Second District, Division 3 Address Many, Many Procedural Issues in Unpublished Opinion.
In Matusek v. Benn, Case No. B206776 (2d Dist., Div. 3 Oct. 29, 2009) (unpublished), two sets of defendants (the Murad and Benn defendants, each set composed of businesses and their principals) contracted to create an infomercial using an appearance by plaintiff Matusek. Matusek sued for breach of contract, fraud and misappropriation of likeness under Civil Code section 3344, while defendants cross-complained on various counts. The jury awarded plaintiff compensatory and punitive damages against three of the four defendants, although the trial court nonsuited the 3344 claim. The lower court granted some JNOV and new trial motions by which the verdicts were substantially reduced or eliminated as to the three remaining defendants (including Mr. Murad personally). Plaintiff appealed to the Second District, which undid some of the postjudgment rulings and awarded costs to plaintiff. Eventually, the lower court entered a post-appeal judgment, finding that plaintiff was the prevailing party for cost purposes against all defendants because they had unified interests (even though Mr. Benn was exonerated completely). The trial court awarded costs of appeal to plaintiff of $5,778.09 against all defendants, and three defendants prevailing on the 3344 count recovered combined, apportioned attorney’s fees of about $13,500 for nonsuiting the 3344 claim. The Benn defendants appealed, and Matusek moved to dismiss the appeal by the Benn corporate defendant.
With this convoluted procedural history in mind (which we have truncated tremendously), the Second District, Division 3 addressed many gnarly procedural issues that do sometimes pop up for consideration.
The appellate panel did grant plaintiff’s motion to dismiss the appeal by the Benn corporate defendant. Reason? The corporation had become suspended, revived, but became suspended again while the appeal was being prosecuted. Enough was enough, such that the second suspension required a dismissal of the appeal by the Benn business.
Plaintiff was found to have prevailed for a routine costs award against Benn corporation and individual defendants because they had unified interests. This determination was affirmed. (Keep in mind that only the Benn defendants appealed.) Even though Mr. Benn won, his business lost. Where losing and winning defendants are represented by the same attorney, file a joint answer to the complaint, and join in the same motions and responses during the litigation (which happened to be the case in the underlying litigation), they share a “unity of interest” and the statutory prevailing party definition does not apply to the winning defendant. (Wakefield v. Bohlin, 145 Cal.App.4th 963, 985 (2006).)
Benn contended he was entitled to fees as a prevailing party under Civil Code section 1717. Two major problems here: (1) the Benn defendants were not signatories to the contract identified as having the fees clause; and (2) the provision was just an indemnification provision clause to which section 1717 was inapplicable. (See our category “Indemnity” for a discussion of leadings cases, such as Myer, which so hold.)
Benn defendants then argued that the trial court should have allowed them to recoup $144,720 in attorney’s fees for prevailing on the 3344 claim, rather than the paltry $9,072 awarded to the Benn defendants. The appellate court did not buy it, because defendants were including fees for four other claims upon which they were not successful or did not carry a statutory basis for fee recovery. These defendants did not meet their burden of isolating hours spent solely on the 3344 claim. (Civil Code section 3344 does contain a special fee-shifting statute allowing fees to a prevailing party.)
Last issue was the trial court’s denial of fees to the Benn defendants in connection with winning certain portions of appeal number 1. The flaw in this argument was that the appellate “wins” did not involve 3344, so there was no predicate anchor for fee recovery.
End result—Benn corporate defendant’s appeal was dismissed, and the remainder of the fee and cost rulings were affirmed.
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