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Date: 12-31-2018
Case Style: Jason Olive v. General Nutrition Centers, Inc.
Case Number: B279490
Judge: Micon
Court: California Court of Appeals Second Appellate District, Division Four on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Neville L. Johnson, Douglas L. Johnson and Ronald P. Funnell and Bassil A. Hamideh
Defendant's Attorney: McGuire Woods, Leslie M. Werlin, James F. Neale and Molly M. White
Description:
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Jason Olive is a model and actor who contracted with
General Nutrition Centers, Inc. (GNC) to use his likeness in its
advertising campaign. GNC continued using Olive’s likeness in
its advertising after its right to do so expired. GNC admitted
liability for the unauthorized use of Olive’s likeness in violation of
Civil Code section 33441 but contested the amount of damages. A
jury found Olive suffered $213,000 in actual damages and
$910,000 in emotional distress damages. The trial court denied
both parties’ motions for prevailing party attorney fees and costs.
Both Olive and GNC separately appeal from the judgment
and the order denying prevailing party attorney fees. Olive
contends the court erred by (1) failing to provide his proposed
special jury instruction concerning the burden of proof under
section 3344, (2) excluding his expert witnesses who would have
testified about the amount of GNC’s profits from the
unauthorized use of his likeness, and (3) determining he was not
the prevailing party for purposes of awarding statutory attorney
fees. In its cross-appeal, GNC contends it should have been
deemed to be the prevailing party.2 We affirm both the judgment
and the order denying attorney fees.
1 The statute prohibits the knowing use of another person’s
likeness in any manner, including for the purposes of advertising,
without such person’s consent. (Civ. Code, § 3344, subd. (a).)
All undesignated section references are to the Civil Code.
2 In its opening brief, GNC additionally claimed the trial
court erred by denying its motion for judgment notwithstanding
the verdict. GNC abandoned this claim in its reply brief, and we
therefore do not address it.
3
FACTUAL AND PROCEDURAL SUMMARY
Olive’s Background
Olive is a model, former professional volleyball player, and
actor. His previous modeling engagements included campaigns
for Ralph Lauren, Levi’s, Versace, Armani, Calvin Klein, Elle
Magazine, and GQ Magazine. Olive reached the peak of his
modeling career in the mid-1990’s, when he was in his twenties.
He earned up to $25,000 per day for modeling work during the
height of his career.
Olive’s modeling career has waned since that time, and he
turned to acting around 2010. He was featured in Tyler Perry’s
hit television show “For Better or Worse” in 2011.
GNC’s New Marketing Campaign
GNC is an international retailer and manufacturer of
vitamins and other nutritional supplements, with approximately
8,000 retail locations. GNC has used the “Live Well” marketing
tagline in its advertising and marketing materials since
approximately 1998. The slogan is meant to encourage
customers “to live a better life.”
In 2010, GNC hired photographer Peter Arnell to carry out
a photo shoot for its new “Live Well” advertising campaign. GNC
was looking for models who were athletic, healthy, ethnically
diverse, and “everyday relatable people.” GNC gave Arnell a
budget but otherwise had no direct role in the photo shoot,
including casting and securing proper release agreements.
4
Olive is Cast as a Model for GNC’s “Live Well” Campaign
Olive’s agent, Richard Ferrari, submitted him as a
candidate for GNC’s “Live Well” campaign. Compensation for the
photo shoot was posted at $6,000 but Ferrari sought a higher
rate. Arnell had a limited budget and refused to negotiate for a
higher fee. Olive and approximately 15 other models were cast
for the photo shoot.
Olive executed a “Photograph and Likeness Release” on
September 24, 2010. The agreement irrevocably granted GNC
the “absolute right, permission, authorization and consent to use,
reuse, produce, reproduce, exploit, publish, republish, display and
otherwise use and reuse [his] image and likeness and photograph
to be taken at the photoshoot scheduled for September 24, 2010.”
Olive was paid $4,000 for the three-hour photoshoot, in addition
to an $800 agent fee. The release lasted for one year from GNC’s
first usage in print media, and GNC had the unilateral right to a
one-year renewal in exchange for the same amount of
compensation.
In November 2010, Olive executed a second “Photograph
and Likeness Release” allowing GNC to use his image and
likeness on print media displayed on any company trucks and
other vehicles in North America. Olive was paid $8,000 for this
agreement, which is valid through December 31, 2021.
GNC’s marketing team approved Arnell’s selections. GNC
launched its new advertising campaign in January 2011. Olive’s
image was used in outdoor billboards, bus shelters, kiosks, social
media websites, direct mail advertising, as well as in-store
posters and signage. Olive was “shocked” and “angered” when he
discovered the vast scope of the advertising campaign. Olive
believed he agreed to “a very small job” in light of what he
5
perceived to be a small fee, and he felt he was doing a favor for
the Arnell Agency.
In May 2011, GNC decided to pursue a new photo shoot in
an effort to update its promotional graphics. GNC wanted its
new approach to resonate with updates to its stores. None of the
models from the September photo shoot, including Olive, were
invited to the new shoot.
GNC terminated its relationship with the Arnell Agency
after Arnell’s principals divorced. GNC expected the agency
would continue managing the models it used and maintain any
outstanding release agreements. GNC did not immediately hire
a replacement advertising agency, and no one was tasked with
keeping track of model release agreements.
GNC’s Right to Use Olive’s Likeness Expires
GNC declined to renew the release agreement, and Olive
told Ferrari he wanted to end his relationship with GNC. On
January 9, 2012, Ferrari emailed GNC to confirm it
was no longer authorized to continue using Olive’s image.3 He
never received a response. Olive eventually fired Ferrari.
Celina Petronzi, an employee in GNC’s marketing
department, was tasked with responding to Ferrari’s inquiry, but
she failed to do so. Petronzi emailed GNC’s Vice President of
marketing, informing her that some talent from the September
2010 Arnell photo shoot was going to expire, and asking about
3 It is unclear exactly when the release term expired. Olive
contends the term expired at the end of November 2011, whereas
GNC contends it expired “at the end of 2011.” Nevertheless, it is
undisputed that GNC’s right to use Olive’s likeness expired
sometime in late 2011 or early 2012.
6
what imagery would be used going forward. The marketing
department was unaware that the releases had expired and was
not familiar with Olive.
After discovering the oversight, GNC negotiated extensions
for every model used in the September 2010 shoot, except Olive.
