Full opinion text
AMENDED ORDER GRANTING DEFENDANTS’ MOTION FOR RECONSIDERATION MARGARET M. MORROW, District Judge. Defendants The Milton H. Greene Archives, Inc. and Tom Kelley Studios, Inc. have moved under Local Rule 7-18 for reconsideration of the court’s January 7, 2008 order finding that plaintiffs are not collaterally or judicially estopped from claiming that Marilyn Monroe died a domiciliary of California. I. FACTUAL AND PROCEDURAL BACKGROUND A. Past Proceedings The Milton H. Greene Archives, Inc. filed this action against CMG Worldwide Inc., Marilyn Monroe LLC, and Anna Strasberg on March 25, 2005. On May 3, 2005, the court consolidated the case with two other actions filed in this district— Shirley De Dienes et al. v. CMG Worldwide, Inc. et al. (CV 05-2516) and Tom Kelley Studio, Inc. v. CMG Worldwide, Inc. et al. (CV 05-2568). On December 14, 2005, the court consolidated two additional actions with the pending case — CMG Worldwide, Inc., et al. v. Tom Kelley Studios (CV 05-5973) and CMG Worldwide, Inc., et al. v. The Milton H. Green Archives, Inc. (CV 05-7627). These actions were originally filed by CMG Worldwide, Inc. and Marilyn Monroe, LLC (the “CMG Parties” or “plaintiffs”) in the United States District Court for the Southern District of Indiana, and were transferred to this district pursuant to 28 U.S.C. § 1404(a) on August 9, 2005. All of the actions seek to have the court resolve competing claims to ownership of the legal right to use, license, and distribute certain photographs of Marilyn Monroe. In their complaints against The Milton H. Green Archives, Inc. and Tom Kelley Studios, Inc. (the “MHG Parties” or “defendants”), the CMG Parties assert that they own the “Right of Publicity and Privacy in and to the Marilyn Monroe name, image, and persona” that was created by “the Indiana Right of Publicity Act, I.C. § 32-36-1-1 et seq., and other applicable right of publicity laws.” The CMG Parties contend that defendants have infringed this right by using Marilyn Monroe’s name, image and likeness “in connection with the sale, solicitation, promotion, and advertising of products, merchandise, goods and services” without their consent or authorization. On October 6, 2006, the MHG Parties filed a motion for summary judgment. They argued, inter alia, that plaintiffs’ right of publicity claims were preempted by the Copyright Act, 28 U.S.C. §§ 101-1332, and that, even if they were not preempted, plaintiffs had failed to adduce evidence that they had standing to assert claims based on Marilyn Monroe’s right of publicity. In essence, defendants argued that, even if a posthumous right of publicity in Monroe’s name, image and likeness exists, plaintiffs could not show that they were presently in possession of that right. Defendants also argued that MMLLC was judicially and collaterally estopped from claiming that Monroe was domiciled anywhere other than New York at the time of her death. On May 14, 2007, the court granted defendants’ motion for summary judgment, concluding that plaintiffs lacked standing to assert Monroe’s right of publicity. The court found that Marilyn Monroe could not have devised a non-statutory right of publicity through her will, and also could not have devised a statutory right that was created only decades after her death. This conclusion was supported, in part, by the court’s interpretation of the California right of publicity statute, Civil Code § 3344.1. The court determined that under the statute, a deceased personality who had died before the measure was enacted was deemed not to have had the capacity to transfer the subsequently created right, which was denominated a “property right[],” prior to death. See Cal. Civil Code § 3344.1(b) (providing that a “deceased personality” could, “before [his or her] death,” transfer the statutory right of publicity “by contract or by means of trust or testamentary documents,” but that “after the death of the deceased personality,” the statutory publicity right “vest[ed]” directly in specified statutory beneficiaries (emphasis added)). Consequently, the court held that plaintiffs could not show they were entitled to assert Marilyn Monroe’s posthumous right of publicity. On November 21, 2007, plaintiff MMLLC filed a motion for reconsideration of the court’s order. MMLLC based its motion on the fact that, six weeks after the order was entered, California State Senator Sheila Kuehl amended Senate Bill 771 (“SB 771”) to include provisions designed to abrogate the court’s ruling and clarify the meaning of California’s right of publicity statute. SB 771 passed both houses of the California Legislature in September 2007, and was signed by Governor Schwarzenegger on October 10, 2007. The bill expressly provided that the statutory right of publicity created by § 3344.1 was deemed to exist at the time of death of any deceased personality who died before January 1, 1985. It also stated: “The rights recognized under this section are property rights, freely transferable, in whole or in part, by contract or by means of trust or testamentary documents, whether the transfer occurs before the death of the deceased personality, by the deceased personality or his or her transferees, or, after the death of the deceased personality, by the person or persons in whom the rights vest under this section or the transferees of that person or persons.” The bill explained that, in the absence of an express provision in a will or other testamentary instrument transferring a deceased personality’s right of publicity, “disposition of the publicity right[] would be in accordance with the disposition of the residue of the deceased personality’s assets.” Citing this measure, MMLLC asked the court to reverse its conclusions (1) that “under either California or New York law, Marilyn Monroe had no testamentary capacity to devise, through the residual clause of her will, statutory rights of publicity that were not created until decades after her death”; (2) that alternatively, even if Marilyn Monroe’s estate was open at the time the statutory rights of publicity were created, it “was not [an] entity capable of holding title to the rights”; and (3) that MMLLC and CMG had “no standing to assert the publicity rights they seek to enforce in this action.” B. The Court’s January 7, 2008 Order 1. Marilyn Monroe’s Posthumous Right of Publicity On January 7, 2008, the court granted plaintiffs motion for reconsideration. It noted that SB 771 clearly expressed the California legislature’s intent to clarify § 3344.1 as originally enacted, explicitly outlining that intent in the bill and emphasizing it in the legislative history. The court observed that the bill had been passed promptly after, and in response to, the court’s May 14, 2007 order, a factor of significance under California Supreme Court law addressing when subsequently passed bills should be considered clarifications, rather than modifications, of existing law. Finally, in light of SB 771, the court reconsidered the text of § 3344.1 as originally enacted, and found there was a potential ambiguity