38 Appellee's Answering Brief

Case: 18-55336, 02/20/2019, ID: 11201865, DktEntry: 38, Page 1 of 68
No. 18-55336
______________________________________________________________________________
IN THE
United States Court of Appeals

FOR THE NINTH CIRCUIT
______________________________________________________________________________
WAVERLY SCOTT KAFFAGA,

as Executor of the Estate of
Elaine Anderson Steinbeck,
Appellee,
v.
THE ESTATE OF THOMAS STEINBECK,
GAIL KNIGHT STEINBECK, and
THE PALLADIN GROUP, INC.,
Appellants.
______________________________________________________________________________
On Appeal from the United States District Court

for the Central District of California
Case No. 2:14-cv-08699
Senior District Judge Terry J. Hatter, Jr.
______________________________________________________________________________
ANSWERING BRIEF OF APPELLEE

______________________________________________________________________________
Andrew J. Thomas Susan J. Kohlmann

JENNER & BLOCK LLP Alison I. Stein
633 West 5th Street, Suite 3500 Brittany R. Lamb
Los Angeles, CA 90071 JENNER & BLOCK LLP
Phone: 213-239-5100 919 Third Avenue
Fax: 213-239-5199 New York, NY 10022
ajthomas@jenner.com Phone: 212-891-1690
Fax: 212-891-1699
skohlmann@jenner.com
Counsel for Appellee

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................iv
I. INTRODUCTION ...........................................................................................1
II. JURISDICTIONAL STATEMENT ................................................................ 2
III. ISSUES PRESENTED ....................................................................................3
IV. STATEMENT OF THE CASE ....................................................................... 4
A. FACTUAL BACKGROUND. .............................................................. 4

1. John Steinbeck and the Steinbeck Works. .................................. 4
2. The 1983 Agreement................................................................... 5
3. The 2004 Litigation..................................................................... 6
4. Thom and Blake’s 2014 Lawsuit Against the Estate. ............... 10

B. PROCEDURAL HISTORY. ...............................................................12
1. Background. ..............................................................................12
2. Summary Judgment. .................................................................12

3. Reconsideration Motion and Sanctions. ...................................13
4. Pretrial Filings. ..........................................................................13
5. Trial. ..........................................................................................14
a. The Evidence at Trial Established That Appellants

Interfered with the East of Eden Film Project. ............... 15
b. The Evidence at Trial Established That Appellants
Interfered with the Grapes of Wrath Film Project. ........ 17
c. The Evidence at Trial Established That Appellants
Engaged in Widespread Slander and Wrongdoing......... 19
i
d. The Evidence at Trial Established That Appellants

Acted in Willful Disregard of the 1983 Agreement
and the Court Decisions..................................................21
6. Judgment as a Matter of Law, New Trial, and Remittitur. ....... 22
V. SUMMARY OF ARGUMENT .....................................................................22

VI. STANDARD OF REVIEW ...........................................................................23
VII. ARGUMENT .................................................................................................26
A. THE DISTRICT COURT PROPERLY EXCLUDED

ARGUMENTS THAT WERE ALREADY RAISED AND
REJECTED. ........................................................................................26
1. Appellants Are Precluded from Challenging the Estate’s

Authority Under the 1983 Agreement. .....................................27
2. The Agreement-to-the-Contrary Issue Is Irrelevant and

Would Not Change the Outcome of this Lawsuit.....................31
3. The District Court Did Not Abuse Its Discretion in

Excluding Evidence and Testimony Related to Intentional
Interference That Sought to Relitigate Already Decided
Issues. ........................................................................................33
B. THE JURY’S DAMAGES AWARD WAS PROPER. ......................38
1. The Jury Properly Awarded Punitive Damages........................38

a. There Was Substantial Evidence Before the Jury
That Appellants Acted with Malice and Fraud. ............. 38
i. Appellants Acted with Malice. .............................40
ii. Appellants Acted with Fraud. ..............................43
b. The Estate Introduced Sufficient Evidence of Gail’s

Financial Condition. .......................................................44
c. Punitive Damages Were Necessary. ...............................47
2. The Jury Properly Awarded Compensatory Damages.............. 48
ii
a. Substantial Evidence Supports the Jury’s Award of

Compensatory Damages. ................................................48
b. Substantial Evidence Allows for an Interpretation

That Avoids Double Recovery. ......................................52
VIII. CONCLUSION..............................................................................................55
STATEMENT OF RELATED CASES ...................................................................57
STATEMENT WITH RESPECT TO ORAL ARGUMENT ..................................58
CERTIFICATE OF COMPLIANCE .......................................................................59

CERTIFICATE OF SERVICE ................................................................................60
iii
TABLE OF AUTHORITIES
CASES
A.G. v. Paradise Valley Unified School District No. 69, 815 F.3d 1195 (9th
Cir. 2016) ............................................................................................................36
Ashland Management Inc. v. Janien, 624 N.E.2d 1007 (N.Y. 1993) ................50, 51
Atlas Flooring, LLC v. Porcelanite S.A. DE C.V., 425 F. App’x 629 (9th Cir.
2011) .............................................................................................................53, 54
B&B Hardware, Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293

(2015) ..................................................................................................................30
Bailey v. Lamar Advertising Co., No. E052227, 2011 WL 5220221 (Cal. Ct.
App. Nov. 2, 2011) (unpublished) ......................................................................39
Baker v. Hazelwood (In re Exxon Valdez), 270 F.3d 1215 (9th Cir. 2001) ............ 24
Bankhead v. ArvinMeritor, Inc., 205 Cal. App. 4th 68 (2012) ................................45
Bardis v. Oates, 119 Cal. App. 4th 1 (2004) ...........................................................46
Bertero v. National General Corp., 13 Cal. 3d 43 (1974) .......................................42

Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S.
257 (1989) ...........................................................................................................25
Brumley v. Albert E. Brumley & Sons, Inc., 822 F.3d 926 (6th Cir.
2016) ...................................................................................................................31
Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th
Cir. 1996), aff’d, 526 U.S. 687 (1999)................................................................25
Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., 155 Cal. App. 3d 381
(1984) ..................................................................................................................45
Dorn v. Burlington Northern Santa Fe Railroad Co., 397 F.3d 1183 (9th Cir.
2005) ...................................................................................................................25
Dunlap v. Liberty Natural Products, Inc., 878 F.3d 794 (9th Cir.
2017) ...................................................................................................................24
iv
Egan v. Mutual of Omaha Insurance Co., 24 Cal. 3d 809 (1979) ...........................45

Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014) .............47, 53
Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) ............................24
Flores v. City of Westminster, 873 F.3d 739 (9th Cir. 2017), cert. denied, 138
S. Ct. 1551 (2018) .........................................................................................53, 54
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996)..............................25
GHK Associates v. Mayer Group, Inc., 224 Cal. App. 3d 856 (1990) ....................50
Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir. 1999) ..............................25
Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th Cir. 2003), abrogated on
other grounds as recognized in United States v. Lopez, 482 F.3d 1067 (9th
Cir. 2007) ................................................................................................24, 53, 55
Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009).....................................................26
Haddad v. Lockheed California Corp., 720 F.2d 1454 (9th Cir. 1983) .................. 37
Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008) ...............................24
Hilao v. Estate of Marcos (In re Estate of Marcos Human Rights Litigation),
496 F. App’x 759 (9th Cir. 2012) .......................................................................53
Johnson v. Ford Motor Co., 35 Cal. 4th 1191 (2005) .......................................47–48
Kode v. Carlson, 596 F.3d 608 (9th Cir. 2010) .......................................................25

Marriage of Tsatryan, No. B270784, 2019 WL 181171 (Cal. Ct. App. Jan. 14,
2019) (unpublished) ............................................................................................42
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir.
2011) ...................................................................................................................23
Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036 (9th Cir. 2005) ...... 31
Moore v. American United Life Ins. Co., 150 Cal. App. 3d 610 (1984) ...........46–47
Mull for Mull v. Motion Picture Industries Health Plan, 865 F.3d 1207 (9th
Cir. 2017) ............................................................................................................26
v
Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005) .....................................................26

Oyeniran v. Holder, 672 F.3d 800 (9th Cir. 2012) ..................................................28
Pavao v. Pagay, 307 F.3d 915 (9th Cir. 2002) ........................................................40
Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), cert.
denied, 556 U.S. 1253 (2009) .....................................................................7, 8, 31
Ramona Manor Convalescent Hospital v. Care Enterprises, 177 Cal. App. 3d
1120 (1986) .........................................................................................................42
Reynaga v. Sun Studs, Inc., 97 F. App’x 729 (9th Cir. 2004) .................................29
Richardson v. La Rancherita, 98 Cal. App. 3d 73 (1979) .......................................34
Ruvalcaba v. City of Los Angeles, 64 F.3d 1323 (9th Cir. 1995) ............................26
Seeley v. Seymour, 190 Cal. App. 3d 844 (1987) ....................................................51
Sengoku Works Ltd. v. RMC International, Ltd., 96 F.3d 1217 (9th Cir.
1996) ...................................................................................................................24
Simon v. San Paolo United States Holding Co., 35 Cal. 4th 1159
(2005) ..................................................................................................................46
Spencer v. Peters, 857 F.3d 789 (9th Cir. 2017) .....................................................25
Steinbeck v. Kaffaga, 702 F. App’x 618 (9th Cir. 2017) .......................11, 27, 29, 31
Steinbeck v. Kaffaga, No. CV 14-08681 TJH, 2016 WL 6025493 (C.D. Cal.

Feb. 18, 2016) .....................................................................................................11
Steinbeck v. McIntosh & Otis, Inc., 433 F. Supp. 2d 395 (S.D.N.Y. 2006),
rev’d, Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir.
2008) .............................................................................................................5, 7, 8
Steinbeck v. McIntosh & Otis, Inc., No. 04 CV 5497 (GBD), 2009 WL 928171
(S.D.N.Y. Mar. 31, 2009), aff’d, 400 F. App’x 572 (2d Cir. 2010) ...........8, 9, 27
Steinbeck v. McIntosh & Otis, Inc., No. 04 CV 5497 (GBD), 2009 WL 928189
(S.D.N.Y. Mar. 31, 2009), aff’d, 400 F. App’x 572 (2d Cir. 2010) .................7, 8
vi
Steinbeck v. Steinbeck Heritage Foundation, 400 F. App’x 572 (2d Cir. 2010),
cert. denied, Steinbeck v. McIntosh & Otis, Inc. 564 U.S. 1012
(2011) ..................................................................................................9, 10, 27, 28
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,

322 F.3d 1064 (9th Cir. 2003) ............................................................................30
United States v. Amlani, 169 F.3d 1189 (9th Cir. 1999) .........................................36
Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), abrogated on other
grounds by Lexmark International, Inc. v. Static Control Components,
Inc., 572 U.S. 118 (2014)....................................................................................39
Wetherbee v. United Insurance Co. of America, 18 Cal. App. 3d 266 (1971) ........ 46
Whittaker Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir.1992) ...........................53
Yamaha Corp. of America v. United States, 961 F.2d 245 (D.C. Cir. 1992) .......... 29
STATUTES
17 U.S.C. § 304 ..............................................................................................6, 10, 30
28 U.S.C. § 1291 ........................................................................................................2
28 U.S.C. § 1332 ........................................................................................................2
OTHER AUTHORITIES
Fed. R. Civ. P. 37 .....................................................................................................36
Fed. R. Evid. 611 .....................................................................................................35
9th Cir. R. 36-3 ........................................................................................................30

