“Reverse” Unity of Interest Argument Did Not Dictate Different Result.
Civil Code section 3344.1, California’s right to publicity statute, does contain a mandatory fee-shifting clause in favor of the prevailing party, with attorney’s fees and costs being the carrot for such a party. The next case involves an interesting procedural situation in a case brought by a plaintiff licensing deals with respect to the publicity rights of deceased actress Bette Davis. So, without further ado, here we go.
In CMB Brands LLC v. Stop Staring! Designs LLC, Case No. B234118 (2d Dist., Div. 7 Aug. 20, 2012) (unpublished), CMB--a company that negotiates licensing deals involving publicity rights of Ms. Davis--dismissed a first action without prejudice after defendant--a party selling dresses with code products incorporating the phrase “bdavis”--challenged CMG’s standing to sue in a summary judgment motion. CMG then filed a new action, but adding Ms. Davis’s estate and heirs as new plaintiffs. The new action was partially resolved when defendant accepted new plaintiffs’ offer to compromise, even though (and importantly) CMG was not a party to the compromise offer. The trial court then awarded defendant $118,518.75 in attorney’s fees and $2,325 in costs as the prevailing party in the first action, prompting an appeal by CMG.
Fee/costs award affirmed, in a 3-0 panel decision of the Second District, Division 7.
Although section 3344.1 has no express definition of “prevailing party,” case law has established a practical test should be utilized, focusing on which party realized its objectives in the litigation. (Gilbert v. National Enquirer, Inc., 55 Cal.App.4th 1273, 1277 (1997).) The lower court did not abuse its discretion in awarding fees/costs to defendant because the sequence of events showed that the defense had won its standing challenge even though the first action was dismissed without prejudice. Notwithstanding that CMG could refile a new action, defendant still prevailed under the previously dismissed complaint. (Cf. Coltrain v. Shewalter, 66 Cal.App.4th 94, 107 (1998) [voluntary dismissal of an action while a SLAPP motion pending means the defense ordinarily will be the prevailing party].)
Plaintiff then tried to stretch the “unity of interest” principle applicable to routine costs awards to the pickle it was in, arguing that CMG actually was unified in interest with the new plaintiffs that succeeded in a settlement of the second action. The problem here is that this principle only operates under a statute that was repealed long ago and only applies to a multi-defendant situation involving routine costs, not a factual scenario involving multi-plaintiffs--and especially one plaintiff in the group not a party to the subsequent settlement which had lost in a prior action.