.) Consequently, as the parties here agree, the single-publication
rule applies to Respondents’ claim under section 3344.1.
The limitations period on such a claim begins to run on the first
distribution or publication of the challenged speech, thereby providing repose
to the defendants by precluding stale claims based on old publications.
(Christoff, supra, 47 Cal.4th at p. 479.) Yet, it must be determined what

18 Section 3425.3 provides: “No person shall have more than one cause of
action for damages for libel or slander or invasion of privacy or any other tort
founded upon any single publication or exhibition or utterance, such as any
one issue of a newspaper or book or magazine or any one presentation to an
audience or any one broadcast over radio or television or any one exhibition of
a motion picture. Recovery in any action shall include all damages for any
such tort suffered by the plaintiff in all jurisdictions.”

41
constitutes a single integrated publication to trigger the limitations period.
(Id. at p. 477.) Additionally, a new cause of action arises upon “[a]ny
subsequent republication or rebroadcast.” (Traditional Cat Assn. v. Gilbreath
(2004) 118 Cal.App.4th 392, 395; Shively, supra, 31 Cal.4th at p. 1245
[repetition of tortious statement in new publication gives rise to new cause of
action with new accrual date].) “A statement in a printed publication is
republished when it is reprinted in something that is not part of the same
‘single integrated publication.’ ” (Yeager v. Bowlin (9th Cir. 2012) 693 F.3d
1076, 1082, quoting Christoff, supra, 47 Cal.4th at p. 477.)
C. Background
At trial, Respondents offered an instruction on the statute of
limitations, which addressed the issue of republication. Appellants objected
to that proposed instruction and offered two instructions regarding the
statute of limitations. The parties addressed their concerns regarding these
instructions with the trial court.
Respondents argued that Appellants were required to prove that the
labels used after June 22, 2014 (two years before the filing of the original
complaint), were “identical in form and content” to those used before that
date. Respondents asserted that, any modification, even if it did not involve
the way in which Hubert’s name and story were used, would mean the label
had been “republished,” creating a new cause of action.
Appellants’ instructions were based on section 3425.3 and CACI
No. 338. Appellants insisted that Respondents’ proposed instruction
erroneously required Appellants to prove that the labels were “identical”
before and after June 22, 2014, and also that they were “never modified” and
“never reprinted” after that date. Finally, Appellants argued that the last
paragraph of Respondents’ instruction was improper because it concerned

42
efforts to “continue, renew, or expand” use of labels and used language
directly from Justice Werdegar’s concurrence in Christoff. The trial court
ruled that it would give both of Appellants’ proposed instructions and
Respondents’ proposed instruction (except for the last paragraph).
When the court instructed the jury, therefore, it first read what had
been Appellants’ Special Instructions 13 and 14, as follows:
“No person shall have more than one cause of action for
damages for misappropriation of the right of publicity
founded upon any single publication or exhibition or
utterance.

“The [Appellants] contend that the [Trust’s] lawsuit was
not filed within the time set by law. To succeed on this
defense, the [Appellants] must prove that the [Appellants’]
use of Hubert Hansen’s name was a single publication that
first occurred prior to June 22, 2014.

The trial then also read Respondents’ Special Instruction 3, as follows:
“[Appellants] contend that the [Trust’s] lawsuit was not
filed within the time set by law. To succeed on this
defense, Appellants must prove all of the following:

“First, that [Appellants]’ use of Hubert Hansen’s name on
products or for purposes of advertising or selling products
first occurred prior to June 22, 2014.

“Second, the designs of the labels that [Appellants] used on
products sold before June 22, 2014, were identical in form
and content to the designs of the labels that [Appellants]
used on products that were sold after June 22, 2014.

“Third, [Appellants] never modified the product labels after
June 22, 2014.

“And fourth, that the [Appellants] never reprinted any
product labels after June 22, 2014.

43
 “Additionally, for any use of Hubert Hansen’s name for
purposes of advertising or selling products that did not
involve use of the name on products, the [Appellants] must
prove that use made after June 22, 2014, was identical in
form and content to the use made before June 22, 2014.”