United States Census Bureau, Quick Facts: California, https://www.census.
gov/quickfacts/ca (last visited Feb. 20, 2019) ..............................................44–45
vii
I. INTRODUCTION
Appellants Gail Knight Steinbeck (“Gail”), the Estate of Thomas Steinbeck,
and the Palladin Group, Inc. (“Palladin”) (collectively, “Appellants”), seek to
overturn the jury verdict here, as well as the decisions of the District Court leading
up to the verdict, just as they have sought unsuccessfully to subvert a multitude of
court decisions over the last decade and a half of litigation. Underlying much of
their appeal is yet another attempt to question the validity of a settlement agreement
entered into in 1983 (the “1983 Agreement”) between, on the one hand, Elaine
Steinbeck (“Elaine”), the widow of iconic American author John Steinbeck, and, on
the other hand, Thomas Steinbeck (“Thom”) and John Steinbeck IV (“John IV”),
John Steinbeck’s two sons from a prior marriage.
At this point, multiple courts, including this one, in multiple decisions, have
upheld the 1983 Agreement as a valid and binding contract, including the provisions
that give the Estate of Elaine Anderson Steinbeck the exclusive power and authority
to control the exploitation and termination of the works of John Steinbeck (the
“Steinbeck Works”). Yet, Appellants again seek to hijack this lawsuit and use it as
a mechanism to relitigate the issue of the validity of the 1983 Agreement by arguing
that it is an “agreement to the contrary” under the Copyright Act. Not only has this
issue already been decided against Appellants in prior litigation—including in a
recent decision from this very Court—but this issue has absolutely no bearing on the
1
outcome of this lawsuit. The District Court properly excluded such argument,
evidence, and testimony that sought to undermine the holdings of multiple courts
confirming the validity of the 1983 Agreement.
Appellants also take issue with the damages award that the seven-person jury
unanimously imposed after a five-day trial. Based on copious evidence of
Appellants’ malice and fraud and the need for deterrence, it is beyond dispute that
the punitive damages award was both appropriate and essential to deter Appellants’
unlawful conduct. Finally, it is clear that the jury’s compensatory damages award
was supported by substantial evidence.
II. JURISDICTIONAL STATEMENT

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). This
Court has jurisdiction over this appeal under 28 U.S.C. § 1291. The District Court
entered summary judgment in favor of Plaintiff Waverly Scott Kaffaga (“Waverly”),
as Executor of the Estate of Elaine Anderson Steinbeck (the “Estate”), on her claims
for slander of title and breach of contract on November 1, 2016, ER0046–59, and
issued several evidentiary orders in favor of the Estate in 2017, ER0018–21;
ER0028–32. The jury rendered its verdict on the remaining claim for intentional
interference with prospective economic advantage in favor of the Estate and awarded
damages on all of the Estate’s claims on September 5, 2017. ER0011–17. The
District Court ruled on post-trial motions on February 13, 2018, ER0007, and final
2
judgment was entered on March 15, 2018, ER0001–04. Appellants timely filed a
notice of appeal on March 14, 2018. ER0060–84.
III. ISSUES PRESENTED

1. In light of multiple court holdings confirming the validity of the 1983 Agreement,
and the Estate’s exclusive authority over the exploitation of the Steinbeck Works
thereunder, did the District Court properly exclude argument, evidence, and
defenses that sought to relitigate the validity of the 1983 Agreement?
2. Given Appellants’ demonstrable disregard for and antipathy toward prior court
decisions upholding the Estate’s exclusive authority over the exploitation of the
Steinbeck Works, did the District Court properly deny judgment as a matter of
law, remittitur, and/or a new trial concerning the punitive damages award that a
seven-person jury unanimously imposed following five days of trial?
3. Did the District Court properly deny judgment as a matter of law, remittitur,
and/or a new trial concerning the damages awards for breach of contract and
slander of title, an award that a seven-person jury unanimously imposed after
hearing evidence, including testimony from 12 witnesses and the introduction of
78 exhibits, over the course of a five-day trial?
3
IV. STATEMENT OF THE CASE

A. FACTUAL BACKGROUND. 1
1. John Steinbeck and the Steinbeck Works.

John Steinbeck was an award-winning American author whose works include
The Grapes of Wrath, East of Eden, Of Mice and Men, and The Pearl. ER0227–
ER0229; ER0459–60; SER058; SER060. In 1950, John Steinbeck married Elaine,
and together they raised Elaine’s daughter from a prior marriage, Waverly, who
developed a close relationship with her stepfather. SER058; ER0227; ER0229;
ER0232–33; ER0245. John Steinbeck’s two sons from a prior marriage, Thom and
John IV (collectively, the “Sons”), lived with their mother. ER0231; ER0246;
SER058. John Steinbeck remained married to Elaine for 18 years until his death in
1968 and left all of his copyrights and the rest of his estate to her. ER0229; ER0234;
SER058.
Although John Steinbeck chose to leave the Steinbeck Works to Elaine only,
due to the renewal provision in the Copyright Act, the Sons were able to acquire an
interest in the domestic rights to certain Steinbeck Works that were renewed
following John Steinbeck’s death (the “Late Works”). ER0461–62; see also 17
U.S.C. § 304(a)(1)(C). In an effort to divide those domestic royalty interests in the
1 The Estate notes that many of the “factual” allegations in Appellants’ Opening
Brief do not contain citations. This is because many of those allegations cannot be
sourced to the record, since they are not accurate.
4
Late Works, 2 in 1974, Elaine and the Sons entered into an agreement (the “1974
Agreement”) that provided that Elaine would receive 50 percent of the domestic
royalties to the Late Works, and the Sons would each receive 25 percent. ER0461;
SER061.
2. The 1983 Agreement.

In what would become a recurring theme, in 1981, the Sons sued Elaine in the
Southern District of New York (“Southern District”), contesting the 1974
Agreement and accusing Elaine of fraud and misrepresentation. SER061. The
Southern District rejected these claims, granted Elaine’s motion for summary
judgment, and confirmed the validity of the 1974 Agreement. Id. Notwithstanding
this victory, when the Sons appealed, the parties entered into the 1983 Agreement.
ER0237–38; SER062.
The 1983 Agreement set forth a simple, mutually beneficial bargain: the Sons
would receive an increased share of the domestic royalties in the Late Works—one
third each, rather than a quarter—and, in exchange, as part of Paragraph 5 of the
1983 Agreement, the Sons agreed, while represented by counsel, that Elaine would
2 Elaine (and later her Estate) maintained her 100% interest in foreign royalties in
the Late Works, as well as her interest in works that were renewed by John Steinbeck
during his lifetime (the “Early Works”). ER0266; Steinbeck v. McIntosh & Otis,
Inc., 433 F. Supp. 2d 395, 399 (S.D.N.Y. 2006) (“M&O I”), rev’d, Penguin Grp.
(USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008).
5
have “complete power and authority to negotiate, authorize and take action with
respect to the exploitation and/or termination of rights” in the Steinbeck Works.
ER1568, ER1571; see also ER0237–38; ER0240. 3 As such, the Sons and their heirs,
have received, and continue to receive, their significantly increased share of the
domestic royalties in the Late Works to this day. SER062.
3. The 2004 Litigation.

In 1991, John IV passed away, and his former wife, Nancy Steinbeck, and
daughter, Blake Smyle (“Blake”), inherited his interest in the Steinbeck Works.
SER058; SER062. A few years later, in 1995, nearly 30 years after John Steinbeck’s
death, Thom married Gail. SER058. Around that time, Thom and Gail formed
Palladin, a management and production company. SER058–59. 4 In 2003, Elaine
passed away. SER062. Pursuant to the 1983 Agreement, Waverly, as executrix of
3 In 1976, seven years before the 1983 Agreement was executed, the Copyright Act
was amended to include “termination interests,” which enable an author or his or her
successors to recapture previously granted rights during strictly defined windows of
time. See 17 U.S.C. § 304(c). For works that were created prior to 1978, termination
may be effected during a five-year window beginning 56 years after the date on
which the copyright in the work was secured, and the termination notice must be
served at least two years, but no more than ten years, before the effective date in the
notice. Id. § 304(c)(3)–(4). Following an author’s death, his or her surviving spouse
or children (and, in some instances, grandchildren) inherit the author’s termination
interest. Id. § 304(c)(2).
4 Following Thom’s death in 2016, Gail is now the sole owner of Palladin. SER059.
6
Elaine’s Estate, acquired exclusive authority over the Steinbeck Works. ER1573;
ER0241; ER0460.
As soon as Elaine passed away, and notwithstanding that the 1983 Agreement
explicitly gives Elaine (and, following her death, her successors) “complete power
and authority” over exploitation and termination of the Steinbeck Works, Thom and
Blake immediately served termination notices related to the Steinbeck Works,
including one that purported to terminate Penguin’s publishing rights for certain
Steinbeck Works (the “Penguin Notice”). ER1571; Penguin Group (USA) Inc. v.
Steinbeck, 537 F.3d 193, 196–97 (2d Cir. 2008), cert. denied, 556 U.S. 1253 (2009);
M&O I, 433 F. Supp. 2d at 400.
Thom and Blake then sued Waverly, individually and as executrix of the
Estate, Elaine’s relatives, Waverly’s children, and McIntosh & Otis (“M&O”), the
longtime agent for the Steinbeck Works, among others, in the Southern District in
2004. ER0462–63. In this lawsuit (the “2004 Litigation”), Thom and Blake alleged,
as the Sons had two decades earlier, that the Estate had “impeded [Thom and
Blake’s] efforts to exploit their interests as blood heirs of John Steinbeck” and
challenged certain actions that Elaine, and later her Estate, had taken pursuant to the
1983 Agreement. Steinbeck v. McIntosh & Otis, Inc., No. 04 CV 5497 (GBD), 2009
WL 928189, at *1 (S.D.N.Y. Mar. 31, 2009) (“M&O III”), aff’d, 400 F. App’x 572
(2d Cir. 2010).
7
In response, the Estate counterclaimed for declarations that the purported
termination notices were invalid and that “the terms of the 1983 Settlement
Agreement continue to bind both Thomas and Blake and that neither can contest the
provisions set forth therein.” SER172–74. Penguin also sued Thom and Blake,
seeking a declaration that the Penguin Notice was invalid. Penguin, 537 F.3d at 199.
These two actions were consolidated for purposes of summary judgment. Id.
Though the Southern District initially determined that some of Thom and
Blake’s termination notices, including the Penguin Notice, were valid, see M&O I,
433 F. Supp. 2d at 402–04, it did not enter a final judgment and only certified the
issue of the validity of the Penguin Notice for appeal. The Second Circuit reversed
and held the Penguin Notice to be invalid. Penguin, 537 F.3d at 200, 202, 204.
The parties then returned to the Southern District to litigate Thom’s and
Blake’s remaining claims, which largely related to the validity of, and the Estate’s
conduct pursuant to, the 1983 Agreement. See Steinbeck v. McIntosh & Otis, Inc.,
No. 04 CV 5497 (GBD), 2009 WL 928171, at *1 (S.D.N.Y. Mar. 31, 2009) (“M&O
II”), aff’d, 400 F. App’x 572 (2d Cir. 2010); M&O III, 2009 WL 928189, at *1. The
Southern District granted summary judgment in favor of the Estate and M&O in its
entirety. M&O II, 2009 WL 928171, at *1; M&O III, 2009 WL 928189, at *1. The
Southern District unequivocally upheld Elaine’s authority under Paragraph 5 and
made clear that Elaine (and later her Estate) could wield her authority under
8
Paragraph 5 even “if it was in her interests and contrary to the sons’ interests or
objectives.” M&O II, 2009 WL 928171, at *2–3.
In order for Thom and Blake to perfect their appeal, in 2009, the parties
entered into a Stipulated Judgment to confirm the finality of the district court
judgment and resolve the Estate’s counterclaims. As part of that Stipulated
Judgment, Thom and Blake explicitly agreed, while represented by counsel, that (1)
the termination notices they had served were invalid, and (2) “the terms of the 1983
Settlement Agreement continue to bind” them and “neither can contest the
provisions set forth therein.” Compare SER172–74, with SER181.
The Second Circuit affirmed in full, upholding the bargain at the heart of the
1983 Agreement and confirming its validity:
The 1983 Agreement increased the Steinbeck sons’ shares in certain

copyright revenue, from one-quarter to one-third each, and, in return,
conferred upon Elaine Steinbeck ‘the complete power and authority to
negotiate, authorize and take action with respect to the exploitation
and/or termination of rights in the works of John Steinbeck in which
[John IV] and [Thomas] have or will have renewal or termination
rights.’ 1983 Agreement ¶ 5. This language is unambiguous and
forecloses any argument that the parties intended the Steinbeck sons to
retain control over Elaine Steinbeck’s exercise of the authority
conferred upon her . . . .
Steinbeck v. Steinbeck Heritage Found., 400 F. App’x 572, 575 (2d Cir. 2010), cert.
denied, Steinbeck v. McIntosh & Otis, Inc. 564 U.S. 1012 (2011) (emphasis added)
(brackets in original). The Second Circuit also confirmed that exercising termination
rights unilaterally without seeking Blake’s consent was “precisely what Elaine
9
Steinbeck was empowered to do under the 1983 Agreement,” and emphasized that
Blake’s “consent was not required for the exercise of Elaine Steinbeck’s authority
under that Agreement, and any attempt by [Blake] to exercise rights transferred to
Elaine Steinbeck likely would have violated the 1983 Agreement.” Id. at 578.
4. Thom and Blake’s 2014 Lawsuit Against the Estate.

