Olive

*808 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 3344 1 but contested the amount of damages. A jury found Olive suffered $213,000 in actual damages and *809 $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…