Man Who Gained Damages Far Less Than Sought Wasn’t ‘Prevailing Party’

Friday, December 28, 2018

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Court of Appeal:

Man Who Gained Damages Far Less Than Sought Wasn’t ‘Prevailing Party’

Panel, Following Rehearing, Does Turnabout From Nov. 2 Decision

By a MetNews Staff Writer

Actor/model Jason Olive, who was declared by the Court of Appeal on Nov. 2 to be entitled to attorney fees in litigation with General Nutrition Center, yesterday lost that victory, with the appeals court now deciding the disparity between the $23.5 million he sought and the $1.1 million he was awarded precludes him from being deemed a “prevailing party.” Attorney fees were sought pursuant to a provision of Civil Code §3344, which bars the unconsented commercial use of a person’s name or likeness.

The Court of Appeal for this district, in a flip-flop from its Nov. 2 decision in the case, held yesterday that a male model is not entitled to attorney fees in his action against General Nutrition Center for unauthorized use of his likeness after its license expired.

The action was brought under Civil Code §3344—the “right of publicity” statute—which provides:

“The prevailing party in any action under this section shall… be entitled to attorney’s fees and costs.”

In the earlier decision, Div. Four said, in an opinion by Los Angeles Superior Court Judge Gary I. Micon, sitting on assignment, that plaintiff Jason Olive was the “prevailing party,” entitled to the fees, even though the judgment, in excess of $1.1 million—including $910,000 for emotional distress—was less than the $23.5 million he sought.

That opinion reversed the order by then-Los Angeles Superior Court Judge John Wiley (now a Court of Appeal justice) denying Olive fees. Wiley’s view was that “[a]ccording to the goal Olive set for himself, one cannot say Olive prevailed.”

Nov. 2 Opinion

Micon said in the Nov. 2 opinion:

“We understand the trial court’s conundrum: there was a wide disparity between where each party began and ended in terms of the relief sought and the relief obtained. The net result could be considered a draw, leaving each party dissatisfied with the result. However, we do not believe that means Olive was not the prevailing party simply because he failed to obtain an award for the most lucrative portion of his sought-after damages.”

The judgment was otherwise affirmed.

Defendant GNC on Nov. 16 filed a petition for rehearing; the court on Nov. 28 responded that because its jurisdiction would expire in two days, the petition was “granted for the purpose of allowing appellant to file an answer to respondent’s petition for rehearing”; Olive filed an answer on Dec. 4; the case was taken under submission on that date.

Opinion Following Rehearing

In yesterday’s opinion, Micon declared:

“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.”

He went on to say:

“[G]iven 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.”

The jurist remarked in a footnote:

“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.”

The case is Olive v. General Nutrition Centers, Inc., B279490.

Attorneys on appeal were Neville L. Johnson, Douglas L. Johnson and Ronald P. Funnell of the Beverly Hills firm of Johnson & Johnson, along with Bassil A. Hamideh of Century City for Olive, and Leslie M. Werlin, James F. Neale and Molly M. White of the Century City firm of McGuire Woods for GNC.