We Had Questioned Whether The Original Decision Finding Fees Should Be Awarded To Plaintiff Was Correct, With Court Of Appeal Agreeing With Us Upon A Rehearing.
In our November 14, 2018 post on Olive v. General Nutrition Centers, Inc., Case No. B279490 (2d Dist., Div. 4), we had questioned at the end of our discussion whether it was correct for the Court of Appeal to determine plaintiff prevailed where he only succeeded to a small degree on his litigation objectives. We believed that the “no prevailing party” determination by the trial judge appeared to be correct.
We can now report that the 2/4 DCA granted a defense petition for rehearing, with the panel changing its mind and determining that the trial judge was correct in finding no one to be the “prevailing party” under Civil Code section 3344, a commercial likeness statute which has a mandatory fees/costs provision in favor of a prevailing party. See Olive, Case No. B279490 (2d Dist., Div. 4 Dec. 27, 2018) (published, opinion after rehearing).
Olive involved a situation where a plaintiff model/actor sued for multiple, multiple millions of dollars (at least $23.5 million, and maybe even $100 million for profit disgorgement/punitive damages), while defendant argued $4,800 were the properly recoverable compensable damages. The jury awarded $1.123 million in compensatory and emotional distress damages, with the trial court noting that both sides were visibly dismayed by the jury verdict. Based on plaintiff recovering only between 1-2% of his litigation objectives, the lower court decided no one prevailed under section 3344.
Although originally determining that plaintiff did prevail, the 2/4 DCA agreed that the trial court was correct in finding no “prevailing party.” It applied the practical prevailing party test under Civil Code section 1717 as articulated in Hsu v. Abbara, 9 Cal.4th 863 (1995) [our Leading Case No. 2], agreeing with the trial judge that the case was a “tie” and plaintiff only obtained a “middling” number well short of huge profit disgorgement and punitive damages sought from the jury. We believe that this is the proper result, as we commented on in our prior November 14 post.