Business Litigation

• Christoff v. Nestle USA, Inc.

Facts: In 1986, Christoff posed for a photograph to be used on a label for bricks of coffee in Canada. Sixteen years later, he saw his face on a jar of Taster’s Choice instant coffee in the United States. This label had been in use for six years. Christoff filed suit for the appropriation of his likeness. Nestle moved for summary judgment based on the statute of limitations. The trial court applied a two-year statute of limitations from his initial discovery on the grounds the single publication rule does not apply to claims for appropriation of likeness. The jury awarded him 15 million dollars in damages. The appellate court reversed on the grounds the single publication rule applied and Christoff had not filed his lawsuit within two years after Nestle first published the label. Christoff appealed to the Supreme Court.

Holding: Reversed and Remanded. The single-publication rule is intended to prevent a single integrated publication from resulting in numerous causes of action. This rule does apply to claims for the misappropriation of a person’s likeness. However, since the parties did not have an opportunity to present evidence to establish whether the production of the coffee label with Christoff’s likeness was a single integrated publication or republished, the case is remanded.

• Jeewarat v. Warner Bros. Entertainment, Inc.

Facts: An employee for Warner Bros. attended a three-day out-of-town business conference, approved by his employer. He left the conference early. On his way home, he drove by the office without stopping and took his normal route home, until he was involved in a motor-vehicle collision that caused injuries to Jeewarat. Jeewarat filed a personal injury action against the employee and Warner Bros. Warner Bros filed motion for summary judgment on the grounds the employee was commuting from work to home when the accident occurred, and therefore under the “going and coming rule,” the employee was not acting in the scope and course of his employment. The trial court granted the motion. Jeewarat appeals on the grounds the business conference attended by the employee was a special errand that had not concluded and therefore the “going and coming” rule does not apply to preclude liability against Warner Bros.

Holding: Reversed. An employee’s attendance at an out-of-town business conference may be considered a special errand. The special errand is concluded when the employee returns home or deviates from the errand for personal reasons. Thus, because Warner Bros. failed to show the employee had deviated from the special errand for personal reasons at the time of the accident, summary judgment was improperly granted.

• Jankey v. Lee

FACTS: Plaintiff Jankey filed a lawsuit under the ADA, Unruh Civil Rights Act (including Civil Code § 55), the CA Disabled Persons Act, and Health & Safety Code § 19955, alleging that a four-inch step located at the entry of Lee’s K & D Market was an architectural barrier preventing him and other wheelchair bound individuals from “wheeling directly into the store.”  Lee’s motion for summary judgment was granted and he brought a motion to recover his attorney fees under Civil Code § 55.  In ruling on the fee motion, the parties disagreed as to the applicable law.  Jankey argued that the court should require Lee to show that his claims were frivolous, unreasonable or groundless, as required under the ADA (based on Hubbard v. SoBreck, LLC, 554 F.3d 742).  Lee argued that the fees were automatically available to a prevailing defendant under Section 55, regardless of the characterization of Plaintiff’s claims, and the ADA does not preempt such an award (based on Molski v. Arciero Wine Group, 164 Cal.App.4th 786.)  The trial court applied Molski and awarded Lee his attorneys’ fees under Section 55.  Jankey appealed.

HOLDING: Affirmed.  The mandatory fee award under Civil Code § 55 is not preempted by the discretionary standard under the ADA.  Civil Code § 55 exposes a plaintiff to an adverse fee award because if it is not enforced, plaintiffs might take a “scorched earth” approach to litigation with no consequences.