L. Defensores, Inc. v. Gomez

• Decision Date: 16 April 2014
• Docket Number: B240725
• Citation: 223 Cal.App.4th 377,166 Cal.Rptr.3d 899
• Court: California Court of Appeals Court of Appeals
• Parties: LOS DEFENSORES, INC., Plaintiff and Respondent, v. Rosa GOMEZ et al., Defendants and Appellants.

223 Cal.App.4th 377

166 Cal.Rptr.3d 899

LOS DEFENSORES, INC., Plaintiff and Respondent,

v.Rosa GOMEZ et al., Defendants and Appellants.

B240725

Court of Appeal, Second District, Division 4, California.

Filed January 24, 2014

Review Denied April 16, 2014

See 2 Witkin, Cal. Evidence (5th ed. 2012) Discovery, § 262.

APPEAL from a judgment of the Superior Court of Los Angeles, Mary Ann Murphy, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC411527)

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Caroline E. Chan; Law Offices of Robert C. Moest and Robert C. Moest for Defendants and Appellants.

Towle Denison Smith & Maniscalco, James P. Maniscalco and Amanda R. Washton for Plaintiff and Respondent.

MANELLA, J.

In the underlying action, the trial court ordered the entry of a default against appellants as a sanction for discovery abuse, and issued a default judgment awarding respondent damages and injunctive relief. Appellants contend that the discovery sanctions were improper, that the complaint stated no cause of action, that they received inadequate notice of the damages respondent sought, and that the damages awarded were excessive. We reject these contentions, and affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Action

Respondent Los Defensores, Inc., is an attorney joint advertising group that focuses on the Spanish-speaking market in Southern California. Beginning in 1984, respondent's advertising included the telephone numbers 213-636-3636 and 714-636-3636. Later, in 1988, respondent obtained the rights to the toll-free telephone number 1-800-636-3636, which was incorporated into respondent's advertising.

In April 2009, respondent initiated the underlying action against appellants Armando Vera and Rosa Gomez. The first amended complaint, filed April 29, 2009, contained claims for unfair business competition and “passing off.” According to the complaint, Vera and Gomez owned the rights to phone numbers that closely resembled respondent's toll-free number. The complaint further alleged that when callers mistakenly dialed Vera and Gomez's numbers in an effort to contact respondent, Vera and Gomez intentionally referred them to attorneys not affiliated with respondent. In May 2010, the complaint was amended to name as Doe defendants appellants Donald C. Amamgbo and Amamgbo & Associates, P.L.C. (Amamgbo & Associates).

B. Respondent's Initial Discovery Motions

In July 2010, respondent filed two motions to compel discovery. Respondent requested an order directing the depositions of Vera and Gomez, who refused to appear at their depositions on the ground that they had received a bankruptcy discharge. Respondent contended that the bankruptcy discharge did not encompass its claims against Vera and Gomez, and that the automatic stay accompanying the bankruptcy proceedings ended with the discharge.¹ In addition, respondent sought an order compelling Vera and Gomez to respond to requests for the production of documents. Respondent asserted that Vera and Gomez provided no documents in response to the request. Both motions sought an award of sanctions.

On October 19, 2010, the trial court granted the motions. Pursuant to a stipulation of the parties, the court ordered Vera and Gomez to produce responsive documents by October 26, 2010, and to appear for depositions in November 2010. The court awarded no sanctions.

C. Second Amended Complaint

On January 19, 2011, respondent filed its second amended complaint (SAC), which is the operative complaint in the action. The SAC asserts claims for unfair competition and passing off under the common law, and a claim for violations of the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.).

The SAC alleges the following facts: Since 1984, respondent's advertising in Southern California has focused on the “easy-to-remember” string of numerals 636-3636, found in its toll-free number. Nearly all of respondent's advertising uses that toll-free number. As a result of respondent's substantial investment in advertising, which totaled more than $123 million since 1984, respondent's “calling card” number 636-3636 gained “significant notoriety.” To determine the efficacy of the advertising, respondent asked members of focus groups whether they “knew of the telephone number of any ... group of lawyers.” According to the SAC, “the overwhelming response [was] ‘636-3636.’ ”

The SAC further alleges that Vera and Gomez, together with Attorney Amamgbo and his law firm, entered into a “conspiracy scheme” in an effort to “ride [respondent's] coattails.” They obtained the rights to several telephone numbers incorporating the 636-3636 string, including those in the 949, 626, 818, 310, and 661 area codes. Due to the similarity between those numbers and respondent's toll-free number, appellants receive calls from persons seeking respondent's legal services. Rather than informing callers of their mistake, appellants “go [to] great lengths to avoid answering any questions about whether they are [respondent] or whether they have any affiliation with [respondent].... [T]o deflect questioning ..., [appellants] say they are ‘an office for lawyers' or something equivalent to that effect in an attempt to implicitly pass themselves off as affiliated with [respondent].”

