Filed 12/27/18; Opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JASON OLIVE,

Plaintiff and Appellant,

v.

GENERAL NUTRITION CENTERS, 

INC.,

 Defendant and Appellant.

 B279490

 (Los Angeles County

 Super. Ct. No. BC482686)

APPEAL from a judgment and order of the Superior Court 

of Los Angeles County, John Shepard Wiley, Jr., Judge. 

Affirmed.

Johnson & Johnson, Neville L. Johnson, Douglas L. 

Johnson and Ronald P. Funnell; Hamideh Firm and Bassil A. 

Hamideh for Plaintiff and Appellant. 

McGuire Woods, Leslie M. Werlin, James F. Neale and 

Molly M. White for Defendant and Appellant. 

_____________________
2

Jason Olive is a model and actor who contracted with 

General Nutrition Centers, Inc. (GNC) to use his likeness in its 

advertising campaign. GNC continued using Olive’s likeness in 

its advertising after its right to do so expired. GNC admitted 

liability for the unauthorized use of Olive’s likeness in violation of 

Civil Code section 33441 but contested the amount of damages. A 

jury found Olive suffered $213,000 in actual damages and 

$910,000 in emotional distress damages. The trial court denied 

both parties’ motions for prevailing party attorney fees and costs.

Both Olive and GNC separately appeal from the judgment 

and the order denying prevailing party attorney fees. Olive 

contends the court erred by (1) failing to provide his proposed 

special jury instruction concerning the burden of proof under 

section 3344, (2) excluding his expert witnesses who would have 

testified about the amount of GNC’s profits from the 

unauthorized use of his likeness, and (3) determining he was not 

the prevailing party for purposes of awarding statutory attorney 

fees. In its cross-appeal, GNC contends it should have been 

deemed to be the prevailing party.2 We affirm both the judgment 

and the order denying attorney fees.

 

1 The statute prohibits the knowing use of another person’s 

likeness in any manner, including for the purposes of advertising, 

without such person’s consent. (Civ. Code, § 3344, subd. (a).) 

All undesignated section references are to the Civil Code.

2 In its opening brief, GNC additionally claimed the trial 

court erred by denying its motion for judgment notwithstanding 

the verdict. GNC abandoned this claim in its reply brief, and we 

therefore do not address it.
3

FACTUAL AND PROCEDURAL SUMMARY

Olive’s Background

Olive is a model, former professional volleyball player, and 

actor. His previous modeling engagements included campaigns 

for Ralph Lauren, Levi’s, Versace, Armani, Calvin Klein, Elle 

Magazine, and GQ Magazine. Olive reached the peak of his 

modeling career in the mid-1990’s, when he was in his twenties. 

He earned up to $25,000 per day for modeling work during the 

height of his career. 

Olive’s modeling career has waned since that time, and he 

turned to acting around 2010. He was featured in Tyler Perry’s 

hit television show “For Better or Worse” in 2011. 

GNC’s New Marketing Campaign

GNC is an international retailer and manufacturer of 

vitamins and other nutritional supplements, with approximately 

8,000 retail locations. GNC has used the “Live Well” marketing 

tagline in its advertising and marketing materials since 

approximately 1998. The slogan is meant to encourage 

customers “to live a better life.” 

In 2010, GNC hired photographer Peter Arnell to carry out 

a photo shoot for its new “Live Well” advertising campaign. GNC 

was looking for models who were athletic, healthy, ethnically 

diverse, and “everyday relatable people.” GNC gave Arnell a 

budget but otherwise had no direct role in the photo shoot, 

including casting and securing proper release agreements. 
4

Olive is Cast as a Model for GNC’s “Live Well” Campaign

Olive’s agent, Richard Ferrari, submitted him as a 

candidate for GNC’s “Live Well” campaign. Compensation for the 

photo shoot was posted at $6,000 but Ferrari sought a higher 

rate. Arnell had a limited budget and refused to negotiate for a 

higher fee. Olive and approximately 15 other models were cast 

for the photo shoot. 

Olive executed a “Photograph and Likeness Release” on 

September 24, 2010. The agreement irrevocably granted GNC 

the “absolute right, permission, authorization and consent to use, 

reuse, produce, reproduce, exploit, publish, republish, display and 

otherwise use and reuse [his] image and likeness and photograph 

to be taken at the photoshoot scheduled for September 24, 2010.” 

Olive was paid $4,000 for the three-hour photoshoot, in addition 

to an $800 agent fee. The release lasted for one year from GNC’s 

first usage in print media, and GNC had the unilateral right to a 

one-year renewal in exchange for the same amount of 

compensation. 

In November 2010, Olive executed a second “Photograph 

and Likeness Release” allowing GNC to use his image and 

likeness on print media displayed on any company trucks and 

other vehicles in North America. Olive was paid $8,000 for this 

agreement, which is valid through December 31, 2021. 

GNC’s marketing team approved Arnell’s selections. GNC 

launched its new advertising campaign in January 2011. Olive’s 

image was used in outdoor billboards, bus shelters, kiosks, social 

media websites, direct mail advertising, as well as in-store 

posters and signage. Olive was “shocked” and “angered” when he 

discovered the vast scope of the advertising campaign. Olive 

believed he agreed to “a very small job” in light of what he 
5

perceived to be a small fee, and he felt he was doing a favor for 

the Arnell Agency. 

In May 2011, GNC decided to pursue a new photo shoot in 

an effort to update its promotional graphics. GNC wanted its 

new approach to resonate with updates to its stores. None of the 

models from the September photo shoot, including Olive, were 

invited to the new shoot. 

GNC terminated its relationship with the Arnell Agency 

after Arnell’s principals divorced. GNC expected the agency 

would continue managing the models it used and maintain any 

outstanding release agreements. GNC did not immediately hire 

a replacement advertising agency, and no one was tasked with 

keeping track of model release agreements. 

GNC’s Right to Use Olive’s Likeness Expires

GNC declined to renew the release agreement, and Olive

told Ferrari he wanted to end his relationship with GNC. On 

January 9, 2012, Ferrari emailed GNC to confirm it 

was no longer authorized to continue using Olive’s image.3 He 

never received a response. Olive eventually fired Ferrari. 

Celina Petronzi, an employee in GNC’s marketing 

department, was tasked with responding to Ferrari’s inquiry, but 

she failed to do so. Petronzi emailed GNC’s Vice President of 

marketing, informing her that some talent from the September 

2010 Arnell photo shoot was going to expire, and asking about 

 

3 It is unclear exactly when the release term expired. Olive 

contends the term expired at the end of November 2011, whereas 

GNC contends it expired “at the end of 2011.” Nevertheless, it is 

undisputed that GNC’s right to use Olive’s likeness expired 

sometime in late 2011 or early 2012. 
6

what imagery would be used going forward. The marketing 

department was unaware that the releases had expired and was 

not familiar with Olive. 