The company was prepared to replace the images of any model
who “was difficult” during negotiation. GNC paid between $7,500
and $32,000 to the models in exchange for five-year extensions.
GNC retained a new advertising agency in April 2012.
GNC continued its efforts to negotiate a release extension
with Olive, but he refused and instead filed suit. Later in 2012,
GNC attempted a last ditch effort to negotiate an extension with
Olive for $150,000. Olive rejected the offer. GNC removed
Olive’s image from its marketing materials in either November or
December of 2012, incurring approximately $350,000 in takedown
expenses.
Olive’s Complaint and GNC’s Answer
Olive’s complaint alleged causes of action for common law
misappropriation of likeness and statutory misappropriation of
likeness (§ 3344). He also sought restitution for unjust
enrichment. Pursuant to section 3344, subdivision (a), Olive
requested disgorgement of any profits from GNC’s unauthorized
use of his image. GNC initially denied Olive’s allegations, but it
admitted liability for the unauthorized use of Olive’s image prior
to trial.
GNC’s Motions In Limine
Olive designated three experts to offer their opinions
regarding GNC’s profits attributable to its unauthorized use of
7
his image: (1) Weston Anson; (2) Leonard Lyons; and (3) Jeff
Anderson. GNC moved in limine to exclude Anson and Lyons
from testifying at trial.4
GNC sought to exclude Anson from opining as to Olive’s
damages and the apportionment of GNC’s profits to its use of his
image. The company argued Anson’s opinions were speculative
and unreliable. GNC also sought to exclude Lyons because his
opinion was based on Anson’s speculative and flawed analysis.
Following a hearing, the trial court granted GNC’s in limine
motions to exclude Anson and Lyons.
Jury Verdict and Judgment
The jury ultimately awarded Olive a total of $1,123,000 in
damages, consisting of $213,000 in actual damages and $910,000
in emotional distress damages. The jury found that Olive failed
to prove any of GNC’s profits were attributable to the
unauthorized use of his image, and that GNC had not acted with
malice or fraud. The trial court separately returned a defense
verdict on Olive’s equitable claim for unjust enrichment. The
court denied GNC’s motion for a new trial and for judgment
notwithstanding the verdict on the jury’s emotional distress
damages verdict.
4 Anderson is the Director of Valuation and Analytics at
Anson’s firm. GNC did not move to exclude Anderson as an
expert. Olive contended at oral argument that he did not call
Anderson as a witness because he had only generated data used
by Anson.
8
Motion for Attorney Fees and Costs
Both parties moved for statutory prevailing party costs and
attorney’s fees pursuant to section 3344, subdivision (a). The
trial court noted that both parties were visibly disappointed after
the jury rendered its verdict. It found there was no prevailing
party because “the jury accepted neither side’s recommendation
but instead awarded a middling sum amounting to a tie.”
DISCUSSION
A. The Trial Court Correctly Rejected Olive’s Proposed Special
Jury Instruction
Olive contends the trial court erred by rejecting his
proposed special jury instruction regarding the burden to
apportion GNC’s profits associated with the unauthorized use of
his likeness. We disagree.
1. Law Governing Jury Instructions and
Standard of Review
A party in a civil case is, upon request, entitled to correct
jury instructions on every theory of the case that is supported by
substantial evidence. (Eng v. Brown (2018) 21 Cal.App.5th 675,
704.) “It is elementary that a court may refuse a party’s request
for a jury instruction that misstates the law. ‘A trial court has no
duty to modify or edit an instruction offered by either side in a
civil case. If the instruction is incomplete or erroneous the trial
judge may, as he did here, properly refuse it.’ [Citations.]” (Ibid;
accord, Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th
655, 685.)
9
An instruction that clarifies the application of statutory
language may not add to the words of a statute. (Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003–1004.)
We review the legal adequacy of jury instructions under the de
novo standard of review. (Eng v. Brown, supra, 21 Cal.App.5th at
p. 704.)
2. Section 3344 and CACI No. 1821
In any action brought under section 3344, the injured party
is entitled to collect any profits that are attributable to the
defendant’s unauthorized use of his or her likeness. (§ 3344,
subd. (a).) “In establishing such profits, the injured party or
parties are required to present proof only of the gross revenue
attributable to such use, and the person who violated this section
is required to prove his or her deductible expenses.” (Ibid.)
CACI No. 1821 is the standard instruction for the jury to
determine damages arising from a statutory misappropriation of
likeness claim under section 3344. Pertinent here, the
instruction provides:
“In addition, [name of plaintiff] may recover any profits
that [name of defendant] received from the use of [name of
plaintiff]’s [name/voice/signature/photograph/likeness] [that have
not already been taken into account with regard to the above
damages]. To establish the amount of these profits you must:
1. Determine the gross, or total, revenue that [name of
defendant] received from the use;
2. Determine the expenses that [name of defendant] had in
obtaining the gross revenue; and
3. Deduct [name of defendant]’s expenses from the gross
revenue.
10
[Name of plaintiff] must prove the amount of gross revenue, and
[name of defendant] must prove the amount of expenses.” (CACI
No. 1821.)
3. Olive’s Proposed Special Instruction
Olive initially requested the trial court include CACI No.
1821 in his proposed instructions. He correctly proposed that
“Jason Olive must prove the amount of gross revenue, and GNC
must prove the amount of expenses.” Olive later moved to amend
the instruction to additionally require GNC to prove “the portion
of revenue that is attributable to factors other than the use of
[Olive’s likeness]” after the trial court granted GNC’s in limine
motions to exclude Anson and Lyons. Olive argued that without
his proposed supplemental language, the jury would be confused
about the burden to apportion profits and would misapply the
law.
Following a hearing, the trial court denied Olive’s motion.
The court determined that section 3344 unequivocally placed the
burden on Olive to present proof of GNC’s gross revenue
attributable to its use of his likeness. The court also rejected
Olive’s reliance on federal copyright law.
4. CACI No. 1821 Tracks the Language of Section 3344
Olive contends the court erred because CACI No. 1821 did
not adequately explain the parties’ respective burdens of proof
under section 3344, thus necessitating a further instruction
guiding the jury on how to arrive at damages for GNC’s profits
attributable to the infringement. He is incorrect.
