Filed 3/30/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FOXCROFT PRODUCTIONS, 

INC., et al.,

Plaintiffs and Appellants,

v.

UNIVERSAL CITY STUDIOS

LLC,

Defendant and Appellant.

 B303161

 Los Angeles County

 Super. Ct. No. BC683206

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard J. Burdge, Jr. and David S. 

Cunningham III, Judges. Reversed in part and affirmed in part.

Burkhalter Kessler Clement & George, Alton G. 

Burkhalter, Daniel J. Kessler, Keith E. Butler; Greines, Martin, 

Stein & Richland, Robert A. Olson and Alana H. Rotter for 

Plaintiffs and Appellants.

O’Melveny & Myers, Daniel M. Petrocelli, Timothy B. 

Heafner; Hueston Hennigan, Robert N. Klieger and Rajan S. 

Trehan for Defendant and Appellant.

____________________
2

We must define a key contract word: “photoplays.” This 

word includes television episodes of Columbo, says the studio that 

made this long-running television show. The creators of the 

Columbo character disagree. They say the word photoplays has 

many meanings and is ambiguous—but it cannot mean what the 

studio says. The studio, however, is right: photoplays includes 

episodes. That resolves the core of this contractual dispute.

The court held a trial without defining photoplays for 

jurors, who found the studio breached its contract about 

Columbo. After this verdict, however, the court came to agree 

with the studio: defining the contract word was an issue for the 

court and not the jury, and a photoplay meant “any video recorded 

program,” which included episodes of Columbo. The court 

granted the studio’s motion for a new trial but denied its motion 

for judgment notwithstanding the verdict. 

These rulings were right. The interpretive task was for the 

court, not the jury. The court’s interpretation of photoplays was 

correct, as was its order for a new trial. The trial court also 

properly refused to give the studio the judgment outright. 

The pretrial summary adjudication of a fraud claim was, 

however, in error. We reverse this ruling. 

I

Events began in the 1960s, when two writers entered a 

decades-long relationship with Universal City Studios, LLC. The 

relationship fell into litigation in 2017, when these writers sued 

Universal, alleging the studio owed them money from a 1971 

contract. The facts span half a century. 
3

A

We divide this long story into three little chapters. First 

we summarize Columbo’s origin. Next we recount the 1971 

contract at issue. Then we sketch later events.

1

William Link and Richard Levinson invented the character 

of a detective named Columbo. Foxcroft Productions, Inc. is 

Link’s company. Fairmount Productions, Inc. is Levinson’s 

company. In their work here as writers and producers, Link and 

Levinson were a team. For simplicity, we sometimes refer to this 

team, or their companies, as “the writers.” 

In 1962, the team’s stage play about Columbo toured in 56 

cities. 

In 1967, Link and Levinson licensed the television and 

movie rights to their play to Universal. They also sold Universal 

the rights to the Columbo character. Link and Levinson 

remained involved with Columbo, however, through several 

agreements with Universal. Link and Levinson agreed, for fixed 

compensation, to write and to executive produce a television 

movie based on their play. 

In 1970, a different writer wrote the script for a second 

Columbo television movie that served as a pilot. NBC picked up 

the show for a television series. 

2

A 1971 contract is the linchpin of this case. Link and 

Levinson entered this contract with Universal about the right to 

produce and distribute their work for up to three years. This 

arrangement applied both to their work on Columbo and to their 

other projects. 
4

Marvin Moss, an agent from a major talent agency, led 

negotiations for Link and Levinson. Attorney Barry Hirsch, who 

had worked in entertainment law since approximately the early 

1960s, also represented them. 

The 1971 negotiations culminated in a 17-page contract. 

The contract has two parts: a 15-page typed body (the 

Memorandum) and a two-page printed attachment (the Rider). 

When we use the word “contract,” we are referring to the whole 

deal: the Memorandum and the Rider together. We excerpt

these two parts in turn.

a

The Memorandum is typed on Universal letterhead. 

Executives at Universal negotiated the Memorandum’s terms 

with the writers’ representatives, Moss and Hirsch. A Universal 

typist then put the Memorandum on paper. 

The Memorandum is not a form contract. Its terms are 

personalized to the particulars of the ongoing relationship 

between Universal and the team of Link and Levinson. 