D. Standard of Review and Relevant Law
“We review de novo the question of whether the trial court’s
instructions to the jury were correct.” (Maureen K. v. Tuschka (2013) 215
Cal.App.4th 519, 526.) “A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case advanced by him
which is supported by substantial evidence. The trial court may not force the
litigant to rely on abstract generalities, but must instruct in specific terms
that relate the party’s theory to the particular case.” (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Thus, when a proposed
instruction correctly states the law, and there is evidence to support it, a trial
court commits error if it refuses to give it. (Id. at pp. 573-574.)
However, “there is no rule of automatic reversal or ‘inherent’ prejudice
applicable to any category of civil instructional error, whether of commission
or omission. A judgment may not be reversed for instructional error in a civil
case ‘unless, after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.’ ” (Soule, supra, 8 Cal.4th at p. 580; see Cal. Const.,
art. VI, § 13.) In evaluating whether instructional error is prejudicial, we
consider “(1) the state of the evidence, (2) the effect of other instructions,
(3) the effect of counsel’s arguments, and (4) any indications by the jury itself
that it was misled.” (Soule, at pp. 580-581, fn. omitted; see Logacz v.
Limansky (1999) 71 Cal.App.4th 1149, 1156.)

44
 E. Analysis
Neither party argues that the court erred in providing the two special
instructions offered by Appellants concerning the statute of limitations. The
jury instruction challenged here is limited to Special Instruction No. 3 offered
by Respondents. Appellants claim that the instruction erroneously required
them to prove that labels after June 22, 2014, were identical to those
produced before the date in order to prevail on their statute of limitations
affirmative defense. In addition, Appellants maintain that Special
Instruction No. 3 improperly incorporated the concurring opinion from
Christoff, supra, 47 Cal.4th 468. As that case is the only published California
opinion dealing with product labels and the single-publication rule, we begin
our analysis with a review of Christoff.
In Christoff, the plaintiff, a professional model, was paid $250 to pose
for a photograph to be used in Canada on a label for bricks of coffee. Sixteen
years later, the plaintiff saw his face on a jar of Taster’s Choice instant coffee
in the United States and discovered his image had been used without his
consent on millions of labels sold internationally for the preceding five years.
(Christoff, supra, 47 Cal.4th at p. 471.)
The plaintiff filed suit for appropriation of his likeness, among other
claims, six years after the defendant began using his image but a year after
his discovery. The trial court applied a two-year statute of limitation and
instructed the jury to determine under the discovery rule whether the
plaintiff knew or should have known earlier that the defendant had used his
image. The jury found that the plaintiff did not know and should not have
reasonably suspected that his image was being used without his consent.
The jury awarded the plaintiff more than $15 million in damages. (Christoff,
supra, 47 Cal.4th at p. 471.)

45
 The Court of Appeal reversed, determining that, under the single-
publication rule, the plaintiff’s claim was time-barred because he had not
filed his lawsuit within two years of when the defendant first published the
label containing his image. The appellate court instructed the trial court, on
remand, to consider whether the defendant had hindered the plaintiff’s
discovery of the use of his image or that the label had been republished.
Either finding could defeat the defendant’s statute of limitations defense.
(Christoff, supra, 47 Cal.4th at p. 472.)
Our high court granted review. It agreed with the Court of Appeal that
the single-publication rule applied to the plaintiff’s claim. However, the
Supreme Court disagreed with the Court of Appeal’s opinion to the extent it

presumed that the defendant’s various uses19 of the plaintiff’s likeness,
including its production of the product label for a five-year period, necessarily
constituted a “ ‘single publication’ ” within the meaning of the single-
publication rule. (Christoff, supra, 47 Cal.4th at p. 472.) The court
explained:
“We agree that, in general, the single-publication rule as
codified in section 3425.3 applies to causes of action for
unauthorized commercial use of likeness, but in order to
determine when the statute of limitations was triggered for

19 The defendant “ ‘youthened’ ” the plaintiff’s photograph to make him
appear younger. It used the plaintiff’s image on a redesigned label beginning
in 1998. (See Christoff, supra, 47 Cal.4th at p. 473.) The redesigned label
was used on “several different Taster’s Choice jars, including regular coffee,
decaffeinated, and various flavors.” (Ibid.) The plaintiff’s image was used on
labels printed in different languages and placed on jars of coffee sold
internationally. For at least one of the labels, the plaintiff’s image was
further altered to add sideburns and darken his complexion. Moreover,
images of jars of coffee with the plaintiff’s image appeared in various
advertising campaigns, including transit ads, magazine advertisements,
coupons in newspapers, and advertisements on the internet. (Ibid.)

46
 [the plaintiff’s] action, we must decide whether [the
defendant’s] unauthorized use of [the plaintiff’s] image,
including its production of the label, constituted a “single
publication” within the meaning of the single-publication
rule.”

(Id. at p. 476.)

