The trial court did not abuse its discretion in holding that the defendant was not the prevailing party entitled to an attorney fee award under Civ. Code 3344 when the plaintiff dismissed its section 3344 claim without prejudice so that it could refile that claim (which it did) in Tennessee, whose law the trial court had held applied. Civ. Code 3344 does not adopt CCP 1032’s definition of prevailing party. And here the trial court reasonably could find the refiled claim was still being litigated, albeit in a different forum.