that the clarifying legislation addressed. It concluded that the definition of “deceased personality” in § 3344.1(h) injected ambiguity into the court’s earlier construction of § 3344.1(b), i.e., its conclusion that subsection (b) permitted transfer of the statutory right of publicity after a personality’s death only by the personality’s heirs. Because the statute defined a “deceased personality” as “any ... natural person who ... died within 70 years prior to January 1, 1985,” and because subsection (b) provided that a “deceased personality” could transfer the statutory right before his or her death, the court concluded that whether the legislature intended to provide that a predeceased personality could transfer the right through his or her will was ambiguous. The court noted that this potential ambiguity had caused beneficiaries, particularly charitable beneficiaries, of deceased personalities to act in a manner that conflicted with its earlier interpretation of the statute, and that it had resulted in court decisions that were at odds with what the 2007 legislature believed the earlier legislature had intended. In combination, the court found that these circumstances supported a finding that SB 771 clarified existing law by making explicit the fact that the right of publicity of a personality who died before January 1,1985 was deemed to have existed at the time the personality died, such that it could pass through the residual clause of her will. As a result, the court determined that it was appropriate to reconsider its ruling that MMLLC lacked standing to assert claims for infringement of Marilyn Monroe’s statutory right of publicity. Interpreting § 3344.1 as clarified, the court held that because Marilyn Monroe’s statutory right of publicity was deemed to have existed at the time of her death, and because it was not expressly bequeathed in her will, it was transferred under the residual clause of the will to Lee Strasberg and other residuary beneficiaries. Additionally, because SB 771 made clear that a deceased personality’s posthumous right of publicity was “freely transferable or de-scendible by contract, trust, or any other testamentary instrument by any subsequent owner of the deceased personality’s rights ...the court determined that when Lee Strasberg died, his property, which, under SB 771, was deemed to include Monroe’s publicity right, passed by will to his wife, Anna Strasberg. Anna Strasberg and the holder of a 25 % interest in the residue of Monroe’s estate, in turn, formed MMLLC and transferred their interest in Monroe’s estate, including, without limitation, the right of publicity, to MMLLC. As a result, the court found that, under § 3344.1 as clarified, MMLLC possessed Monroe’s posthumous right of publicity, and vacated its prior ruling that MMLLC lacked standing to assert the right. The court made clear that these holdings were conditional, in the sense that they were dependent on a finding that Monroe was a domiciliary of California when she died. The parties agreed that Monroe could only have been a domiciliary of New York or California at the time of her death. Unlike California, New York did not recognize either a common law or statutory posthumous right of publicity in 1962. See, e.g., Pirone v. MacMillan, Inc., 894 F.2d 579, 585-86 (2d Cir.1990) (observing that, under New York law, the right of publicity is exclusively statutory, is personal to the individual, and is extinguished upon his death (citations omitted)). Whether Monroe could bequeath such a right, therefore, depended on whether she was domiciled in California or in New York. 2. Reconsideration of the Order a. Domicile In their original motion, defendants argued that plaintiffs were judicially es-topped from asserting that Monroe was domiciled in California at the time of her death. The court did not address that question in its original order because it determined that MMLLC lacked standing to assert the right under § 3344.1 in any event. Having reconsidered the standing question, the court concluded that it was necessary to address domicile. MMLLC asserted that the court should not summarily adjudicate the issue of domicile, since discovery was ongoing and it had recently come into possession of thousands of documents potentially bearing on whether Monroe was a domiciliary of California or New York. Given this representation, the paucity of evidence in the record regarding Monroe’s domicile, and the fact that defendants’ motion was premised on an assertion that MMLLC could not adduce evidence of California domicile, the court concluded that defendants’ motion was premature and declined to decide the issue on the basis of an incomplete record. b. Collateral Estoppel The court also addressed the argument in defendants’ original motion that summary judgment should be entered in their favor on the basis of collateral and/or judicial estoppel. Defendants argued that MMLLC was collaterally estopped from asserting that Monroe was domiciled in California at the time of her death, citing (1) Frosch v. Grosset & Dunlap, Inc., 75 A.D.2d 768, 427 N.Y.S.2d 828 (App.Div.1980); (2) the Report of Appraiser filed December 30, 1969 in Monroe’s probate proceedings; and (3) a 1975 opinion of the California State Board of Equalization (“BOE”). The court concluded that defendants were not entitled to summary judgment on the basis that the Frosch decision collaterally estopped plaintiffs from arguing that Monroe was domiciled in California because they had not met their burden of showing “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action.” See Buechel v. Bain, 97 N.Y.2d 295, 304, 740 N.Y.S.2d 252, 766 N.E.2d 914 (2001) (citing Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 441 N.Y.S.2d 49, 423 N.E.2d 807 (1981)). Frosch examined whether the Estate of Marilyn Monroe could assert that publication of a book titled “Marilyn” invaded Monroe’s right of publicity. Frosch, 427 N.Y.S.2d at 828. The Appellate Division of the New York Supreme Court determined that “[t]he statutory right of privacy applies to the name, portrait or picture of ‘any living person’ (Civil Rights Law, § 50); and it is thus on its face not applicable to the present book.” Id. The estate contended, however, “that there [was] an additional property right, a right of publicity which survive[d] the death of Miss Monroe and belonged] to [it].” Id. As respects this right, the court held that “[n]o such nonstatutory right ha[d] yet been recognized by the New York State courts.” Id. (citing Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129 (1978)). It went on to state that even if such a right existed, defendant’s book was a “literary work[,] ... not simply a disguised commercial advertisement for the sale of goods or services,” and that “protection of the right of free expression [was] so important that [it] should not extend any right of publicity, if such exists, to give rise to a cause of action against the publication of a literary work about a deceased person.” Id. (emphasis added). Although defendants argued that “where