However, the record before our high court was insufficient to allow it to
engage in the necessary inquiry. (Christoff, supra, 47 Cal.4th at p. 476.)
The court made clear that to apply the single-publication rule, a court
must first identify what constitutes a “ ‘single integrated publication’ ” within
the meaning of the rule. (Christoff, supra, 47 Cal.4th at p. 477.) It offered
examples of qualifying publications, like “the printing and distribution of a
particular issue of a newspaper, magazine, or book.” (Ibid.) But it noted:
“Whether the printing of a product label over a five-year period constitutes a
single integrated publication within the meaning of the single-publication
rule is an issue of first impression in this state.” (Ibid.)
Our high court also indicated that the matter before it was further
challenging because of the various ways in which the defendant used the
plaintiff’s image. The court observed:
“In addition to producing the product label, [the defendant]
also used [the plaintiff’s] likeness in other forms, including
transit ads, coupons in newspapers, magazine
advertisements, and Internet advertisements. This raises
questions whether each of these activities constituted a
‘single integrated publication,’ whether the entire
advertising campaign should be considered a ‘single
integrated publication,’ or whether [the defendant’s] first
use of [the plaintiff’s] image triggered the running of the
statute of limitations for all subsequent uses in whatever

47
 form. These are important questions, and there is little
authority to turn to for guidance.”

(Christoff, supra, 47 Cal.4th at p. 477.)

In further explaining why existing law did not provide sufficient
guidance for the issue before it, the court acknowledged that production of a
product label is different than publishing an issue of a newspaper or
magazine or an edition of a book, with each of the latter examples
constituting “a discrete publishing event.” (Christoff, supra, 47 Cal.4th at
p. 481.) The plaintiff argued that the defendant’s conduct qualified as a
continuing wrong, and, as such, a new cause of action accrued with each
wrongful act. In contrast, the defendant maintained that its use of the
plaintiff’s image on its product label was a “ ‘single overt act’ ” with “ ‘a
continual effect that is relevant to damages, but does not denote a continuing
course of conduct for which the limitations period can be tolled.’ ” (Id. at
p. 482.)
The court ultimately remanded the matter so that an adequate factual
record could be made to address the new issues presented under the single-
publication rule. Yet, it set forth the type of factual record it would need to
address the issue before it. (Christoff, supra, 47 Cal.4th at p. 482.)
In her concurring opinion, Justice Werdegar agreed that the court could
not determine whether the statute of limitations had run on the plaintiff’s
claim without a better factual record, but she believed “some general
principles relevant to that question may be discerned from the language of
section 3425.3.” (Christoff, supra, 47 Cal.4th at p. 483 [conc. opn. of
Werdegar, J.].) To this end, Justice Werdegar focused on “the broadest
question posed” in the appeal: “[W]hether all distribution of labels employing

48
the original misappropriated image, whenever they occurred, should be

deemed to constitute a single publication for purposes of section 3425.3.”20
(Ibid.)
After acknowledging that California courts had not addressed the
issue, Justice Werdegar discussed a line of out-of-state cases that concluded
“multiple broadcasts, distributions or displays of identical material constitute
a single publication for purposes of the statute of limitations, and not a
serious of republications.” (Christoff, supra, 47 Cal.4th at p. 484 [conc. opn.
of Werdegar, J.].) Then she discussed other out-of-state decisions that
reached the opposite conclusion. (Ibid.) Of the two different approaches,
Justice Werdegar believed the latter approach was more consistent with the
statutory language of section 3425.3, which illustrates as a single publication
“ ‘any one issue of a newspaper or book or magazine or any one presentation
to an audience or any one broadcast over radio or television or any one
exhibition of a motion picture.’ ” (Christoff, at p. 484, quoting § 3425.3.) She
stated that the statute “dictates we treat as a separate publication any
reissue, rebroadcast or reexhibition, even though the publication’s contents or
the manner of its distribution or display has not been changed.” (Ibid.)
Justice Werdegar discussed the difficulties of determining what
constituted a single “ ‘issue’ ” of printed material but suggested a useful
distinction could be to focus on a republication decision that is “ ‘ “ ‘conscious
[and] independent’ ” ’ [citation] or ‘conscious and deliberate’ [citation].”

20 Although Justice Werdegar focused on this broad issue, she implied
that labels on which the plaintiff’s image was significantly altered and
advertisements that employed photographs of the label would constitute
separate publications from the original labels themselves. (Christoff, supra,
47 Cal.4th at p. 483, fn. 2 [conc. opn. of Werdegar, J.].)

