In Gilbert v. National Enquirer, Inc. (1997) 55 Cal. App. 4th 1273 [64 Cal. Rptr. 2d 659], involving an action for commercial appropriation under Civil Code section 3344, the court reached a similar conclusion. There, the plaintiff voluntarily dismissed the commercial appropriation claims without prejudice. (55 Cal. App. 4th at p. 1275.) The defendant then sought attorney fees as the prevailing party on the commercial appropriation claims under Civil Code section 3344. (55 Cal. App. 4th at p. 1275.) Defendant argued the prevailing party definition under Code of Civil Procedure section 1032, subdivision (a)(4), combined with subdivision (b) thereof, which entitles the prevailing party to costs, required that it be declared the prevailing party for purposes of recovering attorney fees under Civil Code section 3344. (55 Cal. App. 4th at p. 1276.) Gilbert upheld the trial court's discretion in concluding there was no prevailing party following the plaintiff's voluntary dismissal of her commercial appropriation claims. ( Id. at pp. 1277-1278.)