According to the SAC, appellants' intent was “to injure [respondent's] business and usurp [respondent's] good will,” and their wrongful conduct caused damages to respondent, as well as “actual mistakes, confusion, or deception of the general public.” The SAC requested an award of damages, including punitive damages, and “an accounting of [appellants'] unjust profits.” In addition, the SAC sought preliminary and permanent injunctions barring appellants from using any telephone number incorporating the numerical string “636-3636.”

D. Respondent's Subsequent Discovery Motions

In March 2011, respondent filed motions to compel discovery against Vera, Gomez, and Amamgbo & Associates. Respondent contended that Vera and Gomez had not responded to discovery propounded in November 2010, including interrogatories and requests for the inspection and production of documents. The motions noted, inter alia, that during Vera's and Gomez's depositions, they referred to a “status book” and a call log in which information regarding calls to their 636-3636 numbers was recorded. Vera and Gomez testified that they recorded caller information in a status book. In addition, Vera acknowledged that the cell phone associated with the 636-3636 lines had a call log of incoming phone numbers, and appellants' defense counsel, Robert C. Moest, promised to transcribe the numbers in it. According to respondent, Vera and Gomez failed to produce the status book and call log, despite respondent's requests at the depositions and in the inspection demands. Respondent sought orders compelling the discovery and awarding sanctions.

In addition, in a motion directed against Amamgbo & Associates, respondent contended that from June to December 2010, it propounded three rounds of discovery, including requests for admissions, form interrogatories, special interrogatories, and production of documents. According to respondent, Amamgbo & Associates failed to respond to many of the requests for admissions and interrogatories, responded deficiently to the remaining requests for admission and interrogatories, and produced few of the requested documents. Respondent sought orders compelling Amamgbo & Associates to respond adequately to the discovery, deeming certain requests for admission to be admitted, and awarding sanctions.

In a two-page consolidated opposition, appellants' defense counsel, Moest, stated: “[Appellants] concede that there is substantial overdue discovery, and that a number of errors were made in the form of the responses provided. [Appellants] are well along in the process of remedying the alleged deficiencies....” The opposition challenged only the amount of sanctions requested by respondent, which totaled $15,000.

On May 19, 2011, the trial court granted the motions against Gomez and Vera. The court granted the motion against Amamgbo & Associates insofar as it sought an order compelling discovery, but denied it insofar as it sought an order deeming certain requests for admission to be admitted.² The court also awarded sanctions totaling $6,380 against Vera, Gomez, Amamgbo & Associates, and their counsel.

E. Motions for a Preliminary Injunction and Discovery Sanctions

In November 2011, respondent filed motions for a preliminary injunction and for discovery sanctions. Respondent sought an injunction barring appellants from using telephone numbers incorporating the numerical string 636-3636. Respondent also requested the imposition of monetary, issue, or terminating sanctions, arguing that appellants had engaged in significant misconduct during discovery, including the spoliation of evidence.

1. Showings Regarding Motion for Preliminary Injunction

In seeking a preliminary injunction, respondent submitted excerpts from appellants' depositions and other evidence supporting the following version of the underlying facts: Vera was born in Peru, where he attended college, but obtained no degree. In 2000, after emigrating to the United States, Vera operated a car rental business, and obtained the rights to the 636-3636 telephone numbers in the 949, 626, 818, 310, and 661 area codes for use in connection with that business. He soon discovered that callers asked him for legal services, and had the “big idea” that the numbers were more valuable to law firms than to a rental car company. Vera started “working for the attorneys,” and “gave [them] those lines so that [he] could work.”

In 2007, Vera and Gomez, who were then married, were employed by Attorney Les Sherman, who paid them $10,000 per month to use the telephone numbers. In mid-2007, Sherman sold his practice to Attorney Amamgbo for approximately $300,000 after Sherman was charged with...