The Memorandum is long, organized, and detailed, but 

contains no section devoted to definitions. It uses the words 

photoplay or photoplays more than two dozen times. Sometimes 

it uses this noun alone and unmodified: photoplay. Other times 

it modifies the noun in five ways: television photoplays, 

anthological photoplays, episodic photoplays, pilot photoplay, and 

feature-length photoplay. 

The Memorandum’s paragraphs display structural logic. 

We tour them, pausing where appropriate.

The first paragraph specifies a guaranteed annual payment 

to the writers. The second paragraph lists their writing and 

producing duties. The third paragraph sets dollar sums of “ ‘per 
5

assignment’ compensations” for an array of specified possible jobs 

involving executive producing, producing, and writing. This 

paragraph has subsections, sub-subsections and so forth. 

Covering 11 pages, it is the Memorandum’s longest section. The 

guaranteed annual payment subsumes the per assignment 

compensation unless the latter exceeds the former, in which case 

Universal would pay the writers the greater sum.

The fourth and fifth paragraphs spell out other payments 

Universal would make to the writers: script consultant fees, 

contractual royalties, sequel royalties, and residuals. For the 

most part, these payments would be in addition to the 

guaranteed annual payment. These sums are not at issue here.

The sixth paragraph introduces the topic of this case: net 

profits. This provision grants the writers a share of net profits 

under certain conditions. “The computation of net profits shall be 

as per the attached [Rider].” The italics are ours. 

b

The Rider is attached to the Memorandum. This two-page 

printed form sets out a general formula for calculating and 

dividing net profits between Universal and the writers. 

The Rider devotes more than half of its text to definitions. 

Examples of its nine defined terms are Gross Receipts, 

Distribution Expenses, and Production Costs. Photoplay is not a 

defined term. 

The Rider uses the singular or plural version of the word 

photoplay more than 40 times. Most uses are unmodified: 

photoplay. The exceptions are references to feature-length 

television photoplays and pilot photoplays. There are no 

references to anthological photoplays, episodic photoplays, or 

other modified uses of the word photoplays.
6

After the definitions, the Rider discusses accountings and 

payments. This section requires Universal to provide periodic 

accounting statements. Accounting statements would not be 

required, however, during periods when the writers were not 

entitled to any payments.

For this appeal, the Rider’s crucial provision is its 

paragraph C, which authorizes Universal to act as the distributor 

of “the Photoplays.” This paragraph allows Universal to treat its 

distribution fees as expenses that reduce net profits. Thus, the 

larger Universal’s distribution fees, the smaller the net profits 

Universal would share with the writers. 

Paragraph C includes a cap on the size of Universal’s 

distribution fees that is significant in this case. We emphasize 

the key words: “such fees and charges shall not exceed those 

charged by [Universal] according to its then existing standard 

practices, applicable to photoplays owned, financed or distributed 

by [Universal], and in all other matters affecting gross receipts, 

distribution expenses, and production costs [Universal] shall 

adhere to the same practices and procedures according to which it 

normally conducts its business at the time in question with 

respect to photoplays owned, financed or distributed by 

[Universal].” 

3

Columbo was a hit. Universal’s trial counsel called it 

“incredibly successful.” Gross receipts for Columbo totaled about 

$600 million. NBC broadcast Columbo from 1971 to 1978. Link 

and Levinson produced the first season. ABC broadcast a second 

cycle of the show from about 1989 to 2003. 

Universal financed and paid for the production of both 

cycles of Columbo. That is, Universal did the work of making the 
7

show, including hiring and paying writers, actors, directors, 

camera operators, lighting and sound crews, wardrobe teams, 

editors, makeup artists, set designers, and the other personnel. 

Universal found the filming locations, supplied studios, 

equipment, post-production work, and so on. 

Universal also distributed the show. Distribution is the 

process of finding licensees and negotiating contracts to license 

programs. Universal negotiated agreements with television 

networks to air the original broadcast and to license the right to 

exhibit Columbo nationally and internationally. When Universal 

distributed programs itself, it charged distribution fees as a 

percentage of gross receipts. Universal said its distribution fees 

totaled about $160 million. 

Before the second cycle began, the parties believed the first 

cycle of Columbo was not in net profits. In 1988, Link and 

Levinson negotiated an amendment to the 1971 contract to 

preclude Universal from offsetting losses from the first cycle 

against potential profits from the second cycle. The amendment 

also modified the definition of net profits to specify how Universal 

would account for home video receipts. 

According to Universal, it did not send accounting 

statements to the writers because it did not believe the show was 

in net profits.