After discovering the oversight, GNC negotiated extensions 

for every model used in the September 2010 shoot, except Olive. 

The company was prepared to replace the images of any model 

who “was difficult” during negotiation. GNC paid between $7,500 

and $32,000 to the models in exchange for five-year extensions. 

GNC retained a new advertising agency in April 2012. 

GNC continued its efforts to negotiate a release extension 

with Olive, but he refused and instead filed suit. Later in 2012, 

GNC attempted a last ditch effort to negotiate an extension with 

Olive for $150,000. Olive rejected the offer. GNC removed 

Olive’s image from its marketing materials in either November or 

December of 2012, incurring approximately $350,000 in takedown expenses. 

Olive’s Complaint and GNC’s Answer

Olive’s complaint alleged causes of action for common law 

misappropriation of likeness and statutory misappropriation of 

likeness (§ 3344). He also sought restitution for unjust 

enrichment. Pursuant to section 3344, subdivision (a), Olive 

requested disgorgement of any profits from GNC’s unauthorized 

use of his image. GNC initially denied Olive’s allegations, but it 

admitted liability for the unauthorized use of Olive’s image prior 

to trial. 

GNC’s Motions In Limine

Olive designated three experts to offer their opinions 

regarding GNC’s profits attributable to its unauthorized use of 
7

his image: (1) Weston Anson; (2) Leonard Lyons; and (3) Jeff 

Anderson. GNC moved in limine to exclude Anson and Lyons

from testifying at trial.4

GNC sought to exclude Anson from opining as to Olive’s 

damages and the apportionment of GNC’s profits to its use of his 

image. The company argued Anson’s opinions were speculative 

and unreliable. GNC also sought to exclude Lyons because his 

opinion was based on Anson’s speculative and flawed analysis. 

Following a hearing, the trial court granted GNC’s in limine 

motions to exclude Anson and Lyons. 

Jury Verdict and Judgment

The jury ultimately awarded Olive a total of $1,123,000 in 

damages, consisting of $213,000 in actual damages and $910,000 

in emotional distress damages. The jury found that Olive failed 

to prove any of GNC’s profits were attributable to the 

unauthorized use of his image, and that GNC had not acted with 

malice or fraud. The trial court separately returned a defense 

verdict on Olive’s equitable claim for unjust enrichment. The 

court denied GNC’s motion for a new trial and for judgment 

notwithstanding the verdict on the jury’s emotional distress 

damages verdict. 

 

4 Anderson is the Director of Valuation and Analytics at 

Anson’s firm. GNC did not move to exclude Anderson as an 

expert. Olive contended at oral argument that he did not call 

Anderson as a witness because he had only generated data used 

by Anson.
8

Motion for Attorney Fees and Costs

Both parties moved for statutory prevailing party costs and 

attorney’s fees pursuant to section 3344, subdivision (a). The 

trial court noted that both parties were visibly disappointed after 

the jury rendered its verdict. It found there was no prevailing 

party because “the jury accepted neither side’s recommendation 

but instead awarded a middling sum amounting to a tie.” 

DISCUSSION

A. The Trial Court Correctly Rejected Olive’s Proposed Special 

Jury Instruction

Olive contends the trial court erred by rejecting his 

proposed special jury instruction regarding the burden to 

apportion GNC’s profits associated with the unauthorized use of 

his likeness. We disagree.

1. Law Governing Jury Instructions and 

Standard of Review

A party in a civil case is, upon request, entitled to correct

jury instructions on every theory of the case that is supported by 

substantial evidence. (Eng v. Brown (2018) 21 Cal.App.5th 675, 

704.) “It is elementary that a court may refuse a party’s request 

for a jury instruction that misstates the law. ‘A trial court has no 

duty to modify or edit an instruction offered by either side in a 

civil case. If the instruction is incomplete or erroneous the trial 

judge may, as he did here, properly refuse it.’ [Citations.]” (Ibid; 

accord, Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 

655, 685.) 
9

An instruction that clarifies the application of statutory 

language may not add to the words of a statute. (Torres v. 

Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003–1004.) 

We review the legal adequacy of jury instructions under the de

novo standard of review. (Eng v. Brown, supra, 21 Cal.App.5th at 

p. 704.) 

2. Section 3344 and CACI No. 1821

In any action brought under section 3344, the injured party 

is entitled to collect any profits that are attributable to the 

defendant’s unauthorized use of his or her likeness. (§ 3344, 

subd. (a).) “In establishing such profits, the injured party or 

parties are required to present proof only of the gross revenue 

attributable to such use, and the person who violated this section 

is required to prove his or her deductible expenses.” (Ibid.)

CACI No. 1821 is the standard instruction for the jury to 

determine damages arising from a statutory misappropriation of 

likeness claim under section 3344. Pertinent here, the 

instruction provides: 

“In addition, [name of plaintiff] may recover any profits 

that [name of defendant] received from the use of [name of 

plaintiff]’s [name/voice/signature/photograph/likeness] [that have 

not already been taken into account with regard to the above 

damages]. To establish the amount of these profits you must:

1. Determine the gross, or total, revenue that [name of 

defendant] received from the use;

2. Determine the expenses that [name of defendant] had in 

obtaining the gross revenue; and

3. Deduct [name of defendant]’s expenses from the gross 

revenue.
10

[Name of plaintiff] must prove the amount of gross revenue, and 

[name of defendant] must prove the amount of expenses.” (CACI 

No. 1821.)

3. Olive’s Proposed Special Instruction

Olive initially requested the trial court include CACI No. 

1821 in his proposed instructions. He correctly proposed that 

“Jason Olive must prove the amount of gross revenue, and GNC 

must prove the amount of expenses.” Olive later moved to amend 

the instruction to additionally require GNC to prove “the portion 

of revenue that is attributable to factors other than the use of 

[Olive’s likeness]” after the trial court granted GNC’s in limine 

motions to exclude Anson and Lyons. Olive argued that without 

his proposed supplemental language, the jury would be confused 

about the burden to apportion profits and would misapply the 

law. 

Following a hearing, the trial court denied Olive’s motion. 

The court determined that section 3344 unequivocally placed the 

burden on Olive to present proof of GNC’s gross revenue 

attributable to its use of his likeness. The court also rejected 

Olive’s reliance on federal copyright law.

4. CACI No. 1821 Tracks the Language of Section 3344

Olive contends the court erred because CACI No. 1821 did 

not adequately explain the parties’ respective burdens of proof 

under section 3344, thus necessitating a further instruction 

guiding the jury on how to arrive at damages for GNC’s profits 

attributable to the infringement. He is incorrect. 