In November 2014, Thom and Blake yet again sued the Estate, M&O, and
others—this time in the Central District of California (“Central District”)—seeking
a declaration that the 1983 Agreement is an unenforceable “agreement to the
contrary” 5 and alleging copyright infringement based on the Estate’s failure to
recognize certain purported termination notices served by Thom and Blake,
including ones that were at issue in the 2004 Litigation and within the scope of the
Stipulated Judgment. SER186–207. In August 2015, the Central District granted
the defendants’ motion to dismiss, holding that Thom and Blake’s claims were
barred by collateral estoppel. SER235–36. The Central District recognized that they
had already “litigated these claims ad nauseum” and were “attempting to use this
Court, after having exhausted their attempts in the Second Circuit, to revoke the
validity of the 1983 agreement to recover rights to the Steinbeck Works, after
5 The Copyright Act provides that “[t]ermination of the grant may be effected
notwithstanding any agreement to the contrary.” 17 U.S.C. § 304(c)(5).
10
Plaintiffs, cognizant of the value inherent in copyrights of the Steinbeck Works,
signed over control and authority to Elaine Steinbeck (Estate).” Id. 6
Thom and Blake then appealed to this Court, which unequivocally affirmed
the Central District’s decision. Steinbeck v. Kaffaga, 702 F. App’x 618 (9th Cir.
2017). This Court rejected Thom and Blake’s arguments that the 1983 Agreement
is an “agreement to the contrary” and fully recognized the binding nature of the 2004
Litigation. Id. at 619. This Court observed that “the district court correctly noted
[that] the parties have already litigated the precise issues raised in this suit ‘ad
nauseum’ in the Second Circuit,” specifically citing holdings of the Second Circuit
and the effect of the Stipulated Judgment. Id. Finally, this Court, like the courts
before it, confirmed the validity of the 1983 Agreement and held that “[t]he district
court correctly concluded that the Sons already have fully litigated whether they
have a right to issue and exploit copyright terminations of Steinbeck’s works, and
that the prior litigation held that the Sons do not have those rights.” Id. at 619–20
6 In evaluating a motion for attorneys’ fees, the Central District elaborated that Thom
and Blake’s claims were “frivolous” because they should have known that their
claims were barred by the 2004 Litigation and their “decision to file precluded claims
. . . was not objectively reasonable.” Steinbeck v. Kaffaga, No. CV 14-08681 TJH
(JCx), 2016 WL 6025493, at *1 (C.D. Cal. Feb. 18, 2016). The Central District also
determined that there was a need for deterrence, reiterating that Thom and Blake had
“litigated these claims ad nauseum” and recognizing that there was “a strong
indication that they will continue to litigate these issues with disregard to previous
judicial rulings.” Id.
11
(emphasis added). This Court thus found challenges to the 1983 Agreement to be
precluded by the 2004 Litigation and definitively laid to rest such challenges.
B. PROCEDURAL HISTORY.
1. Background.
Appellants’ flagrant violations of the 1983 Agreement barely paused
following the 2004 Litigation and, as these violations worsened, the Estate had no
choice but to file suit against Appellants in the District Court in November 2014.
SER090–115. Based on Appellants’ relentless interference with the Estate’s
exploitation of the Steinbeck Works—most notably with respect to proposed film
adaptations of East of Eden and The Grapes of Wrath, but also with respect to many
other Steinbeck Works—the Estate brought claims for breach of contract, slander of
title, and intentional interference with prospective economic advantage. Id.
2. Summary Judgment.
After months of discovery, the District Court granted summary judgment in
favor of the Estate with respect to its claims for breach of contract and slander of
title. ER0059. The District Court acknowledged that “the Southern District of New
York and the Second Circuit have recognized that the 1983 Agreement is a valid,
binding settlement agreement,” and determined that Appellants had breached the
1983 Agreement. ER0053–54. The District Court also held that Appellants had,
with respect to certain communications, slandered the Estate’s title based on
“evidence that [Appellants] have repeatedly and falsely asserted throughout the
12
industry and the media that they have an interest in and/or control over the . . . Works
which entitles them to a role in Steinbeck-related negotiations.” ER0055–56
(internal quotation marks omitted). The District Court declined to grant summary
judgment in favor of the Estate’s claim that Appellants had intentionally interfered
with the its negotiations for the East of Eden and Grapes of Wrath film deals, finding
that there were issues of fact for trial. ER0056–58.
3. Reconsideration Motion and Sanctions.

Following summary judgment, Appellants filed a baseless motion for
reconsideration, asserting, among other things, that the District Court had failed to
consider seven material “facts,” which largely sought to attack the continued validity
of the 1983 Agreement and the Estate’s authority thereunder. SER116–18. The
Estate opposed this motion and moved for sanctions against Appellants. ER1712.
On March 27, 2017, the District Court denied Appellants’ Motion for
Reconsideration because nearly all of the “facts” identified by Appellants were
actually legal arguments and, in any event, all had been considered by the District
Court as part of summary judgment. ER0040. Following an evidentiary hearing,
the District Court granted sanctions against Gail and her attorney. ER0034.
4. Pretrial Filings.
The Parties then began to prepare for a trial on the intentional interference
claim, as well as damages on all claims. SER003–05. Based on Appellants’ prior
13
actions, the Estate filed a motion in limine to preclude Appellants from relitigating
issues that had been decided as part of the 2004 Litigation and/or by the District
Court on summary judgment and reconsideration, which was granted two months
before trial. ER0028–30. But, mere weeks before trial, Appellants filed a motion in
limine that purported to seek an order authorizing the presentation of certain
argument, evidence, or testimony that related to their disagreement with the results
of the 2004 Litigation. ER0018. After again upholding the 1983 Agreement, the
District Court observed that Appellants had not identified with specificity the
arguments, evidence, and testimony they sought to introduce. ER0019–20.
5. Trial.
Trial began on August 29, 2017. Over five days, the jury heard from the
Estate’s seven witnesses 7 and Appellants’ six witnesses,8 and 78 exhibits were
admitted in evidence. SER065–81.
7 Since Thom passed away in August 2016, SER059, he testified by deposition at

trial, and portions of the video of his deposition that were played for the jury were
marked as Exhibit 474. ER0254; ER0257; SER437–53. The Estate also called Gail
as a hostile witness and, during the course of her testimony, portions of the video of
her deposition were played for the jury and the corresponding portions of the
deposition transcript were marked as exhibits. See ER0258–455; SER454–74;
SER477–87; SER491–99.
8 Both parties called Gail as a witness.
14
a. The Evidence at Trial Established That Appellants Interfered with

the East of Eden Film Project.
With respect to the Estate’s claim that Appellants intentionally interfered with
its deal with Universal Pictures (“Universal”) and Imagine Entertainment
(“Imagine”) for a film adaptation of East of Eden, the evidence at trial showed that
the Estate had accepted an offer from Universal and Imagine to adapt a two-part film
based on East of Eden, with writer and director Gary Ross and Academy Award-
winning actress Jennifer Lawrence attached. ER0534–35; ER0468; SER411.
The jury also learned that, within days of the deal going public, Gail expressed
an intent to disrupt the deal. SER251–56; ER0288–89. The evidence showed that
Gail then contacted Anna Culp, an executive at Imagine working on the project, and
falsely asserted that the Estate’s grant of rights was “vulnerable” and “tenuous at
best.” SER433–36; ER0292; ER0294. The jury also heard that Gail threatened
Masako Ichino, the Universal executive working on the project, with termination of
the film rights to East of Eden and, Gail told Ms. Culp that “if they decided to move
forward, then we’d just have to go ahead and terminate the rights” to East of Eden.
SER457; SER461; SER502; ER0534; ER0548–49. Unsurprisingly, Ms. Ichino
testified that she was “concerned” by these threats. ER0544–45. Gail testified that
she knew that serving a termination notice would disrupt the Estate’s deal and would
“put[] everything on hold” and require the negotiations to “start all over again.”
ER1141–42; SER457. Critically, the jury learned that there was no such termination
15
window for East of Eden—meaning that even under Appellants’ theory, there was
no good-faith basis to threaten termination. See, e.g., ER0478–80; see also infra
Part VII.A.2.
The jury also heard evidence that, on September 29, 2014, Appellants served
a petition with the California Labor Commissioner, in which they falsely claimed
that “Thomas either owns or controls 2/3’s of [the] domestic intellectual property
rights” to East of Eden and The Grapes of Wrath. SER063; SER347. 9 At Gail’s
behest, the petition was reported in the widely read Hollywood Reporter, in which
Gail falsely asserted that “there are multiple parties involved in the ownership of the
rights” and M&O’s sub-agent “has no right to make any deal without consulting with
the family and getting their agreement, and they do not have that consent.” SER397–
406; ER0355. The jury heard Ms. Ichino testify that, after reading this article,
including Gail’s statements, and conferring with Imagine, Universal “made a
decision to not go forward with the project.” ER0550–53. Indeed, the jury heard
Ms. Ichino testify that Gail’s various public statements about owning and exercising
control over East of Eden were the “impetus for [Universal] to walk away.” ER0556.
9 Elizabeth Winick Rubinstein of M&O explained that this statement was

“completely inaccurate” because Thom did not control any portion of these rights
and, instead, he was only entitled to “receive[] monies, a third of the monies on
domestic for East of Eden; and for Grapes of Wrath, he only received a quarter.”
ER0483–84.
16
The jury also heard evidence that, but for Appellants’ interference, the East of
Eden film adaptation would have been made. Elizabeth Winick Rubinstein,
President and Managing Agent of M&O, as well as Ms. Ichino and Ms. Culp,
testified that there were no creative concerns or scheduling obstacles at the time the
project was abandoned. ER0487; ER0547; ER0554–55; ER0585.
b. The Evidence at Trial Established That Appellants Interfered with