Marilyn Monroe was domiciled at the time of her death was foundational to whether the Estate of Marilyn Monroe had a right to publicity,” the court disagreed, concluding .that the Appellate Division’s decision turned on the fact that the book was a literary work, and that freedom of speech considerations outweighed any right of publicity that might exist. The court noted that there no indication in the opinion that the parties had raised domicile or that it had been necessarily decided by the New York court. It declined to find that the Appellate Division’s observation regarding the lack of a posthumous right of publicity in New York implied a decision regarding Monroe’s domicile. The court similarly found that defendants had failed to show that Monroe’s domicile at death was definitively decided by the California BOE or the New York Surrogate’s Court. The BOE’s opinion stated that “[a]t the time of her death in 1962, Marilyn Monroe was a resident of the state of New York.” Defendants extrapolated from this that the BOE necessarily determined that Monroe was a New York domiciliary. The court noted, however, that residence and domicile are distinct concepts, and that there was no indication that domicile had been litigated in the BOE proceeding or decided by the board. As respects the New York probate proceedings, defendants cited a statement in the report of the estate appraiser that Monroe “died a resident of the State of New York on the 5th day of August 1962.” Once again, because residence is not the same as domicile, the court found that this did not show that the court considered or weighed the factors usually relevant in determining domicile, or that it decided the question. c. Judicial Estoppel Finally, the court found that defendants had failed to show that MMLLC was judicially estopped from contending that Monroe was domiciled in California at the time of her death. Courts uniformly recognize that the purpose of the judicial estoppel doctrine is to protect the integrity of the judicial process by prohibiting parties from changing positions as circumstances warrant. New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (citations omitted). Judicial estoppel can be invoked whether a party takes inconsistent positions in the same action or in two different actions. See Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 605 (9th Cir.1996) (“We now make it explicit that the doctrine of judicial estoppel is not confined to inconsistent positions taken in the same litigation”). Defendants cited several purportedly inconsistent positions that they contended estopped MMLLC from asserting that Monroe was domiciled in California. Among these were statements made to the Surrogate’s Court by Aaron Frosch, the executor of Monroe’s estate, and Anna Strasberg, the administratrix of Monroe’s will, that Monroe was a resident of New York at the time of her death. Noting that residence is distinct from domicile, and that a person may reside somewhere other than her domicile, the court concluded that none of the statements addressed Monroe’s domicile at death. Because assertions that Monroe was a resident of New York were not “clearly inconsistent” with a contention that she was a domiciliary of California, the court found that the statements did not judicially estop MMLLC from asserting now that Monroe was domiciled in California. See New Hampshire, 532 U.S. at 751, 121 S.Ct. 1808; Holder v. Holder, 305 F.3d 854, 872 (9th Cir.2002) (declining to apply judicial estoppel and noting that “Jeremiah’s position that California had jurisdiction over his custody claim is not necessarily inconsistent with his position that Washington, not California, has jurisdiction over his [International Child Abduction Remedies Act (“ICARA”)] claim, because the concept of ‘home state’ under California state law differs from the concept of ‘habitual residence’ under ICARA”). Defendants also argued that a statement by Frosch that the estate did not have an exclusive right to Monroe’s image judicially estopped plaintiffs from contending otherwise. Frosch made this statement in a 1972 affidavit filed in the Surrogate’s Court. The affidavit concerned a dispute regarding transparencies of photographs taken of Monroe by Tom Kelley; the photographs were in Monroe’s possession at the time of her death. When Kelley sought to have the photographs returned, Lee Strasberg, the beneficiary of Monroe’s personal effects, argued that he was entitled them. Frosch distinguished between the transparencies themselves, and the right to reproduce the photographs. Regarding the latter, he opined that Monroe’s “Estate [had] no exclusive right to her image” and could not “retain the photographs.” In a subsequent affidavit, Frosch stated that a “question remained [regarding the identity of] ... the owner of rights” to the photographs he suggested that “if they were owned by [Monroe] at the time of her death, the Estate would be [the] Owner.” After reviewing these statements, the court found that Frosch had not taken a firm position regarding the estate’s ownership of reproduction or other rights in the photographs; it noted that the issue before the Surrogate’s Court appeared to have been ownership of the physical transparencies, not ownership of rights to Monroe’s image and likeness. Additionally, the court observed, there was no evidence that the Surrogate’s Court ever ruled on the estate’s ownership of reproduction or other rights in Monroe’s image. Consequently, to the extent Frosch advanced a position, it stated, the record did not support a finding that he did so successfully. Defendants next contended that plaintiffs were judicially estopped from asserting that Monroe was domiciled in California at the time of her death based on statements Frosch made to the BOE. The issue in the BOE appeal was whether Monroe’s estate was required to pay California income tax on her earnings from films in which she appeared (“percentage payments”). Frosch asserted that the percentage payments were not taxable in California, but was denied a tax clearance certificate. California taxes “the entire taxable income of every nonresident which is derived from sources within [the] state,” and the BOE classified the earnings as “personal services income,” whose source was the place where the services were performed. The estate made several unsuccessful arguments to the BOE in an effort to avoid imposition of the tax. Among these was an assertion that the percentage payments were not taxable in California because they did not derive from California sources. The estate argued that the income was earned in New York because it derived from the estate’s ownership of “an intangible contract right whose situs, under the doctrine of mobilia sequunter per-sonam, was the state” of the Estate’s domicile or residence. “[U]nder the mobilia rule[, it noted,] the source of the income was in appellant’s domiciliary state, New York.” The BOE rejected this argument because no authority suggested that a contract right to receive percentage payments for personal services