The statutory language of section 3344 is unambiguous—

the plaintiff bears the burden of presenting proof of the gross 
11

revenue attributable to defendant’s unauthorized use of the 

plaintiff’s likeness, and the defendant must then prove its 

deductible expenses. (§ 3344, subd. (a).) CACI No. 1821 mirrors 

the language of section 3344: “[plaintiff] must prove the amount 

of gross revenue, and [. . . defendant] must prove the amount of 

expenses.” (CACI No. 1821.)

The special instruction proposed by Olive flips that 

statutory language on its head. Under that instruction, GNC 

would have to prove the amount of its gross revenue not 

attributable to its use of Olive’s likeness, a figure that could not 

be calculated without first determining the company’s total gross 

revenue. The remaining figure, of course, would be GNC’s 

calculation of the amount of gross revenue that was attributable 

to its use of Olive’s likeness. Not only is this directly contrary to 

the unambiguous statutory command that Olive had to prove the 

amount of revenue attributable to GNC’s use of his likeness, it 

would create the absurd result of effectively placing on each party 

the burden to prove the same disputed fact.

Therefore, contrary to Olive’s contention, CACI No. 1821 

adequately explained the applicable law to the jury. It is 

elementary that a court may refuse a proposed instruction that 

incorrectly states the law. (Eng v. Brown, supra, 21 Cal.App.5th 

at p. 704; Bullock v. Philip Morris USA, Inc., supra, 159 

Cal.App.4th at pp. 684–685.) Moreover, a court may properly 

refuse a proposed instruction if other instructions given 

adequately cover the law. (Bullock, at p. 685; Arato v. Avedon

(1993) 5 Cal.4th 1172, 1189, fn. 11.) The court was correct in 

rejecting Olive’s proposed supplemental instruction as 

unnecessary and misleading. 
12

Olive also supports his claim of instructional error by 

citations to federal copyright, patent and trademark law, pointing 

to the legislative history of section 3344, which he contends 

states: “The rationale for the right of publicity, namely the 

encouragement of personal achievement for the ultimate benefit 

of society, is closely analogous to the rationale for copyright 

protection under the U.S. Constitution.”

We reject this comparison. First, Olive appears to cite to 

nothing more than the bill number of a 1984 amendment to the 

statute, and has not provided us with either a proper legislative 

history citation to the material he asks us to consider or a copy of 

the relevant document.

Second, as previously discussed, the language of section 

3344 is clear and unambiguous. “[W]hen the words of a statute 

are unambiguous, we need not turn to any extrinsic sources. 

[Citation.]” (City of Montclair v. Cohen (2018) 20 Cal.App.5th 

238, 250.) “In such a case, there is nothing for the court to 

interpret or construe. [Citation.]” (MacIsaac v. Waste 

Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 

1076, 1082.) State courts of appeal will resort to federal law for 

guidance only in the absence of relevant state precedent. 

(Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 

814.)

Section 3344 could not be clearer as to which party bears 

the burden to prove GNC’s profits attributable to the 

unauthorized use of Olive’s image. Accordingly, we need not turn 

to any extrinsic sources on this point.

5 As a result, we follow 

 

5 In arguing that he was prejudiced by the allegedly 

erroneous jury instruction, Olive relies on two questions from the 

jury. First, the jury asked the court “what are the guidelines for 
13

theplain meaning of the statute without resorting to its 

legislative history. (N.S. v. D.M. (2018) 21 Cal.App.5th 1040, 

1047.)

Third, even if the Legislature believed that the rationale

supporting the right of publicity was analogous to the rationale 

for copyright protection, it was still free to enact a law that 

deviated from its federal counterpart. “Our role in construing a 

statute is simply to ascertain and to declare what is in terms or 

in substance contained in the statute, not to insert what has been 

omitted.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 270, 

citing Code. Civ. Proc., § 1858.)6 

 

determining profit damages and the amount[?]” The court 

responded by circling the word “profits”. Second, the jury 

indicated it “has concerns about the profit that GNC made, and 

that we cannot figure out the formula for an amount even though 

we agree that GNC made money off of his image, could someone 

help us through the problem?” In response, the court reopened 

closing argument, allowing each party to argue for an additional 

five minutes. Having concluded there was no instructional error, 

we need not address Olive’s argument regarding prejudice. (E.g., 

Center for Biological Diversity v. County of San Bernardino

(2016) 247 Cal.App.4th 326, 332.)

6 Olive also repeatedly cites Christoff v. Nestle USA, Inc.

(2007) 152 Cal.App.4th 1439 for this proposition, even after 

acknowledging that it was superseded by the Supreme Court’s 

grant of review and subsequent reversal on other grounds in 

Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468. California 

Rules of Court, rule 8.1115 prohibits the citation of unpublished 

California state opinions, with certain limited exceptions 

inapplicable here. (Cal. Rules of Court, rule 8.1115(a); People v. 

Gray (2014) 229 Cal.App.4th 285, 292, fn. 15 [improper to cite or 

rely upon an unpublished opinion].)
14

Finally, Olive contends that CACI No. 1821 did not give the 

jury adequate guidance as to the meaning of the term 

“attributable to” when determining the amount of gross revenues 

derived from GNC’s use of Olive’s likeness. The term 

“attributable” means “capable of being attributed.” (Webster’s 

Third New Internat. Dict. (1993) p. 141, col. 3.) When used as a 

verb, “attribute” simply means “explained as caused or brought 

about by; regard as occurring in consequence of or on account of . 

. . .” (Id., p. 142, col. 1.) In short, when something is attributable 

to an act, it is caused by or results from that act, a common 

definition that squares with the language of section 3344. We 

therefore see no error in that regard either.

B. Exclusion of Olive’s Expert Witnesses

Olive contends the court erred in two respects when it 

excluded Anson and Lyons from testifying as experts at trial. 

First, the exclusion of these experts hinged on a misapplication of 

section 3344, requiring that he prove GNC’s profits from the 

unauthorized use of his image. Having already concluded the 

trial court did not misinterpret the burden of proof set forth in 

section 3344, we will not revisit this claim. Second, Olive asserts 

the exclusion of Olive’s proposed expert witnesses was an abuse 

of the court’s discretion. 

1. Applicable Law and Standard of Review

In the context of admitting expert testimony, our Supreme 

Court has explained that trial courts “have a substantial 

‘gatekeeping’ responsibility.” (Sargon Enterprises, Inc. v. 