the Grapes of Wrath Film Project.
With respect to the Estate’s claim for intentional interference with a proposed
film adaptation of The Grapes of Wrath with DreamWorks, the jury heard that, in
2013, the Estate began negotiating with Chris Floyd, an executive at DreamWorks,
for the domestic film rights to The Grapes of Wrath. SER063; ER0491. The jury
saw evidence that, as soon as Gail learned of the Estate’s negotiations, Gail
expressed an intent to disrupt the negotiations, declaring to a friend that she was
“[o]n [her] way back to court . . . . That deal is going to fall apart.” ER0369;
ER0370–72; SER257–60; SER338–43; SER354–56.
The jury also saw evidence that Gail then contacted Mr. Floyd, cautioned him
about “mak[ing] a deal with the [Estate] alone,” and claimed that “the two/thirds
owners of the copyright”10 wanted to “give DreamWorks the chain of title you need.”
10Again, as Ms. Winick Rubinstein testified, see supra note 9, this statement was
blatantly false, as Appellants are only entitled to one quarter of the domestic
proceeds to a film adaptation of The Grapes of Wrath.
17
SER262; ER0373–74. The jury further heard Mr. Floyd agree that it is the nightmare
of every studio to be slapped with an injunction before a film is released because the
rights are questioned. ER0977. Indeed, there was evidence before the jury that
Appellants’ threats worked, because, at the same time that DreamWorks was
negotiating with the Estate for the rights, Appellants began negotiating a secret side
deal with DreamWorks. SER063; SER269–73; SER428–32; SER503–06; ER0380.
The jury saw that Appellants even entered into a confidentiality agreement with
DreamWorks that required DreamWorks to keep confidential (in perpetuity, with
respect to M&O) the fact of negotiations for the secret side deal and any financial
terms reached. SER269–73; SER428–32; ER0380–82.
The jury also learned that Appellants’ secret negotiations with DreamWorks
resulted in the execution of a confidential “Executive Producers/Rights Agreement,”
pursuant to which Appellants would receive $650,000 and an executive producer
credit in exchange for Appellants “consenting” to the Estate’s grant of rights and
“granting” equivalent rights without the need for further consideration. SER277;
SER064. The jury heard testimony from Mr. Floyd that the purpose of this secret
side deal was to ensure that DreamWorks was “getting rid of any potential claims
from everyone” and that the agreement was “like a waiver of a claim.” ER0958;
ER1003. Mr. Floyd testified that he believed this arrangement would solve the
problem of whatever claims Appellants had. ER0962–63. And, in his testimony,
18
Mr. Floyd confirmed that the $650,000 payment was full consideration for this
consent and for any potential rights that Appellants claimed they owned. ER0975.
Craig Wagner, an attorney who was involved in negotiating the secret side
deal on Appellants’ behalf, testified that the secret side deal was designed to take
care of the litigation threat that Appellants posed; he explained that the “studio’s job
is to button it up so that . . . people don’t come back and threaten them and ask for
more money and that kind of thing.” ER0864–65. And Gail herself testified that
the secret side deal “was basically a form of Thom quitclaiming any requirements
. . . so that he wouldn’t interfere with McIntosh & Otis so that [DreamWorks] could
make an underlying deal with McIntosh & Otis.” SER473.
c. The Evidence at Trial Established That Appellants Engaged in

Widespread Slander and Wrongdoing.
Beyond the unlawful conduct surrounding The Grapes of Wrath and East of
Eden, the jury was also presented with an abundance of evidence that Appellants
engaged in a systematic effort to attempt to gain control over the Steinbeck Works
and to spread misinformation sowing doubts about the Estate’s exclusive ability to
control the Steinbeck Works, thereby slandering the Estate’s title and breaching the
1983 Agreement. A representative sample of the key evidence of Appellants’
misconduct included:
• Gail falsely claimed to a rights database that Palladin represents the “film
and/or stage rights” to “The Grapes of Wrath, Of Mice and Men, The Red
19
Pony, [and] the short stories included in The Long Valley.” SER241;
ER0404; ER0407–408.
• Appellants purported to grant the film adaptation rights to the short story
“Flight” to a filmmaker. SER237; ER0405.
• Gail falsely claimed to an agent that Appellants control the underlying
rights to The Moon Is Down and The Pearl. SER244; ER0402–04.
• Appellants purported to grant rights to a composer to adapt an opera based
on The Pearl. ER0414–15; SER395.
• Gail discussed with her agent funding a film adaptation of The Pearl,
entering into a distribution deal with Disney, and approaching potential
financial partners, directors, and producers. ER0404; ER0411–13;
SER245–50.
• Gail sold copies of and told publishers that Thom owned copyrights related
to an audiobook of The Long Valley narrated by Thom. ER0404–05.
• Gail purported to grant permission to an author to use a passage from
Cannery Row in a book. ER0405.
• Gail told a film producer interested in adapting The Log from the Sea of
Cortez that her job was to protect the copyright interests of the “Steinbeck
family” and any attempts to move forward with the project without Thom’s
permission would place the project in jeopardy. ER0405–06; ER0410–11.
20
d. The Evidence at Trial Established That Appellants Acted in Willful

Disregard of the 1983 Agreement and the Court Decisions.
The jury was also presented with substantial evidence that Appellants
routinely misrepresented their interests in the Steinbeck Works. For example:
• Gail admitted that she falsely claimed that Appellants had authority over
the copyright interests of John IV’s heirs. ER0387–92; SER433.
• Gail admitted that she threatened to terminate East of Eden in 2015, even
though there was nothing subject to termination at that point. ER0364–65;
SER351–53.
• Gail admitted that she lied about Appellants controlling the underlying
rights to several projects, including The Moon Is Down and The Pearl.
SER480.
Additionally, the evidence at trial showed that Appellants lacked respect for
and acted in complete disregard of the terms of the 1983 Agreement and prior court
decisions upholding it. For example, the jury learned that:
• With respect to her challenges to the 1983 Agreement, Gail declared that
they would not “be over until I draw my last breath.” SER407.
• With respect to the 2004 Litigation, Gail testified that “in most places a
ruling like that won’t stand and it’s always going to be nebulous, it’s
always going to be at risk.” SER493–94.
21
• Thom testified (by deposition) that he had not reviewed the decisions in
the 2004 Litigation and that he “had no intention of stopping [his]
challenge to all of these things, so it really didn’t make a lot of difference
to [him] that a decision would go one way or the other until [he’d] finally
won.” SER447–48.
6. Judgment as a Matter of Law, New Trial, and/or Remittitur.

Following trial, Appellants filed a motion for judgment as a matter of law,
new trial, and/or remittitur, which was denied by the District Court. ER0008–10.
The District Court held that judgment as a matter of law was not warranted because
“the jury’s verdict was a reasonable conclusion supported by substantial evidence,”
and rejected Appellants’ request for a new trial, holding that “the verdict was
supported by substantial evidence.” ER0008–09. The District Court similarly
denied remittitur because it was “not convinced that the jury should have reached a
different verdict or that the verdict reached was improper.” ER0009.
V. SUMMARY OF ARGUMENT
It is beyond dispute that the question of the validity of the 1983 Agreement
and the Estate’s exclusive control thereunder has long been laid to rest. And, in any
event, whether the 1983 Agreement is an “agreement to the contrary” has no bearing
on the determinations of the Court and the jury that Appellants engaged in breach of
contract, slander of title, and intentional interference. Indeed, a recent decision by
22
this very Court rejected the precise argument that Appellants now seek to relitigate
(i.e., whether the 1983 Agreement is an impermissible “agreement to the contrary”)
and confirmed, once again, that the 1983 Agreement is valid and binding.
Appellants are precluded from raising this claim yet again.
In addition, Appellants’ challenges to the damages award unanimously
imposed by a seven-person jury following a five-day trial are without merit. First,
the evidence at trial clearly established Appellants’ malicious and fraudulent
conduct, and the need for an award that adequately punished and deterred such
behavior; thus the jury rightly awarded, and the District Court properly upheld, the
award of punitive damages. Indeed, the fact that Appellants continue to fight the
results of prior litigation, including the controlling recent decision from this very
Court, demonstrates why punitive damages are essential to deter Appellants’
unlawful conduct. Finally, as the record makes evident, the jury’s compensatory
damages award was supported by substantial evidence.
VI. STANDARD OF REVIEW

When reviewing a jury verdict, this Court considers whether there was
substantial evidence in the record to support the verdict, “which is evidence adequate
to support the jury’s conclusion, even if it is possible to draw a contrary conclusion.”
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 955 (9th Cir.
2011) (quotation marks omitted). This Court reviews jury verdicts for both
23
compensatory and punitive damages under the substantial evidence standard. See
Baker v. Hazelwood (In re Exxon Valdez), 270 F.3d 1215, 1247–48 (9th Cir. 2001)
(compensatory damages); Fair Housing of Marin v. Combs, 285 F.3d 899, 907 (9th
Cir. 2002) (punitive damages). “While the court must review the entire evidentiary
record, it must view all evidence in the light most favorable to the nonmoving party,
draw all reasonable inferences in the favor of the non-mover, and disregard all
evidence favorable to the moving party that the jury is not required to believe.”
Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008). The Court
“must not weigh the evidence, but should simply ask whether the plaintiff has
presented sufficient evidence to support the jury’s conclusion.” Id.
Accordingly, the Court cannot “substitute [its] judgment for that of the jury,”
but instead “must consider whether the record contains substantial evidence upon
which reasonable minds could base the verdict.” Sengoku Works Ltd. v. RMC Int’l,
Ltd., 96 F.3d 1217, 1221 (9th Cir. 1996). This Court therefore is highly deferential
to jury determinations and “do[es] not lightly cast aside the solemnity of the jury’s
verdict.” Graves v. City of Coeur D’Alene, 339 F.3d 828, 844 (9th Cir. 2003),
abrogated on other grounds as recognized in United States v. Lopez, 482 F.3d 1067
(9th Cir. 2007).11
11Challenges to jury verdicts are often appealed from the lower court’s denial of a
motion for judgment as a matter of law. Normally, these denials are reviewed de
novo. See Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 797 (9th Cir. 2017).
24
When reviewing whether the amount of a jury award is excessive, this Court
reviews the award under an abuse of discretion standard. Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 438–39 (1996). This Court “allow[s] substantial
deference to a jury’s finding of the appropriate amount of damages,” Del Monte
Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996),
aff’d, 526 U.S. 687 (1999), and should not “review directly the award for
excessiveness, or . . . substitute [its] judgment for that of the jury.” Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277–78 (1989). The abuse
of discretion standard requires the Court to uphold decisions that fall within a broad
range of permissible conclusions. See Kode v. Carlson, 596 F.3d 608, 612–13 (9th
Cir. 2010) (per curiam) (“We must uphold the jury’s finding unless the amount is
grossly excessive or monstrous, clearly not supported by the evidence, or based only
on speculation or guesswork.”).
This Court also reviews evidentiary rulings for an abuse of discretion, see
Spencer v. Peters, 857 F.3d 789, 797–98 (9th Cir. 2017), including limitations on
cross-examination, see also Dorn v. Burlington Northern Santa Fe Railroad Co.,
397 F.3d 1183, 1192 (9th Cir. 2005). Should a district court make an improper
But, after a jury trial, “[t]he standard of review for the denial of a motion for
judgment as a matter of law . . . is the same as the standard of review for reviewing
a jury’s verdict. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999).
“[B]oth the verdict and the denial of the motion must be affirmed if there is
substantial evidence to support the verdict.” Id. (quotation marks omitted).
25
evidentiary ruling, “judicial error alone does not mandate reversal.” Obrey v.
Johnson, 400 F.3d 691, 699 (9th Cir. 2005). Under the harmless error standard, the
Court “must find that the error affected the substantial rights of the appellant” in
order to reverse. Id. “A new trial is only warranted when an erroneous evidentiary
ruling ‘substantially prejudiced’ a party.” Ruvalcaba v. City of Los Angeles, 64 F.3d
1323, 1328 (9th Cir. 1995).
This Court reviews a district court’s summary judgment decision de novo.
See Mull for Mull v. Motion Picture Indus. Health Plan, 865 F.3d 1207, 1209 (9th
Cir. 2017).
Finally, it is well-established that this Court may affirm a district court for any
reason supported by the record, even if the Court disagrees with the precise
reasoning or holding of the district court. Griffin v. Arpaio, 557 F.3d 1117, 1121
(9th Cir. 2009).
VII. ARGUMENT
A. THE DISTRICT COURT PROPERLY EXCLUDED ARGUMENTS

THAT WERE ALREADY RAISED AND REJECTED.
The District Court properly rejected Appellants’ attempts to relitigate the
validity of the 1983 Agreement by granting summary judgment in favor of the
Estate, and it did not abuse its discretion in excluding evidence at trial that sought to
undermine the holdings of multiple courts on this issue. Indeed, the only thing that
has changed since the District Court’s rulings is that another court—the Ninth
26
Circuit—has upheld the 1983 Agreement and the Estate’s authority thereunder.
Kaffaga, 702 F. App’x at 619–20. After a total of nearly 15 years (and counting) of
litigation, Appellants still refuse to acknowledge that the validity of the 1983
Agreement has long been settled.
1. Appellants Are Precluded from Challenging the Estate’s Authority

