Plaintiff – Although Seeking Six-Figures In Damages – Had Achieved His Litigation Purposes Through Damages Verdict of $10,000, But Dismissed Defendant Failed To Meet His Burden As To The Reasonableness Of His Fees Request.
In Dice v. X17, Inc., Case No. B2282448 (2d Dist., Div. 3 September 27, 2019) (unpublished), a celebrity news website published images of sobriety coach Peter Dice showing a bag containing healing crystals to celebrity Lindsay Lohan, and depicted the interaction as a drug deal. Mr. Dice sued the media company and its president/sole shareholder seeking damages and injunctive relief.
Before trial, plaintiff presented defendant media company with a rejected Code Civ. Proc. § 998 offer for $250,000. During a later mandatory settlement conference, defendant media company offered $45,000 to settle the case. Plaintiff rejected the offer, and the case proceeded to jury trial. At the close of evidence, plaintiff dismissed president/sole shareholder from the action.
The jury returned its special verdict finding the media company liable to plaintiff for defamation, and common law and Civ. Code section 3344 misappropriation of likeness for its knowing, unauthorized use of plaintiff’s likeness on its website – awarding plaintiff $10,000 in damages.
The lower court entered judgment – finding the prevailing parties under section 3344 to be plaintiff against media company, and dismissed president/sole shareholder defendant against plaintiff. This triggered cross-motions for attorneys’ fees and costs pursuant to section 3344(a) which provides the prevailing party entitlement to fees and costs.
As to plaintiff, the lower court found no requirement to apportion fees between the section 3344 and common law claims, concluding that proving plaintiff’s successful section 3344 and common law causes of action “required virtually identical testimony and evidence” (although it did reduce for fees not incurred to prevail on section 3344) and awarded fees of $137,595.20 and $9,523.55 in costs.
President/shareholder, however, was awarded only costs of $4,934.91 against plaintiff – with denial of his $226,456.50 fees request altogether for failure to meet his burden of proof that the requested fees were reasonable. He made his request jointly with media company – although media company was not a prevailing party – and provided no apportionment between the two defendants, and did not categorize the fees nor apportion for the section 3344 work, even after the trial court had issued its tentative ruling. Additionally, the lower court was unable to find that president/shareholder had incurred any fees – with only the media company being invoiced.
Media company and president/shareholder jointly appealed – arguing the trial court erred in determining plaintiff a prevailing party because in doing so it had improperly considered his success on other causes of action, and also because plaintiff failed to achieve his monetary litigation goal, with the nonmonetary goals being irrelevant under section 3344. Additionally, they argued the lower court erred by basing the denial of their fees on president/shareholder sharing of counsel with media company and in the fact he did not personally incur fees.
The 2/3 DCA found no error or abuse of discretion and affirmed. Plaintiff had realized his litigation objectives, which included the award of monetary damages and “to right a wrong and clear his reputation.” Section 3344 does not limit recovery to economic damages, but includes “any damages sustained” – thus including damage to reputation and providing remedy for the associated mental harm. The jury’s verdict, regardless of the amount awarded, had provided plaintiff public vindication.
While the 2/3 DCA agreed that president/shareholder could not be denied fees based on sharing counsel and not personally incurring fees, it found that the trial court had properly denied fees. Due to defendants’ failure to apportion fees, the lower court was unable to determine what fees were incurred to defend president/shareholder against the section 3344 cause of action, and president/shareholder did not demonstrate that the facts in his defense were inextricably intertwined with those of media company. As a result, president/shareholder had failed to meet his burden as to reasonableness.
BLOG COMMENT: Congratulations go out to James R. Balesh of the Los Angeles-based Balesh Law Group for your successful representation at the trial and appellate court levels! Great results on plaintiff’s fee request and his opposition to defendants’ joint fee request.
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