University of Southern California (2012) 55 Cal.4th 747, 769 

(Sargon).) That is, “under Evidence Code sections 801, 
15

subdivision (b), and 802, the trial court acts as a gatekeeper to 

exclude expert opinion testimony that is (1) based on matter of a 

type on which an expert may not reasonably rely, (2) based on 

reasons unsupported by the material on which the expert relies, 

or 3) speculative.” (Id. at pp. 771–772; accord, Cooper v. Takeda 

Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 577 

(Cooper).) 

“‘“[E]ven when the witness qualifies as an expert, he or she 

does not possess a carte blanche to express any opinion within 

the area of expertise. [Citation.] For example, an expert’s 

opinion based on assumptions of fact without evidentiary support 

. . . or on speculative or conjectural factors . . . has no evidentiary 

value . . . and may be excluded from evidence. [Citations.]” 

[Citations.]’” (Cooper, supra, 239 Cal.App.4th at p. 577.) The 

court’s gatekeeper function allows it to conclude there is simply 

too great an analytical gap between an expert’s data and the 

opinion proffered, and thus exclude it as speculative or 

irrelevant. (Sargon, supra, 55 Cal.4th at p. 771; David v. 

Hernandez (2017) 13 Cal.App.5th 692, 698.)

However, “[t]he court must not weigh an opinion’s 

probative value or substitute its own opinion for the expert’s 

opinion. Rather, the court must simply determine whether the 

matter relied on can provide a reasonable basis for the opinion or 

whether that opinion is based on a leap of logic or conjecture.” 

(Sargon, supra, 55 Cal.4th at p. 772.)

A ruling will be deemed an abuse of discretion only if it is 

“‘so irrational or arbitrary that no reasonable person could agree 

with it.’ [Citation.] But the court’s discretion is not unlimited,

especially when, as here, its exercise implicates a party’s ability 

to present its case. Rather, it must be exercised within the 
16

confines of the applicable legal principles.” (Sargon, supra, 55 

Cal.4th at p. 773.)

In Sargon, supra, 55 Cal.4th 747, a small dental implant 

company that had net profits of more than $100,000 in 1998 sued 

the University of Southern California for breach of contract after 

the university failed to present proper reports as its contract 

required. (Id. at p. 754.) The company sought damages for lost 

profits ranging from $200 million to more than $1 billion. (Id. at 

pp. 753, 755.) Following an evidentiary hearing, the trial court 

excluded as speculative the proffered testimony of an expert who 

would have opined that but for the university’s breach of 

contract, the company would have become a worldwide leader in 

the dental implant industry. (Id. at p. 753.) 

The Court of Appeal reversed, concluding that the trial 

court erred in excluding the expert’s testimony, but the Supreme 

Court reversed the judgment of the Court of Appeal. (Sargon, 

supra, 55 Cal.4th at p. 753.) Our high court held that trial courts 

have the duty to act as a “gatekeeper” to exclude speculative 

expert testimony. (Ibid.) Although lost profits need not be 

proven with mathematical precision, they must also not be 

unduly speculative; thus, the trial court acted within its 

discretion when it excluded the expert’s opinion that the company 

would have become extraordinarily successful had the university 

completed the clinical testing. (Ibid.) The expert’s opinion was 

unreliable because he did not base his lost profit estimates on a 

market share ever achieved by the company. (Id. at p. 776.) 

2. Proceedings Below

Olive intended to offer Anson as an expert to opine about 

his actual damages and the apportionment of GNC’s profits 
17

attributable to its unauthorized use of his likeness. Olive 

designated Lyons as an expert regarding (1) the calculation of 

GNC’s revenues, expenses and profits, (2) to conduct an 

apportionment analysis, and (3) to testify about the indicia of 

fraud or intentional misconduct by GNC. 

GNC moved for an order in limine to preclude Anson from 

testifying, arguing his opinions were speculative, and lacked 

foundation and an objective methodology. GNC moved to exclude 

Lyons’ testimony on the ground that it relied on Anson’s flawed 

and speculative analysis, and that his opinion relating to GNC’s 

indicia of fraud or intentional misconduct invaded the province of 

the jury. 

The court determined that both Anson and Lyons utilized a 

“nearly data free and methodologically primitive” analysis. The 

court said that their methodologies contained no science or data, 

and instead simply relied on mere wishful thinking. The court 

granted the motions to exclude both witnesses. 

Olive requested reconsideration of the motion in limine 

rulings. The court denied the motion. Olive then filed a petition 

for writ of mandate challenging the trial court’s ruling. This 

court summarily denied the petition. 

3. Anson’s Testimony Was Properly Excluded

GNC’s revenue in 2012 was approximately $2.4 billion. 

Pertinent here, Anson opined that one to three percent of GNC’s 

revenue was attributable to the unauthorized use of Olive’s 

likeness.7 Anson’s opinion was based on (1) an analysis of 

 

7 Anson also concluded that Olive’s actual damages for 

GNC’s use of his likeness were between $500,000 and $1 million 

for 2012, and $1 million for 2013 based on (1) Olive’s statement 
18

purportedly comparable samples of comprehensive royalty 

agreements with various well-known celebrities, (2) the CEO’s 

statement that in-store merchandising impacts the company’s 

sales by zero to one percent, and (3) GNC’s increase in revenue 

during the subject period of time. We agree with the trial court 

that his methodology was flawed in several aspects.

First, Anson based his opinion on a comparison of royalty 

agreements with various celebrities, athletes, and other persons 

of international prominence. These included Joe Namath, George 

Foreman, Kathy Ireland, Paris Hilton, Barry Bonds, Michael 

Jordan, Evander Holyfield, Tim Duncan, John Elway, Alex 

Rodriguez and Tyra Banks.

8 Intending no disrespect to Olive, 

nothing in the appellate record indicates that he shared 

anywhere near the same degree of celebrity as those included in 

Anson’s sample. 

In any event, Anson’s methodology was also unsound 

because it compared the limited use of Olive’s image from one 

photo shoot to comprehensive royalty agreements that included 

the licensors’ name, signature, voice, initials, endorsement, and 

copyrights. Anson believed that GNC’s sales increase was 

“driven by the face of the brand and a spokesperson [Olive] that’s 

finally resonated with everyone.” The fatal flaw in Anson’s 

 

that he would not have accepted any less compensation, (2) 

Ferrari’s testimony that Olive’s minimum acceptable fee would 

have been in the “high six figures,” and (3) the earnings of top 

male models published in a Forbes magazine article. Olive does 

not challenge the exclusion of Anson on this basis.

8 The median compensation for an endorsement was five 

percent, but Anson believed one to three percent would be a more 

conservative figure as applied to Olive. 
19

analysis is that, unlike the licensors in his sample, Olive was not

the company spokesperson, and the use of images taken from a 

photo shoot with 15 other models is in no way analogous to a 

comprehensive celebrity endorsement arrangement. An expert 

may not base his or her opinion upon a comparison of matters 

that are not reasonably comparable. (See Sargon, supra, 55 

Cal.4th at pp. 770; see also Roscoe Moss Co. v. Jenkins (1942) 55 

Cal.App.2d 369.) 