was an intangible subject to this doctrine. Rather, the Board concluded, the estate stood in the shoes of the decedent. Because Monroe performed the services in California, it stated, income from them was taxable in California. As with defendants’ other arguments, the court determined that the estate’s argument to the BOE did not judicially estop plaintiffs from asserting that Monroe was a California domiciliary at the time of her death. First, the court noted, the estate’s position that it was a New York domiciliary was not inconsistent with plaintiffs’ present position that Monroe was domiciled in California when she died. Additionally, it observed, there was no evidence that the estate made any argument respecting Monroe’s domicile at the time of her death. Indeed, as the BOE noted, “[d]uring her lifetime Miss Monroe owned the same contract right [to receive the percentage payments], and [the estate] does not contend that the mobilia rule would have applied to her receipt of the income.” Finally, the court noted, the BOE rejected the estate’s argument. Consequently, defendants could not show that the estate prevailed on an argument in the BOE proceeding that was contrary to the argument its purported privy asserted in this action. See New Hampshire, 532 U.S. at 749, 121 S.Ct. 1808. Consequently, the court concluded, there was no risk that judicial acceptance of plaintiffs’ present position would create the perception that either the BOE or this court had been misled. See id. at 751, 121 S.Ct. 1808. As a result, the court found that defendants had not shown plaintiffs were judicially es-topped from arguing that Monroe was a California domiciliary at death. C. Defendants’ Motion for Reconsideration On February 5, 2008, defendants filed a motion for reconsideration of those portions of the January 7, 2008 order that addressed collateral and judicial estoppel. Defendants contend that reconsideration is appropriate because newly discovered evidence shows that plaintiffs’ privies took positions in prior proceedings that are directly contrary to plaintiffs’ argument in this action that Monroe was a California domiciliary at the time of her death. II. DISCUSSION A. Legal Standard Governing Motion for Reconsideration Under Local Rule 7-18 In this district, motions for reconsideration are governed by Local Rule 7-18, which states: “A motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision.” CA CD L.R. 7-18. Rule 7-18 states that “[n]o motion for reconsideration shall in any matter repeat any oral or written argument made in support of or in opposition to the original motion.” Id.; see also School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (reconsideration is appropriate if the movant demonstrates clear error, manifest injustice, newly discovered evidence, or an intervening change in controlling law). Whether to grant a motion for reconsideration under Local Rule 7-18 is a matter within the court’s discretion. Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.2003). B. Whether the Court Should Consider the Evidence Adduced by Defendants In support of their motion for reconsideration, defendants proffer additional evidence they contend shows that plaintiffs should be judicially and collaterally es-topped from asserting that Monroe was a California domiciliary at the time of her death. Defendants acknowledge that they have been in possession of this documentation since it was produced to them by plaintiffs in December 2006. They represent, however, that they did not receive it until the Greene/Kelley motions for summary judgment were fully briefed, and that they were unable to discover and present it to the court previously because it was “buried in the more than 58,000 documents [that plaintiffs] produced” after briefing was complete. The court does not condone defendants’ delay in presenting this evidence to the court. It accepts their explanation, however, that plaintiffs produced a large volume of documents in response to requests for production after the motions for summary judgment were fully briefed. Given the basis upon which the court initially granted summary judgment, defendants had no incentive immediately to comb through the voluminous materials produced to uncover evidence relevant to judicial or collateral estoppel. When the court reconsidered and reversed its decision regarding MMLLC’s standing to assert right of publicity claims, moreover, it reviewed the questions of judicial and collateral estoppel on the basis of the existing record — i.e., the record prior to the date plaintiffs produced documents to defendants. Defendants were not given an opportunity to supplement the record before that decision was made. The court determined on the record before it that defendants’ judicial and collateral estoppel arguments lacked merit. It did not, however, preclude defendants from raising the defenses in the future. Under these circumstances, the court exercises its discretion to consider the newly presented evidence. Although the need for reconsideration is partially a product of the fact that defendants filed a premature motion for summary judgment, the court concludes it is appropriate to review the evidence they have now adduced because the doctrine of judicial es-toppel concerns protection of the integrity of the courts and the judicial process. See Wagner v. Professional Engineers in California Government, 354 F.3d 1036, 1044 (9th Cir.2004) (“Judicial estoppel is an equitable doctrine that is intended to protect the integrity of the judicial process by preventing a litigant from ‘playing fast and loose with the courts,’ ” quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)). C. Whether the Court Should Reconsider its Order Regarding Judicial Estoppel 1. Standard Governing Motions for Summary Judgment A motion for summary judgment must be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.CivPeoc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case. See id. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.Proc. 56(e)(2). Evidence presented by the parties at the summary judgment stage must be admissible. Fed.R.Civ.Proc. 56(e)(1). In reviewing the record, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 154 F.2d 49, 56 (2d Cir.1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). 2. Standard Governing Judicial Es-toppel As noted in the January 7, 2008 order, judicial estoppel “ ‘generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.’ ” New Hampshire, 532 U.S. at 749, 121 S.Ct. 1808 (citations omitted). “[Fjederal law governs the application of judicial estoppel in federal court.” Rissetto, 94 F.3d at 603. The doctrine applies to positions taken in the same action or in different actions. See id. at 605 (“We now make it explicit that the doctrine of judicial estoppel is not confined to inconsistent positions taken in the same litigation”). It also “applies to a party’s stated position whether it is an expression of intention, a statement of fact, or a legal assertion.” Wagner, 354 F.3d at 1044 (citing Helfand v. Gerson, 105 F.3d 530, 535 (9th Cir.1997)). Factors relevant in deciding whether to apply the doctrine include: (1) whether the party’s later position is “clearly inconsistent” with its earlier position; (2) whether the party has successfully advanced the earlier position, such that judicial acceptance of an inconsistent position in the later proceeding would create a perception that either the first or the second court had been misled; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not es-topped.” New Hampshire, 532 U.S. at 751,121 S.Ct. 1808 (citations omitted). In addition to these factors, the Ninth Circuit examines “whether the party to be estopped acted inadvertently or with any degree of intent.” EaglePicher Inc. v. Federal Ins. Co., CV 04-870 PHX MHM, 2007 WL 2265659, *3 (D.Ariz. Aug.6, 2007) (citing Johnson v. Oregon Dep’t of Human Resources Rehab. Div., 141 F.3d 1361, 1369 (9th Cir.1998)); see also Prach v. Bowen Property Mgmt., CV 03-250 EFS, 2007 WL 397453, *4 (E.D.Wash. Feb.l, 2007) (“Although Defendants cite authority that litigants should be bound by the actions of their attorneys, the inquiry is not whether Plaintiff Kriger is ‘bound’ by the mistakes in the original schedules, but rather whether the Plaintiff Kriger (along with his counsel) acted intentionally, as opposed to inadvertently”). “Judicial es-toppel applies when a party’s position is ‘tantamount to a knowing misrepresentation to or even fraud on the court.’ ” Johnson, 141 F.3d at 1369 (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir.1996)). Thus, “[i]f incompatible positions are based not on chicanery, but only on inadvertence or mistake, judicial estoppel does not apply.” Id. (citing In re Corey, 892 F.2d 829, 836 (9th Cir.1989)); see also Wyler Summit Partnership v. Turner Broadcasting Sys., Inc., 235 F.3d 1184, 1190 (9th Cir.2000) (“The doctrine of judicial estoppel requires, inter alia, a knowing antecedent misrepresentation by the person or party alleged to be estopped and prevents the party from tendering a contradictory assertion to a court,” citing Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)). “Thus, if a claimant’s particular representations are so inconsistent that they amount to an affront to the court, judicial estoppel may apply.” Johnson, 141 F.3d at 1369. A party may invoke the doctrine of judicial estoppel in a motion for summary judgment to bar a claim based on an inconsistent position. See Elston v. Westport Ins. Co., 253 Fed.Appx. 697, 699 (9th Cir.2007) (Unpub.Disp.) (affirming the district court’s grant of summary judgment against plaintiff on the basis that her claims were barred by judicial estoppel). A party seeking to defeat summary judgment on judicial estoppel grounds must “sufficiently explain” a prior judicial position that is inconsistent with an essential element of its claim. See, e.g., Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (stating that a party must “provide a sufficient explanation” for a prior inconsistent position to defeat summary judgment); Fewer v. Copper & Brass Sales, Inc., 183 Fed.Appx. 696, 696 (9th Cir. June 9, 2006) (Unpub.Disp.) (“John J. Fewer appeals the district court’s grant of summary judgment in favor of Copper & Brass Sales and Thyssen, Inc. (“C & B”) on Fewer’s claims of failure to accommodate, disability and age discrimination in violation of California’s Fair Employment and Housing Act (‘FEHA’) and his claim of wrongful termination in violation of public policy.... Because Fewer failed to ‘proffer a sufficient explanation’ to the district court for these inconsistent positions, the court did not abuse its discretion applying the doctrine of judicial estoppel,” citing Cleveland, 526 U.S. at 806, 119 S.Ct. 1597); Zurich Am. Ins. Co. v. Felipe Grimberg Fine Art, Civ 04-763 RLE, 2008 WL 394808, *4 (S.D.N.Y. Feb.13, 2008) (“To survive a motion for summary judgment, ... individual must explain why his or her previous position or contention is consistent with his or her current position,” citing Mitchell v. Washingtonville Central School District, 190 F.3d 1, 7 (2d Cir.1999)); compare Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 634 (9th Cir.2007) (concluding that the evidence plaintiff presented distinguishing its position from the position it took in prior litigation “fail[ed] to rebut the determination of clear inconsistency” and thus “[t]he application of judicial estoppel ... was not an abuse of discretion”); Committee of Russian Federation on Precious Metals and Gems v. United States, 987 F.Supp. 1181, 1185 (N.D.Cal.1997) (denying summary judgment on judicial estoppel grounds in part because “this court neither finds that the IRS’s position that the diamonds and valuables were fraudulently converted from the Committee has been adopted by the Tax Court at this time, nor that the IRS is ‘playing fast and loose’ with the judicial system”). 3. New Evidence Presented by Defendants Defendants argue that plaintiffs should be estopped from claiming that Monroe was a California domiciliary when she died due to, inter alia, statements made to the California Inheritance Tax Appraiser by Aaron Frosch, the executor of Monroe’s estate, and by counsel for the estate. Defendants proffer a March 4, 1966 letter to the appraiser from Gang, Tyre, Rudin & Brown, a law firm that represented Monroe when she was alive and also served as counsel for the estate. The letter enclosed an “Inheritance Tax Affidavit” concerning Monroe’s estate, as well as an “Affidavit Concerning Residence supported by affidavits from Ralph L. Roberts, Hattie Stephenson Amos, May Reis, and Patricia Newcomb.” The letter stated that the latter items were being submitted “[s]ince Miss Monroe was a non-resident of the State of California at the time of her death ...,” and observed: “Since the estate in California is clearly insolvent and the estate in New York is probably insolvent also, we trust you will be in a position to furnish a no tax certificate so that a petition may be filed for termination of the California proceedings in accordance with the requirements of law.” The “Affidavit Concerning Residence,” which was executed by Froseh, was a form containing questions regarding Monroe’s residence at the time of her death. In it, Froseh attested that Monroe was “a resident of the City of New York, County of New York, State of New York” when she died. He stated that she filed her last income tax return prior to death in April 1962 in New York City, New York. He also asserted that Monroe purchased “a home in Los Angeles to live at while engaged in performing services in a motion picture film.” He contended that, at the time of her death, Monroe was “Residing temporarily in Los Angeles,” and that she “had a fully furnished apartment in New York City, which was her permanent residence.” Froseh stated that in the five-year period immediately preceding her death, Monroe spent time in California “[o]nly for purpose of performing as an actress in Motion Picture Films and not for purpose of residing there[ ].” Asked whether Monroe had engaged in business in California, Froseh