Olive v. Gen. Nutrition Ctrs., Inc.
242 Cal. Rptr. 3d 15
Cal. Ct. App. 5th2018Background
- Jason Olive (model/actor) signed limited releases with GNC for use of his likeness in a 2010 campaign; one release expired and GNC continued using his image without renewed consent. GNC admitted liability under Cal. Civ. Code § 3344 but disputed damages.
- Olive sued under § 3344 (statutory misappropriation) and unjust enrichment; trial focused on damages because liability was conceded.
- The jury awarded Olive $213,000 in actual damages and $910,000 for emotional distress, but awarded no disgorgement/restitution and found no malice or fraud. Trial court entered judgment and denied both parties’ motions for prevailing-party attorney fees under § 3344.
- Olive’s proposed special jury instruction (to shift part of the apportionment burden to GNC) was rejected; Olive’s experts (Weston Anson and Leonard Lyons) on profits/attribution were excluded for being speculative and methodologically unsupported.
- On appeal, Olive argued instructional error, improper exclusion of experts, and that he should have been deemed the prevailing party for fee purposes; GNC cross-appealed seeking prevailing-party status. Court affirmed judgment and denial of fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction re: burden to apportion profits under § 3344 | Olive: court should instruct jury that defendant must prove portion of revenue not attributable to use of Olive’s likeness (to guide apportionment) | GNC: CACI No. 1821 correctly tracks § 3344 placing burden on plaintiff to prove gross revenue attributable to the use; Olive’s proposed wording misstates law | Affirmed: court correctly refused Olive’s special instruction; CACI No. 1821 mirrors unambiguous statutory language and Olive’s proposal was legally incorrect/misleading |
| Proper party/burden to prove profits attributable to use of likeness | Olive: a causal-nexus/apportionment instruction was needed; plaintiff should not bear full burden given evidentiary exclusions | GNC: § 3344 requires plaintiff to prove gross revenue attributable to the use; defendant proves deductible expenses | Held: § 3344 is unambiguous — plaintiff must prove gross revenue attributable to the unauthorized use; defendant proves expenses |
| Exclusion of experts (Anson, Lyons) on profits/attribution | Olive: experts were improperly excluded; their opinions would have supported restitution/restitution calculations | GNC: experts’ methodologies were speculative, relied on noncomparable samples, and lacked reliable foundation | Held: exclusion affirmed — trial court did not abuse gatekeeping discretion under Sargon; opinions were speculative and relied on unreliable assumptions/data |
| Prevailing-party status for attorney fees under § 3344 | Olive: recovery > $1.1M makes him prevailing party entitled to fees | GNC: mixed result; trial court correctly found no prevailing party; alternatively GNC asks to be deemed prevailing | Held: affirmed — trial court reasonably exercised discretion under Hsu practical-level test to conclude neither party prevailed given parties’ litigation objectives and mixed results |
Key Cases Cited
- Eng v. Brown, 21 Cal.App.5th 675 (clarifies duty to give correct jury instructions supported by evidence)
- Torres v. Parkhouse Tire Service, Inc., 26 Cal.4th 995 (instructional language must not add to statute)
- Bullock v. Philip Morris USA, Inc., 159 Cal.App.4th 655 (trial court may refuse party’s incorrect instruction)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (trial court gatekeeper role; exclude speculative expert opinion)
- Cooper v. Takeda Pharmaceuticals America, Inc., 239 Cal.App.4th 555 (expert opinion excluded if speculative or unsupported)
- Hsu v. Abbara, 9 Cal.4th 863 (practical-level test for prevailing party; courts may find no prevailing party in mixed results)
- Gilbert v. National Enquirer, Inc., 55 Cal.App.4th 1273 (application of prevailing-party analysis under § 3344)
- Marina Pacifica Homeowners Assn. v. Southern California Financial Corp., 20 Cal.App.5th 191 (mixed-result fee denial affirmed where award was far less than amount sought)