Second, Anson’s analysis mischaracterized a statement 

from GNC’s President and CEO, Joe Fortunato. In his 

deposition, Fortunato was asked what percentage in-store 

marketing contributes to company sales. He answered “it has the 

least amount of value of anything I’ve told you in regards to 

whether a consumer buys a product.” When asked to give a 

percentage, Fortunato responded: “I can put it at anywhere from 

zero to slightly more than zero. Very little. [¶] . . . [¶] I’ll go zero 

to one.” 

Anson cited this testimony to support his conclusion that at 

least one percent of GNC’s revenues came from its unauthorized 

use of Olive’s image. Olive asserts in his opening brief that 

“Fortunato admitted that the Live Well marketing campaign 

drove 1 percent of GNC’s revenue.” Fortunato’s testimony did not 

apportion between the Live Well campaign and any other forms 

of in-store marketing. Neither did he attribute any portion of his 

estimate to Olive alone, as opposed to the other models used in 

that campaign. In short, he made no such admission. Anson’s 

reliance on Fortunato’s out-of-context statement further 

diminished the reliability of his analysis. 

Third, Anson found a causal connection between GNC’s 

annual growth rate and its unauthorized use of Olive’s image 
20

without identifying any reliable evidence linking the two, such as 

data from a focus group. Anson’s analysis did not consider the 

macroeconomic conditions during the relevant period of time, 

GNC’s pricing promotions, general sales in the vitamin and 

supplement industry, employee sales promotions, GNC’s other 

marketing efforts, and the impact of professional athletic 

“ambassadors” used by GNC. Anson’s conclusory analysis was 

therefore unduly speculative.

In sum, Anson’s opinion hinged on hypothetical conjecture 

about GNC’s profits attributable to Olive’s image and would not 

have reasonably assisted the jury in evaluating the issue. 

(Sargon, supra, 55 Cal.4th at pp. 770, 777.) We agree with the 

trial court’s conclusion that there was simply too great an 

analytical gap between the supposed data relied on by Anson and 

the opinion proffered. (See id. at p. 771 [court may conclude 

there is too great an analytical gap between the data and the 

opinion proffered]; see also David v. Hernandez, supra, 13 

Cal.App.5th at p. 698 [same].) Thus, the court acted well within 

its gatekeeper’s discretion by excluding Anson from testifying as 

an expert.

4. Lyons Was Properly Excluded 

Lyons offered his opinion to quantify Olive’s damages, and 

to prove that GNC intentionally continued using Olive’s image 

after the release agreement expired. His calculation of Olive’s 

actual damages directly hinged on Anson’s determination that 

one to three percent of GNC’s 2012 sales was attributable to the 

unauthorized use of Olive’s likeness. Lyons admitted he did not 

conduct his own calculations “because they [Olive’s counsel] 

retained an expert that had a long track record and is well-known 
21

in branding and licensing and valuation of intellectual property 

rights. [¶] And I met with him and reviewed the work that he 

did, so I would feel comfortable with it.”

GNC moved to exclude Lyons, arguing that his calculations 

hinged on Anson’s invalid approach and that his assessment 

about indicia of fraud on the part of GNC was not the proper 

subject of expert testimony. The court granted the motion. It 

found that Lyons’ opinion regarding Olive’s damages was directly

tethered to Anson’s calculations and was likewise inadmissible. 

Further, the issue of whether GNC intentionally used Olive’s 

image without authorization was beyond the scope of expert 

testimony. 

Olive contends “[t]he trial court’s lack of an independent 

review of Lyons’ testimony again reveals that it did not conduct a 

causal nexus test.[9] Because the trial court did not analyze the 

experts’ testimony in this fashion, and relied on a 

misinterpretation of section 3344, its rulings should be 

reversed.”

10 We disagree. 

 

9 Olive repeatedly asserts that a claim under section 3344 

requires a “causal nexus” between the defendant’s unauthorized 

use of the plaintiff’s image and the defendant’s gross revenue. 

The statute does not use this phrase and, as discussed ante, the 

federal authority relied upon by Olive to support this contention 

is inapplicable to this case.

10 Olive generally challenges the exclusion of Lyons but he 

does not specifically address Lyons’ proffered expertise as to 

whether GNC’s unauthorized use of Olive’s likeness was 

intentional or malicious. It is his burden to assign a distinct 

claim of error. (Salas v. Department of Transportation (2011) 198 
22

In his deposition, Lyons testified Anson was exclusively 

tasked with calculating the portion of GNC’s revenues 

attributable to the unauthorized use of Olive’s likeness. Lyons 

was unaware how Anson selected the comparable sample, and he 

did not independently evaluate whether the sample was 

appropriate. In particular, Lyons did not ask Anson how he ruled 

out other persons in his sample, nor did he ask about the 

parameters for his sample database. Notwithstanding these gaps 

in information, Lyons was “very comfortable” with the manner in 

which Anson conducted his analysis. 

Anson planned to provide Lyons an attribution percentage 

for him to perform a damages calculation. Lyons’s evidence that 

GNC’s unauthorized use of Olive’s likeness increased its sales 

was “that their sales went up significantly more, as a percentage, 

than they did in the prior year, . . .” Lyons offered no compelling 

evidence supporting his conclusion that Olive’s likeness directly 

caused an increase in GNC’s sales. 

Expert opinion testimony may be based upon information 

furnished to the expert by others so long as the information is of 

a type reasonably relied upon by professionals in the relevant 

field. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 

1524; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 

Cal.App.3d 1113, 1135.) However, when the expert’s opinion is 

not based on his own perception or knowledge, but depends 

instead upon information furnished by others, it is of little value 

unless the source is reliable. (See Korsak, at p. 1524, citing 1 

Witkin, Cal. Evid. (3d ed. 1986) § 477, p. 448.) Thus, expert 

opinion testimony may not be based upon information furnished 

 

Cal.App.4th 1058, 1074.) We therefore deem the issue forfeited. 

(Ibid.)
23

by others that is speculative, conjectural or otherwise unreliable.

(Ibid; Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 

564.)

As discussed, Lyons’s opinion hinged on Anson’s 

speculative assumptions with no independent evidentiary value. 

