After Eighteen Years, a Whimper

In re Tobacco Cases II, No. D065165 (D4d1 Sept. 28, 2015)

This case about Philip Morris’s allegedly deceptive marketing of Marlboro Light cigarettes has been kicking around the state courts since 1997! After a bench trial, the trial court found that Defendants violated the Unfair Competition Law, but nonetheless awarded no remedy. It determined that restitution was inappropriate and any injunctive relief had been long ago mooted by federal legislation specifically addressing the labeling practices at issue in the case.

Affirming on the merits, the court of appeal also addresses two procedural issues: (1) Was Defendant the prevailing party under Code of Civil Procedure § 1032, entitling it to recover its costs? And (2) did the trial court properly refuse to award Plaintiffs costs and fees under § 2033.420, as a sanction for Defendants’ unjustified denial of a request for admission.

The first question is an easy one. Section 1032 specifically says that the defendant is the prevailing party when plaintiff takes no relief. That’s the case even if there’s a finding that defendant violated the law but no remedy is afforded.

As to the RFA, the trial court denied Plaintiffs’ fee request because they never provided an accounting of the fees attributable to the unjustified denial of the RFA. Indeed, their request seems mostly to have been an afterthought to offset the $700k in costs that the court awarded to Defendant as prevailing party. Not only was the trial court within its discretion in denying the request in the absence of an accounting, but by failing to provide the information to justify an award, Plaintiffs waived their right to appeal the denial.

Affirmed.