Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC
 

30.08.2012
9th Cir.
08-56471

The court of appeals affirmed a district court judgment. The court held that judicial estoppel applied where beneficiaries of Marilyn Monroe’s estate made representations about the celebrity’s domicile at death which were contrary to representations long asserted by her estate executors, with whom the beneficiaries were in privity.

Celebrity Marilyn Monroe executed her Last Will and Testament in January 1961 in New York, naming New York attorney Aaron Frosch executor. She then traveled to California in the spring. She was found dead in her home in Brentwood in August 1962.
瑪麗蓮夢露在1961年1月於紐約執行並聲明其遺囑，命紐約律師Aaron Frosch為遺囑執行人。然後她於同年春季至加州旅遊。1962年8月夢露被發現死在加州Brentwood宅中。

A New York court admitted Monroe’s will to probate. The will included a residual clause that distributed the remainder of Monroe’s estate, after specific bequests, to certain named parties. Frosch served as estate executor until his death in 1989, when a successor executor was appointed.
紐約法院承認夢露之遺囑認證。該遺囑包含在特定遺贈後分配遺產給其餘特定人及住所條款。Frosch擔任夢露遺產執行人一直到1989年他死。

After forty years, in 2001 the New York court decreed the estate settled and authorized the estate to transfer all remaining assets to Marilyn Monroe LLC (Monroe LLC). Monroe LLC was a newly-formed Delaware limited liability company managed by the estate’s former executor, Anna Strasberg, who was the surviving wife of Monroe’s acting coach and close friend, and a medical center which had received part of the estate residue in keeping with the will’s residual clause.
2001年，在夢露死後40年；紐約法院命遺產需安定下來，同時授權遺產將剩餘資產移轉與瑪麗蓮夢露有限責任公司。夢露公司是一間新成立之德拉瓦有限責任公司，由前遺產執行人Anna Strasberg所經營，Anna是夢露演藝導師兼密友之遺孀，一間得到部分剩餘遺產之醫療中心係符合遺囑之剩餘條款。

During the forty-year probate proceedings, Frosch, in his capacity as executor of the estate, consistently represented in numerous judicial and quasi-judicial settings that Monroe was domiciled in New York when she died. Frosch also represented this to California tax authorities after ancillary probate proceedings were initiated there. By offering detailed affidavits from Monroe’s friends and employees, and by offering his own representations, Frosch established that Monroe was a domiciliary of New York, and he thereby successfully avoided substantial California estate taxes. On the same basis, Frosch likewise avoided payment of California income taxes on royalties received by Monroe’s estate after her death.
於40年之遺囑認證程序，Frosch基於其遺囑執行人之身分於許多司法與準司法之情境下，始終如一地主張夢露死時她的住所係在紐約。

As Frosch’s successor estate executor, Strasberg also represented in judicial proceedings on behalf of the estate that Monroe died domiciled in New York.

In 2005, Monroe LLC sued Milton Greene Archives, Inc., and others (Milton Greene) in federal district court in Indiana. The suit claimed ownership of Marilyn Monroe’s right of publicity, which Milton Greene allegedly had co-opted for commercial purposes. Milton Greene sued Monroe LLC and related parties in California federal district court, seeking a declaration that Monroe LLC did not own Monroe’s right of publicity. The cases were consolidated in California.
2005年夢露有限責任公司於印第安納州聯邦地區法院對Milton Greene 文件檔案公司 及 Milton Greene提起民事訴訟，主張其享有夢露之知名度（名氣權），於此同時Milton Greene亦主張其享有同樣的權利。Milton Greene在加州聯邦地區法院對夢露公司及相關人等提起民事訴訟，訴求夢露公司並未擁有夢露之知名度。上開案件合併由加州審理。

The district court granted summary judgment in favor of Milton Greene, holding that Monroe LLC did not own Monroe’s right of publicity. The court concluded that, at the time of Monroe’s death in 1962, the states of New York, California and Indiana did not recognize “a descendable, posthumous right of publicity.” The court reasoned that because Monroe LLC was not entitled to exercise Monroe’s posthumous right of publicity, it lacked standing to assert those rights against Milton Greene.
地區法院作出Milton Greene勝訴之即決判決，該判決指出夢露公司未擁有夢露之名氣權。判決理由寫道，夢露1962年死亡時，紐約、加州和印地安納州噘未承認死後可繼承之名氣權。夢露公司並無可行使夢露死後名氣權之權限，其缺乏對Milton Greene主張那些權利之適格。

