Christoff v. Nestlé USA, Inc.

Full title: RUSSELL CHRISTOFF, Plaintiff and Respondent, v. NESTLé USA, INC.…

Court: California Court of Appeals, Second District, Eighth Division

Date published: Jul 24, 2007

No. B182880 (Cal. Ct. App. Jul. 24, 2007)

Opinion

RUSSELL CHRISTOFF, Plaintiff and Respondent, v. NESTLé USA, INC., Defendant and Appellant. B182880 California Court of Appeal, Second District, Division Eight July 24, 2007

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

Los Angeles County Super. Ct. No. EC036163

THE COURT^*

It is ordered that the opinion filed June 29, 2007, be modified as follows:

On page 24, add the following as a second paragraph to footnote 10:

Nestlé also argues that section 3344 effects a penalty or forfeiture requiring the application of Code of Civil Procedure section 340, subdivision (a). That argument, however, is not consistent with the definitions of penalty and forfeiture. The recovery of profits is not a mandatory penalty irrespective of the actual damages sustained but is instead based on a theory of unjust enrichment. (See Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1242; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 978.)

There is no change in the judgment.

Appellant’s petition for rehearing is denied.