49
(Christoff, supra, 47 Cal.4th at p. 485 [conc. opn. of Werdegar, J.].) She then
noted that when a publisher set up a “more or less automated system for
printing and distributing an item . . . and does not make a separate
publishing decision as to each copy or small batch of copies, to call each such
distribution a new ‘issue’ of the material would defeat the purposes of the
single publication rule.” (Ibid.) Yet, she believed a republication would occur
and thus a new cause of action accrue “where a publication has been out of
print . . . for some time and the publisher makes a conscious decision to
reissue it[.]” (Ibid.)
Based on the guidelines she described, Justice Werdegar doubted that
the “defendant’s entire five-year course of printing and distributing labels
may be deemed a single publication simply because the labels were not
substantially altered during that time.” (Christoff, supra, 47 Cal.4th at
p. 486 [conc. opn. of Werdegar, J.].)
Although the majority opinion in Christoff, supra, 47 Cal.4th 468
provides little help to address Appellants’ challenge to Special Instruction
No. 3 in the instant action, it nevertheless provides some general parameters
in which to consider the issue. For example, the court noted: “The single-
publication rule is intended to prevent a ‘single integrated publication’ from
resulting in numerous causes of action because the publication is received by
a mass audience.” (Id. at p. 480.) Thus, it is not surprising that the court
suggested the first task in applying the single-publication rule is to identify
what constitutes a “ ‘single integrated publication.’ ” (Id. at p. 477.) It did
not answer this question regarding the product labels and advertisements at
issue in Christoff, but it recommended that on remand, the parties create “a
sufficient factual record that reveals the manner in which the labels were
produced and distributed, including when production of the labels began and

50
ceased.” (Id. at p. 482.) Because Appellants had the benefit of this guidance
from Christoff, we assume they would have sought to create “a sufficient
factual record below.” However, that record, if it exists, is not presented in
Appellants’ briefing. Such evidence would have been helpful to determine
what constituted a single integrated publication in the context of the
production of product labels. Perhaps, Appellants created such a record, but
it is not our role to comb through the record to make arguments that might
be helpful to Appellants’ position. (See Hernandez v. First Student, Inc.
(2019) 37 Cal.App.5th 270, 277; Opdyk v. California Horse Racing Bd. (1995)
34 Cal.App.4th 1826, 1830-1831, fn. 4.)
In addition, our high court emphasized in Christoff that if it were
determined on remand that “all or some portion of the production of the label
constituted a single integrated publication, then the superior court should
further consider whether the statute of limitations began anew because the
label was ‘republished’ within the meaning of the single-publication rule.”
(Christoff, supra, 47 Cal.4th at p. 482.) Given this statement by the Supreme
Court coupled with Respondents’ stated purpose with Special Instruction
No. 3 to encompass republication of product labels, we are surprised that
Appellants did not provide any discussion, based on the factual record below,
regarding what should be considered a republication in terms of the product
labels at issue. In addition, although we agree that Justice Werdegar’s
concurrence is not the law in California, it does offer suggestions that could
have guided Appellants’ discussion of the evidence as well as determining
what constitutes a single integrated publication and republication in the
context of the production of product labels. Yet, Appellant engaged in no
such discussion of how the facts of this case support or undermine Justice
Werdegar’s approach to the issue beyond making the correct observation that

51
her concurrence is not the law. However, as the parties point out, the law
regarding the application of the single-publication rule to product labels is
undeveloped in California, and the prudent tactic (for Appellants) would have
been to explain why we should not accept Justice Werdegar’s guidance under
the facts of this case.
Finally, in Christoff, the Supreme Court indicated that the defendants
had used the plaintiff’s images on more than just product labels. Thus, the
court stated that, on remand, the parties needed to explore whether the
defendant’s use of the plaintiff’s image in various forms of advertising
constituted a single integrated publication and when the statute of limitation
was triggered for the different types of advertising. (Christoff, supra, 47
Cal.4th at p. 482.) Here, it appears Appellants used Hubert’s name and story
on more than just product labels, but they do not address these additional
uses in any meaningful way.
Instead of presenting their argument through the lens suggested by
Christoff, Appellants argument is little more than the bald assertion that
Special Instruction No. 3 is an incorrect statement of the law. Specifically,
they challenge the fact that the instruction requires them to prove that the
labels used after June 22, 2014 (the cut-off date) were “identical in form and
content” to the labels used before that date. Appellants argue there is no
support for such a stringent requirement under California law. Although we
agree that there is no California case establishing that such language is
required in a jury instruction regarding the single-publication rule in a
product labeling case, we can find suggestions in California law supporting
such language.
For example, Respondents maintain they used the words “identical” as
well as “never modified” in Special Instruction No. 3 to capture a new

