Olive v. General Nutrition Centers, Inc. ( 2018 )

Filed 11/2/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JASON OLIVE, B279490
Plaintiff, Appellant and Cross- (Los Angeles County
Respondent, Super. Ct. No. BC482686)
v.
GENERAL NUTRITION CENTERS,
INC.,
Defendant, Respondent and
Cross-Appellant.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, John Shepard Wiley, Jr., Judge.
Judgment affirmed, order reversed.
Johnson & Johnson, Neville L. Johnson, Douglas L.
Johnson and Ronald P. Funnell; Hamideh Firm and Bassil A.
Hamideh for Plaintiff, Appellant and Cross-Respondent.
McGuire Woods, Leslie M. Werlin, James F. Neale and
Molly M. White for Defendant, Respondent and Cross-Appellant.
_____________________
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 conclude the trial court
1The 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.
2
abused its discretion in its determination that Olive was not the
prevailing party; accordingly, we reverse the order denying
Olive’s motion for attorney fees. The judgment is affirmed.
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.
3
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
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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
3It 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.
5
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 take-
down 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
6
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.
7
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.)
An instruction that clarifies the application of statutory
language may not add to the words of a statute. (Torres v.
8
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.
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[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
10
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.
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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
5In 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
12
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].)
13
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,
14
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
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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
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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
7Anson 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
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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.
8The 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.
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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
19
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
20
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
21
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.)
22
by others that is speculative, conjectural or otherwise unreliable.
(Ibid; Lockheed Litigation Cases (2004) 115 Cal. App. 4th 558,
564.)
As discussed, Lyons’ 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’ speculative
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’s 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, and that alternatively,
this court should deem GNC to be the prevailing party. We
conclude that even under an abuse of discretion standard of
review, it was unreasonable to conclude that Olive was not the
prevailing party.
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.)
23
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 it eventually admitted
liability for using his likeness without authorization. GNC made
pre-trial offers to compromise in the amounts of $65,000,
$150,001, and $200,000.
During closing argument, Olive sought actual damages of
$500,000 to $1 million, a claw back of profits attributable to the
unauthorized use between $11,745,580 on the low end and
$35,236,740 on the high end, and emotional distress between
$500,000 and $1 million. GNC impliedly recommended actual
damages of no greater than $4,800, and explicitly recommended
no emotional distress damages or profits attributable to the
unauthorized use.
The jury found Olive was entitled to $213,000 in actual
damages and $910,000 in emotional distress damages. The jury
also found Olive failed to prove any of GNC’s profits were
attributable to the unauthorized use of his image, or that GNC
acted with malice or fraud for the purpose of punitive damages.
Both parties sought prevailing party costs and attorney’s
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
it was too low and GNC thought it was too high. The court
emphasized counsel’s reactions, stating “[t]his . . . mutually
transparent display was unprecedented in the court’s
experience.”
24
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.”
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’s 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
25
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 [when there are two fee
shifting statutes in separate causes of action, there can be
different prevailing parties].)
In the related context of determining whether there is a
prevailing party on a contract, the trial court shall “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.” (Hsu v. Abbara (1995) 9 Cal. 4th 863, 876.)
The prevailing party determination is made based on a
comparison between the extent to which each party succeeded
and failed in its contentions. (Ibid.)
3. Olive Was the Prevailing Party
Olive achieved an undeniable victory on his section 3344
claim: a $213,000 verdict for actual damages versus the $4,800
verdict proposed by GNC; and $910,000 in emotional distress
damages versus GNC’s recommendation of zero damages. By
contrast, GNC prevailed by defeating Olive’s demand for
unauthorized profits under section 3344, subdivision (a).
26
We understand the trial court’s conundrum: there was a
wide disparity between where each party began and ended in
terms of the relief sought and the relief obtained. The net result
could be considered a draw, leaving each party dissatisfied with
the result. However, we do not believe that means Olive was not
the prevailing party simply because he failed to obtain an award
for the most lucrative portion of his sought-after damages.
Although the source of attorney fees in this case is
statutory, not contractual, we find analogous the reasoning of
contract-based fee decisions.
“If the results in a case are lopsided in terms of one party
obtaining ‘greater relief’ than the other in comparative terms, it
may be an abuse of discretion for the trial court not to recognize
that the party obtaining the ‘greater’ relief was indeed the
prevailing party.” (de la Cuesta v. Benham (2011) 193
Cal. App. 4th 1287, 1295; accord, Silver Creek, LLC v. BlackRock
Realty Advisors, Inc. (2009) 173 Cal. App. 4th 1533, 1541
[prevailing party is the party who recovered “greater relief” on
the contract].) Such is the case here, as Olive clearly obtained
the greater relief.