In 2013, Link asked for an accounting and an audit of 

Universal’s books. 

Universal contends it was allowed to cross-collateralize 

losses from the second cycle against profits from the first cycle, 

but it elected not to do so. According to Universal, this meant the 

first cycle of Columbo was in a net profits position. 
8

In November 2016 and January 2017, Universal sent 

accounting statements and checks of over $2.3 million each to 

Foxcroft and Fairmount for their portions of net profits. 

Universal later sent statements for the years 2016 and 2017 

along with checks that totaled over $200,000 each to Foxcroft and 

Fairmount for their portion of net profits in 2016 and 2017.

B

In November 2017, Foxcroft and Fairmount sued 

Universal. The writers alleged Universal breached the 1971 

contract. The main theory of their complaint was Universal owed 

the writers accounting statements and net profit payments, but 

Universal had not given the writers the statements and 

payments they deserved. 

The writers also alleged Universal committed fraud by 

entering the 1971 contract and by not sending accounting 

statements. They alleged but later dismissed other causes of 

action. 

In September 2018, Universal moved for summary 

judgment based on the statute of limitations. The court granted 

summary adjudication of the fraud claim. The court ruled the 

writers had suspicions that required them to investigate their 

concerns on a timely basis, which they had not done, according to 

the court’s analysis. The court denied Universal’s statute of 

limitations argument as to the contract claim, which was partly 

based on the writers’ challenge to the accuracy of a 2016 

accounting statement. 

Trial proceeded in three phases: a jury trial with a special 

verdict, a bench trial to decide remaining contract issues, and an 

accounting referee panel to determine damages. 
9

Shortly before trial, the case was assigned to a new judge. 

The new judge held a hearing to determine which contract 

interpretation issues should go to the jury. The Rider allowed 

Universal, when it distributes “photoplays,” to retain distribution 

fees according to its standard practice. The writers contended 

photoplays could mean many different things, they needed 

extrinsic evidence to interpret it, and the jury should interpret 

the word. Universal said photoplays in the Rider had a single 

meaning that included episodes of Columbo. Universal asked the 

court to interpret the 1971 contract and the word photoplays as 

matters of law. 

The court said it would decide later whether to allow the 

jury to make a special verdict finding about the meaning of 

photoplays.

The five-day jury trial was in February and March 2019. 

The main trial issues were whether Universal could deduct 

distribution fees and whether the writers’ contract claims were 

within the statute of limitations. 

Concerning distribution fees, the writers contended the 

word photoplays was ambiguous and the jury should construe it 

against Universal, meaning Universal breached the contract by 

deducting those fees from the studio’s net profits. The writers 

also argued Universal could not subtract any distribution fees 

because it failed to negotiate these fees, failed to attach a 

distribution fee schedule, and did not prove the fees it took were 

its standard practice in 1971. 

Among the trial witnesses were Hirsch, who was Link and 

Levinson’s lawyer in 1971, and Arnold Shane, who had worked 

for Universal from 1966 through 1990. Shane did not negotiate 

the 1971 contract but the contract named Shane as a recipient of 
10

a carbon copy of that document. The jury also heard from Link, 

from Levinson’s daughter, and from an accountant for the 

writers. Universal’s person most knowledgeable about certain 

topics was witness Milinda McNeely. McNeely is an attorney 

who did not begin at Universal until 2015 but who had 

researched old Universal files concerning this case. 

By the time of trial, Levinson and the agent, Moss, had 

died. 

We summarize some trial testimony.

Hirsch testified the words “episodic photoplays” for a series 

in the Memorandum meant television episodes for a series. He 

also said there are no standard terms for a profit participation 

deal with a studio. “Everything’s always negotiable.” He would 

negotiate distribution fees in every agreement, “if I can.” 

McNeely testified about a schedule of distribution fees that 

was Exhibit 9 at trial. This Exhibit 9 is important in this appeal, 

so we describe it.

Exhibit 9 is a schedule. This one-page typed document 

begins with the words, “Distribution charges shall be the 

following percentage of gross receipts.” The schedule then lists 

six categories of exhibitions, ranging from “First National 

Exhibition” to “Foreign Exhibition,” with assigned percentages 

ranging from 10 percent to 50 percent. Exhibit 9 thus lists by 

percentages how Universal would calculate its distribution fees.