His opinions were unreliable on this basis. (See Cooper, supra,

239 Cal.App.4th at p. 577 [expert opinion based on speculative 

factors has no evidentiary value and may be excluded]; see also 

Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at pp. 1524, 

1527 [excluding expert opinion where basis of opinion is 

unreliable hearsay].) The court properly excluded Lyons’ 

sspeculative opinions. (See Sargon, supra, 55 Cal.4th at p. 772 

[“goal of trial court gatekeeping is simply to exclude ‘clearly 

invalid and unreliable’ expert opinion”]).11

C. Prevailing Party Attorney Fees and Costs

Olive contends the trial court abused its discretion by 

denying his motion for prevailing party attorney fees. GNC 

contends that given the mixed results at trial, the court correctly 

concluded there was no prevailing party, or that, alternatively, 

this court should deem GNC to be the prevailing party. Although 

we originally agreed with Olive and ordered that the matter be 

remanded to conduct a hearing to determine an appropriate costs 

and attorney fees award, we subsequently granted GNC’s petition 

 

11 Olive again cites the two jury questions about how to 

apportion GNC’s ill-gotten profit in support of his contention that 

the court’s exclusion of Anson and Lyons was prejudicial. Having 

found no error, we need not address this issue. (Ante, fn. 5.)
24

for rehearing on this issue. After reviewing the matter once 

more, we are now persuaded that the trial court was correct.

1. Proceedings Below

Olive’s complaint alleged misappropriation of his likeness 

and sought restitution for GNC’s unjust enrichment. GNC 

initially denied Olive’s allegations, but eventually admitted 

liability for the unauthorized use of his likeness. Therefore, the 

only issue to be resolved at trial was Olive’s damages, if any. 

In his trial brief, Olive sought damages as follows: actual 

damages of $1.5 million for the licensing fee to use his likeness in 

2012-2013; past and future emotional distress damages of $2 

million; restitution for GNC’s profits based on the unlicensed use 

of his likeness in a range that went from approximately $54 

million to as high as $175.9 million; and punitive damages of at 

least five times the amount of the jury’s damage award. During 

argument, Olive asked the jury to award restitution in amounts 

ranging from $11.7 to $35.2 million. GNC impliedly 

recommended that Olive was entitled to a licensing fee of only 

$4,800, but urged the jury to award nothing in the way of 

emotional distress, restitution, or punitive damages. The jury 

awarded Olive $213,000 for the licensing fee and $910,000 for his 

emotional distress, but did not award Olive either restitutionary 

or punitive damages.

Both parties sought prevailing party attorney’ fees 

pursuant to section 3344. The trial court concluded that neither 

party prevailed because “the jury accepted neither party’s 

recommendation but instead awarded a middling sum amounting 

to a tie.” In reaching this decision the court noted that both 

parties were visibly dismayed by the jury verdict—Olive thought 
25

it was too low and GNC thought it was too high. The court 

emphasized counsel’s facial reactions, stating “[t]his . . . mutually 

transparent display was unprecedented in the court’s 

experience.” 

The court continued: “Draw a line between two endpoints. 

The left endpoint is GNC’s jury recommendation: $4800. The 

right endpoint is Olive’s recommendation: $23.5 million. (His 

total recommendation actually was higher, but we simplify for 

clarity.) Now mark million-dollar intervals on this line, from left 

to right. This line charts the range of the quantitative dispute.

Finally, place a fulcrum under this line at the $1.1 million point. 

That was the jury verdict. If this line were a tangible yardstick 

and the verdict an actual fulcrum, the yardstick would tilt 

sharply in GNC’s favor. [¶] Think of a teeter totter. Olive is in 

one seat, GNC is in the other. The pivot point is the jury verdict.

The seesaw’s pivot is far closer to GNC than to Olive. [¶] 

According to the goal Olive set for himself, one cannot say Olive 

prevailed. He lost, which is why he and his team thought he lost. 

[¶] . . . [¶] GNC also thought it lost, and for good reason. In 

addition to an actual damage award that vastly exceeded GNC’s 

assessment, the jury awarded Olive $910,000 in emotional 

distress damages. The GNC lawyers were plainly shocked by this 

pain and suffering sum.” 

The trial court therefore concluded that, given the 

“practical realities” of the case, the trial ended in a draw and 

there was no prevailing party. 
26

2. Applicable Law

Generally speaking, parties to litigation must bear their 

own costs, including attorney fees. (Westamerica Bank v. MBG 

Industries, Inc. (2007) 158 Cal.App.4th 109, 125–126.) However, 

section 3344 mandates an award of attorney fees for “[t]he 

prevailing party in any action under this section.” (§ 3344, subd. 

(a); Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 62.) 

The statute does not define the phrase “prevailing party.” 

“‘In the absence of legislative direction in the attorney fees 

statute, the courts have concluded that a rigid definition of 

prevailing party should not be used. [Citation.] Rather, 

prevailing party status should be determined by the trial court 

based on an evaluation of whether a party prevailed “‘on a 

practical level,’” and the trial court’s decision should be affirmed 

on appeal absent an abuse of discretion.’ [Citation.] ‘Among the 

factors the trial court must consider in determining whether a 

party prevailed is the extent to which each party has realized its 

litigation objectives. [Citations.]’ [Citation.]” (Sharif v. Mehusa 

Inc. (2015) 241 Cal.App.4th 185, 192 (Sharif) [when there are two 

fee shifting statutes in separate causes of action, there can be 

different prevailing parties].) That standard applies to actions 

under section 3344 (Gilbert v. National Enquirer, Inc. (1997) 

55 Cal.App.4th 1273, 1277–1278), and it is the standard the trial 

court applied. 

Most cases applying this standard to statutory attorney fee 

provisions have done so in the context of voluntary dismissals. 

(Donner Management Co. v. Schaffer (2006) 142 Cal.App.4th

1296, 1310–1311 (Donner Management) [shareholder derivative 

suit against corporate officer dismissed without prejudice; trial 

court properly found defendant was prevailing party under 
27

statutory fee provision because plaintiff’s dismissal was 

compelled by corporate decision that maintaining action was not 

in corporation’s best interests]; Castro v. Superior Court (2004) 

116 Cal.App.4th 1010, 1022–1024 (Castro) [where lis pendens is 

voluntarily removed pending hearing on motion to expunge, the 

party who brought the motion may be entitled to recover 

statutory attorney fees based on practical considerations that 

motivated removal of the lien, including the merits of the 

expungement motion]; Galan v. Wolfriver Holding Corp. (2000) 

80 Cal.App.4th 1124, 1129–1130 [plaintiffs brought action 

against landlord for substandard housing and parties settled; no 

abuse of discretion by trial court in determining there was no 

prevailing party where the settlement did not exonerate the 

landlord and plaintiffs implicitly determined it was not worth 

pursuing the matter]; Gilbert, supra, 55 Cal.App.4th 1273, 1277–

1278 [actress voluntarily dismissed section 3344 action without 

prejudice; trial court did not abuse its discretion by finding no 

prevailing party because so little discovery had been conducted it 

was impossible to determine which party prevailed at a practical 

level].)