The statutory language of section 3344 is unambiguous—
the plaintiff bears the burden of presenting proof of the gross
11
revenue attributable to defendant’s unauthorized use of the
plaintiff’s likeness, and the defendant must then prove its
deductible expenses. (§ 3344, subd. (a).) CACI No. 1821 mirrors
the language of section 3344: “[plaintiff] must prove the amount
of gross revenue, and [. . . defendant] must prove the amount of
expenses.” (CACI No. 1821.)
The special instruction proposed by Olive flips that
statutory language on its head. Under that instruction, GNC
would have to prove the amount of its gross revenue not
attributable to its use of Olive’s likeness, a figure that could not
be calculated without first determining the company’s total gross
revenue. The remaining figure, of course, would be GNC’s
calculation of the amount of gross revenue that was attributable
to its use of Olive’s likeness. Not only is this directly contrary to
the unambiguous statutory command that Olive had to prove the
amount of revenue attributable to GNC’s use of his likeness, it
would create the absurd result of effectively placing on each party
the burden to prove the same disputed fact.
Therefore, contrary to Olive’s contention, CACI No. 1821
adequately explained the applicable law to the jury. It is
elementary that a court may refuse a proposed instruction that
incorrectly states the law. (Eng v. Brown, supra, 21 Cal.App.5th
at p. 704; Bullock v. Philip Morris USA, Inc., supra, 159
Cal.App.4th at pp. 684–685.) Moreover, a court may properly
refuse a proposed instruction if other instructions given
adequately cover the law. (Bullock, at p. 685; Arato v. Avedon
(1993) 5 Cal.4th 1172, 1189, fn. 11.) The court was correct in
rejecting Olive’s proposed supplemental instruction as
unnecessary and misleading.
12
Olive also supports his claim of instructional error by
citations to federal copyright, patent and trademark law, pointing
to the legislative history of section 3344, which he contends
states: “The rationale for the right of publicity, namely the
encouragement of personal achievement for the ultimate benefit
of society, is closely analogous to the rationale for copyright
protection under the U.S. Constitution.”
We reject this comparison. First, Olive appears to cite to
nothing more than the bill number of a 1984 amendment to the
statute, and has not provided us with either a proper legislative
history citation to the material he asks us to consider or a copy of
the relevant document.
Second, as previously discussed, the language of section
3344 is clear and unambiguous. “[W]hen the words of a statute
are unambiguous, we need not turn to any extrinsic sources.
[Citation.]” (City of Montclair v. Cohen (2018) 20 Cal.App.5th
238, 250.) “In such a case, there is nothing for the court to
interpret or construe. [Citation.]” (MacIsaac v. Waste
Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th
1076, 1082.) State courts of appeal will resort to federal law for
guidance only in the absence of relevant state precedent.
(Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806,
814.)
Section 3344 could not be clearer as to which party bears
the burden to prove GNC’s profits attributable to the
unauthorized use of Olive’s image. Accordingly, we need not turn
to any extrinsic sources on this point.
5 As a result, we follow
5 In arguing that he was prejudiced by the allegedly
erroneous jury instruction, Olive relies on two questions from the
jury. First, the jury asked the court “what are the guidelines for
13
theplain meaning of the statute without resorting to its
legislative history. (N.S. v. D.M. (2018) 21 Cal.App.5th 1040,
1047.)
Third, even if the Legislature believed that the rationale
supporting the right of publicity was analogous to the rationale
for copyright protection, it was still free to enact a law that
deviated from its federal counterpart. “Our role in construing a
statute is simply to ascertain and to declare what is in terms or
in substance contained in the statute, not to insert what has been
omitted.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 270,
citing Code. Civ. Proc., § 1858.)6
determining profit damages and the amount[?]” The court
responded by circling the word “profits”. Second, the jury
indicated it “has concerns about the profit that GNC made, and
that we cannot figure out the formula for an amount even though
we agree that GNC made money off of his image, could someone
help us through the problem?” In response, the court reopened
closing argument, allowing each party to argue for an additional
five minutes. Having concluded there was no instructional error,
we need not address Olive’s argument regarding prejudice. (E.g.,
Center for Biological Diversity v. County of San Bernardino
(2016) 247 Cal.App.4th 326, 332.)
6 Olive also repeatedly cites Christoff v. Nestle USA, Inc.
(2007) 152 Cal.App.4th 1439 for this proposition, even after
acknowledging that it was superseded by the Supreme Court’s
grant of review and subsequent reversal on other grounds in
Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468. California
Rules of Court, rule 8.1115 prohibits the citation of unpublished
California state opinions, with certain limited exceptions
inapplicable here. (Cal. Rules of Court, rule 8.1115(a); People v.
Gray (2014) 229 Cal.App.4th 285, 292, fn. 15 [improper to cite or
rely upon an unpublished opinion].)
14
Finally, Olive contends that CACI No. 1821 did not give the
jury adequate guidance as to the meaning of the term
“attributable to” when determining the amount of gross revenues
derived from GNC’s use of Olive’s likeness. The term
“attributable” means “capable of being attributed.” (Webster’s
Third New Internat. Dict. (1993) p. 141, col. 3.) When used as a
verb, “attribute” simply means “explained as caused or brought
about by; regard as occurring in consequence of or on account of .
. . .” (Id., p. 142, col. 1.) In short, when something is attributable
to an act, it is caused by or results from that act, a common
definition that squares with the language of section 3344. We
therefore see no error in that regard either.
B. Exclusion of Olive’s Expert Witnesses
Olive contends the court erred in two respects when it
excluded Anson and Lyons from testifying as experts at trial.
First, the exclusion of these experts hinged on a misapplication of
section 3344, requiring that he prove GNC’s profits from the
unauthorized use of his image. Having already concluded the
trial court did not misinterpret the burden of proof set forth in
section 3344, we will not revisit this claim. Second, Olive asserts
the exclusion of Olive’s proposed expert witnesses was an abuse
of the court’s discretion.
1. Applicable Law and Standard of Review
In the context of admitting expert testimony, our Supreme
Court has explained that trial courts “have a substantial
‘gatekeeping’ responsibility.” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 769
(Sargon).) That is, “under Evidence Code sections 801,
15
subdivision (b), and 802, the trial court acts as a gatekeeper to
exclude expert opinion testimony that is (1) based on matter of a
type on which an expert may not reasonably rely, (2) based on
reasons unsupported by the material on which the expert relies,
or 3) speculative.” (Id. at pp. 771–772; accord, Cooper v. Takeda
Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 577
(Cooper).)