Universal contended Exhibit 9 was its standard 

distribution fee schedule for 1971. Universal’s 1971 contract with 

Link and Levinson did not, however, attach Exhibit 9 or any 

other distribution fee schedule. 

McNeely testified Universal appended Exhibit 9 to some 

1971 profit participation deals but not to others. The writers 
11

elicited McNeely’s deposition testimony that there were “quite a 

few” other contracts where Universal omitted a schedule like 

Exhibit 9. McNeely could not explain why some contracts 

appended Exhibit 9 but others did not. The writers argued that 

this evidence showed Universal in 1971 did not have a standard 

distribution fee. 

The writers also elicited McNeely’s deposition testimony 

that Exhibit 9’s schedule bore no relationship to actual costs or 

expenses incurred by Universal. 

Shane, the retired Universal employee, said Universal 

indeed did have a standard distribution fee practice in 1971. He 

recited figures mirroring Exhibit 9. 

Before the court submitted the case to the jury, Universal 

again asked the court to decide the distribution fee issue rather 

than send it to the jury. Universal contended this interpretive 

question was purely legal, with no conflicting evidence about the 

negotiation, drafting, or intent of the parties.

The court denied this request.

The writers argued to the jury that the word photoplays did 

not include episodes of Columbo, and that Universal breached the 

contract because Universal had had no standard distribution fees 

in 1971. On both points, Universal argued the contrary. 

The jury returned special verdicts for the writers. Jurors 

concluded the 1971 contract did not allow Universal to deduct a 

distribution fee. The verdict form had other questions related to 

distribution fees. One of the questions was Question 4, which 

asked jurors to determine whether the Rider allowed Universal to 

deduct fees in the percentages described by Exhibit 9. The form’s 

instructions told the jury to skip the other distribution fee 

questions, including Question 4, if it found Universal was not 
12

allowed to take its distribution fees. Accordingly, the jury 

skipped these questions.

On the statute of limitations, the jury found in the writers’ 

favor. 

Phase two was a bench trial to resolve remaining issues. 

The court defined the word photoplays. It said the word was 

“intended to apply to any video recorded program” for which the 

writers are entitled to profit participations under the 1971 

contract, “which includes individual episodes of Columbo.” 

The court explained, “I am absolutely convinced that 

there’s no ambiguity as to what photo plays are in [the Rider]. . . . 

[¶] It’s very clear that [the Rider] was attached to that 

agreement with the understanding that it would apply to 

‘Columbo,’ and/or anything else that [the writers] produced for 

Universal during that period of time. So there may have been a 

pilot project. There may have been a movie. And it would have 

applied to all of those things. [¶] Which is why [the Rider] isn’t 

limited to just one photo play. It’s designed to cover anything 

that might be produced by [the writers].” 

We pause here to reiterate. The trial court after trial did 

what Universal had been urging it to do before trial: it defined 

photoplay to mean any video recorded program, including 

episodes of Columbo. 

The court also ruled the 1988 amendment was based on a 

mutual mistake of fact and the writers were entitled to rescind it. 

In phase three, the court appointed a panel of accounting 

referees to calculate the writers’ damages. Using the panel’s 

recommendation, the court entered a judgment of over $70 

million for the writers. 
13

Universal moved for judgment notwithstanding the verdict 

as to both of the jury’s findings. In the alternative, it asked for a 

new trial on the distribution fee issue. It also asked the court to 

vacate its decision to allow the writers to rescind the 1988 

amendment. 

The court denied Universal’s motion for judgment 

notwithstanding the verdict but granted the motion for a new 

trial on distribution fees. 

The court vacated its rescission of the 1988 amendment. 

The new trial would determine the propriety of distribution fees, 

and the court said about rescission that “we’ll cross that bridge 

when we get there.” 

The court held the word photoplays included episodes of 

Columbo. The court explained, “unfortunately, I think I’m going 

to have to say it was my mistake. I should have instructed the 

jury that photoplay was intended to include the episodes of 

Columbo in the agreement.” The court noted the writers’ theory 

about the meaning of photoplay was a major part of their 

argument about distribution fees and it likely affected the jury’s 

decision. 

The court ruled Universal had preserved its argument 

about the meaning of photoplays. It likewise determined there 

was no extrinsic evidence about the word. 

The court declined to grant judgment notwithstanding the 

verdict. As to the distribution fee issue, the court reasoned the 

jury’s finding could have rested on an independent ground. The 

court cited the writers’ theory that Universal could not take 

distribution fees because the parties did not negotiate the exact 

terms of these fees. 