The fact that Olive received substantially less damages
than what he sought does not defeat his prevailing party status
because a complete victory is not required. (See de la Cuesta,
supra, 193 Cal.App.4th at p. 1296, fn. 5.) As articulated by the
Fourth District Court of Appeal: “Most of the time, attorneys
have an incentive to assert the maximal claims possible on behalf
of their client. . . . But if anything less than complete victory
means that a client loses what would otherwise have been
‘prevailing party’ status under section 1717, the attorney is
crunched into a dilemma. Risk a malpractice suit by not
27
asserting maximal claims, or risk a malpractice suit by forfeiting
‘prevailing party’ status under section 1717 by asserting maximal
claims.” (Ibid.) “If anything short of ‘complete victory’ allows the
trial court unrestricted freedom to ignore the substance of a
result, then trial courts have the freedom to nullify the normal
expectations of parties who [litigate statutes] with prevailing
party attorney fee clauses.” (Id. at p. 1295.)
Ajaxo, Inc. v. E*Trade Group, Inc. (2005) 135 Cal. App. 4th
21 (Ajaxo) is instructive. The case involved litigation between
three companies in which E*Trade breached a nondisclosure
agreement, causing the release of Ajaxo’s trade secrets. (Id. at
p. 25.) Ajaxo sought lost profits of $19.2 million, but it ultimately
received an award of $1.29 million in restitution. (Ajaxo, supra,
135 Cal.App.4th at pp. 25, 55, 59, & fn. 35.) The trial court
deemed Ajaxo to be the “prevailing party” despite the fact that
four of its theories of liability were rejected, it failed to secure a
permanent injunction, and it received only a fraction of the
damages it sought. (Id. at pp. 58–59, & fns. 34–36.) The Court of
Appeal affirmed the prevailing party determination on the
grounds that the victim company received a “simple, unqualified
verdict on the breach of contract claim,” along with damages in
excess of $1 million. (Id. at p. 59.)
In Silver Creek, supra, 173 Cal. App. 4th 1533, the parties
executed agreements to purchase two commercial properties for
$29.75 million, with $1.13 million deposited into escrow accounts.
The deal fell through during escrow, and the seller sought a
declaration that it validly terminated the agreements and was
entitled to retain the deposit. (Id. at p. 1536.) The buyer cross-
complained. (Ibid.) The trial court found in favor of the seller on
the complaint and the cross-complaint, but concluded the buyer
28
was entitled to a return of the deposit. (Id. at p. 1537.) It
determined there was no prevailing party because each party
won one of the claims. (Id. at p. 1540.)
The Court of Appeal in Silver Creek reversed, concluding
the trial court’s approach “oversimplified its duties by counting
the number of contract claims presented and essentially
declaring a tie because each party won one of the claims
presented for resolution.” (Silver Creek, supra, 173 Cal.App.4th
at p. 1540.) The seller had achieved its main litigation objective
in terms of monetary value—terminating the $29.75 million
deal—even though the buyer retained the $1.13 million deposit.
(Ibid.) Because the seller obtained the greater relief on the
contract, the trial court abused its discretion by finding neither
party achieved greater relief. (Id. at p. 1541.)
In de la Cuesta, a landlord brought an unlawful detainer
action and sought unpaid rent. (de la Cuesta, supra, 193
Cal.App.4th at p. 1290.) The tenant asserted she owed the
landlord nothing because there were leaks in the premises. (Id.
at p. 1290.) The day before the trial, the tenant vacated the
premises, so the case proceeded to trial as to only the landlord’s
money claims. (Ibid.) The landlord recovered 70 percent of what
he claimed was owing; nevertheless, the trial court ruled that
there was no “prevailing party.” (Ibid.) The appellate court
reversed, concluding “[t]he result was so lopsided that, even
under an abuse of discretion standard, it was unreasonable to say
the landlord was not the prevailing party.” (Ibid.)
Like the victim in Ajaxo, Olive recovered less than 10
percent of the maximum damages sought. And like the seller in
Silver Creek, Olive clearly obtained the “greater relief” compared
to GNC since he is walking away from the litigation with more
29
than $1 million. Although the verdict was certainly lower than
the amount sought by Olive and the percentage recovered by the
landlord in de la Cuesta, it greatly exceeded GNC’s damages
recommendation of $4,800. “It is not enough to hide the
difference [between the amount sought and the total verdict]
under the cover of an abuse of discretion standard.” (de la
Cuesta, supra, 193 Cal.App.4th at p. 1299.) The fact that both
parties were visibly disappointed by the verdict does not
negate the fact that Olive prevailed on a “practical level.” Thus,
Olive was entitled to attorney fees under section 3344.
30
DISPOSITION
The order denying Olive’s motion for prevailing party
attorney’s fees is reversed. The matter is remanded with
directions to enter a new order declaring Olive to be the
prevailing party on his section 3344 cause of action, and for
further proceedings to determine an appropriate cost and fees
award. The judgment is otherwise affirmed. Each party shall
bear its own appellate costs. (Cal. Rules of Court, rule 8.278(a)(3)
[costs are discretionary following partial reversal].)
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.
31