In Gilbert v. National Enquirer, Inc. (1997) 55 Cal.App.4th 1273, the section 3344 claims were dismissed without prejudice to expedite the plaintiff's appeal of other causes of action that had not survived the defendant's demurrer. (Id. at p. 1277.) The demurrer to the section 3344 claims, however, had been overruled; and little discovery had yet been conducted on those claims' merits. (Ibid.) Under those circumstances, the Court of Appeal found no abuse of discretion in the trial court's conclusion that neither side had prevailed on the section 3344 claims. (Gilbert, at pp. 1277-1278.)