Both sides appealed. 
14

II

We analyze this case in six steps. First we validate the 

trial court’s definition of “photoplays.” Second, we show why that 

ruling meant the trial court was right to order a new trial. Third, 

we demonstrate why the trial court properly denied Universal’s 

motion for judgment notwithstanding the verdict. Thus we 

affirm the orders denying this motion and granting a new trial. 

Fourth, we overturn summary adjudication of the writers’ fraud 

claim. Fifth, we affirm the trial court’s decision to vacate its 

ruling about rescission. Sixth, we note other issues that now are 

moot and that we do not reach. 

A

The trial court correctly interpreted the word photoplays to 

include episodes. In this case of textual interpretation, the trial 

court properly interpreted “photoplays” to mean “any video 

recorded program,” including Columbo episodes. 

Universal did not forfeit the “photoplays” issue. The 

writers attempt to frame this issue as a special verdict form 

problem that Universal forfeited. The trial court correctly found, 

however, the photoplay issue to be an issue of instructional error 

that Universal repeatedly raised.

We independently review contract interpretation when 

extrinsic evidence is not in conflict. (Gilkyson v. Disney 

Enterprises, Inc. (2021) 66 Cal.App.5th 900, 915.) We also 

independently review issues of law. 

When interpreting any text, including contracts, the vital 

thing for lawyers and courts is to pore over the writing. To 

discern the parties’ intent, we must read their document, line by 

line, over and over. The foundation for valid textual 

interpretation is the text. (RMR Equipment Rental, Inc. v. 
15

Residential Fund 1347, LLC (2021) 65 Cal.App.5th 383, 395.) 

The text is the beginning and the end of our inquiry on this 

question, for the trial court found, and the parties agree, there is 

no useful or conflicting extrinsic evidence about the meaning of 

the word photoplays. The people who negotiated the 1971 

contract do not recall the process or have passed away. 

This detailed 1971 contract takes care to define many 

terms expressly. Yet it does not define the word it uses many 

dozens of times: photoplay. This suggests the parties shared an 

understanding of the word that eliminated the need for an 

express definition. The problem is to recover that shared 

understanding from the contract’s usage. 

The trial court solved this problem. Its interpretation of 

the contract is sound.

The trial court defined photoplay as “any video recorded 

program.” That makes sense of every use of this word in the 

contract. Thus, a “television photoplay” is a video program 

shown on television. A “pilot photoplay” is a video program used 

as a pilot. And so on. 

This definition eliminates ambiguity from the contract. It 

makes the contract into a coherent and logical document. That 

fact is powerful textual support for the trial court’s definition, 

because the parties obviously toiled to state the meeting of their 

minds. Finding a way to make sense of their efforts honors their 

labor and their intention. That is the goal of textual 

interpretation in contract law: to discover and effectuate the 

parties’ intent.

The text offers two further validations. 

First, the Memorandum states Columbo “shall be 

considered a series” and also refers to “all photoplays of the 
16

series.” This usage logically means “photoplays” must include 

episodes, for no one in this appeal suggests how the Columbo 

series can be broken down other than by episode. The writers do 

not engage this “all photoplays of the series” language in their 

briefing. Universal stresses these words. The writers make no 

reply. 

Second, the Memorandum lists types of services Link and 

Levinson agreed to perform. One service was writing “episodic 

photoplays for series.” As Hirsch agreed, episodic photoplays are 

episodes. Hirsch was the lawyer for the writers. His testimony 

on this point, however, supported Universal. The word 

photoplays thus encompasses episodes of Columbo. 

The writers offer no competing definition of photoplays. 

Instead, they say the word photoplays is ambiguous and 

therefore we must find it does not include episodes of Columbo. 

Citing Rebolledo v. Tilly’s, Inc. (2014) 228 Cal.App.4th 900, 913, 

the writers say ambiguities are to be construed against the 

drafter. 

Universal does not contest this rule about ambiguity. (Cf. 

Farmers Automobile Ins. Assn. v. St. Paul Mercury Ins. Co. (7th 

Cir. 2007) 482 F.3d 976, 977 (opn. of Posner, J.) [the argument for 

this rule is “pretty feeble” when made by a sophisticated 

commercial actor rather than an individual consumer].) Rather, 

Universal accepts the rule but says it does not apply because the 

contract is not ambiguous.