Under the 1983 Agreement.
At every level, courts have affirmed that the 1983 Agreement is a valid and
binding contract. Steinbeck Heritage, 400 F. App’x at 575; M&O II, 2009 WL
928171, at *3. The Second Circuit explicitly held that the 1983 Agreement is
“unambiguous and forecloses any argument that the parties intended the [Sons] to
retain control over” the “exploitation and/or termination of rights in the works of
John Steinbeck.” Steinbeck Heritage, 400 F. App’x at 575. Not only did the Second
Circuit so hold, but Thom and Blake, while represented by counsel, even stipulated
that the terms of the 1983 Agreement continue to bind them and that they cannot
contest its provisions. Compare SER172–74, with SER181; SER183.12
12 In crafting an alternate reality in which the validity of the 1983 Agreement is still
an open issue, Appellants emphasize language in an overturned district court opinion
from the 2004 Litigation that did not even result in a final judgment and point to a
line in the Estate’s Motion to Dismiss before the Central District in which the Estate
noted that the first Second Circuit decision—which related to the validity of the
Penguin Notice—did not decide whether the 1983 Agreement is an “agreement to
the contrary.” Op. Br. 17, 26–28. Yet they ignore both the subsequent Stipulated
Judgment and Second Circuit opinion that definitively upheld the validity of
Paragraph 5 of the 1983 Agreement and affirmed that Elaine was empowered to
27
Based on these unequivocal holdings, the District Court rightly granted
summary judgment in favor of the Estate, notwithstanding Appellants’ attempts to
once again call into question the validity of the 1983 Agreement and the Estate’s
control over the exploitation and termination of the Steinbeck Works thereunder.
ER0053. Nor did the District Court abuse its discretion in excluding argument,
evidence, and testimony at trial that sought to relitigate the validity of the 1983
Agreement, including any arguments that the 1983 Agreement is an improper
“agreement to the contrary.” ER0028–30; ER0018–21.13
These rulings were appropriate under the doctrine of collateral estoppel; 14
Appellants cannot trot out legal theories for why they believe the 1983 Agreement
exercise Blake’s termination interests unilaterally pursuant to the 1983 Agreement.

Op. Br. 26–28; SER181; Steinbeck Heritage, 400 F. App’x at 575, 578.
13The District Court properly excluded argument and evidence concerning the
agreement-to-the-contrary issue shortly before trial, holding that “[n]othing in the
Copyright Act, or its amendments, forecloses authors and their heirs from
contracting amongst themselves to manage termination rights.” ER0019 (citing
Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1045–46 (9th Cir.
2005)).
14 Collateral estoppel bars relitigation of an issue where “(1) the issue [is] identical
in both proceedings; (2) the issue was actually litigated and decided in the prior
proceeding; (3) there was a full and fair opportunity to litigate the issue; and (4) the
issue was necessary to a decision on the merits.” See Oyeniran v. Holder, 672 F.3d
800, 806 (9th Cir. 2012). Here, there was an identical issue (the validity of the 1983
Agreement), that was actually litigated and decided by multiple courts in venues of
Appellants’ choosing, and resolution of that issue was integral to a decision on the
merits in each lawsuit, which, at bottom, sought to determine whether the 1983
Agreement is binding on the parties and whether the parties acted in accordance with
its terms. For a more detailed discussion of why Appellants are precluded from
28
is invalid in each successive lawsuit. See Reynaga v. Sun Studs, Inc., 97 F. App’x
729, 730 (9th Cir. 2004) (“Litigants may not have a second opportunity to prove a
fact or make an argument relating to an issue previously decided.”); see also Yamaha
Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (“[O]nce an issue
is raised and determined, it is the entire issue that is precluded, not just the particular
arguments raised in support of it in the first case.”).
In fact, these rulings were subsequently confirmed by this very Court shortly
after trial. Kaffaga, 702 F. App’x at 619–20. In related litigation, the parties
explicitly briefed whether the 1983 Agreement is an “agreement to the contrary” and
whether Appellants were precluded from raising this argument given the results of
the 2004 Litigation, see RJN, Exs. 1 & 2, and the Ninth Circuit held that “the parties
have already litigated the precise issues raised in this suit ‘ad nauseum’ in the Second
Circuit” and that “[t]he district court correctly concluded that the Sons already have
fully litigated whether they have a right to issue and exploit copyright termination
of Steinbeck’s works, and that the prior litigation held that the Sons do not have
those rights.” Kaffaga, 702 F. App’x at 619–20 (emphasis added). Appellants do
challenging the validity of the 1983 Agreement, the Estate respectfully refers the
Court to its prior briefing before this Court on this precise issue. See Request for
Judicial Notice (“RJN”), Ex. 2, at 19–39, submitted herewith.
29
not explain why they believe that this Court should reverse itself a mere year later;
indeed, they all but ignore this Court’s directly on-point decision. 15
Accordingly, there are now multiple layers of preclusion barring Appellants
from relitigating this issue. The District Court thus correctly granted summary
judgment in favor of the Estate and did not abuse its discretion in precluding
Appellants from using trial as a vehicle for the introduction of argument, evidence,
and testimony to undermine the prior courts’ holdings. Appellants cannot be
permitted to rehash already decided issues again and again; this is precisely the
behavior that the doctrine of collateral estoppel forbids. See B&B Hardware, Inc. v.
Hargis Industries, Inc., 135 S. Ct. 1293, 1302–03 (2015) (“Once a court has decided
an issue, it is forever settled as between the parties . . . . In short, a losing litigant
deserves no rematch after a defeat fairly suffered.” (internal quotation marks
omitted)). 16
15Appellants attempt to dismiss this Court’s decision as “nonprecedential.” Op. Br.

18, 30. However, Ninth Circuit Rule 36-3 makes clear that “[u]npublished
dispositions and orders of this Court are not precedent, except when relevant under
the doctrine of law of the case or rules of claim preclusion or issue preclusion.” 9th
Cir. R. 36-3 (emphasis added). Here, the Ninth Circuit decision clearly binds the
parties under the doctrine of claim preclusion, since identical claims were asserted
both here and in the prior litigation, there was a final judgment on the merits, and
there is privity between the parties. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).
16 In any event, it is well-established that the language in the Copyright Act
concerning “agreements to the contrary,” see 17 U.S.C. § 304(c)(5), was not meant
to foreclose agreements among heirs concerning the management of termination
30
2. The Agreement-to-the-Contrary Issue Is Irrelevant and Would Not

Change the Outcome of this Lawsuit.
Even if Appellants’ arguments were not definitively precluded by multiple
court decisions, a ruling that overturns all of the prior court decisions and deems the
1983 Agreement an “agreement to the contrary” would not have any impact on the
outcome of this lawsuit. This is because the agreement-to-the-contrary issue is
nothing more than a smokescreen; such a ruling would not change the fact that there
were no rights to terminate with respect to East of Eden, nor would it have any
impact on the Estate’s control over The Grapes of Wrath, a work that Appellants
acknowledge had already been terminated by Elaine pursuant to the 1983
Agreement.
At trial, Gail acknowledged that termination can only be exercised within
certain defined periods—specifically, 56 years after the date that the work was
published. ER0298–99. Gail also acknowledged that East of Eden was published
in 1952, and that the termination window was thus open between 2008 and 2013,
interests, such as the 1983 Agreement. See, e.g., Penguin, 537 F.3d at 202–03; Milne
ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1045–46 (9th Cir. 2005); cf.
Brumley v. Albert E. Brumley & Sons, Inc., 822 F.3d 926, 931 (6th Cir. 2016); see
also Kaffaga, 702 F. App’x at 619–20 (reaffirming that Appellants do not have “the
right to issue and exploit copyright terminations of Steinbeck’s works”). For an
extended discussion of why the 1983 Agreement is not an “agreement to the
contrary,” the Estate respectfully refers the Court to its prior briefing of this issue.
RJN, Ex. 2, at 39–52.
31
with notice required by 2011, at the latest. ER0299–301. Nevertheless, Gail
testified that, in 2014, she threatened Ms. Culp that the termination window for East
of Eden was open and that, if Universal/Imagine were to continue negotiating with
the Estate, Appellants would terminate the film rights to East of Eden. ER0304.
Furthermore, at trial, the evidence revealed that an agreement with the original
grantee made clear that the rights already had reverted to the Steinbeck heirs and
were no longer held by the grantee. ER1587; ER0465–66. As a result, even if the
termination window for East of Eden was open at the time Gail made her threats—
which it was not—there were no grants to terminate. These facts were confirmed by
the testimony of Ms. Winick Rubinstein. ER0478–80. Indeed, Appellants now
admit in their Opening Brief that Gail was “mistaken” when she made her threats.
Op. Br. 46.
Appellants’ position with respect to The Grapes of Wrath is even more
convoluted. In 1998, Elaine, on behalf of herself and Thom, served a termination
notice on Twentieth Century Fox with respect to the domestic film rights to The
Grapes of Wrath, SER389–93, and it was clear from the evidence at trial that
Appellants do not question the validity of this termination.17 For these purposes,
17For example, Gail’s initial email to Mr. Floyd attached the 1998 termination notice
and asserted that “the two/thirds owners of the copyright formed by this first
termination notice, filed by Elaine Steinbeck alone, want to make this deal with
32
Appellants ignore their arguments questioning the validity of the 1983 Agreement
and, instead, embrace it. As Gail admitted, Elaine served this termination notice
unilaterally, SER466; SER393, and could only do so pursuant to Paragraph 5 of the
1983 Agreement. Thus, Appellants have conceded Elaine’s authority to serve the
Grapes of Wrath termination notice under the 1983 Agreement and have been
perfectly content to reap the benefits of her unilateral termination.18 In short,
Appellants seek to have their cake and eat it too. That is, they seek to retain their
interest in the Grapes of Wrath film rights, which they only have if the 1983
Agreement is not an “agreement to the contrary,” while also wielding a tortured
understanding of agreement-to-the-contrary doctrine in an attempt to nullify the
aspects of the 1983 Agreement that do not suit them.
3. The District Court Did Not Abuse Its Discretion in Excluding