In direct response to the district court’s grant of summary judgment, the California Legislature enacted Civ. Code §3344.1, which provides that the state’s statutory right of publicity, first created in 1984, is deemed to have existed at the time of death of any deceased personality who died before 1985. The section further provides that the right of publicity is a property right freely transferable and descendible, and which could pass in the residual clause of a deceased personality’s will.
加州立法機構直接對前開判決做出回應，其於1984年通過立法於州民法3344.1條規範了名氣權。該條明文規定1985年前死亡者亦享有名氣權。其進一步規定名氣權是財產權，可讓與及繼承；同時可透由已故名人遺囑之剩餘財產條款轉讓。

The court granted reconsideration but ultimately again granted summary judgment to Milton Greene, reasoning that judicial estoppel precluded Monroe LLC from advocating that Monroe was domiciled in California when she died, in order that Monroe LLC might benefit from §3344.1.
法院允准再次考量，但最終再次以即決判決判決Milton Greene勝訴，理由係司法禁反言排除Monroe公司以夢露死時之住所在加州之答辯，以免夢露公司可藉由加州民法3344.1條獲利。

The court of appeals affirmed, holding that Monroe LLC was judicially estopped from taking the litigation position that Monroe died domiciled in California.

The court of appeals observed that the Supreme Court had provided little guidance on the contours of the doctrine of judicial estoppel. The Ninth Circuit has stated that where a litigant’s current position is manifestly inconsistent with a prior position such as to amount to an affront to the court, judicial estoppel may apply. To the extent the court had suggested that a showing of chicanery was a mandatory prerequisite to judicial estoppel, however, that was inconsistent with the Supreme Court’s instruction that there exist no inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel.

The court thus expressly clarified here that chicanery or knowing misrepresentation by the party to be estopped is a factor to be considered in the judicial estoppel analysis and not an “inflexible prerequisite” to its application.

In this instance, the district court did not err in finding that there had been a knowing misrepresentation. In fact, Monroe LLC repeatedly insinuated that Frosch misrepresented Monroe’s true domicile to obtain favorable tax assessments for inheritance and income purposes.

The court found it unclear when and why the fact of Monroe’s domicile at death somehow changed. Monroe LLC’s assertion that Frost was mistaken in his belief and representations because he did not have access to certain documents was dubious, at best. It also was possible, although the court had insufficient evidence to know, that Monroe LLC’s present position on the issue of domicile was a knowing misrepresentation, or tantamount to a fraud on the court.

Given the diametrically opposed representations about Monroe’s intended domicile, the district court did not abuse its discretion in concluding that Frosch intentionally misled the courts, as that determination was supported from inferences that could be drawn from the record.

Turning to the pertinent judicial estoppel factors, the court had to determine first whether the successive executors’ representations on behalf of the Monroe estate, that Monroe died a domiciliary of New York, were attributable to Monroe LLC. This was of import because judicial estoppel bars only inconsistent positions taken by the same party in two different matters.

The question whether privity lies between an executor and the beneficiaries of an estate was one of first impression in the circuit. In that regard, Supreme Court precedent supported the district court’s determination that Frosch was the privy of Monroe LLC. Likewise, other circuits have also concluded that privity lies between the administrator of an estate and the beneficiaries of that estate. California and New York courts also had held that the administrator and the beneficiaries of an estate are in privity for estoppel purpose; those opinions were instructive, if not controlling, because tax and estate matters generally are governed by state law.

Here, the court said, Frosch and Strasberg represented the Monroe estate in their capacities as executor, and both consistently stated in judicial proceedings over the course of forty years that Monroe died domiciled in New York and not in California. Monroe LLC’s new litigation position that Monroe died domiciled in California, asserted to obtain the benefit of California’s posthumous right of publicity statute, was inconsistent with the preceding forty years of representations on behalf of the estate that Monroe died domiciled in New York.

Permitting Monroe LLC to assert that Monroe died a domiciliary of California would unfairly allow it to obtain a “second advantage.” Because judicial estoppel is intended to protect the courts, Milton Greene did not have to prove that it detrimentally relied on the prior representations about Monroe’s domicile to justify application of judicial estoppel.

The only way that Monroe LLC would ever secure the right to assert Monroe’s right of publicity was if the court accepted its current representation that Monroe died domiciled in California and allowed Monroe LLC to attempt to prove up that fact at trial. Monroe LLC would reap tremendous financial benefits if it could lay claim to Monroe’s right of publicity. Conversely, Milton Greene had already suffered a detriment as a result of Monroe LLC’s litigation of its asserted rights to Monroe’s right of publicity, and a ruling in favor of Monroe LLC would deprive Milton Greene of its rights in materials it had created. It also would create the perception that either prior courts, or the current ones, had been misled about Monroe’s domicile.

Given all this, the court declared the action a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage, an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died.

The court declared that because Monroe died domiciled in New York, New York law applied to the question of whether Monroe LLC had the right to enforce Monroe’s posthumous right of publicity. Because no such right existed under New York law, Monroe LLC did not inherit it through the residual clause of Monroe’s will, and could not enforce it against Milton Greene or others similarly situated.