Despite Plaintiff Not Winning Multi-Millions More Being Claimed, Appellate Court Believed He Should Get Prevailing Party Fees.
Co-contributor Mike was a little surprised by this one, given how prevailing party determinations in mixed cases are usually governed by a deferential abuse of discretion standard. However, that often depends on the facts of the case, with the appellate court in Olive v. General Nutrition Centers, Inc., Case No. B279490 (2d Dist., Div. 4 Nov. 2, 2018) (published) giving plaintiff a nice win on appeal such that he was declared the prevailing party and entitled on remand to seek what we would think are significant attorney’s fees in this status.
In an unauthorized likeness case by a plaintiff model/actor, where liability was conceded, damages was the contested item in this matter. Plaintiff won $1.123 million under Civil Code section 3344, which does have a prevailing party fee-shifting provision under subdivision (a). The trial judge determined no one prevailed because (1) plaintiff sought much, much larger profits and emotional distress damages (actually, $12 million to $36 million) but only received $1.123 million; (2) GNC recommended only damages of $4,800 in total; and (3) the jury did not accept either party’s recommendation. So, between $4,800 and $23.5 million, no one prevailed.
The appellate court disagreed, remanding such that plaintiff can be awarded prevailing party fees in the discretion of the lower court. It reasoned that failure to obtain the “most lucrative portion of sought-after damages” was not a disqualifying factor, such that plaintiff did garner the “greater relief” compared to the paltry amount which defendant thought was offered. Big win for a plaintiff who now gets to seek, we would think, significant fees.
BLOG OBSERVATION—We do not usually comment on the end result of a decision, but this one does not “smell” like an abuse of discretion. It appears that the appellate court compared the defense recommendation to what the plaintiff ultimately achieved, but this does not take into account the huge damages plaintiff really wanted as far as determining the true prevailing party calculus at the conclusion of the day. Just sayin’ ….., given we can comment once and a while on decisions.
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