Evidence and Testimony Related to Intentional Interference That
Sought to Relitigate Already Decided Issues.
Appellants assert that the District Court improperly excluded argument and
evidence related to their so-called “reasonable beliefs” concerning their purported
ownership and control over the Steinbeck Works and their erroneous interpretation
you.” SER262. Gail also confirmed in her testimony that a termination of the film
rights to The Grapes of Wrath “had already been done.” ER0398.
18 Since The Grapes of Wrath is an Early Work, SER063, the only reason that
Appellants have any beneficial, pecuniary interest in the Grapes of Wrath film rights
is because Elaine served this termination notice pursuant to her authority under the
1983 Agreement.
33
of the 2004 Litigation. Op. Br. 45–48, 50–52, 54–55. Even assuming that
Appellants’ belief that they had ownership and control over East of Eden and The
Grapes of Wrath was sincerely held—in spite of multiple court decisions rejecting
that very belief—the law is clear that “[s]omething other than sincerity and an honest
conviction by a party in his position is required before justification for his conduct
on the grounds of ‘good faith’ can be established.” Richardson v. La Rancherita, 98
Cal. App. 3d 73, 82 (1979). Rather, an “objective basis for the belief” is required.
Id. Here, any “good faith” or “justification” defense is unavailable to Appellants, in
light of (1) the plain language of the 1983 Agreement, which has been upheld by
multiple courts, including this one; (2) the Stipulated Judgment in which Appellants
agreed that the 1983 Agreement is valid and that its terms cannot be contested; (3)
the fact that the evidence at trial definitively established that the termination window
for East of Eden had closed and there were no rights to terminate; and (4) Appellants’
concession that the 1983 Agreement is valid with respect to Elaine’s unilateral
termination related to The Grapes of Wrath.
Appellants also take issue with the fact that Gail “was not allowed to fully
explain” her answers when she was cross-examined by the Estate. Op. Br. 48–49,
52–53. But that is the nature of cross-examination. Gail’s counsel could have
revisited these issues during her redirect testimony or when they called her as a
witness in their case, but they chose not to. Similarly, Appellants take issue with the
34
fact that Gail purportedly was “blocked from testifying about her experience with
and understanding of the termination notices.” Op. Br. 49–50. However, the record,
including the portion quoted by Appellants, makes clear that the line of questioning
Appellants cited to was excluded because it was beyond the scope of Gail’s direct
testimony. Op. Br. 49–50; ER0425–26. This was not an abuse of discretion, since
it is well-established that “[c]ross-examination should not go beyond the subject
matter of the direct examination and matters affecting the witness’s credibility.”
Fed. R. Evid. 611(b). Appellants’ counsel did not revisit this line of questioning
when they called her as a direct witness later on in the trial. ER1132–47. 19
Appellants also fault the District Court for excluding the testimony of Louis
Petrich, who they claim “would have testified about Gail’s understanding of her
termination rights,” but misrepresent the actual reason that Mr. Petrich’s testimony
was excluded. Op. Br. 53. At the outset of trial, the Estate objected to Mr. Petrich
being called as a witness due to concerns that (1) though Appellants purported to
call him as a fact witness, they actually intended to use him as an undisclosed expert
witness on termination law, and (2) Appellants would attempt to elicit testimony
19 Bizarrely, Appellants claim that the District Court “stopped Gail from testifying
fully about information she may have received from Jonathan Sanger about potential
termination rights,” but the exchange that they cite is Ms. Culp’s testimony at trial,
who was permitted to testify concerning Mr. Sanger. Op. Br. 53–54; ER0588.
35
from Mr. Petrich that hinted at privileged matters, but the Estate would not be able
to adequately cross-examine him due to the invocation of privilege. ER0109–17.
The District Court ruled that Mr. Petrich should be permitted to testify outside
the presence of the jury first, after which it would make a determination as to
admissibility. ER0117–18. Over the course of Mr. Petrich’s testimony outside the
jury’s presence, it quickly became apparent that the Estate’s concerns were valid,
and he was excluded for those reasons. ER0737–53. This thorough process was
clearly not an abuse of discretion. See A.G. v. Paradise Valley Unified Sch. Dist.
No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016) (making clear that witness cannot
provide opinions on legal conclusions); United States v. Amlani, 169 F.3d 1189,
1195–96 (9th Cir. 1999) (holding that defendant could not make representations
about his interactions with his attorney “and then invoke the attorney-client privilege
to prevent the government from examining the situation further”); Fed. R. Civ. P.
37(c) (forbidding use at trial of expert witnesses that were not properly and timely
disclosed).
Appellants also vaguely allude to “other witnesses” who were excluded, who
would have testified to “specifics of the termination rights.” Op. Br. 53. They do
not provide any information on who these witnesses were or when they were
excluded, nor do they cite to any proffer as to what these witnesses would have said.
The portions of the record they cite do not provide any insight (or even pertain to
36
witnesses). ER0005–10, ER0024–27. 20 Appellants also assert that they were barred
from presenting “additional testimony” that purportedly would show that the secret
side deal “was done to ensure DreamWorks had Thom’s knowledge about his father
as well as all ownership and control over the necessary copyrights.” Op. Br. 56.
Again, they present no specifics.21
None of Appellants’ quibbles with the District Court’s evidentiary rulings
have merit, and the District Court did not abuse its discretion. In any event, there
was substantial evidence to establish Appellants’ intentional interference, see supra
Part IV.B.5.a–b, and the jury more probably than not would have reached the same
result, even if the evidence referenced above had been admitted. See Haddad v.
Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir. 1983).
20Appellants called six witnesses at trial, even though they initially identified 35
witnesses on their Witness List, SER085–89, and they were only barred from calling
two—Mr. Petrich and the Estate’s counsel. ER0107; ER0753. They simply chose
not to call the rest.
21 In any event, as Appellants recognize, Gail testified at length concerning
DreamWorks’s purported desire for Thom’s supposed “knowledge” about a novel
that was written before he was born, Op. Br. 56 (citing ER0442–43); ER0447, and
the jury apparently gave little weight to this testimony. Appellants also seem to miss
the point: their actions were wrongful because they improperly claimed “ownership
and control over the necessary copyrights.” Op. Br. 56. Additional testimony on
this point would have harmed their case, not benefitted it.
37
B. THE JURY’S DAMAGES AWARD WAS PROPER.

After hearing testimony from 12 witnesses and reviewing dozens of exhibits
over the course of five days of trial, a jury unanimously imposed $13.15 million in
compensatory and punitive damages against Appellants. Appellants now seek to
dismantle that award, to no avail. Because the damages award was supported by
substantial evidence and the District Court did not abuse its discretion in affirming
the amount of the punitive damages award, this Court should affirm the jury’s
unanimous award.
1. The Jury Properly Awarded Punitive Damages.

Appellants raise three challenges to the punitive damages award: (1) that
certain excluded evidence would have shown that Appellants did not act with the
requisite malice or fraud; (2) that the Estate did not introduce sufficient evidence of
Gail’s financial condition at trial; and (3) that punitive damages were somehow
unnecessary given the compensatory damages award. Op. Br. 56. Each of these
arguments is without merit. 22
a. There Was Substantial Evidence Before the Jury That Appellants

Acted with Malice and Fraud.
At trial, the jury was properly instructed that it could award punitive damages
against Gail and Palladin if they had acted with “malice, oppression or fraud.”
22 Appellants do not challenge any of the jury instructions on appeal.
38
ER1262–63. Appellants argue that certain evidence excluded at trial “would have
shown that Gail and Thom lacked any fraudulent or malicious intent because they
reasonably believed they had termination rights and control over at least some
Works.” Op. Br. 58. 23 This line of argument is beside the point, however, because
courts have made clear that a defendant willfully disregards a plaintiff’s rights, and
thus acts with malice, when he or she is aware of the plaintiff’s rights and the cases
affirming those rights, yet proceeds to act in derogation of those rights. That the
defendant mistakenly believed otherwise or interpreted those rights differently is
irrelevant. See, e.g., Bailey v. Lamar Advert. Co., No. E052227, 2011 WL 5220221,
at *5 (Cal. Ct. App. Nov. 2, 2011) (unpublished); Waits v. Frito-Lay, Inc., 978 F.2d
1093, 1105–06 (9th Cir. 1992), abrogated on other grounds by Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118 (2014). 24
23 The evidence that Appellants claim was improperly excluded with respect to
punitive damages is apparently the same as the evidence they claim was improperly
excluded with respect to intentional interference. Op. Br. 58. For the reasons
discussed above, see supra Part VII.A.3, such evidence was properly excluded by
the District Court.
24 In Waits, a jury ruled in favor of plaintiff on his claim for improper use of his
voice and awarded him punitive damages. On appeal, the defendants argued that the
law was unclear and that they believed, under their interpretation of case law, that
their use of plaintiff’s voice would not violate his rights. The Ninth Circuit was
unpersuaded and held that the rights were clear under prior precedent and that the
defendant could not escape merely “because they read the legal precedents
differently.” Waits, 978 F.2d at 1105. It determined that “in spite of their awareness
of [the] legal right . . . [defendants] acted in conscious disregard of that right.” Id.
at 1106.
39
In any event, even if Appellants could have shown that they genuinely
believed they had the rights they lied about having, this would not change the fact
that there was an overwhelming amount of evidence from which the jury could find
that Appellants acted with both malice and fraud. See Pavao v. Pagay, 307 F.3d
915, 918 (9th Cir. 2002) (“A jury’s verdict must be upheld if it is supported by
substantial evidence . . . , even if it is also possible to draw a contrary conclusion.
. . . [A]lthough the court should review the record as a whole, it . . . may not
substitute its view of the evidence for that of the jury.” (internal quotation marks
omitted)).
i. Appellants Acted with Malice.

As the jury was instructed, “malice” refers to actions taken “with intent to
cause injury” or conduct that is “despicable” and “with a willful and knowing
disregard of the rights or safety of another.” ER1263. Here, there was substantial
evidence before the jury that Appellants’ actions were malicious.
First, the jury saw that Appellants were well aware of the Estate’s exclusive
authority under the 1983 Agreement and the court decisions upholding it, yet
consciously and willfully disregarded the Estate’s rights and consistently acted to
undermine that authority. At trial, Gail admitted that she is “very much” familiar
with the 1983 Agreement, see ER0266, and that she is aware of the subsequent court
40
decisions upholding it, ER0287; SER466–48. Thom25 also entered into the
Stipulated Judgment, while represented by counsel, in which he agreed that the 1983
Agreement is binding and that he would not contest its terms. Compare, SER172–
74, with SER181. Moreover, Gail admitted that she understood that the legal effect
of the prior litigation was to leave the Estate with “unfettered control.” SER487.
Yet, the jury saw that, from the moment Appellants learned of the Estate’s
East of Eden and Grapes of Wrath negotiations, they specifically sought to harm
those deals. SER251–63; SER354–56. Indeed, at trial, the jury saw substantial
evidence that Gail engaged in a systematic campaign to derail the Estate’s
negotiations for East of Eden by undermining the Estate’s authority to negotiate the
deal, threatening termination rights that did not exist, and making false claims
throughout the industry. See supra Part IV.B.5.a. Similarly, Gail lied to
DreamWorks about Appellants’ authority over the film rights to The Grapes of
Wrath and knowingly targeted an essential requirement of film deals—clean chain
of title—thus playing on the studios’ well-established fear of rights litigation, until
25 Though punitive damages were imposed against Gail and Palladin, Thom’s
statements and actions were still relevant, as the jury was instructed to consider
conduct by Palladin’s officers, directors, or managing agents, ER1262–63, and
Thom was a joint owner and “[i]ncorporator” or “[f]irst director” of Palladin.
SER058.
41
DreamWorks felt it had no choice but to enter into a payoff with Appellants to
preserve its deal with the Estate. See supra Part IV.B.5.b.
Additionally, the jury heard Gail brazenly testify that, notwithstanding the
court decisions against Appellants, she still believes she has a right to be involved
in the Steinbeck Works, and the jury heard her admit to nearly two dozen instances
of improper exploitation of the Steinbeck Works. ER0692–0708; ER0287. Such
conduct rises to the level of willful and conscious disregard, meriting the award of
punitive damages. See Marriage of Tsatryan, No. B270784, 2019 WL 181171, at
*7–8 (Cal. Ct. App. Jan. 14, 2019) (unpublished) (affirming finding of willful and
conscious disregard based on contravention of court orders and legal duties);
Ramona Manor Convalescent Hosp. v. Care Enterprises, 177 Cal. App. 3d 1120,
1142 (1986) (affirming punitive damages for defendant’s conscious disregard of
plaintiff’s rights).26
26 Though Appellants attempt to use a single self-serving and perfunctory line of

Gail’s testimony that she did not have “ill will” toward Waverly as a shield, Op. Br.
59, when viewed against this overwhelming evidence of malice, it is clear that this
is insufficient. Indeed, despite Appellants’ attempts to cherry-pick Gail’s testimony,
in reality, there was substantial evidence from which the jury could conclude that
Appellants’ conduct was driven by a desire to injure the Estate and evidenced an
improper motive of “hatred or ill will” meriting the award of punitive damages.
Bertero v. Nat’l Gen. Corp., 13 Cal. 3d 43, 66 (1974). For example, Gail described
the Estate as “crooks” in a call to Imagine, SER433, and described the Estate’s
“greed and malice” in an email to DreamWorks, SER262. Thom described the
decision to litigate in 2004 as a deeply personal one. SER445 (Thom stating that he
sued Appellee and her family in 2004 because he “didn’t agree with her maintaining
42
ii. Appellants Acted with Fraud.

