Civil Code Section 3344: Attorney’s Fees Properly Denied Where Claim Did Not Involve Identity Theft In Connection With Products, Merchandise, or Goods
Fourth District, Division 3 Finds Controversy Moot, But Decides the Merits To Avoid Repetition.
Civil Code section 3344(a) provides that a prevailing party in an action involving “any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent” shall be entitled to attorney’s fees and costs. This provision—and an interesting discussion on exceptions to application of the mootness doctrine—were at play in the next case we discuss out of our local Santa Ana Court of Appeal division.
Lon Chaney, Sr. “Man of a Thousand Faces.”
In Szanto v. Szanto, Case No. G039594 (4th Dist., Div. 3 Apr. 3, 2009) (unpublished), father defeated son in an “identity theft” case and was denied an award of attorney’s fees under section 3344. However, son earlier obtained an appellate reversal of a conversion claim that had been dismissed with prejudice following a successful demurrer. The essence of son’s claim was that father had stolen his identity, without his consent, by opening various bank accounts in his name, filing false tax returns in his name, using his name to be lead plaintiff in several class actions, and using his name to litigate a case in Riverside County. After a partially successful demurrer was sustained and a defense judgment was obtained by father, father’s request for section 3344 fees was denied by the trial court. That led to a separate appeal of the fee denial.
Acting Presiding Justice Bedsworth, writing for a 3-0 panel of the Fourth District, Division 3, initially decided that the appeal was moot because there could be no prevailing party. Because the reversed claim had to be adjudicated again, the appeal was moot until that further resolution took place.
However, fearful that the issue might recur if father prevails once again in the trial court, the appellate panel decided to confront the issue on the merits—based on one of the exceptions to the mootness rule, i.e., a recurrence of the controversy between the parties. (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, 82 Cal.App.4th 473, 479-480 (2000).) The problem for father was that son never alleged the right type of identity theft. “The mere unauthorized use of another’s signature does not qualify as a violation of section 3344. Only the use of that signature in connection with ‘products, merchandise or goods’ would qualify, and [father] does not contend that [son] made that allegation.” (Slip Opn., at p. 8.) So, in the end, the fee battle between father and son was quelled by our local appellate court, maybe sending a signal that the whole controversy should be put to bed. (Sorry, Justice Bedsworth, really bad pun!)