The writers’ argument fails because there is no ambiguity. 

The Memorandum often uses the word photoplay with modifiers, 

like “feature-length photoplay” to refer to a movie or “pilot 

photoplay” to refer to a pilot episode. When used alone, the word 

photoplay is broad and can mean each of these different terms. 
17

The inclusive nature of the word shows it encompasses 

many things, including episodes of Columbo. It shows the trial 

court was right to define photoplay as any video recorded 

program.

An example illustrates the point. Suppose an author 

contracts to write books. The contract uses the words “fiction 

books,” “fantasy books,” “children’s books,” and “ebooks.” A term 

of the contract referring simply to “books” would be broad and 

unambiguous. It would include all types of books. The same is 

true for “photoplays” in the 1971 contract. 

The trial court’s interpretation of “photoplays” fits case law. 

In Photoplay Publishing Co. v. La Verne Publishing Co. (3d Cir. 

1921) 269 F. 730, 731, the United States Court of Appeals for the 

Third Circuit discussed the word’s origin. First published in 

1911, “Photoplay Magazine” took its name from “a contest for a 

‘new one-word name for a “moving picture show.” ’ ” (Ibid.) The 

goal of the contest was “ ‘to select a name which would be 

descriptive of the entertainment given in motion picture 

theaters.’ ” (Ibid.) The contest judges “selected the word 

‘Photoplay’ as being ‘more closely descriptive * * * than any other 

of the long list submitted.’ In announcing their decision, the 

judges stated that they were influenced in their selection ‘by the 

necessity of adopting a term which would be easily remembered, 

descriptive in character, simple, and appropriate.’ The judges 

recognized in the word ‘Photoplay’ a term ‘more closely 

descriptive of the entertainment given in motion picture theaters 

* * * than in any other of the long list submitted.’ ” (Ibid.) The 

word “denotes the reproduction of a play by means of 

photography.” (Id. at p. 732.) 
18

This account is from the dawn of movie history, long before 

the advent of television. It dovetails with the trial court’s 

definition of photoplay as any video recorded program. The fit is 

perfect: it leaves no play in the joint.

The court’s definition likewise meshes with California 

precedent. California courts have used “photoplay” as a generic 

term synonymous with films and television episodes. (E.g., Desny 

v. Wilder (1956) 46 Cal.2d 715, 724–725, 749–750 [using 

“photoplay” to refer to films]; Martyn v. Leslie (1955) 137 

Cal.App.2d 41, 48, 51 [referring interchangeably to “episodes” 

and “television photoplays”].) 

In sum, a proper grasp of this contract means the Rider 

allowed Universal to take distribution fees when it distributed 

episodes of Columbo. 

As a final note, we observe parties to a different contract 

might expressly define the word photoplay to give it a different 

meaning. Private contracting allows parties to adjust their 

relationship to achieve their particular goals. We have not 

defined the word for all seasons.

B

The trial court was right to order a new trial. The court 

granted a new trial because errors of law infected the old trial. 

On an appeal from an order granting a new trial, the appellate 

court will determine as a question of law whether any challenged 

ruling was erroneous. Once we find that error, however, we 

cannot substitute our judgment for that of the trial court on the 

essentially factual question of prejudice. At that point, the issue 

is not whether we would find prejudice as an original matter. 

Nor is the issue whether the trial court’s explanation supported a 

finding of prejudice. Rather, the sole issue is whether the order 
19

granting a new trial, viewed in the light of the whole record, 

constituted an abuse of discretion. (Treber v. Superior Court

(1968) 68 Cal.2d 128, 132.) 

The new trial order was sound because the jury verdict 

relied on two legal errors. First, the court allowed the jury to 

interpret the contract, which was an error the trial court later 

and forthrightly acknowledged and, after the trial, sought to 

rectify. Second, the jury may have incorrectly interpreted the 

word photoplays to exclude episodes of Columbo. The trial court 

rejected that reading of the contract as untenable. On 

independent review, we affirm the trial court’s legal analysis on 

these points.

Nor was there an abuse of discretion. The trial court had a 

sound grasp of the case. As an edifice, the verdict rested on a 

faulty foundation. The trial court found the fault, fixed it, and 

was fully entitled to rebuild anew.

C

The trial court correctly denied Universal’s motion for 

judgment notwithstanding the verdict.