3. Hsu v. Abbara

We have not found, and the parties have not cited, a 

published decision applying the “practical level” test to a 

statutory cause of action where the term “prevailing party” is not 

defined and a plaintiff recovered some amount of damages at 

trial. Both parties suggest that guidance can be found in the 

somewhat analogous context of contractual attorney fee awards 

under Civil Code section 1717, which allows a trial court to 
28

determine that neither party has prevailed on a contract cause of 

action. (Civ. Code, § 1717, subd. (b)(2).)

The seminal decision in this area is Hsu v. Abbara (1995) 

9 Cal.4th 863 (Hsu). In Hsu, the would-be buyers of a house sued 

the sellers for breach of contract, claiming that the sellers 

reneged after an exchange of offers and counteroffers had 

resulted in an agreement to sell. The trial court found for the 

defendant sellers after determining that the buyers’ new offer, 

made after their purported acceptance, extinguished the 

previously accepted counteroffer. The trial court, without 

explanation, declined to award the sellers their attorney fees 

pursuant to a contractual fee provision, and the Court of Appeal 

affirmed. 

The Hsu court reversed, holding that the sellers were the 

prevailing parties as a matter of law because they achieved an 

unqualified win. (Hsu, supra, 9 Cal.4th at pp. 876–877.) Before 

reaching that conclusion, however, the Hsu court considered the 

possibility that the trial court might have properly found that 

neither party had prevailed, and established ground rules for 

making such a determination. 

Citing earlier Court of Appeal decisions, Hsu noted “that 

the results of litigation may be so equivocal as to permit or even 

require that no party be found to have prevailed for purposes of 

attorney fees under [Civil Code] section 1717.” (Hsu, supra,

9 Cal.4th at p. 874.)

“As one Court of Appeal has explained, ‘[t]ypically, a 

determination of no prevailing party results when both parties 

seek relief, but neither prevails, or when the ostensibly prevailing 

party receives only a part of the relief sought.’ [Citation.] By 

contrast, when the results of the litigation on the contract claim 
29

are not mixed—that is when the decision on the litigated contract 

claims is purely good news for one party and bad news for the 

other—the Courts of Appeal have recognized that a trial court 

has no discretion to deny attorney fees to the successful litigant. 

Thus, when a defendant defeats recovery by the plaintiff on the 

only contract claim in the action, the defendant is the party 

prevailing on the contract under [Civil Code] section 1717 as a 

matter of law. [Citations.] Similarly, a plaintiff who obtains all 

relief requested on the only contract claim in the action must be 

regarded as the party prevailing on the contract for purposes of 

attorney fees under [Civil Code] section 1717.” (Hsu, supra, 

9 Cal.4th at pp. 875–876.)

As a result, “parties whose litigation success is not fairly 

disputable [may] claim attorney fees as a matter of right, while 

reserving for the trial court a measure of discretion to find no 

prevailing party when the results of the litigation are mixed. [¶] 

Accordingly, we hold that in deciding whether there is a ‘party 

prevailing on the contract,’ the trial court is to compare the relief 

awarded on the contract claim or claims with the parties’ 

demands on those same claims and their litigation objectives as 

disclosed by the pleadings, trial briefs, opening statements, and 

similar sources. The prevailing party determination is to be 

made only by ‘a comparison of the extent to which each party 

ha[s] succeeded and failed to succeed in its contentions.’ 

[Citation.]” (Hsu, supra, 9 Cal.4th at p. 876.) Finally, when 

determining litigation success, the courts “should respect 

substance rather than form.” (Id. at p. 877.)
30

4. The Hsu Rule Applies Here

To the extent we interpret the attorney fee provision 

contained in section 3344 apart from any factual issues, we 

exercise independent review. The trial court’s factual 

determination concerning prevailing party status in accord with 

that provision is reviewed for abuse of discretion. (Sharif, supra,

241 Cal.App.4th at p. 191.)

Hsu’s test for determining whether neither party prevailed 

at trial came in the context of Civil Code section 1717, which 

expressly allows for such a determination in contract-based 

claims. Section 3344, however, contains no such provision. 

Therefore, before determining whether Hsu applies here, we 

must first determine whether the trial court was free to find in 

the first instance that there was no prevailing party. 

As noted earlier, because section 3344 does not define 

“prevailing party,” the evaluation of whether a party prevailed 

turns on whether the party prevailed on a practical level. This 

requires the trial court to consider, among other things, the 

extent to which each party realized its litigation objectives. 

(Sharif, supra, 241 Cal.App.4th at p. 192.)

As part of this determination, we believe it is possible for a 

trial court to conclude that neither party prevailed because 

neither party realized its litigation objectives. This was explicit 

in Galan, supra, 80 Cal.App.4th at page 1128, which held in 

connection with a statutory fee provision that did not define 

“prevailing party” that it was within the trial court’s discretion to 

determine “which party, if either, prevailed . . . .” (Italics added.) 

It was also a necessary, if unanalyzed, corollary to the holding in 

Gilbert, supra, 55 Cal.App.4th at pages 1277–1278, that the 

defendant in a section 3344 action in whose favor a dismissal was 
31

entered was not entitled to recover its attorney fees because it 

was not possible to determine “whether either side had prevailed 

on a practical level.”

We conclude that Hsu provides a workable approach for 

determining whether neither party prevailed. As Sharif noted, 

the test in statutory fee provisions that do not define “prevailing 

party” is to determine whether a party prevailed on a practical 

level by considering, among other things, the extent to which 

each party realized its litigation objectives. (Sharif, supra, 241 

Cal.App.4th at p. 192.) The Hsu test is substantially similar, 

coming into play in so-called “mixed result” cases, where the 

ostensibly prevailing party receives only part of the relief sought. 

(Hsu, supra, 9 Cal.4th at p. 875.) In such cases, the trial court 

compares the relief awarded with the parties’ demands, as 

disclosed by the pleadings, trial briefs, opening statements, and 

other sources. Based on that, the trial court determines whether 

there has been a prevailing party by comparing the extent to 

which each party succeeded or failed in its contentions. (Id. at 

p. 876.)

5. The Trial Court Did Not Err By Finding

 That There Was No Prevailing Party

It is undisputed that neither party obtained an unqualified 

win. Olive initially sought $1.5 million in actual damages, $2 

million for his emotional distress, restitution of GNC’s profits in a 

range that exceeded $100 million, and five times the total of 

those sums as punitive damages. Instead, he obtained $213,000 

in actual damages, $910,000 for his emotional distress, and 

nothing in terms of restitution or punitive damages. GNC 
32

contended that Olive was entitled to nothing more than $4,800 in 

actual damages, but ended up with an adverse verdict of more 

than $1.1 million. Accordingly, the trial court was free to view 

this as a mixed result and then exercise its discretion to 

determine whether one party prevailed, or whether neither party 

prevailed because neither achieved its practical litigation 

objectives. 

