This article originally appeared in the Daily Journal on November 25, 2019.
John Steinbeck is an American literary icon, and the recipient of the National Book Award, the Pulitzer Prize for Fiction, and the Nobel Prize in Literature. But only in 2019 was he accorded the high honor of emulation in a Ninth Circuit decision – certified for publication, of course. For those who don’t have the time to read the opinion cover to cover, the Cliff’s Notes version follows.
In Kaffaga v. Estate of Steinbeck, 938 F.3d 1006 (9th Cir. 2019), the court seized the opportunity to write a Steinbeck novel in microcosm, complete with humor, pathos, irony, and a large dose of human frailty. It set the saga out in a prologue and eight numbered chapters, each headed with a literary epigraph to help set the theme for what follows. The first and last of these are from Dickens’ Bleak House; the others are pithy quotes from various Steinbeck novels.
Kaffaga, like many literary landmarks, recounts a tale of never-ending family strife stretching over decades and through generations. When Steinbeck died in 1968, he left his interests in his works to his third wife and not to his sons by a previous wife, but the sons did eventually obtain rights to some later works. The widow and the sons then reached a written agreement on how to divide the royalties.
But fate intervened. Or rather, Congress did. It passed the Copyright Act of 1976, which gave heirs the power to terminate copyright rights in certain circumstances “notwithstanding any agreement to the contrary.” And so the litigation began. The sons sued the widow in New York in 1981, and they reached a settlement in 1983.
Over time, the parties passed away, but the litigation proved immortal, continuing through various heirs and estates. It renewed in earnest in New York from 2004 to 2006, and, in the last of many trial court and appellate decisions, the Second Circuit Court of Appeals declared the 1983 Agreement valid and enforceable.
The story was becoming repetitious, so the parties representing the sons’ interests opted to enliven it with a change of scene. In 2014, they filed their latest attack on the 1983 Agreement in U.S. District Court in Los Angeles. That court had no trouble dismissing their claims on collateral estoppel grounds, and, in an unpublished decision, the Ninth Circuit affirmed “in no uncertain terms.”
This ended another chapter, but not the novel. The executrix for the widow’s estate, defendant in the California litigation, had countersued for breaches of the 1983 Agreement, slander of title, and tortious interference with economic advantage. She won summary judgment on the first two claims and went to jury trial on the other. She won millions in compensatory and punitive damages, which brought on the denouement in the latest appeal.
Great literary works teach enduring lessons, and literary appellate decisions are no exception. Kaffaga drives home several important rules of appellate practice.
One is that, although an appellate decision is not precedent if not published, it can be potent. Kaffaga reminds us that even an unpublished decision has collateral estoppel effect, which meant that the Ninth Circuit’s previous decision upholding the validity of the 1983 agreement between the same parties was binding and dispositive. The court did not mince words: “This has to end. We cannot say it any clearer.”
Another lesson is that an appellate court will normally not look behind a jury verdict that is supported by substantial evidence, even if it raises eyebrows. Here the losing parties tried to inject some intrigue into the narrative by arguing that the way damages were allocated – exactly $1.3 million for each of two different causes of action and $2.65 million for the third – suggested double recovery. The court allowed that this allocation was “indeed suspicious.” But that was not enough to secure a reversal, or even a serious inquiry. Substantial evidence supported the conclusion that the jury had awarded damages for separate offenses and supported the amounts awarded. That was enough to carry the day, suspicions notwithstanding.
The remaining lessons arose from the punitive damage awards. Defendants argued that the trial court blocked much testimony regarding their motives (and hence their malice) by sustaining objections. The Ninth Circuit did not appear to disagree, but this was not enough to secure reversal, because evidentiary rulings undercut a judgment only if they amount to an abuse of discretion, which seems not to have been the case here. And, like any claimed error, evidentiary errors are not fatal unless prejudicial. Here the court saw overwhelming evidence of malice that defendants could not have overcome in any event.
But there are limits to appellate deference to a trial court decision, and in one regard it was reached here. Under California law, a punitive damages award must be supported by “meaningful evidence” of defendant’s financial condition. One defendant maintained that this standard was not met as to her. The court observed that there was “some evidence,” but some evidence is not meaningful evidence, and so the court reversed with directions to dismiss the punitive damage claims against that defendant.
This cued up the final lesson of Kaffaga: that what sometimes works in literature does not necessarily work in appellate advocacy. John Steinbeck was never really known for plot twists or unexpected endings. But here the courtwent out of its way to remind us that the surprise ending is one literary device that is anathema to appellate courts. Inasmuch as one defendant escaped from punitive damages due to inadequate proof of her net worth, the others argued hopefully for the same relief. The court allowed that the argument “may have had legs had it been properly raised in the opening brief.” But it reminded them that an argument is forfeited if raised for the first time in a reply brief.
With this, the court brought its composition to a close. Apparently no fan of sequels, it suggested to the District Court that it might want to consider “an injunction to put an end to this recidivist litigation.”
Charles Kagay is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
This article is copyright © in the year of publication above.