On appeal from the denial of a motion for judgment 

notwithstanding the verdict, we determine if any substantial 

evidence, whether contradicted or not, supports the jury’s verdict. 

(Sweatman v. Dept. of Veterans Affairs (2001) 25 Cal.4th 62, 68.) 

If there is, we must affirm the denial of the motion. If the appeal 

challenging the denial of the motion raises purely legal questions, 

however, our review is independent. (Wolf v. Walt Disney 

Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.) 

We proceed under a deferential standard because 

Universal’s appeal is factual, not legal. Universal says no 

evidence supports any of the writers’ alternative justifications. 
20

This is incorrect. We see this by examining just one of the 

writers’ alternate theories.

One of the writers’ theories was that the contract did not 

allow Universal to deduct distribution fees in the percentages 

described in Exhibit 9, which we already have described. We also 

already have decided the contract gave Universal the right to 

deduct distribution fees. But how was Universal to calculate 

these fees? The Rider said, with our emphasis, these fees “shall 

not exceed those charged by [Universal] according to its then 

existing standard practices . . . .” What were those? Universal 

said Exhibit 9 set out its “standard practices.” The writers 

disagreed, saying Exhibit 9 was not attached to their 1971 

contract and Universal could not explain why, which proved

Universal had no “standard” practices. 

The verdict form addressed this very issue. It asked jurors 

to determine whether the Rider allowed Universal to deduct fees 

in the percentages described by Exhibit 9. This was Question 4 

on the verdict form. 

But jurors never answered Question 4, because the form 

told them to skip the question if they found the contract barred 

Universal from deducting any distribution fees. The jury made 

that finding, which the trial court and we have decided was 

incorrect as a matter of law. 

The unanswered Question 4 thus poses a crucial issue in 

this appeal.

Universal’s opening brief does not explain why Universal 

must prevail on Question 4 as a matter of law. This brief quotes 

Question 4 but does not do the work of demolishing this issue, 

which is essential to its effort to gain judgment notwithstanding 

the verdict.
21

The evidence on the proper answer to Question 4 is in 

conflict. Hirsch testified there were no standard terms. Shane 

testified to the contrary. The jury could have believed Hirsch and 

rejected Shane entirely. Resolving this conflict is a question for a 

fact finder. It is not a reason to enter judgment notwithstanding 

the verdict.

As an alternative attack on this same ruling, Universal 

points to the statute of limitations. It says it is entitled to 

outright victory because the jury was wrong to let the writers 

past this statute. 

There was, however, substantial evidence to back this jury 

finding. We cannot overturn the trial court’s ruling on this 

ground.

To review this statute of limitations issue, the jury found 

the writers did not discover facts before November 14, 2013, that 

caused them, or would have caused a reasonable person, to 

suspect Universal had failed to pay them or to render required 

accounting statements. The jury made a separate finding for 

Link’s company and for Levinson’s company.

Evidence supports the jury’s finding about the statute of 

limitations. We summarize it, first for Link and then for 

Levinson.

There was proof of Link’s sincere trust. Link trusted 

Universal to pay him if the studio owed him money. He had 

worked with Universal for decades. “I had a long relationship 

with them, and I knew all the big people there, and I trusted 

them.” When Universal sent him a check in 2016 for Columbo, 

that surprised Link. A reasonable inference was this tardy and 

surprising payment suggested something had been amiss at 
22

Universal for a long time, something that unsettled Link’s 

longstanding trust.

There is also evidence to support the finding based on 

Universal’s conduct before that payment. By not sending 

accounting statements, Universal’s omission represented to the 

writers that the show was not profitable. It would be logical to 

infer the writers understood the absence of accounting 

statements to mean Universal did not owe them money. In the 

end, however, Universal admitted it did owe them money, and 

sent checks for millions.

Universal also made direct representations. Link asked 

someone in finance at Universal why there were no profits. That 

person told Link, “I guess that there wasn’t any money,” and “He 

didn’t have an answer.” Link did not recall the date of that 

conversation. Alan Levine, an attorney who worked with Hirsch 

and represented Link and Levinson some time after the 1971 

deal, said Shane told him in 1988 that the first cycle of Columbo 

was a long way from net profit. Levine interpreted this to mean 

the show was in a “deep hole.” Being told there was not any 

money and the first cycle was in a deep hole would tend to make 

Link and Levinson believe Universal did not owe them money. 