“‘“[E]ven when the witness qualifies as an expert, he or she
does not possess a carte blanche to express any opinion within
the area of expertise. [Citation.] For example, an expert’s
opinion based on assumptions of fact without evidentiary support
. . . or on speculative or conjectural factors . . . has no evidentiary
value . . . and may be excluded from evidence. [Citations.]”
[Citations.]’” (Cooper, supra, 239 Cal.App.4th at p. 577.) The
court’s gatekeeper function allows it to conclude there is simply
too great an analytical gap between an expert’s data and the
opinion proffered, and thus exclude it as speculative or
irrelevant. (Sargon, supra, 55 Cal.4th at p. 771; David v.
Hernandez (2017) 13 Cal.App.5th 692, 698.)
However, “[t]he court must not weigh an opinion’s
probative value or substitute its own opinion for the expert’s
opinion. Rather, the court must simply determine whether the
matter relied on can provide a reasonable basis for the opinion or
whether that opinion is based on a leap of logic or conjecture.”
(Sargon, supra, 55 Cal.4th at p. 772.)
A ruling will be deemed an abuse of discretion only if it is
“‘so irrational or arbitrary that no reasonable person could agree
with it.’ [Citation.] But the court’s discretion is not unlimited,
especially when, as here, its exercise implicates a party’s ability
to present its case. Rather, it must be exercised within the
16
confines of the applicable legal principles.” (Sargon, supra, 55
Cal.4th at p. 773.)
In Sargon, supra, 55 Cal.4th 747, a small dental implant
company that had net profits of more than $100,000 in 1998 sued
the University of Southern California for breach of contract after
the university failed to present proper reports as its contract
required. (Id. at p. 754.) The company sought damages for lost
profits ranging from $200 million to more than $1 billion. (Id. at
pp. 753, 755.) Following an evidentiary hearing, the trial court
excluded as speculative the proffered testimony of an expert who
would have opined that but for the university’s breach of
contract, the company would have become a worldwide leader in
the dental implant industry. (Id. at p. 753.)
The Court of Appeal reversed, concluding that the trial
court erred in excluding the expert’s testimony, but the Supreme
Court reversed the judgment of the Court of Appeal. (Sargon,
supra, 55 Cal.4th at p. 753.) Our high court held that trial courts
have the duty to act as a “gatekeeper” to exclude speculative
expert testimony. (Ibid.) Although lost profits need not be
proven with mathematical precision, they must also not be
unduly speculative; thus, the trial court acted within its
discretion when it excluded the expert’s opinion that the company
would have become extraordinarily successful had the university
completed the clinical testing. (Ibid.) The expert’s opinion was
unreliable because he did not base his lost profit estimates on a
market share ever achieved by the company. (Id. at p. 776.)
2. Proceedings Below
Olive intended to offer Anson as an expert to opine about
his actual damages and the apportionment of GNC’s profits
17
attributable to its unauthorized use of his likeness. Olive
designated Lyons as an expert regarding (1) the calculation of
GNC’s revenues, expenses and profits, (2) to conduct an
apportionment analysis, and (3) to testify about the indicia of
fraud or intentional misconduct by GNC.
GNC moved for an order in limine to preclude Anson from
testifying, arguing his opinions were speculative, and lacked
foundation and an objective methodology. GNC moved to exclude
Lyons’ testimony on the ground that it relied on Anson’s flawed
and speculative analysis, and that his opinion relating to GNC’s
indicia of fraud or intentional misconduct invaded the province of
the jury.
The court determined that both Anson and Lyons utilized a
“nearly data free and methodologically primitive” analysis. The
court said that their methodologies contained no science or data,
and instead simply relied on mere wishful thinking. The court
granted the motions to exclude both witnesses.
Olive requested reconsideration of the motion in limine
rulings. The court denied the motion. Olive then filed a petition
for writ of mandate challenging the trial court’s ruling. This
court summarily denied the petition.
3. Anson’s Testimony Was Properly Excluded
GNC’s revenue in 2012 was approximately $2.4 billion.
Pertinent here, Anson opined that one to three percent of GNC’s
revenue was attributable to the unauthorized use of Olive’s
likeness.7 Anson’s opinion was based on (1) an analysis of
7 Anson also concluded that Olive’s actual damages for
GNC’s use of his likeness were between $500,000 and $1 million
for 2012, and $1 million for 2013 based on (1) Olive’s statement
18
purportedly comparable samples of comprehensive royalty
agreements with various well-known celebrities, (2) the CEO’s
statement that in-store merchandising impacts the company’s
sales by zero to one percent, and (3) GNC’s increase in revenue
during the subject period of time. We agree with the trial court
that his methodology was flawed in several aspects.
First, Anson based his opinion on a comparison of royalty
agreements with various celebrities, athletes, and other persons
of international prominence. These included Joe Namath, George
Foreman, Kathy Ireland, Paris Hilton, Barry Bonds, Michael
Jordan, Evander Holyfield, Tim Duncan, John Elway, Alex
Rodriguez and Tyra Banks.
8 Intending no disrespect to Olive,
nothing in the appellate record indicates that he shared
anywhere near the same degree of celebrity as those included in
Anson’s sample.
In any event, Anson’s methodology was also unsound
because it compared the limited use of Olive’s image from one
photo shoot to comprehensive royalty agreements that included
the licensors’ name, signature, voice, initials, endorsement, and
copyrights. Anson believed that GNC’s sales increase was
“driven by the face of the brand and a spokesperson [Olive] that’s
finally resonated with everyone.” The fatal flaw in Anson’s
that he would not have accepted any less compensation, (2)
Ferrari’s testimony that Olive’s minimum acceptable fee would
have been in the “high six figures,” and (3) the earnings of top
male models published in a Forbes magazine article. Olive does
not challenge the exclusion of Anson on this basis.
8 The median compensation for an endorsement was five
percent, but Anson believed one to three percent would be a more
conservative figure as applied to Olive.
19
analysis is that, unlike the licensors in his sample, Olive was not
the company spokesperson, and the use of images taken from a
photo shoot with 15 other models is in no way analogous to a
comprehensive celebrity endorsement arrangement. An expert
may not base his or her opinion upon a comparison of matters
that are not reasonably comparable. (See Sargon, supra, 55
Cal.4th at pp. 770; see also Roscoe Moss Co. v. Jenkins (1942) 55
Cal.App.2d 369.)