responded affirmatively, noting that Monroe had engaged in business in the state since she was “temporarily in California performing services as a motion picture actress ... for approximately six months prior to death.” Froseh contended that Monroe made declarations regarding her residence “on a number of occasions,” that she stated she “was returning to New York after completing [her] motion picture commitment [and] that she considered [New York] her residence.” He represented that Monroe’s actions showed that she viewed New York as her residence up to the time of her death, citing the fact that she “in all respects [retained] her New York residence. Said Residence was not sublet. It remained fully furnished and contained [Monroe’s] personal effects, clothing, and substantially all of its contents. Furthermore, [Monroe’s] maid continued to look after and maintain said residence and its contents.” Frosch noted that Monroe had filed New York State Residence Income Tax returns for 1962 and prior years. The remaining declarations were similar. Ralph L. Roberts stated that he was a close personal friend of Monroe’s, and that she “frequently told [him] that she considered her trips to California merely as visits for the purpose of appearing in various motion picture films and for the conduct of business interests in relation thereto.” Roberts asserted Monroe told him that she purchased a house in California “primarily for the reason that she disliked living in hotels and preferred both the comfort and privacy of a private home.... ” He also reported that, “[o]n frequent occasions, both in California and in New York, [Monroe] advised [him] that she considered her New York apartment as her permanent home and permanent residence.” Finally, Roberts asserted that, shortly prior to her death, Monroe “specifically told [him] that she intended [to vacate] her California house and [that she] was going to return to her New York apartment which she considered her permanent home and residence and [was going] to reside permanently thereat.” Hattie Stephenson, Monroe’s personal housekeeper for approximately four years prior to her death, declared that she was required to clean and maintain Monroe’s New York apartment as part of her job duties. She stated that in September 1961, Monroe departed her New York apartment and went to California temporarily to appear in a movie, but instructed Stephenson to be at her New York apartment every day, cleaning and performing the same functions that she did when Monroe was in residence. Stephenson asserted that when Monroe traveled to California, she left all of her furniture and furnishings at the New York apartment, as well as a substantial portion of her clothes, treasured possessions, and personal effects. Stephenson contended that Monroe told her on several occasions that she considered the New York apartment “her permanent residence.” She asserted that two days prior to Monroe’s death, Monroe “requested that I proceed to her California house to stay with her for approximately one month and then that I return to New York with [Monroe]. I was ... told that [Monroe] intended to return to her permanent residence in New York City.” In her declaration, May Reis, who was employed as Monroe’s private secretary from February 1958 to September 1961, stated that Monroe “maintained her permanent residence in her New York apartment except for such occasions when she was required to be away from New York for business purposes.” Reis explained that it was Monroe’s custom to “temporarily depart from her New York apartment approximately two to three weeks prior to the commencement of [a] motion picture film[,]” which time she “generally utilized for various pre-production consultations, make-up tests, wardrobe preparations, etc. Generally she would remain away from her New York residence until after the completion of the film and any consultations thereafter required. She would then return to her permanent residence in New York.” Reis asserted that it was “always [her] understanding that subsequent to [Monroe’s divorce from Arthur Miller in January 1961] and while [she] was employed by [Monroe, Monroe] considered her said New York apartment as her official and permanent residence.” Patricia Newcomb, Monroe’s “Public Relations Counsel” and close personal friend, made similar statements. She declared that Monroe “always conveyed the impression to [Newcomb] that she considered her ... apartment ... in New York City as her permanent residence.” Despite the fact that Monroe traveled extensively and was occasionally away from New York on business matters for prolonged periods of time, Newcomb asserted, “she always returned to her permanent New York City residence.” Newcomb reported that Monroe had told her she purchased a house in Los Angeles solely because she disliked living in hotels, and “that she had no intention of making her permanent residence in her ... California house, but intended [to] leav[e] California and return[] to her New York residence upon the completion of her assignment” in California. Newcomb stated that, based on her “close association with [Monroe],” she believed Monroe “considered New York as her permanent residence and ... intended to return to her permanent New York residence apartment after the completion of her business activities in California.” On April 5, 1967, the inheritance tax appraiser filed his report with the superior court in Los Angeles. He stated that “after due and regular hearing and ap-praisement made,” he had concluded that Monroe “died a resident of the County of New York, State of New York, and left property taxable under the inheritance tax laws of the State of California.” The report determined that the California tax on estate property was $777.63. Defendants argue that the declarations submitted to the inheritance tax appraiser regarding Monroe’s “permanent residence” were in fact arguments regarding her domicile. They contend that the tax appraiser accepted the arguments and concluded that Monroe was a New York resident at the time of her death. As a result, they maintain, the estate successfully avoided California taxes on the bulk of Monroe’s estate. Given the favorable tax treatment that estate beneficiaries received as a result of these representations, defendants maintain that plaintiffs will gain an unfair benefit if they are allowed to maintain inconsistently in this litigation that Monroe was a California domiciliary when she died. 4. Whether the Alleged Inconsistent Statements Were Made By the Same Party To determine whether plaintiffs are judicially estopped by statements to the California inheritance tax appraiser made on behalf of Monroe’s estate, the court must first examine whether plaintiffs are in privity with Frosch, such that they may be deemed the “same party” as that which participated in the tax proceeding. See Maitland v. Univ. of Minnesota, 43 F.3d 357, 363-64 (8th Cir.1994) (under the doctrines of collateral estoppel, equitable es-toppel, promissory estoppel, and judicial estoppel, “the party who is to be estopped, or one in privity with that party, must have asserted a fact or claim, or made a promise, that another party relied on, that a court relied on, or that a court adjudicated” (emphasis added) (citations omitted)). Privity permits “a non-party to an action ... [to] be bound by the issues decided there if it substantially controls, or is represented by, a party to the action.” United States v. Bonilla Romero, 836 F.2d 39, 43 (1st Cir.1987) (citing Restatement (Second) of Judgments §§ 39, 41 (1982); Montana v. United States, 440 U.S. 147, 154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); Chicago, R.I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 618-19, 46 S.Ct. 420, 70 L.Ed. 757 (1926); and Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1572 (Fed.Cir.1983)). “The party estopped due to representation by a party to the action must have been ‘so closely related to the interest of the party to be fairly considered to have had his day in court.’ ” Id. (quoting In re Gottheiner, 703 F.2d 1136 (9th Cir.1983)); see also EEOC v. United States Steel Corp., 921 F.2d 489, 493 (3d Cir.1990) (“One relationship long held to fall within the concept of privity is that between a nonparty and party who acts as the nonparty’s representative.... If the representative party litigates first, subsequent litigation involving persons on whose behalf the representative appeared may be precluded,” citing Martin v. Wilks, 490 U.S. 755, 762 n. 2, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), and Restatement (Second) of Judgments § 41 (1980)). For privity to exist, “[t]here must be a ‘substantial identity’ of the parties such that the party to the action was the virtual representative of the party estopped.” Bonilla Romero, 836 F.2d at 43 (citing Chicago, R.I. & P. Ry. Co., 270 U.S. at 621, 46 S.Ct. 420; Pan American Match Inc. v. Sears, Roebuck and Co., 454 F.2d 871 (1st Cir.1972)). “Whether a party is virtually representative of a non-party is a question of fact determined on a case-by-case basis.” Id. (citing United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980); and Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.1975), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137, reh’g denied, 423 U.S. 1026, 96 S.Ct. 470, 46 L.Ed.2d 400 (1975)). a. Whether There is Privity Between an Executor of an Estate and the Estate’s Beneficiaries Plaintiffs do not deny that they are the ultimate beneficiaries of the Monroe estate. As noted in the court’s January 7, 2008 order, the residual clause of Monroe’s will stated: “SIXTH: All the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and wheresoever situate, of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall possess any power of appointment by Will at the time of my death, including any lapsed legacies, I give, devise and bequeath 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.” Lee Strasberg was a residuary beneficiary under Monroe’s will. MMLLC argues that when Strasberg died, his property-passed by will to his wife, Anna Strasberg. In 2001, Ms. Strasberg formed MMLLC, and she and the holder of a 25% interest in the residue of Monroe’s estate transferred their rights and interest in Monroe’s estate to MMLLC. Plaintiffs argue, however, that they should not be estopped by the statements made by the estate’s executor in the California tax proceedings because “there is generally no privity between an estate’s executor and its beneficiaries.” To determine whether the executor of Monroe’s estate was in privity with her beneficiaries for purposes of judicial estoppel, the court looks to federal law. See Rissetto, 94 F.3d at 603. In Chicago, Rock Island & Pacific Railway Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757 (1926), the United States Supreme Court considered whether a judgment against the beneficiary of an estate was binding in another proceeding brought by the administrator of the estate on behalf of the beneficiary. The two actions arose out of an accident on the line of a railway company in which one employee died. Id. at 612, 46 S.Ct. 420. The first proceeding was initiated by the administrator of the estate for the sole benefit of the surviving widow in Minnesota district court under the federal Employers’ Liability Law. Id. at 614, 46 S.Ct. 420. The second was an administrative proceeding initiated by the railway company under the Iowa Workmen’s Compensation Act; the widow was made a party to this action as sole beneficiary under the act. Id. The dispositive issue in both cases was whether the deceased had been engaged in interstate or intrastate commerce. Although the administrative proceeding was the second filed, the arbitration panel in that proceeding ruled first, finding that the decedent had been engaged in intrastate commerce. As a result, the widow was awarded benefits; this award was subsequently confirmed in the Iowa courts. Id. The railway company introduced the final Iowa judgment in proceedings before the Minnesota court and argued that it was res judicata on the issue of the interstate or intrastate nature of the decedent’s activities. The district court agreed. Id. at 615, 46 S.Ct. 420. This ruling was later reversed by the Minnesota Supreme Court, based, in part, on “lack of identity of parties, since under the Iowa statute the right of recovery is in the beneficiary while under the federal act the right is in the personal representative.” Id. The Supreme Court, in turn, reversed the Minnesota Supreme Court, holding that the administrator and the widow, as beneficiary of the estate, were in privity. The Court noted that “it [was] the right of the widow, and of no one else, which was presented and adjudicated in both courts.” Id. at 618, 46 S.Ct. 420. This was confirmed by the fact that under the Employers’ Liability Law, the administrator was given statutory authority to sue only “in the right and for the sole benefit of the widow.” As a result, the Court observed, the widow would have been bound by any decision obtained by the administrator “in accordance with the general rule that ‘whenever an action may properly be maintained or defended by a trustee in his representative capacity without joining the beneficiary, the latter is necessarily bound by the judgment.’” Id. at 620, 46 S.Ct. 420 (quoting 1 FReeman on Judgments (5th Ed.) § 500). The Court also cautioned generally that “[i]Identity of parties is not a mere matter of form, but of substance. Parties nominally the same may be, in legal effect, different; and parties nominally different may be, in legal effect, the same.” Id. (citing Bigelow on Estoppel (6th Ed.) 145); Calhoun’s Lessee v. Dunning, 4 Dali. 120, 121, 4 U.S. 120, 1 L.Ed. 767 (1792); Follansbee v. Walker, 74 Pa. 306, 309 (1873); and In re Estate of Parks, 166 Iowa 403, 147 N.W. 850 (Iowa 1914). Applying these principles, the Court held that “[i]f a judgment in the Minnesota action in favor of the administrator had been first rendered, it does not admit of doubt that it would have been conclusive against the right of the widow to recover