Universal relies on Link’s 2018 statement that he “form[ed] 

a suspicion” he was “owed monies.” He formed this suspicion “a 

long time ago,” “maybe” at least 20 years ago.

This brief testimony is vague. In the context of this record, 

the jury had a sufficient factual basis for its finding.

Now we turn to Levinson. Universal’s argument about 

Levinson is weaker than for Link. This evidence comes from 

Levinson’s daughter, Christine Levinson. Before she received a 
23

check from Universal in January 2017, she had “no idea” whether 

Columbo was profitable. This is insubstantial.

Universal ineffectively points to other testimony. Link told 

Christine Levinson about the potential of a lawsuit sometime 

before 2013, but this does not mean she shared the concern. The 

record is silent about the content of the conversation. Christine 

Levinson also testified Link was the “king of complainers” and he 

complained about everything. The jury could have concluded she 

did not take Link seriously. 

We make inferences in favor of the judgment. To infer 

Christine Levinson shared Link’s suspicions on this basis would 

be an improper inference against the jury’s finding. 

Finally, Universal points to statements Christine Levinson

made about conversations with her mother, but the source of 

these statements is deposition testimony that was not included at 

trial. If we were to consider these statements, they were about 

the mother expressing frustration about a lack of profits from 

Columbo in spite of the show playing for many years. 

Frustration is not suspicion. Employees for instance may be 

frustrated by low salaries, but not suspect their employer has 

breached their employment contract. The writers also offered 

evidence that a show can be successful in a popular sense but not 

be profitable due to high production costs. A show’s popular 

success, alone, would not necessarily make a reasonable person 

suspicious in this context. This does not overcome the other 

evidence that supports the jury’s findings.

In short, the trial court correctly denied Universal’s motion 

for judgment notwithstanding the verdict.
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D

We reverse summary adjudication of the fraud claim 

because disputed fact questions plagued the statute of limitations 

issue. 

In finding the statute of limitations barred the writers’ 

fraud claim, the court relied on three facts: Link had vague 

suspicions; Link told Christine Levinson about the possibility of 

suing Universal; and Christine Levinson’s mother’s frustration. 

This evidence was contested, as we just have shown. Link’s 

supposed statement of suspicion was brief and vague. Other 

evidence gave a competing picture: Link had a long relationship 

with Universal, he trusted Universal would pay him, Universal 

represented there were no profits by failing to send accounting 

statements, and Universal employees said there was no money 

and the first run would never be profitable. The court said 

Christine Levinson “shared Link’s belief,” but this was at best an 

inference from the testimony and not something Levinson said. 

Disputed fact issues precluded summary adjudication of the 

fraud claim. 

E

The court properly vacated its rescission of the 1988 

amendment. Rescission is an equitable remedy. (Cameron v. 

Evans Securities Corp. (1931) 119 Cal.App. 164, 172.) We review 

an order granting rescission for an abuse of discretion. (Orozco v. 

WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 401.) The parties 

do not offer authority on the standard of review for vacating 

rescission, nor have we found any. Given the court’s considerable 

discretion in granting rescission, we apply a similarly deferential 

standard for vacating rescission. 
25

The writers say the court should not have vacated the 

rescission, but their argument wrongly presupposes the new trial 

order was incorrect. This is the writers’ only argument attacking 

the order vacating rescission. The trial court based its rescission 

order on the jury’s distribution fee finding, which the trial court 

abrogated. The court did not abuse its discretion by vacating the 

rescission order.

On the other hand, Universal asks us to rule the rescission 

itself was improper. This issue is not ripe. The propriety of 

rescission turns on Universal’s right to take distribution fees, and 

if so, the amount of the fees. A new trial will lend focus to these 

issues. The trial court then may revisit the question of equitable 

remedies in due course. (Cf. Pacific Legal Foundation v. 

California Coastal Com. (1982) 33 Cal.3d 158, 170–172 [a 

controversy is not ripe until the facts have sufficiently congealed 

to permit an intelligent and useful decision to be made].) 

In sum, the court did not abuse its discretion. 

F

We do not reach issues about damages and a trial 

continuance, which are now moot.
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DISPOSITION

We affirm the orders granting a new trial and denying 

judgment notwithstanding the verdict. We reverse the summary 

adjudication of the fraud cause of action. All parties shall bear 

their own costs on appeal.

WILEY, J.

We concur: 

GRIMES, Acting P. J. 

STRATTON, J.