A court abuses its discretion if its ruling is so irrational or 

arbitrary that no reasonable person could agree with it. 

(Property California SCJLW One Corp. v. Leamy (2018) 25 

Cal.App.5th 1155, 1162.) An abuse of discretion occurs if, in light 

of the applicable law and the relevant circumstances, the court’s 

decision exceeds the bounds of reason, resulting in a miscarriage 

of justice. (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th

329, 378.) The trial court here engaged in a detailed analysis of 

each party’s results, taking into account the reduced amount of 

restitution damages sought by Olive in light of the trial court’s 

evidentiary rulings excluding his expert witnesses on that 

topic.12 Even though the jury awarded Olive more than $1.1 

million, the trial court concluded that the verdict still 

represented a loss for Olive based on his own trial objectives. We 

do not believe this was an abuse of discretion. 

The court in Marina Pacifica Homeowners Assn. v. 

Southern California Financial Corp. (2018) 20 Cal.App.5th 191 

 

12 Olive disputes that he ever sought restitution damages of 

more than $175 million, claiming that the figure represented 

nothing more than the high range of GNC’s possible profits from 

its unauthorized use of his likeness. As just noted, however, the 

trial court relied on a far lower amount when determining each 

party’s litigation success, as do we.
33

(Marina Pacifica) considered an analogous mixed-results 

scenario. We find its reasoning instructive. 

The plaintiff in Marina Pacifica was a condominium 

homeowners association and the defendant was the assignee of 

the project developer. The dispute centered on the assignee’s 

right to collect certain ongoing payments as an assignment fee 

pursuant to each unit owner’s purchase agreement. Following 

years-long litigation, the developer’s assignee was awarded $39 

million. However, the trial court determined that neither party 

had prevailed because the assignee had sought damages of $97 

million. The Marina Pacifica court affirmed, holding that under 

the principles of Hsu, supra, 9 Cal.4th 863, the results were 

sufficiently mixed to justify the trial court’s findings. (Marina 

Pacifica, supra, 20 Cal.App.5th at p. 207.)

In short, a multi-million dollar award somewhat more than 

40 percent of the amount sought was sufficiently “mixed” that the 

trial court could reasonably conclude neither party had prevailed. 

The facts here are even more compelling, where, when Olive’s 

punitive damage request is factored in, he recovered less than 

one percent of his litigation objectives.13

Olive relies primarily on three decisions to support his 

contention that the trial court abused its discretion when it failed 

to recognize that he was the prevailing party: de la Cuesta v. 

 

13 We base this on the $1.1 million Olive was awarded, plus 

the mid-point $20 million in restitution damages he eventually 

sought at trial, added to the multiplier of five he requested for 

punitive damages. At Olive’s bottom-range restitution demand of 

approximately $11 million, the verdict is still less than two 

percent of what he sought at trial. And even if we factored out 

his punitive damages request, the verdict is still only five percent 

of the verdict plus his mid-point restitution demand. 
34

Benham (2011) 193 Cal.App.4th 1287 (de la Cuesta); Silver Creek, 

LLC v. Blackrock Realty Advisors (2009) 173 Cal.App.4th 1533 

(Silver Creek); and Ajaxo v. E*Trade Group, Inc. (2005) 135 

Cal.App.4th 21 (Ajaxo).14 None is applicable. 

The de la Cuesta court held that even in a mixed results 

case it might be an abuse of discretion to determine there was no 

prevailing party if the results were lopsided in one party’s favor. 

(de la Cuesta, supra, 193 Cal.App.4th at p. 1295.) The plaintiff in 

that unlawful detainer action was a landlord who sought 

$103,000 in back rent, while the tenant claimed she owed 

nothing. The tenant vacated the premises the day before trial 

and the plaintiff was awarded $70,000. The trial court found 

there was no prevailing party, but the Court of Appeal reversed, 

holding that the trial court had abused its discretion because the 

results were so lopsided in the plaintiff’s favor. (Id. at pp. 1290, 

1296.) By contrast, given the disparity between what Olive 

sought and what he achieved at trial, we cannot state that the 

results here were lopsided in his favor. 

The same is true of Silver Creek, supra 173 Cal.App.4th

1533 at pages 1540–1541, where the plaintiff-seller of real 

property obtained a judgment declaring that it had properly 

terminated the sales agreement for property worth more than 

$29 million, while the defendant obtained the return of its $1.13 

million deposit. The trial court’s determination that neither 

party prevailed was an abuse of discretion because the property 

issue was most important to the parties, meaning the plaintiff 

clearly obtained the greater relief. (See Marina Pacifica, supra,

20 Cal.App.5th at pp. 206–207.)

 

14 We relied on these as well in our original decision, but 

have reevaluated them in light of GNC’s rehearing petition.
35

Finally, in Ajaxo, supra, 135 Cal.App.4th 21, 59, the Court 

of Appeal rejected defendant’s contention that the plaintiff could 

not be the prevailing party on its breach of contract cause of 

action because the $1 million damage award was far less than 

what it had requested. Even though the award was less than the 

amount sought, the plaintiff was still the prevailing party 

because it received a simple, unqualified win on its breach of 

contract claim. (See Marina Pacifica, supra, 20 Cal.App.5th at 

p. 205.) As already discussed, Olive’s “win” was not unqualified. 

In short, given that the mixed results in this case did not 

amount to a lopsided verdict in Olive’s favor, the trial court did 

not abuse its discretion in determining that neither party 

prevailed for purposes of awarding attorney fees under section 

3344.15

 

15 We reject Olive’s contention that our holding undercuts 

section 3344 by requiring either a complete victory, or that the 

plaintiff in such an action must be awarded restitutionary 

damages in order to be deemed the prevailing party. Instead, we 

merely recognize that the trial court that presided over the 

matter is in the best position to determine the degree to which 

either party succeeded at trial, that each case must be evaluated 

individually, and that, under the relevant circumstances and the 

applicable law, the trial court here did not abuse its discretion in 

concluding that neither party had prevailed. 
36

DISPOSITION

The judgment and order denying both parties attorney fees 

are affirmed. Each party shall bear its own appellate costs.

CERTIFIED FOR PUBLICATION

MICON, J.*

We concur:

MANELLA, P. J. WILLHITE, J.

*Judge of the Los Angeles County Superior Court assigned by the

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.