under the Iowa compensation law. And it follows, as a necessary corollary, that the Iowa judgment, being first, is equally conclusive against the administrator in the Minnesota action; for if, in legal contemplation, there is identity of parties in the one situation, there must be like identity in the other.” Id. at 618, 46 S.Ct. 420. Consequently, the Court held, the Iowa judgment had res judicata effect in the Minnesota action. Id. at 623, 46 S.Ct. 420. Federal courts have frequently cited Chicago, Rock Island & Pacific Railway Co. in holding that a “beneficiary is bound by a judgment properly maintained or defended” by an executor, administrator, or trustee. See, e.g., Davies v. Guinn Resources Co., 978 F.2d 714, 1992 WL 317249, *4 (9th Cir. Oct.29, 1992) (Un-pub.Disp.) (“Beneficiaries of a trust are bound by a judgment against their trustee in her capacity as trustee,” citing Chicago, Rock Island & Pac. Ry., 270 U.S. at 620, 46 S.Ct. 420); Pollard v. Cockrell, 578 F.2d 1002, 1008-09 (5th Cir.1978) (“Virtual representation demands the existence of an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a subsequent suit raising identical issues. In reviewing cases decided under the doctrine, we have described the types of relationships contemplated: ‘estate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee,” citing Southwest Airlines Co. v. Texas Int’l Airlines, 546 F.2d 84, 97 (5th Cir.1977)); Southwest Airlines Co., 546 F.2d at 97 (“In Aerojet[-General Corp. v. Askew, 511 F.2d 710 (5th Cir.1975),] most of the cases cited represent factual settings with little relevance to the Southwest dispute because they involved only private parties: estate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee,” citing Chicago, Rock Island & Pac. Ry., 270 U.S. 611, 46 S.Ct. 420, for proposition that estate beneficiaries are bound by administrators); Meador v. Oryx Energy Co., 87 F.Supp.2d 658, 665 (E.D.Tex.2000) (“[I]f both Plaintiff and the Robbins plaintiffs are in privity with their common ancestor for a claim belonging to that ancestor, it follows that they are also in privity with each other regarding such a claim. Further support for this conclusion is found in Chicago, R.I. & P. Ry. Co. v. Schendel, where the U.S. Supreme Court held that an estate (represented by its administrator) and beneficiaries of that estate are in privity sufficient to constitute identity of parties .... Therefore, it seems apparent that Plaintiff, the Robbins plaintiffs, and all other alleged beneficiaries of James Meaders’ estate should be regarded as in privity with the estate and with each other regarding claims of that estate that have been filed by purported representatives of that estate,” also citing Pollard, 578 F.2d at 1008-09); United States v. Schnick, 66 B.R. 491, 494 (W.D.Mo.1986) (“In Pollard v. Cockrell, 578 F.2d 1002 (5th Cir.1978), the court provides examples of the types of relationships encompassed within the virtual representation doctrine: (1) presidents and sole stockholders are in sufficient privity to be deemed adequately represented by their companies; (2) parent corporations are virtually represented by their subsidiaries; (3) trust beneficiaries are adequately represented by the trustee of the trust; and (4) estate beneficiaries are bound by actions brought by the administrator”). Other federal courts have reached the same conclusion without citing Chicago, Rock Island & Pacific Railway Co. See, e.g., Pelfresne v. Village of Williams Bay, 865 F.2d 877, 881 (7th Cir.1989) (“As noted, the Village claims that Eley and Koch, who were defendants in the state nuisance suit, held the property as trustees for a trust of which Pelfresne was a beneficiary. If this is true, Pelfresne’s current action would clearly be barred — a trust beneficiary is collaterally estopped by a previous adjudication for or against a trustee, so long as the trustee and beneficiary did not have adverse interests in the conduct of the prior litigation and the trustee was authorized to prosecute and defend litigation on behalf of the trust” (citations omitted)); Bender v. City of Rochester, 765 F.2d 7, 12 (2d Cir.1985) (“The administrator of a decedent’s estate is in privity both with the decedent and with the decedent’s beneficiaries,” citing IB MooRe’s Federal PRACTICE ¶ 0.411[12] (1984)); McCrocklin v. Fowler, 285 F.Supp. 41, 43 (E.D.Wis.1968) (“[T]he Board, as beneficiary of the estate of Caroline Durkee, is in privity with, and is bound by the acts of Mr. Foulkes, the administrator. Likewise, Mr. McCrocklin, as an assignee, is in privity with the Board,” (citing IB Moore’s Federal Practice, 2d Ed., p. 1665)); Conney v. Erickson, 251 F.Supp. 986, 990 (W.D.Wis.1965) (“It is true that there is privity between the administrator of an estate and a beneficiary of an estate in certain situations”). As a matter of federal law, therefore, estate beneficiaries are in privity with the estate’s administrator or executor. Federal cases discussing privity between beneficiaries and executors, administrators, or trustees often refer to state law. See, e.g., Carter v. City of Emporia, 815 F.2d 617, 620 (10th Cir.1987) (“Kansas follows the general rule that ‘a judgment binds not only the parties to the action but also those who are in privity with them,’ and under Kansas law an administrator of an estate is sufficiently in privity with heirs or beneficiaries of an estate to be subject to principles of claim preclusion,” citing Wells v. Ross, 204 Kan. 676, 680, 465 P.2d 966 (1970)). Thus, although privity or the lack thereof is a matter of federal law, the law of California and New York is nonetheless instructive because that is whether the tax and estate proceedings at issue took place. The duties and responsibilities of an executor or administrator are most often governed by statutes and/or cases in the state where a will is being probated. To confirm its conclusion that federal law treats the executor and beneficiaries of an estate as privies, therefore, the court looks to the law of the two states where Monroe’s will was probated — California and New York. Contrary to the two cases cited by plaintiffs, California courts have determined that executors and administrators are, indeed, in privity with beneficiaries. In Luckhardt v. Mooradian, 92 Cal.App.2d 501, 207 P.2d 579 (1949), for example, the administratrix of an estate filed claims with the American Mexican Claims Commission regarding land expropriated by the government of Mexico. Id. at 507, 207 P.2d 579. The estate that the administra-trix represented was adjudged not to be the owner of the land. Id. at 504, 207 P.2d 579. Heirs of the testator filed a separate lawsuit claiming an interest in the land; their claims were rejected by the California Court of Appeal. The court noted first that “[t]he administratrix and the heirs [were] in privity.” Id. at 519, 207 P.2d 579 (citing 11B Cal.Jur. § 836). It then held that “[a] judgment entered in an action in which an administratrix of an estate of a deceased person is a party, is binding not only upon the administr