There was also substantial evidence before the jury that Appellants acted
fraudulently, thus justifying the award of punitive damages for that reason as well.
The jury was instructed that it could find Appellants acted with “fraud” if they
“intentionally misrepresented or concealed a material fact and did so intending to
harm plaintiff.” ER1263. Here, there was substantial evidence that Appellants
consistently misrepresented their ability to control the Steinbeck Works throughout
the industry. For example, the jury saw Gail unapologetically testify that,
notwithstanding the 1983 Agreement and the court decisions upholding it, she
routinely exploited the Steinbeck Works or informed others that she had the right to
do so. SER483; ER0692–0707. Indeed, the jury saw that, at the time of trial, Gail’s
LinkedIn profile still represented that Palladin manages and markets the literary
library of John Steinbeck. ER0415–17; SER488. All of these representations were
false.
Additionally, the jury heard evidence that Gail knowingly lied to
DreamWorks and Imagine that she had authority over the copyright interests of John
IV’s heirs in an effort to inflate her control over the Steinbeck Works. ER0384;
ER0386–89; ER0391–92; SER262; SER433; SER475. Finally, the jury heard
my father’s inheritance”). And, Gail has also similarly described this legal battle as
a personal one that would continue “until [she drew] her last breath.” SER407.
43
evidence that Gail lied to Universal and Imagine about Appellants’ ability to
terminate the film rights to East of Eden, despite the fact that there was nothing to
terminate and, even if there had been, the window had closed at the time Gail made
her threats. ER0299–0301; ER0478–80; ER0296–97; ER0363–65; SER351. Again,
all of this was done with the aim to undermine the Estate’s exclusive authority and
improperly gain control over the Steinbeck Works.
b. The Estate Introduced Sufficient Evidence of Gail’s Financial

Condition.
Appellants claim that the Estate did not meet its burden of introducing
evidence of Gail’s financial condition. Op. Br. 61. Yet it is clear from the record
that there was meaningful evidence before the jury on this issue and the District
Court did not abuse its discretion in upholding the punitive damages award. Gail
testified that she receives at least $120,000 per year from domestic book royalties
for the Late Works alone, and even bragged that this was the “low end” of her annual
royalties. ER0259; ER0270–71. Indeed, she boasted that she received around
$200,000 from book royalties alone in the previous year. ER0271. 27 In addition,
27Appellants attempt to portray Gail as having “limited financial means” and claim
that $120,000 to $200,000 per year would not be enough for her to live off of. Op.
Br. 61–62. The suggestion that an income stream that is nearly four times the per
capita income in California—which she is entitled to receive without having to do a
single day of work—is not enough for Gail to live off of is difficult to credit. See
U.S. Census Bureau, Quick Facts: California, https://www.census.gov/quickfacts/ca
44
Gail testified that she has multiple other income streams, including theatre royalties
and film option payments. ER0259; ER0270–71.
The jury was also presented with evidence concerning Appellants’ future
earnings, including that Palladin has four television series and six feature films in
development, for which Gail will be paid a producing fee once they are optioned or
licensed. ER0423–24; ER1152. Moreover, Gail testified that Palladin is working
with “a new agent in New York” on Thom’s works. ER0424.
Finally, it was clear from the evidence at trial that Appellants have few, if any,
liabilities. Appellants do not have any children, ER0232, and Gail admitted that she
had not claimed any dependents in previous years, ER1153–54. Additionally, Gail
testified that she does not have a mortgage, nor has she mortgaged her future royalty
streams. ER1154–55. In sum, the evidence established that Gail has steady and
significant streams of current income with few, if any, financial liabilities. 28
(last visited Feb. 20, 2019) (listing “[p]er capita income in past 12 months (in 2017
dollars), 2013–2017” for California as $33,128).
28While Appellants attempt to cite Egan v. Mutual of Omaha Insurance Co., 24 Cal.
3d 809 (1979) for the proposition that “[a]n award which exceeds more than two and
one half months of a defendant’s annual net income is excessive,” Op. Br. 60, the
law is clear that awards “are not [to be] evaluated under a rigid formula,” Bankhead
v. ArvinMeritor, Inc., 205 Cal. App. 4th 68, 78 (2012); Devlin v. Kearny Mesa
AMC/Jeep/Renault, Inc., 155 Cal. App. 3d 381, 388 (1984) (“[T]he formula does not
exist.”). Indeed, the Egan court simply considered, as one factor, that the punitive
damages award exceeded more than two-and-one-half months of the defendant’s
annual income, and it did not, as Appellants seem to suggest, declare this to be the
golden ratio in all cases. Egan, 24 Cal. 3d at 823–24.
45
Furthermore, the jury was instructed that financial condition was one of
several factors to consider in determining the amount of the punitive damages award,
and that it should also consider the reprehensibility of Appellants’ conduct and the
relationship between the Estate’s harm and the amount of the punitive damages
award. ER1264. Here, as discussed above, see supra Part VII.B.1.a, there was
considerable evidence before the jury concerning the necessity of a punitive
damages award and the reprehensibility of Appellants conduct.29 Moreover, the
relationship between compensatory damages and punitive damages is extremely
low—1:1.5—and falls well within the range of acceptable proportions. Bardis v.
Oates, 119 Cal. App. 4th 1, 26 (2004) (approving punitive award that was
“approximately four times the amount of compensatory damages” (quotation marks
omitted)); Wetherbee v. United Ins. Co. of Am., 18 Cal. App. 3d 266, 270–71 (1971)
(approving punitive award that was 190 times compensatory award); Moore v. Am.
29 Indeed, courts have held that reprehensibility—which considers whether the

“conduct involved repeated actions or was an isolated incident” and whether the
harm stemmed from “intentional malice”—is “the most important indicium of the
reasonableness of a punitive damages award.” Simon v. San Paolo U.S. Holding
Co., 35 Cal. 4th 1159, 1180 (2005) (internal quotation marks omitted). The
reprehensibility of Appellants’ conduct is evident from the fact that they repeatedly
and continuously disregarded the 1983 Agreement and the court decisions
interpreting it by intentionally disrupting the Estate’s Steinbeck-related negotiations
and undermining the Estate’s exclusive authority over the Steinbeck Works.
46
United Life Ins. Co., 150 Cal. App. 3d 610, 636 (1984) (approving punitive award
that was 83 times compensatory award). 30
c. Punitive Damages Were Necessary.

Though Appellants assert, without any support whatsoever, that “the punitive
damages award is unnecessary and disproportionate given the award of $5 million
compensatory damages,” Op. Br. 56, this could not be farther from the truth. As
already discussed at length, there was copious evidence before the jury that
Appellants’ abject disdain for the 1983 Agreement and the court decisions affirming
it was reprehensible, see supra Part VII.B.1.b, and the jury correctly concluded that
a compensatory damages award alone was insufficient to deter someone who was
inclined to view clear court decisions as “nebulous” and “always . . . at risk.”
SER493–94. The jury simply took Gail at her word that her challenges to the 1983
Agreement would not “be over until [she] draw[s] [her] last breath.” SER407. And
the jury believed Thom when he testified that he “had no intention of stopping [his]
challenge to all of these things . . . until [he’d] finally won.” SER447–48. The jury
correctly concluded that “strong medicine [was] required to cure the [Appellants’]
disrespect for the law” in the form of a punitive damages award, Johnson v. Ford
30 The jury was also instructed that any punitive damages award “may not exceed
[the] defendant’s ability to pay,” ER 1264, and juries are presumed to follow the
instructions that they are given. Escriba v. Foster Poultry Farms, Inc., 743 F.3d
1236, 1247 (9th Cir. 2014).
47
Motor Co., 35 Cal. 4th 1191, 1203 (2005), and the District Court was correct to
affirm the jury’s measured decision.
2. The Jury Properly Awarded Compensatory Damages.

Appellants also baselessly attack the compensatory damages award for breach
of contract and slander of title unanimously imposed by the jury, questioning the
sufficiency of the evidence and arguing that the verdict reflects impermissible
double recovery. Op. Br. 63–72. However, because there was substantial evidence
before the jury to support its award for breach of contract and slander of title and an
obvious interpretation of the award that avoids double recovery, the jury’s award
should be affirmed.
a. Substantial Evidence Supports the Jury’s Award of Compensatory

Damages.
Appellants attempt to frame the jury’s damages award for breach of contract
as entirely premised on conduct related to East of Eden and The Grapes of Wrath
and assert that the Estate failed to put forward sufficient evidence of harm related to
slander of title. Op. Br. 65, 66–72. Yet, there was substantial evidence before the
jury that Appellants’ unlawful conduct resulted in harm to the Steinbeck catalog as
a whole, thus supporting the jury’s award of compensatory damages. In addition to
Appellants’ illicit conduct related to East of Eden and The Grapes of Wrath, the jury
also heard extensive evidence of Appellants’ harm to the rest of the Steinbeck
catalog, including unlawful activities related to at least seven other Steinbeck Works.
48
See supra Part IV.B.5.c. Additionally, there was evidence before the jury that
Appellants contacted major studios and industry players with their false claims of
rights, including Disney, MGM, Sony, Vanity Fair, and the Wall Street Journal.
SER244–50; SER427; ER0409.
There was substantial evidence before the jury that Appellants’ breach of the
1983 Agreement and slander of title resulted in various harms to the works that make
up the Steinbeck catalog and to the catalog as a whole. Ms. Winick Rubinstein
testified that Appellants’ false statements and attempts to exploit the Steinbeck
Works caused confusion in the industry and, “[b]ecause of [Appellants’] presence,
menacing, dealings, accusations and blatant lies about who controls the rights,
several deals have either fallen apart, not come to fruition, or people are just scared
and weary to even begin to develop the works.” ER0513–14. She further testified:
“I have faced numerous times where confused producers, directors, publishers have
called to say, [‘]I thought the estate of Elaine Steinbeck controlled the rights. There
is this Gail Steinbeck, calling saying she is the agent for the works of John Steinbeck,
and that she and only she working on behalf of Tom and the Steinbeck family can
make decisions.[’]” ER0462. Ms. Arnold confirmed and testified that, in her expert
opinion, Appellants’ activities had “caused a greater confusion in the marketplace
for the catalog as a whole.” ER0711.
49
The Estate presented substantial evidence that these harms to the works and
to the catalog as a whole translated to significant losses in revenue. Ms. Winick
Rubinstein, who has had extensive experience negotiating both Steinbeck and non-
Steinbeck deals, testified that, but for Appellants’ actions, she would have expected
to see additional Steinbeck films made over the last several years. ER0457–59;
ER0507. She explained that the average purchase price for a Steinbeck film is
around $800,000, and that the Steinbeck catalog should have thus made “several
million dollars with purchase price—if it moved forward to purchase price.”
ER0506–08. Ms. Arnold also calculated that there had been $500,000 in damages
emanating from lost option payments due to Appellants’ actions, and described that
calculation as conservative. ER0733–35.31 Therefore, the jury could have easily
31 Though Appellants take issue with Ms. Arnold’s and Ms. Winick Rubinstein’s
estimates for lost option payments and purchase prices, see Op. Br. 68–72, courts
have recognized that “[d]amages resulting from the loss of future profits are often
an approximation.” Ashland Mgmt. Inc. v. Janien, 624 N.E.2d 1007, 1010 (N.Y.
1993) (breach of contract); GHK Assocs. v. Mayer Grp., Inc., 224 Cal. App. 3d 856,
873–74 (1990) (tort claims). “The law does not require that they be determined with
mathematical precision,” Ashland, 624 N.E.2d at 1010, and requires “only that some
reasonable basis of computation of damages be used,” GHK Associates, 224 Cal.
App. 3d at 873.
While Appellants attempt to argue that the damages for breach of contract and
slander of title are speculative, the cases they cite are inapposite. See Op. Br. 67
(citing Kenford Co. v. Cty. of Erie, 493 N.E.2d 234, 235 (N.Y. 1986)); id. at 69
(citing Seeley v. Seymour, 190 Cal. App. 3d 844, 865 (1987)). The damages were
found to be speculative in Kenford because the unopened, unbuilt stadium was a new
business venture. Here, the Estate was a “substantial presence in . . . [the media and
entertainment licensing] field for several years” with a “ready reservoir of
50
concluded based on the substantial evidence before it that, but for Appellants’
wrongful actions, the Estate would have received option payments and purchase
prices totaling $2.6 million from Steinbeck films.
Moreover, according to the testimony of Ms. Winick Rubinstein, these lost
opportunities also precluded potential book profits, since books often hit the
bestseller list and result in substantial sales as a result of a film adaptation or other
publicity. ER0508–09. Gail herself acknowledged that Appellants received “a lot
more money” from book royalties when Oprah Winfrey selected East of Eden for
her book club. ER0279.
Finally, the jury could have reasonably found that Appellants’ breach of
contract and slander of title with respect to East of Eden resulted in additional
damages that were not included in its $2 million award for intentional interference,
which likely reflected the Estate’s portion of the purchase price for the two-part film.
Specifically, there was evidence before the jury that the Estate would have received
the 7.5% profit participation it was owed under the agreement had the film been
made. ER0677–78; SER359. The jury also saw evidence of the revenues
customers,” Ashland, 624 N.E.2d at 1012, providing a basis for Ms. Arnold’s and
Ms. Winick Rubinstein’s estimates. The damages in Seeley were based on the “loss
of use of sale proceeds” and “the varied possibilities as to what use the money might
have been put.” Seeley v. Seymour, 190 Cal. App. 3d 844, 865 (1987). Here, the
Estate only claims loss of proceeds—not to what use the proceeds might have been
put.
51
comparable films had made, SER500–01, and heard testimony from Ms. Ichino that
the film “certainly had the potential” to be successful, ER0585. Furthermore, in
addition to the evidence that film adaptations generally result in increased book
sales, the jury saw that the East of Eden deal went a step beyond this and actually
contemplated printing at least an additional 100,000 copies of the novel for cross-
promotion with the film and heard expert testimony that it was likely that the Estate
would have earned additional revenue under this provision. SER361–62; ER0665–
66; ER0683–84. The jury thus could have reasonably concluded that the Estate
would have received significant backend profits and increased revenue from book
sales for East of Eden and awarded damages for breach of contract and/or slander of
title to reflect this.
It clear from this substantial evidence on harm to the catalog as a whole that
damages for breach of contract and slander of title were not speculative. Because
Appellants claimed ownership and exploited so many of the Steinbeck Works, the
jury possessed substantial evidence to determine that Appellants’ actions deprived
the Estate of a market for options and purchases of these works as well as resulted
in lost profits that were ascertainable based upon previous experience.
b. Substantial Evidence Allows for an Interpretation That Avoids