Second, Anson’s analysis mischaracterized a statement
from GNC’s President and CEO, Joe Fortunato. In his
deposition, Fortunato was asked what percentage in-store
marketing contributes to company sales. He answered “it has the
least amount of value of anything I’ve told you in regards to
whether a consumer buys a product.” When asked to give a
percentage, Fortunato responded: “I can put it at anywhere from
zero to slightly more than zero. Very little. [¶] . . . [¶] I’ll go zero
to one.”
Anson cited this testimony to support his conclusion that at
least one percent of GNC’s revenues came from its unauthorized
use of Olive’s image. Olive asserts in his opening brief that
“Fortunato admitted that the Live Well marketing campaign
drove 1 percent of GNC’s revenue.” Fortunato’s testimony did not
apportion between the Live Well campaign and any other forms
of in-store marketing. Neither did he attribute any portion of his
estimate to Olive alone, as opposed to the other models used in
that campaign. In short, he made no such admission. Anson’s
reliance on Fortunato’s out-of-context statement further
diminished the reliability of his analysis.
Third, Anson found a causal connection between GNC’s
annual growth rate and its unauthorized use of Olive’s image
20
without identifying any reliable evidence linking the two, such as
data from a focus group. Anson’s analysis did not consider the
macroeconomic conditions during the relevant period of time,
GNC’s pricing promotions, general sales in the vitamin and
supplement industry, employee sales promotions, GNC’s other
marketing efforts, and the impact of professional athletic
“ambassadors” used by GNC. Anson’s conclusory analysis was
therefore unduly speculative.
In sum, Anson’s opinion hinged on hypothetical conjecture
about GNC’s profits attributable to Olive’s image and would not
have reasonably assisted the jury in evaluating the issue.
(Sargon, supra, 55 Cal.4th at pp. 770, 777.) We agree with the
trial court’s conclusion that there was simply too great an
analytical gap between the supposed data relied on by Anson and
the opinion proffered. (See id. at p. 771 [court may conclude
there is too great an analytical gap between the data and the
opinion proffered]; see also David v. Hernandez, supra, 13
Cal.App.5th at p. 698 [same].) Thus, the court acted well within
its gatekeeper’s discretion by excluding Anson from testifying as
an expert.
4. Lyons Was Properly Excluded
Lyons offered his opinion to quantify Olive’s damages, and
to prove that GNC intentionally continued using Olive’s image
after the release agreement expired. His calculation of Olive’s
actual damages directly hinged on Anson’s determination that
one to three percent of GNC’s 2012 sales was attributable to the
unauthorized use of Olive’s likeness. Lyons admitted he did not
conduct his own calculations “because they [Olive’s counsel]
retained an expert that had a long track record and is well-known
21
in branding and licensing and valuation of intellectual property
rights. [¶] And I met with him and reviewed the work that he
did, so I would feel comfortable with it.”
GNC moved to exclude Lyons, arguing that his calculations
hinged on Anson’s invalid approach and that his assessment
about indicia of fraud on the part of GNC was not the proper
subject of expert testimony. The court granted the motion. It
found that Lyons’ opinion regarding Olive’s damages was directly
tethered to Anson’s calculations and was likewise inadmissible.
Further, the issue of whether GNC intentionally used Olive’s
image without authorization was beyond the scope of expert
testimony.
Olive contends “[t]he trial court’s lack of an independent
review of Lyons’ testimony again reveals that it did not conduct a
causal nexus test.[9] Because the trial court did not analyze the
experts’ testimony in this fashion, and relied on a
misinterpretation of section 3344, its rulings should be
reversed.”
10 We disagree.
9 Olive repeatedly asserts that a claim under section 3344
requires a “causal nexus” between the defendant’s unauthorized
use of the plaintiff’s image and the defendant’s gross revenue.
The statute does not use this phrase and, as discussed ante, the
federal authority relied upon by Olive to support this contention
is inapplicable to this case.
10 Olive generally challenges the exclusion of Lyons but he
does not specifically address Lyons’ proffered expertise as to
whether GNC’s unauthorized use of Olive’s likeness was
intentional or malicious. It is his burden to assign a distinct
claim of error. (Salas v. Department of Transportation (2011) 198
22
In his deposition, Lyons testified Anson was exclusively
tasked with calculating the portion of GNC’s revenues
attributable to the unauthorized use of Olive’s likeness. Lyons
was unaware how Anson selected the comparable sample, and he
did not independently evaluate whether the sample was
appropriate. In particular, Lyons did not ask Anson how he ruled
out other persons in his sample, nor did he ask about the
parameters for his sample database. Notwithstanding these gaps
in information, Lyons was “very comfortable” with the manner in
which Anson conducted his analysis.
Anson planned to provide Lyons an attribution percentage
for him to perform a damages calculation. Lyons’s evidence that
GNC’s unauthorized use of Olive’s likeness increased its sales
was “that their sales went up significantly more, as a percentage,
than they did in the prior year, . . .” Lyons offered no compelling
evidence supporting his conclusion that Olive’s likeness directly
caused an increase in GNC’s sales.
Expert opinion testimony may be based upon information
furnished to the expert by others so long as the information is of
a type reasonably relied upon by professionals in the relevant
field. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516,
1524; Pacific Gas & Electric Co. v. Zuckerman (1987) 189
Cal.App.3d 1113, 1135.) However, when the expert’s opinion is
not based on his own perception or knowledge, but depends
instead upon information furnished by others, it is of little value
unless the source is reliable. (See Korsak, at p. 1524, citing 1
Witkin, Cal. Evid. (3d ed. 1986) § 477, p. 448.) Thus, expert
opinion testimony may not be based upon information furnished
Cal.App.4th 1058, 1074.) We therefore deem the issue forfeited.
(Ibid.)
23
by others that is speculative, conjectural or otherwise unreliable.
(Ibid; Lockheed Litigation Cases (2004) 115 Cal.App.4th 558,
564.)
As discussed, Lyons’s opinion hinged on Anson’s
speculative assumptions with no independent evidentiary value.