52
publishing decision. In other words, if Appellants changed the label in any
way after June 22, 2014 or reprinted product labels after that date, then such
action would constitute a new publishing decision, which would constitute a
new “single publication” or a republication. Thus, the language Respondents
proposed for Special Instruction No. 3 appears to somewhat track the
language in section 3425.3 that limits the number of causes of action for libel,
slander, or invasion of privacy that can be brought on “any single
publication . . . such as any one issue of a newspaper or book or magazine or
any one presentation to an audience or any one broadcast over radio or
television or any one exhibition of a motion picture.” (§ 3425.3.) The single-
publication statute therefore implies that if a newspaper, book, magazine,
broadcast, or movie was altered and then offered to the public then the
single-publication would not prohibit a new cause of action based on the
altered publication. Indeed, at least one case has supported such an
approach to the application of the single-publication rule where the allegedly
tortuous statement remained unchanged despite appearing multiple times in
different newspaper editions. (See Belli v. Roberts Bros. Furs (1966) 240
Cal.App.2d 284, 288-289 (Belli) [holding that the February 14, 1962, issue of
the San Francisco Chronicle Newspaper, which was composed of six editions
that were issued over a two-day period was a “single, integrated publication”
and noting the allegedly defamatory material appeared in the first edition
and “was repeated without change in each and every addition that
followed”].)
However, the single-publication rule, under certain circumstances, may
not prohibit a new cause of action even when the content of the publication
remains the same. In Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327
(Kanarek), the appellate court concluded that the plaintiff could pursue his

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libel claim arising out of statements contained in the paperback republication
of a previously released hardcover book. The court determined that, while
the allegedly libelous material was identical in form and content to the
original hardcover edition, the republication in paperback form was
“undoubtedly intended to and did reach a new group of readers” and thus
gave rise to a new cause of action for libel. (Id. at p. 333.) This case suggests
that the single-publication rule does not bar a suit based on a separate
publication of the same material as long as the publication was intended and
released to reach a different audience (e.g., in format or price). So, the
publication of the identical book in a paperback edition represented a new
publication decision. As such, Kanarek connotes that, at least in the
publication of books, a new publication that is identical in content to a
previous publication may still give rise to a new cause of action under the
single-publication rule.
Thus, Belli and Kanarek illustrate that the single-publication rule can
apply differently depending on the type of publication. For the publication of
a newspaper, despite the libelous content being printed in six different
editions, the fact that the offending content remained the same in each
addition was sufficient to trigger the single-publication rule and limit the
number of causes of action that could be brought. (See Belli, supra, 240
Cal.App.2d at p. 289.) Yet, when the defendant published the same offending
content in a paperback book as had been previously published in a hardback
format, the court determined that the single-publication rule did not bar a
new cause of action based on the paperback publication. (See Kanarek,
supra, 108 Cal.App.3d at p. 333.) In light of these cases, here, it would have

54
been helpful had Appellants explained how the publication of product labels
is like or different than the publication of newspapers or books.
Unfortunately, they did not do so.
This shortcoming is all the more fatal to Appellants’ challenge to
Special Instruction No. 3 because, as our high court informs us in Christoff,
the single-publication rule is heavily context dependent. (See Christoff,
supra, 47 Cal.4th at p. 482 [without knowing “the manner in which the labels
were produced and distributed, including when production of the labels began
and ceased,” the court could not determine whether there was a single
integrated publication].) Appellants have not informed us, with citations to
the record, about the process they used for designing and printing their
product labels, including who was involved, when they were printed and by
whom, and whether the process was automated or involved human decision-
making. Indeed, Appellants have not even attempted to articulate a
discussion that would enable us to understand what the evidence showed at
trial regarding the context in which the labels were produced. Consequently,
we cannot determine whether labels that were not identical in form and
content resulted in what could reasonably be construed as a new and distinct
publication. In short, without a more robust discussion of the factual record
as it relates to Appellants’ production of labels, advertising, and marketing,
we cannot conclude Special Instruction No. 3 was legally erroneous or provide
further guidance regarding what such an instruction should entail. (See
Christoff, supra, 47 Cal.4th at p. 482, quoting Lahr v. Adell Chemical Co. (1st
Cir. 1962) 300 F.2d 256, 260 [“ ‘Whether the single publication rule should be
applied to the circumstances of this case had best be decided when we know
what they were.’ ”].) That said, on remand, the parties would be well advised

55
to consider how Christoff, Belli, and Kanarek relate to the specific production
of product labels at issue here and fashion a republication jury instruction
accordingly.
DISPOSITION
The judgment is reversed, and the matter is remanded to the superior
court. The superior court is instructed to vacate the judgment and set a new
trial date. The parties are to bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

DO, J.

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