Double Recovery.
Appellants also argue that the jury’s verdict results in double recovery, Op.
Br. 64–66, but this argument disregards the well-established principle that the Court
52
presumes that a jury has followed instructions, Escriba, 743 F.3d at 1247, and gives
the jury’s findings great deference, Graves, 339 F.3d at 844.32
As a preliminary matter, the jury was instructed not to “award damages more
than once for the same injury,” ER1262—an instruction this Court must presume
has been followed, see Escriba, 743 F.3d at 1247. Moreover, the Estate is “not
required to demonstrate how the jury reached the damages amount.” Atlas Flooring,
LLC v. Porcelanite S.A. DE C.V., 425 F. App’x 629, 633 (9th Cir. 2011). Rather, so
long as substantial evidence in the record permits “a correct interpretation” that
avoids double recovery, the Court can affirm the jury verdict. Flores v. City of
Westminster, 873 F.3d 739, 752 (9th Cir. 2017) (quotation marks omitted), cert.
denied, 138 S. Ct. 1551 (2018). In doing so, “[w]hen appellate courts review a
verdict, reasonable inferences may be drawn which will support rather than defeat a
judgment.” Id. (internal quotation marks omitted).
Here, “[t]he nature of the jury’s verdict does not suggest double recovery,”
Atlas Flooring, 425 F. App’x at 633, and the record contains substantial evidence
32 In any event, Appellants waived their double recovery argument for having failed
to adequately raise it below. Below, Appellants presented one-line arguments for
double recovery without quoting any authority. See SER126, SER128. One-line
arguments that lack basic legal citations are often not “sufficiently [argued] for the
trial court to rule on it,” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th
Cir. 1992), and therefore, waived on appeal, Hilao v. Estate of Marcos (In re Estate
of Marcos Human Rights Litigation), 496 F. App’x 759, 760 (9th Cir. 2012).
53
that allows the jury’s verdict of $2.6 million for breach of contract and slander of
title to be “satisfactorily explained to avoid double recovery,” Flores, 873 F.3d at
751. Ms. Arnold and Ms. Winick Rubinstein “testified about lost profits without
relegating the damages to a particular theory of liability.” Atlas Flooring, 425 F.
App’x at 633. Thus, the jury could reasonably understand the harm to certain works
stemming from the Appellants’ breach of contract and others from their slandering
of title.
The record is filled with such evidence, providing a sufficient “rationale for
the jury’s division of the damages total,” that avoids double recovery. Id. On the
one hand, for example, the jury may have considered Appellants’ multiple false
statements to the media as conduct constituting slander of title. See, e.g., ER0406;
(telling journalist that Thom retains ownership in the Late Works); ER0408–09
(telling Vanity Fair that the Appellants “have rights left”); ER0409 (telling Wall
Street Journal that Gail manages the copyrights for the Steinbeck heirs).
On the other hand, the jury may have considered the many instances in which
the Appellants licensed certain Steinbeck Works without the Estate’s permission as
constituting breach of contract under the 1983 Agreement. See, e.g., SER237;
ER0405 (granting film rights for “Flight” to filmmaker); ER0404–05 (selling
audiobook of The Long Valley); ER0405 (granting permission for use of Cannery
54
Row passage). As such, the jury could have assigned the resulting harm from these
various instances to the two causes of action without any overlap.
In sum, the Court should affirm the award of compensatory damages, because
it was supported by substantial evidence. After hearing expert and industry
testimony, the jury properly determined that Appellants’ egregious behavior caused
harm to works in the Steinbeck catalog that amounted to $2.6 million dollars.
Because a jury has arrived at this decision, upon reviewing the extensive evidence
submitted in a five-day trial, this Court should “not lightly cast aside the solemnity
of [its] verdict.” Graves, 339 F.3d at 844.
VIII. CONCLUSION
For the reasons set forth above, the Estate respectfully requests that the Court
affirm the District Court and the jury verdict below in full.
55
Dated: February 20, 2019 Respectfully submitted:
/s/ Susan J. Kohlmann

Andrew J. Thomas Susan J. Kohlmann
JENNER & BLOCK LLP Alison I. Stein
633 West 5th Street, Suite 3500 Brittany R. Lamb
Los Angeles, CA 90071 JENNER & BLOCK LLP
Phone: 213-239-5100 919 Third Avenue
Fax: 213-239-5199 New York, NY 10022
ajthomas@jenner.com Phone: 212-891-1690
Fax: 212-891-1699
56
STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, though not a currently pending case, this
Court recently decided Steinbeck v. Kaffaga, 702 F. App’x 618 (9th Cir. 2017),
which involved the same parties and related (and, in some instances, identical)
issues.
Dated: February 20, 2019

Susan J. Kohlmann
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
Phone: 212-891-1690
Fax: 212-891-1699
57
STATEMENT WITH RESPECT TO ORAL ARGUMENT

Pursuant to Federal Rule of Appellate Procedure 34(a), Appellee requests that
oral argument of this appeal be permitted. Oral argument will assist this Court in
deciding the appeal.

Susan J. Kohlmann
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
Phone: 212-891-1690
Fax: 212-891-1699
58
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
Form 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
9th Cir. Case Number(s) No. 18-55336
I am the attorney or self-represented party.
This brief contains 13,981 words, excluding the items exempted by Fed. R.
App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
32(a)(5) and (6).
I certify that this brief (select only one):
[X] complies with the word limit of Cir. R. 32-1.

[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5),
Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select
only one):
[ ] it is a joint brief submitted by separately represented parties;
[ ] a party or parties are filing a single brief in response to multiple briefs; or
[ ] a party or parties are filing a single brief in response to a longer joint brief.
[ ] complies with the length limit designated by court order dated _____________.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature /s/ Susan J. Kohlmann Date February 20, 2019

(use “s/[typed name]” to sign electronically-filed documents)
59
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on February 20, 2019. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

Susan J. Kohlmann
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
Phone: 212-891-1690
Fax: 212-891-1699
60

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Case: 18-55336, 02/20/2019, ID: 11201865, DktEntry: 38, Page 1 of 68

United States Court of Appeals

WAVERLY SCOTT KAFFAGA,

On Appeal from the United States District Court

ANSWERING BRIEF OF APPELLEE

Andrew J. Thomas Susan J. Kohlmann

Counsel for Appellee

II. JURISDICTIONAL STATEMENT ................................................................ 2

III. ISSUES PRESENTED ....................................................................................3

IV. STATEMENT OF THE CASE ....................................................................... 4

A. FACTUAL BACKGROUND. .............................................................. 4

4. Thom and Blake’s 2014 Lawsuit Against the Estate. ............... 10

2. Summary Judgment. .................................................................12

a. The Evidence at Trial Established That Appellants

d. The Evidence at Trial Established That Appellants

6. Judgment as a Matter of Law, New Trial, and Remittitur. ....... 22

V. SUMMARY OF ARGUMENT .....................................................................22

VII. ARGUMENT .................................................................................................26

A. THE DISTRICT COURT PROPERLY EXCLUDED

1. Appellants Are Precluded from Challenging the Estate’s

2. The Agreement-to-the-Contrary Issue Is Irrelevant and

3. The District Court Did Not Abuse Its Discretion in

1. The Jury Properly Awarded Punitive Damages........................38

i. Appellants Acted with Malice. .............................40

ii. Appellants Acted with Fraud. ..............................43

b. The Estate Introduced Sufficient Evidence of Gail’s

c. Punitive Damages Were Necessary. ...............................47

2. The Jury Properly Awarded Compensatory Damages.............. 48

a. Substantial Evidence Supports the Jury’s Award of

b. Substantial Evidence Allows for an Interpretation

STATEMENT WITH RESPECT TO ORAL ARGUMENT ..................................58

CERTIFICATE OF COMPLIANCE .......................................................................59

B&B Hardware, Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293

Bertero v. National General Corp., 13 Cal. 3d 43 (1974) .......................................42

Egan v. Mutual of Omaha Insurance Co., 24 Cal. 3d 809 (1979) ...........................45

Johnson v. Ford Motor Co., 35 Cal. 4th 1191 (2005) .......................................47–48

Kode v. Carlson, 596 F.3d 608 (9th Cir. 2010) .......................................................25

Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005) .....................................................26

Pavao v. Pagay, 307 F.3d 915 (9th Cir. 2002) ........................................................40

Seeley v. Seymour, 190 Cal. App. 3d 844 (1987) ....................................................51

Steinbeck v. Kaffaga, No. CV 14-08681 TJH, 2016 WL 6025493 (C.D. Cal.

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,

9th Cir. R. 36-3 ........................................................................................................30

and the Palladin Group, Inc. (“Palladin”) (collectively, “Appellants”), seek to

up to the verdict, just as they have sought unsuccessfully to subvert a multitude of

John Steinbeck’s two sons from a prior marriage.

issue already been decided against Appellants in prior litigation—including in a

confirming the validity of the 1983 Agreement.

unanimously imposed after a five-day trial. Based on copious evidence of

was supported by substantial evidence.

II. JURISDICTIONAL STATEMENT

entered summary judgment in favor of Plaintiff Waverly Scott Kaffaga (“Waverly”),

issued several evidentiary orders in favor of the Estate in 2017, ER0018–21;

damages on all of the Estate’s claims on September 5, 2017. ER0011–17. The

notice of appeal on March 14, 2018. ER0060–84.

III. ISSUES PRESENTED

defenses that sought to relitigate the validity of the 1983 Agreement?

seven-person jury unanimously imposed following five days of trial?

slander of title, an award that a seven-person jury unanimously imposed after

hearing evidence, including testimony from 12 witnesses and the introduction of

78 exhibits, over the course of a five-day trial?

IV. STATEMENT OF THE CASE

1. John Steinbeck and the Steinbeck Works.

ER0229; ER0459–60; SER058; SER060. In 1950, John Steinbeck married Elaine,

38 Appellee's Answering Brief

38 Appellee's Answering Brief