His opinions were unreliable on this basis. (See Cooper, supra,
239 Cal.App.4th at p. 577 [expert opinion based on speculative
factors has no evidentiary value and may be excluded]; see also
Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at pp. 1524,
1527 [excluding expert opinion where basis of opinion is
unreliable hearsay].) The court properly excluded Lyons’
sspeculative opinions. (See Sargon, supra, 55 Cal.4th at p. 772
[“goal of trial court gatekeeping is simply to exclude ‘clearly
invalid and unreliable’ expert opinion”]).11
C. Prevailing Party Attorney Fees and Costs
Olive contends the trial court abused its discretion by
denying his motion for prevailing party attorney fees. GNC
contends that given the mixed results at trial, the court correctly
concluded there was no prevailing party, or that, alternatively,
this court should deem GNC to be the prevailing party. Although
we originally agreed with Olive and ordered that the matter be
remanded to conduct a hearing to determine an appropriate costs
and attorney fees award, we subsequently granted GNC’s petition
11 Olive again cites the two jury questions about how to
apportion GNC’s ill-gotten profit in support of his contention that
the court’s exclusion of Anson and Lyons was prejudicial. Having
found no error, we need not address this issue. (Ante, fn. 5.)
24
for rehearing on this issue. After reviewing the matter once
more, we are now persuaded that the trial court was correct.
1. Proceedings Below
Olive’s complaint alleged misappropriation of his likeness
and sought restitution for GNC’s unjust enrichment. GNC
initially denied Olive’s allegations, but eventually admitted
liability for the unauthorized use of his likeness. Therefore, the
only issue to be resolved at trial was Olive’s damages, if any.
In his trial brief, Olive sought damages as follows: actual
damages of $1.5 million for the licensing fee to use his likeness in
2012-2013; past and future emotional distress damages of $2
million; restitution for GNC’s profits based on the unlicensed use
of his likeness in a range that went from approximately $54
million to as high as $175.9 million; and punitive damages of at
least five times the amount of the jury’s damage award. During
argument, Olive asked the jury to award restitution in amounts
ranging from $11.7 to $35.2 million. GNC impliedly
recommended that Olive was entitled to a licensing fee of only
$4,800, but urged the jury to award nothing in the way of
emotional distress, restitution, or punitive damages. The jury
awarded Olive $213,000 for the licensing fee and $910,000 for his
emotional distress, but did not award Olive either restitutionary
or punitive damages.
Both parties sought prevailing party attorney’ fees
pursuant to section 3344. The trial court concluded that neither
party prevailed because “the jury accepted neither party’s
recommendation but instead awarded a middling sum amounting
to a tie.” In reaching this decision the court noted that both
parties were visibly dismayed by the jury verdict—Olive thought
25
it was too low and GNC thought it was too high. The court
emphasized counsel’s facial reactions, stating “[t]his . . . mutually
transparent display was unprecedented in the court’s
experience.”
The court continued: “Draw a line between two endpoints.
The left endpoint is GNC’s jury recommendation: $4800. The
right endpoint is Olive’s recommendation: $23.5 million. (His
total recommendation actually was higher, but we simplify for
clarity.) Now mark million-dollar intervals on this line, from left
to right. This line charts the range of the quantitative dispute.
Finally, place a fulcrum under this line at the $1.1 million point.
That was the jury verdict. If this line were a tangible yardstick
and the verdict an actual fulcrum, the yardstick would tilt
sharply in GNC’s favor. [¶] Think of a teeter totter. Olive is in
one seat, GNC is in the other. The pivot point is the jury verdict.
The seesaw’s pivot is far closer to GNC than to Olive. [¶]
According to the goal Olive set for himself, one cannot say Olive
prevailed. He lost, which is why he and his team thought he lost.
[¶] . . . [¶] GNC also thought it lost, and for good reason. In
addition to an actual damage award that vastly exceeded GNC’s
assessment, the jury awarded Olive $910,000 in emotional
distress damages. The GNC lawyers were plainly shocked by this
pain and suffering sum.”
The trial court therefore concluded that, given the
“practical realities” of the case, the trial ended in a draw and
there was no prevailing party.
26
2. Applicable Law
Generally speaking, parties to litigation must bear their
own costs, including attorney fees. (Westamerica Bank v. MBG
Industries, Inc. (2007) 158 Cal.App.4th 109, 125–126.) However,
section 3344 mandates an award of attorney fees for “[t]he
prevailing party in any action under this section.” (§ 3344, subd.
(a); Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 62.)
The statute does not define the phrase “prevailing party.”
“‘In the absence of legislative direction in the attorney fees
statute, the courts have concluded that a rigid definition of
prevailing party should not be used. [Citation.] Rather,
prevailing party status should be determined by the trial court
based on an evaluation of whether a party prevailed “‘on a
practical level,’” and the trial court’s decision should be affirmed
on appeal absent an abuse of discretion.’ [Citation.] ‘Among the
factors the trial court must consider in determining whether a
party prevailed is the extent to which each party has realized its
litigation objectives. [Citations.]’ [Citation.]” (Sharif v. Mehusa
Inc. (2015) 241 Cal.App.4th 185, 192 (Sharif) [when there are two
fee shifting statutes in separate causes of action, there can be
different prevailing parties].) That standard applies to actions
under section 3344 (Gilbert v. National Enquirer, Inc. (1997)
55 Cal.App.4th 1273, 1277–1278), and it is the standard the trial
court applied.
Most cases applying this standard to statutory attorney fee
provisions have done so in the context of voluntary dismissals.
(Donner Management Co. v. Schaffer (2006) 142 Cal.App.4th
1296, 1310–1311 (Donner Management) [shareholder derivative
suit against corporate officer dismissed without prejudice; trial
court properly found defendant was prevailing party under
27
statutory fee provision because plaintiff’s dismissal was
compelled by corporate decision that maintaining action was not
in corporation’s best interests]; Castro v. Superior Court (2004)
116 Cal.App.4th 1010, 1022–1024 (Castro) [where lis pendens is
voluntarily removed pending hearing on motion to expunge, the
party who brought the motion may be entitled to recover
statutory attorney fees based on practical considerations that
motivated removal of the lien, including the merits of the
expungement motion]; Galan v. Wolfriver Holding Corp. (2000)
80 Cal.App.4th 1124, 1129–1130 [plaintiffs brought action
against landlord for substandard housing and parties settled; no
abuse of discretion by trial court in determining there was no
prevailing party where the settlement did not exonerate the
landlord and plaintiffs implicitly determined it was not worth
pursuing the matter]; Gilbert, supra, 55 Cal.App.4th 1273, 1277–
1278 [actress voluntarily dismissed section 3344 action without
prejudice; trial court did not abuse its discretion by finding no
prevailing party because so little discovery had been conducted it
was impossible to determine which party prevailed at a practical
level].)
