                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 10 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LAURA SIEGEL LARSON, individually                No. 11-55863
and as personal representative of the Estate
of Joanne Siegel,                                D.C. No. 2:04-cv-08400-ODW-RZ

              Plaintiff - Counter-claim
              Defendant - Appellant,             MEMORANDUM *

  v.

WARNER BROS. ENTERTAINMENT,
INC., a corporation; DC COMICS, a New
York General Partnership,

              Defendants - Counter-
              claimants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
LAURA SIEGEL LARSON, individually                 No. 11-56034
and as personal representative of the Estate
of Joanne Siegel,                                 D.C. No. 2:04-cv-08400-ODW-RZ

                Plaintiff - Counter-claim-
                Defendant - Appellee,

  v.

WARNER BROS. ENTERTAINMENT,
INC., a corporation; DC COMICS,

                Defendants - Counter-
                claimants - Appellants.



                     Appeal from the United States District Court
                         for the Central District of California
            Stephen G. Larson and Otis D. Wright, District Judges, Presiding

                       Argued and Submitted November 5, 2012
                                Pasadena, California

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District
Judge.**

       Defendants Warner Brothers Entertainment, Inc. and DC Comics

(collectively, “DC”) appeal the district judge’s grant of summary judgment to

Plaintiff Laura Siegel Larson as to DC’s third and fourth counterclaims (which,




       **
             The Honorable John W. Sedwick, Senior U.S. District Judge for the
District of Alaska, sitting by designation.

                                             2
both parties concede, are governed by California law).1 The district judge entered

judgment pursuant to Federal Rule of Civil Procedure 54(b), and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand as to these

counterclaims.

      The district judge erred in granting summary judgment to Larson as to DC’s

third and fourth counterclaims. The central issue in these counterclaims is whether

the parties reached a binding settlement agreement during their negotiations over

the rights to Superman in 2001 and 2002. The district judge, however, failed to

address whether the October 19, 2001, letter from Larson’s then-attorney

constituted an acceptance of terms negotiated between the parties, and thus was

sufficient to create a contract. We hold, as a matter of law, that the October 19,

2001, letter did constitute such an acceptance.2 The October 19, 2001, letter itself

plainly states that the heirs have “accepted D.C. Comics offer of October 16, 2001


      1
        DC also appeals the district judge’s grant of summary judgment to Larson
as to certain aspects of Larson’s first claim and DC’s first counterclaim, as well as
the entirety of DC’s second counterclaim. Larson cross-appeals the district judge’s
grant of summary judgment to DC as to the other aspects of Larson’s first claim
and DC’s first counterclaim. As explained below, we do not reach the issues raised
by these claims.
      2
       Larson, in her brief, states that this question should be resolved as a matter
of law. See Bustamante v. Intuit, Inc., 45 Cal. Rptr. 3d 692, 699 (Cal. Ct. App.
2006) (citing Robinson & Wilson, Inc. v. Stone, 110 Cal. Rptr. 675, 682 (Cal. Ct.
App. 1973)).

                                           3
in respect of the ‘Superman’ and ‘Spectre’ properties. The terms are as

follows . . . .” What follows is five pages of terms outlining substantial

compensation for the heirs in exchange for DC’s continued right to produce

Superman works. The letter ends with Larson’s attorney thanking DC’s attorney

for his “help and patience in reaching this monumental accord.” Further, although

it is the objective, and not subjective, understandings of the parties that determine

whether they reached an agreement, extrinsic evidence of the parties’ actions may

be used to determine whether the oral offer referred to in the letter had, in fact,

been made. Cf. Wedeck v. Unocal Corp., 69 Cal. Rptr. 2d 501, 507-08 (Cal. Ct.

App. 1997). Statements from the attorneys for both parties establish that the

parties had undertaken years of negotiations, that they had resolved the last

outstanding point in the deal during a conversation on October 16, 2001, and that

the letter accurately reflected the material terms they had orally agreed to on that

day.

       We reject Larson’s arguments that either state or federal law precludes a

finding that such a contract could have been created by the October 19, 2001,

letter. California law permits parties to bind themselves to a contract, even when

they anticipate that “some material aspects of the deal [will] be papered later.”

Facebook, Inc. v. Pac. Nw. Software, Inc., 640 F.3d 1034, 1038 (9th Cir. 2011);


                                           4
Harris v. Rudin, Richman & Appel, 87 Cal. Rptr. 2d 822, 828 (Cal. Ct. App. 1999).

This principle applies notwithstanding the lack of an express reference to an

intended future agreement, as long as the terms of any contract that may have been

formed are sufficiently definite that a court could enforce them (as is undoubtedly

the case here). Facebook, 640 F.3d at 1038 (noting the minimal requirements to

form an enforceable contract, and that California law does not require express

delegation regarding potential missing terms of a contract); Patel v. Liebermensch,

197 P.3d 177, 182-83 (Cal. 2008). That Facebook involved a contract signed by

both parties does not render it any less controlling here; under California’s statute

of frauds, the only signature that is required is that of the party against whom a

contract is sought to be enforced. See Ulloa v. McMillin Real Estate & Mortg.,

Inc., 57 Cal. Rptr. 3d 1, 4-5 (Cal. Ct. App. 2007); see also 1 B.E. Witkin, Summary

of California Law, Contracts § 359 (10th ed. 2005). Nor is 17 U.S.C. § 204(a) a

bar to the validity of any such contract; that statute expressly permits an agreement

transferring ownership of a copyright to be signed by a “duly authorized agent” of

the copyright owner, and Larson does not contest that the heirs’ attorney was such

an agent.

      We therefore reverse the district judge’s grant of summary judgment to

Larson and direct the district judge to reconsider DC’s third and fourth


                                           5
counterclaims in light of our holding that the October 19, 2001, letter created an

agreement. Because a judgment on those claims in DC’s favor would appear to

render moot all of the other questions in this lawsuit, we decline to address these

other issues at this time.

       REVERSED IN PART and REMANDED.3




       3
        We reach our conclusions without the need to consider the documents that
are the subject of DC’s motions for judicial notice and to supplement the record.
DC’s motions, and Larson’s motion to strike the related portions of DC’s brief, are
therefore denied as moot. Larson’s motion for sanctions is also denied. The
parties shall bear their own costs on appeal.

                                          6
