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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, 

etc. et al.,

Plaintiffs and Respondents,

v.

THE COCA-COLA COMPANY et al.,

Defendants and Appellants.

 D077588

 (Super. Ct. No. 37-2016-

00021046-CU-MC-CTL)

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. 
2

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 CocaCola 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.
3

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.
4

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.
5

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. 
6

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.
7

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. 
8

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.
9

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.” 
10

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 
11

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.
12

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.”
13

(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).)
14

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 
15

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 ‘SuccessorIn-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.
16

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 
17

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.”
18

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 
19

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 
20

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.
21

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 
22

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 
23

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.
24

“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 
25

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 crossexamine him.
26

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, 
27

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 
28

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 
29

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 
30

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.)
31

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).
32

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 
33

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 <https://www.merriam-webster.com/dictionary/intangible> [as of 

June 17, 2021], archived at <https://perma.cc/AR4Q-8EXY>.)
34

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 
35

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 
36

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. 
37

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 
38

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
39

(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. 
40

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 singlepublication rule. As we discuss post, the law on the application of the singlepublication 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 
41

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 singlepublication 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 singlepublication 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.”
42

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 
43

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.
44

“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.)
45

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.)
46

The Court of Appeal reversed, determining that, under the singlepublication 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 singlepublication 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.) 
47

[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 
48

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 singlepublication 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 
49

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.].)
50

(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 singlepublication 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 
51

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 
52

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 
53

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 singlepublication 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 
54

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 
55

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 decisionmaking. 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 
56

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.