3. Hsu v. Abbara
We have not found, and the parties have not cited, a
published decision applying the “practical level” test to a
statutory cause of action where the term “prevailing party” is not
defined and a plaintiff recovered some amount of damages at
trial. Both parties suggest that guidance can be found in the
somewhat analogous context of contractual attorney fee awards
under Civil Code section 1717, which allows a trial court to
28
determine that neither party has prevailed on a contract cause of
action. (Civ. Code, § 1717, subd. (b)(2).)
The seminal decision in this area is Hsu v. Abbara (1995)
9 Cal.4th 863 (Hsu). In Hsu, the would-be buyers of a house sued
the sellers for breach of contract, claiming that the sellers
reneged after an exchange of offers and counteroffers had
resulted in an agreement to sell. The trial court found for the
defendant sellers after determining that the buyers’ new offer,
made after their purported acceptance, extinguished the
previously accepted counteroffer. The trial court, without
explanation, declined to award the sellers their attorney fees
pursuant to a contractual fee provision, and the Court of Appeal
affirmed.
The Hsu court reversed, holding that the sellers were the
prevailing parties as a matter of law because they achieved an
unqualified win. (Hsu, supra, 9 Cal.4th at pp. 876–877.) Before
reaching that conclusion, however, the Hsu court considered the
possibility that the trial court might have properly found that
neither party had prevailed, and established ground rules for
making such a determination.
Citing earlier Court of Appeal decisions, Hsu noted “that
the results of litigation may be so equivocal as to permit or even
require that no party be found to have prevailed for purposes of
attorney fees under [Civil Code] section 1717.” (Hsu, supra,
9 Cal.4th at p. 874.)
“As one Court of Appeal has explained, ‘[t]ypically, a
determination of no prevailing party results when both parties
seek relief, but neither prevails, or when the ostensibly prevailing
party receives only a part of the relief sought.’ [Citation.] By
contrast, when the results of the litigation on the contract claim
29
are not mixed—that is when the decision on the litigated contract
claims is purely good news for one party and bad news for the
other—the Courts of Appeal have recognized that a trial court
has no discretion to deny attorney fees to the successful litigant.
Thus, when a defendant defeats recovery by the plaintiff on the
only contract claim in the action, the defendant is the party
prevailing on the contract under [Civil Code] section 1717 as a
matter of law. [Citations.] Similarly, a plaintiff who obtains all
relief requested on the only contract claim in the action must be
regarded as the party prevailing on the contract for purposes of
attorney fees under [Civil Code] section 1717.” (Hsu, supra,
9 Cal.4th at pp. 875–876.)
As a result, “parties whose litigation success is not fairly
disputable [may] claim attorney fees as a matter of right, while
reserving for the trial court a measure of discretion to find no
prevailing party when the results of the litigation are mixed. [¶]
Accordingly, we hold that in deciding whether there is a ‘party
prevailing on the contract,’ the trial court is to compare the relief
awarded on the contract claim or claims with the parties’
demands on those same claims and their litigation objectives as
disclosed by the pleadings, trial briefs, opening statements, and
similar sources. The prevailing party determination is to be
made only by ‘a comparison of the extent to which each party
ha[s] succeeded and failed to succeed in its contentions.’
[Citation.]” (Hsu, supra, 9 Cal.4th at p. 876.) Finally, when
determining litigation success, the courts “should respect
substance rather than form.” (Id. at p. 877.)
30
4. The Hsu Rule Applies Here
To the extent we interpret the attorney fee provision
contained in section 3344 apart from any factual issues, we
exercise independent review. The trial court’s factual
determination concerning prevailing party status in accord with
that provision is reviewed for abuse of discretion. (Sharif, supra,
241 Cal.App.4th at p. 191.)
Hsu’s test for determining whether neither party prevailed
at trial came in the context of Civil Code section 1717, which
expressly allows for such a determination in contract-based
claims. Section 3344, however, contains no such provision.
Therefore, before determining whether Hsu applies here, we
must first determine whether the trial court was free to find in
the first instance that there was no prevailing party.
As noted earlier, because section 3344 does not define
“prevailing party,” the evaluation of whether a party prevailed
turns on whether the party prevailed on a practical level. This
requires the trial court to consider, among other things, the
extent to which each party realized its litigation objectives.
(Sharif, supra, 241 Cal.App.4th at p. 192.)
As part of this determination, we believe it is possible for a
trial court to conclude that neither party prevailed because
neither party realized its litigation objectives. This was explicit
in Galan, supra, 80 Cal.App.4th at page 1128, which held in
connection with a statutory fee provision that did not define
“prevailing party” that it was within the trial court’s discretion to
determine “which party, if either, prevailed . . . .” (Italics added.)
It was also a necessary, if unanalyzed, corollary to the holding in
Gilbert, supra, 55 Cal.App.4th at pages 1277–1278, that the
defendant in a section 3344 action in whose favor a dismissal was
31
entered was not entitled to recover its attorney fees because it
was not possible to determine “whether either side had prevailed
on a practical level.”
We conclude that Hsu provides a workable approach for
determining whether neither party prevailed. As Sharif noted,
the test in statutory fee provisions that do not define “prevailing
party” is to determine whether a party prevailed on a practical
level by considering, among other things, the extent to which
each party realized its litigation objectives. (Sharif, supra, 241
Cal.App.4th at p. 192.) The Hsu test is substantially similar,
coming into play in so-called “mixed result” cases, where the
ostensibly prevailing party receives only part of the relief sought.
(Hsu, supra, 9 Cal.4th at p. 875.) In such cases, the trial court
compares the relief awarded with the parties’ demands, as
disclosed by the pleadings, trial briefs, opening statements, and
other sources. Based on that, the trial court determines whether
there has been a prevailing party by comparing the extent to
which each party succeeded or failed in its contentions. (Id. at
p. 876.)
