Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding D.C. No. 2:05-cv-02200-MMM-E
The opinion of the court was delivered by: Wardlaw, Circuit Judge:
D.C. No. 2:05-cv-02200-MMM-E D.C. No. 2:05-cv-02200-MMM-E
Argued and Submitted October 13, 2011-Pasadena, California
Before: Alfred T. Goodwin and Kim McLane Wardlaw, Circuit Judges, and William K. Sessions III, District Judge.*fn1
An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death.*fn2 At issue is whether appellants inherited a right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her Last Will and Testament. The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity. The issue of appellants' rights turns on whether Monroe was domiciled in California or New York at the time of her death. We conclude that because Monroe's executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California's posthumous right of publicity. We therefore affirm the district court's order so holding.*fn3
Following her divorce from Arthur Miller, while in New York City, Marilyn Monroe executed her Last Will and Testament on January 14, 1961. She named New York attorney Aaron Frosch executor. She then traveled to California in the spring of 1961, where she first stayed in a hotel, then moved to a rental apartment, and again moved into a home in Brent-wood which she purchased in 1962. In April 1962, Monroe began filming Something's Got to Give on the 20th Century Fox Studios lot in Los Angeles. Fox fired her during filming in June for repeated absences and tardiness. Monroe was found dead in her Brentwood home on August 5, 1962. She maintained her New York apartment and staff throughout this period.
Consistent with New York law, the New York Surrogate's Court admitted Monroe's will to probate on October 30, 1962. Frosch, who drafted the will, served as the executor of the estate from that time until his death in 1989. The will sets forth several bequests, but does not explicitly address the right of publicity asserted here. Assuming that such a right existed, it could pass, if at all, through only the will's residual clause, which distributed the "rest, residue and remainder" of Monroe's estate as follows:
(a) To MAY REIS the sum of $40,000.00 or 25% of the total remainder of my estate, whichever shall be the lesser.
(b) To DR. MARIANNE KRIS 25% of the balance thereof, to be used by her as set forth in ARTICLE FIFTH (d) of this my Last Will and Testament.
(c) To LEE STRASBERG the entire remaining balance.
May Reis, Monroe's private secretary, inherited the sum of $40,000 because the residual estate was "significantly greater than $160,000." The estate distributed 25% of the remainder to Dr. Marianne Kris, Monroe's psychiatrist, "for the furtherance of the work of such psychiatric institutions or groups as she shall elect." Kris passed away in 1980, bequeathing her interest in the Monroe estate to the Hampstead Child-Therapy Clinic of London, England (now the Anna Freud Center for the Psychoanalytic Study and Treatment of Children). Frosch apportioned 75% of the remainder of the estate to Lee Strasberg, Monroe's acting coach and close friend. Lee Strasberg died testate in 1982, leaving his share of Monroe's estate to his wife, Anna Strasberg. Following Frosch's death in 1989, the Surrogate's Court appointed Anna Strasberg executor of the Monroe estate. In 2001, the Surrogate's Court decreed the estate settled and authorized the estate to transfer all remaining assets to Marilyn Monroe LLC ("Monroe LLC"), a newly-formed Delaware Limited Liability Company, managed by Anna Strasberg. Anna Strasberg and the Anna Freud Center are the only members of Marilyn Monroe LLC, holding 75% and 25% membership interests, respectively.
During the forty-year probate proceedings, Frosch, in his capacity as executor of the estate, consistently represented in numerous judicial and quasi-judicial settings that Monroe was domiciled in New York when she died.*fn4 In New York, Frosch (and later Anna Strasberg) represented to the Surrogate's Court that Monroe died a domiciliary of New York. In California, Frosch also represented to the California tax authorities that Monroe died a domiciliary of New York.
Because Monroe owned property in California when she died, her estate, represented by the California law firm of Gang, Tyre, Rudin & Brown, initiated ancillary probate proceedings in Los Angeles Superior Court. Frosch successfully avoided substantial California estate taxes by proving that Monroe was a domiciliary of New York. On behalf of the Monroe estate, he sought a "no tax certificate" from the Inheritance Tax Appraiser. The Tax Appraiser required additional substantiation of Monroe's New York domicile to accept California counsel's representation that she died a non-California resident. On April 24, 1964, Hermione Brown, the estate's California counsel, wrote Frosch seeking "information to counteract the fact that Miss Monroe owned a home and actu- ally was living in California at the time of her death, and that her mother is physically in California." Brown further advised Frosch that it was important that he answer all the questions in the "Affidavit Concerning Residence," and "in doing so build as strong a case as possible."
Frosch provided Brown with a completed Affidavit Concerning Residence, and supporting affidavits from four Monroe intimates. Brown, in turn, sent the affidavits to the Inheritance Tax Appraiser, representing that "Miss Monroe was a non-resident of the State of California at the time of her death" in a letter dated March 4, 1966. In the Affidavit Concerning Residence, Frosch represented that Monroe filed her last income tax return in New York City, New York in April 1962, and that she purchased her home "in Los Angeles to live at while engaged in performing services in a motion picture film." To the next question, which asked where she was "actually living at the time of her death," Frosch declared that Monroe was "[r]esiding temporarily in Los Angeles while performing as aforesaid," and that she "had a fully furnished apartment in New York City, which was her permanent residence." Frosch explained that Monroe resided "temporarily in California performing services as a motion picture actress . . . for approximately six months prior to death." In response to a question about Monroe's business interests outside of California, Frosch attested that she was "[a]ctive as principal, sole shareholder and officer and director in Marilyn Monroe Productions, Inc., A New York Corporation with offices in New York City."
In response to questions about any statements or acts by Monroe indicating her intended residence, Frosch elaborated that Monroe's actions before her death showed that she intended to remain a resident of New York. He represented that Monroe: "in all respects retained her New York Residence. Said residence was not sublet. It remained fully furnished and contained Decedent's personal effects, clothing, and substantially all of its contents. Furthermore Decedent's maid continued to look after and maintain said residence." Finally, Frosch represented that on a number of occasions, Monroe told Ralph L. Roberts and May Reis that she "was returning to New York after completing [her] motion picture commitment - that she considered N.Y. her residence." Frosch attached affidavits from Ralph L. Roberts, Hattie Amos, May Reis and Patricia Newcomb recounting statements by Monroe that indicated her intent to remain a New York resident.
In Roberts's affidavit, he attested that he and Monroe had been "close personal friends" since 1955, and that from April 1962 "until her death, [he] spoke to her on an average of at least once each day and had personal meetings with her on an average of at least three times a week."*fn5 According to Roberts, Monroe purchased the Brentwood home
primarily for the reason that she disliked living in hotels and preferred both the comfort and privacy of a private home. She indicated that her California house would be used only on such occasions when she was in California performing in a motion picture film or otherwise engaged in similar activities.
He explained that in several conversations shortly before her death, Monroe "specifically told [him] that she intended vacating her California house and was going to return to her New York apartment which she considered her ...