In this case of misappropriation of plaintiff’s likeness, the plaintiff won a jury verdict of $213,000 in actual damages and $910,000 in emotional distress damages, but the jury awarded $0 on plaintiff’s claim for defendant’s profits from use of plaintiff’s likeness—as against plaintiff’s request for $23 million. After rehearing, the Court of Appeal holds that the trial court did not abuse its discretion in denying both parties fees under Civ. Code 3344 which requires an award of attorney fees to the prevailing party. Applying the Hsu v. Abbara test, the trial court could reasonably conclude that neither party succeeded sufficiently to be deemed a prevailing party.
California Court of Appeal, Second District, Division 4 (Micon, J., sitting by assignment); December 27, 2018; 2018 Cal. App. LEXIS 1210