5. The Trial Court Did Not Err By Finding
That There Was No Prevailing Party
It is undisputed that neither party obtained an unqualified
win. Olive initially sought $1.5 million in actual damages, $2
million for his emotional distress, restitution of GNC’s profits in a
range that exceeded $100 million, and five times the total of
those sums as punitive damages. Instead, he obtained $213,000
in actual damages, $910,000 for his emotional distress, and
nothing in terms of restitution or punitive damages. GNC
32
contended that Olive was entitled to nothing more than $4,800 in
actual damages, but ended up with an adverse verdict of more
than $1.1 million. Accordingly, the trial court was free to view
this as a mixed result and then exercise its discretion to
determine whether one party prevailed, or whether neither party
prevailed because neither achieved its practical litigation
objectives.
A court abuses its discretion if its ruling is so irrational or
arbitrary that no reasonable person could agree with it.
(Property California SCJLW One Corp. v. Leamy (2018) 25
Cal.App.5th 1155, 1162.) An abuse of discretion occurs if, in light
of the applicable law and the relevant circumstances, the court’s
decision exceeds the bounds of reason, resulting in a miscarriage
of justice. (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th
329, 378.) The trial court here engaged in a detailed analysis of
each party’s results, taking into account the reduced amount of
restitution damages sought by Olive in light of the trial court’s
evidentiary rulings excluding his expert witnesses on that
topic.12 Even though the jury awarded Olive more than $1.1
million, the trial court concluded that the verdict still
represented a loss for Olive based on his own trial objectives. We
do not believe this was an abuse of discretion.
The court in Marina Pacifica Homeowners Assn. v.
Southern California Financial Corp. (2018) 20 Cal.App.5th 191
12 Olive disputes that he ever sought restitution damages of
more than $175 million, claiming that the figure represented
nothing more than the high range of GNC’s possible profits from
its unauthorized use of his likeness. As just noted, however, the
trial court relied on a far lower amount when determining each
party’s litigation success, as do we.
33
(Marina Pacifica) considered an analogous mixed-results
scenario. We find its reasoning instructive.
The plaintiff in Marina Pacifica was a condominium
homeowners association and the defendant was the assignee of
the project developer. The dispute centered on the assignee’s
right to collect certain ongoing payments as an assignment fee
pursuant to each unit owner’s purchase agreement. Following
years-long litigation, the developer’s assignee was awarded $39
million. However, the trial court determined that neither party
had prevailed because the assignee had sought damages of $97
million. The Marina Pacifica court affirmed, holding that under
the principles of Hsu, supra, 9 Cal.4th 863, the results were
sufficiently mixed to justify the trial court’s findings. (Marina
Pacifica, supra, 20 Cal.App.5th at p. 207.)
In short, a multi-million dollar award somewhat more than
40 percent of the amount sought was sufficiently “mixed” that the
trial court could reasonably conclude neither party had prevailed.
The facts here are even more compelling, where, when Olive’s
punitive damage request is factored in, he recovered less than
one percent of his litigation objectives.13
Olive relies primarily on three decisions to support his
contention that the trial court abused its discretion when it failed
to recognize that he was the prevailing party: de la Cuesta v.
13 We base this on the $1.1 million Olive was awarded, plus
the mid-point $20 million in restitution damages he eventually
sought at trial, added to the multiplier of five he requested for
punitive damages. At Olive’s bottom-range restitution demand of
approximately $11 million, the verdict is still less than two
percent of what he sought at trial. And even if we factored out
his punitive damages request, the verdict is still only five percent
of the verdict plus his mid-point restitution demand.
34
Benham (2011) 193 Cal.App.4th 1287 (de la Cuesta); Silver Creek,
LLC v. Blackrock Realty Advisors (2009) 173 Cal.App.4th 1533
(Silver Creek); and Ajaxo v. E*Trade Group, Inc. (2005) 135
Cal.App.4th 21 (Ajaxo).14 None is applicable.
The de la Cuesta court held that even in a mixed results
case it might be an abuse of discretion to determine there was no
prevailing party if the results were lopsided in one party’s favor.
(de la Cuesta, supra, 193 Cal.App.4th at p. 1295.) The plaintiff in
that unlawful detainer action was a landlord who sought
$103,000 in back rent, while the tenant claimed she owed
nothing. The tenant vacated the premises the day before trial
and the plaintiff was awarded $70,000. The trial court found
there was no prevailing party, but the Court of Appeal reversed,
holding that the trial court had abused its discretion because the
results were so lopsided in the plaintiff’s favor. (Id. at pp. 1290,
1296.) By contrast, given the disparity between what Olive
sought and what he achieved at trial, we cannot state that the
results here were lopsided in his favor.
The same is true of Silver Creek, supra 173 Cal.App.4th
1533 at pages 1540–1541, where the plaintiff-seller of real
property obtained a judgment declaring that it had properly
terminated the sales agreement for property worth more than
$29 million, while the defendant obtained the return of its $1.13
million deposit. The trial court’s determination that neither
party prevailed was an abuse of discretion because the property
issue was most important to the parties, meaning the plaintiff
clearly obtained the greater relief. (See Marina Pacifica, supra,
20 Cal.App.5th at pp. 206–207.)
14 We relied on these as well in our original decision, but
have reevaluated them in light of GNC’s rehearing petition.
35
Finally, in Ajaxo, supra, 135 Cal.App.4th 21, 59, the Court
of Appeal rejected defendant’s contention that the plaintiff could
not be the prevailing party on its breach of contract cause of
action because the $1 million damage award was far less than
what it had requested. Even though the award was less than the
amount sought, the plaintiff was still the prevailing party
because it received a simple, unqualified win on its breach of
contract claim. (See Marina Pacifica, supra, 20 Cal.App.5th at
p. 205.) As already discussed, Olive’s “win” was not unqualified.
In short, given that the mixed results in this case did not
amount to a lopsided verdict in Olive’s favor, the trial court did
not abuse its discretion in determining that neither party
prevailed for purposes of awarding attorney fees under section
3344.15
15 We reject Olive’s contention that our holding undercuts
section 3344 by requiring either a complete victory, or that the
plaintiff in such an action must be awarded restitutionary
damages in order to be deemed the prevailing party. Instead, we
merely recognize that the trial court that presided over the
matter is in the best position to determine the degree to which
either party succeeded at trial, that each case must be evaluated
individually, and that, under the relevant circumstances and the
applicable law, the trial court here did not abuse its discretion in
concluding that neither party had prevailed.
Outcome: The judgment and order denying both parties attorney fees
are affirmed. Each party shall bear its own appellate costs.
Plaintiff's Experts:
Defendant's Experts:
Comments: