Weinbach v. Windwings Productions CA2/3 (2013) · DecisionDepot
Weinbach v. Windwings Productions CA2/3
California Court of Appeal Mar 6, 2013 No. B236490Unpublished
Filed 3/6/13 Weinbach v. Windwings Productions CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROBERT D. WEINBACH et al., B236490
Cross-complainants and Appellants, (Los Angeles County Super. Ct. No. SC101722) v.
WINDWINGS PRODUCTIONS, LLC, et al.,
Cross-defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Linda K. Lefkowitz, Judge. Affirmed.
Law Offices of Becky Walker James, Becky Walker James and
Kathryn Lohmeyer for Cross-complainants and Appellants.
Leopold, Petrich & Smith, Louis P. Petrich, Robert S. Gutierrez and
Elizabeth L. Schilken for Cross-defendants and Respondents.
_______________________________________
Robert D. Weinbach and Cyclone Productions, Inc. (Cyclone), appeal a judgment
dismissing their cross-complaint against Windwings Prodcutions, Inc. (Windwings),
and Kim Productions LLC (Kim). The issues on appeal concern the interpretation of
a provision in a settlement agreement and whether extrinsic evidence created a question
of fact for the jury to decide in connection with that interpretation. We conclude that
the extrinsic evidence was not in conflict and the trial court properly considered the
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.
Weinbach and Cyclone contend the expert testimony is conflicting with respect
to the proper interpretation of the 1976 settlement agreement. They argue that
conflicting expert testimony regarding the interpretation of a contract constitutes
conflicting extrinsic evidence and necessarily creates a question of fact that must be
decided by the jury. We disagree.
The experts here opined on the proper interpretation of the 1976 settlement
agreement in light of the custom and practice in the industry and the parties’ prior
dealings. They offered conflicting interpretations of the agreement. The evidence
regarding the custom and practice in the industry and the parties’ prior dealings,
however, was not in conflict. The experts agreed that the custom and practice was for
a producer to acquire exclusive rights to a remake because without exclusive rights it
would be difficult to obtain financing. Weinbach and Cyclone fail to identify any
material conflict in the evidence regarding the custom and practice in the industry with
respect to the assignment of motion picture rights, and the evidence of the parties’ prior
dealings is undisputed.3 The experts’ conflicting interpretations of the agreement in
light of the undisputed historical facts does not constitute a conflict in the extrinsic
evidence and does not create a question of fact for the jury to decide. (California
3 When given an opportunity at oral argument to cite any conflicting evidence in the record, Weinbach and Cyclone only cited evidence of the experts’ conflicting interpretations of the 1976 settlement agreement.
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National Bank v. Woodbridge Plaza LLC (2008) 164 Cal.App.4th 137, 143.) This
conclusion is fully supported by the record.
2. The Trial Court Correctly Concluded that the Rights Granted Under the 1976 Settlement Agreement Were Nonexclusive
Weinbach and Cyclone contend the trial court’s conclusion that their
interpretation of the 1976 settlement agreement would vary the terms of the agreement
contrary to law was error. We need not decide whether their interpretation of the
agreement is contrary to law. Absent any factual question regarding the credibility of
extrinsic evidence, we interpret the agreement de novo and are not bound by the trial
court’s reasoning. (Parsons, supra, 62 Cal.2d at pp. 865-866.) We conclude that the
rights granted to Weinbach and Cyclone under the agreement were nonexclusive, as we
shall explain, so we need not decide whether the agreement is reasonably susceptible of
their contrary interpretation or whether their interpretation would impermissibly vary
the terms of the agreement.
“ ‘We interpret a contract so as to give effect to the mutual intention of the
contracting parties at the time the contract was formed. (Civ. Code, § 1636.) We
ascertain that intention solely from the written contract if possible, but also consider the
circumstances under which the contract was made and the matter to which it relates.
(Id., §§ 1639, 1647.) We consider the contract as a whole and interpret its language in
context so as to give effect to each provision, rather than interpret contractual language
in isolation. (Id., § 1641.) We interpret words in accordance with their ordinary and
popular sense, unless the words are used in a technical sense or a special meaning is
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given to them by usage. (Id., § 1644.) If contractual language is clear and explicit and
does not involve an absurdity, the plain meaning governs. (Id., § 1638.)’ [Citation.]”
(Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 695.) If contractual
language is ambiguous, we may consider extrinsic evidence of the parties’ intention in
order to resolve the ambiguity.4 (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc.
Co., supra, 69 Cal.2d pp. 39-40.)
Tekim granted Cyclone and Weinbach “all rights and licenses necessary to
produce, distribute and otherwise exploit for its own account a remake of the motion
picture ‘The Killer Inside Me’ based upon the literary material acquired by Cyclone”
from Weinbach and other named individuals, as distinguished from any other literary
material acquired by Tekim. In our view, “all rights and licenses necessary to
produce . . . a remake . . . ” falls far short of “the sole and exclusive” rights to the
literary work or “100% ownership interest in and to all of the right, title and interest of
the Seller” previously assigned by Cyclone and Weinbach to Tekim. Other prior
assignments in the chain of title, which the parties were aware of, also used language
4 “ ‘[E]ven if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible.’ (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 [75 Cal.Rptr.2d 573].) ‘The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.’ (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37 [69 Cal.Rptr. 561, 442 P.2d 641], citing numerous authorities.)” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 391.)
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explicitly denoting exclusivity or the assignment of all rights owned by the assignor.5
Such language is conspicuously absent from the 1976 settlement agreement.
Moreover, the 1976 settlement agreement was not a typical marketplace
transaction, in which the experts testified the producer ordinarily would receive
exclusive rights to exploit the literary work. Instead, the agreement was in settlement of
litigation arising from Weinbach’s termination as the director and a producer of the
1975 motion picture, The Killer Inside Me. As the trial court noted, (1) the rights
granted to Weinbach and Cyclone under the 1976 settlement agreement were limited to
the literary material previously acquired by Cyclone from Weinbach and others, to the
exclusion of other literary material (i.e., other screenplays) separately acquired by
Tekim; (2) there was no assurance that Weinbach and Cyclone would acquire the
domestic rights to the novel in the event of Thompson’s death and the reversion of those
rights to his heirs, as later occurred; and (3) the rights granted to Weinbach and Cyclone
were further limited by a “holdback” provision allowing them to produce and distribute
a remake only after the termination of a prior distribution agreement or after the
expiration of a seven-year period. These limitations on the rights granted to Weinbach
5 Thompson assigned to Warner Bros. in 1968, “exclusively and forever, for the entire universe . . . all rights of every kind and nature whatsoever in and to [the novel],” excluding only certain book publishing rights, and specifically including “the sole and exclusive motion picture rights . . . throughout the world.” Warner Bros. assigned and quitclaimed all of its rights acquired from Thompson to Greenway Productions, Inc., in 1970. Greenway Productions, Inc., then assigned “all of its right, title and interest in and to the motion picture and television rights” to Cyclone in 1974.
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and Cyclone under the settlement agreement distinguished the transaction from a typical
marketplace transaction involving the assignment of motion picture rights.
We conclude that the language of the 1976 settlement agreement, including the
absence of the words “sole and exclusive” or similar language, and the surrounding
circumstances indicate that the rights granted to Weinbach and Cyclone were
nonexclusive rights to produce “a remake” using the specified literary material. The
trial court’s ruling on this issue was correct.
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DISPOSITION
The judgment is affirmed. Windwings and Kim are entitled to recover their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the 1976 settlement agreement granted appellants nonexclusive rights to produce a remake of the motion picture, as the agreement lacked language denoting exclusivity and the extrinsic evidence regarding industry custom did not create a triable issue of fact.
Issues
Whether conflicting expert testimony regarding industry custom created a question of fact for the jury concerning contract interpretation.
Whether the trial court correctly interpreted the 1976 settlement agreement as granting nonexclusive rights to the appellants.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The experts’ conflicting interpretations of the agreement in light of the undisputed historical facts does not constitute a conflict in the extrinsic evidence and does not create a question of fact for the jury to decide.”