Los Defensores, Inc. v. Gomez
166 Cal. Rptr. 3d 899
Cal. Ct. App.2014Background
- Plaintiff Los Defensores, an attorney advertising group, long used the memorable numerical string “636-3636” (including toll‑free 1‑800‑636‑3636) in Spanish‑market advertising and alleged the string had acquired secondary meaning.
- Defendants Vera and Gomez (and Amamgbo & Associates) controlled local phone numbers containing the same "636‑3636" string; plaintiff alleged defendants intentionally accepted misdirected calls and funneled them to other attorneys, thereby "passing off" plaintiff's business.
- Extensive discovery disputes followed: the court ordered production of call logs, voicemail recordings, financial records and identification of attorneys benefiting from the lines; the court found discovery responses deficient and awarded monetary sanctions in May 2011.
- Plaintiff moved for a preliminary injunction and for terminating/issue sanctions, alleging spoliation and ongoing discovery noncompliance; the court granted a preliminary injunction and entered defendants' defaults as terminating sanctions for willful disobedience of the May 2011 orders.
- On plaintiff’s prove‑up, the court entered default judgment awarding $691,280 in damages (based largely on payments to Vera and Gomez over the relevant period) and a permanent injunction barring defendants’ use of the “636‑3636” numbers. Defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Were terminating sanctions (default) proper? | Defendants willfully violated May 2011 discovery orders and concealed/destroyed call logs, voicemails, financial records; terminating sanctions were warranted. | Defendants lacked the documents because they never existed; they did not willfully disobey and should not be sanctioned with default. | Court affirmed: substantial evidence supported willful noncompliance across multiple types of ordered discovery; terminating sanction not an abuse of discretion. |
| 2) Does the SAC state a cause of action for unfair competition/passing off? | SAC alleges secondary meaning in "636‑3636," intentional deceptive conduct and resulting injury; supports damages and injunction via common‑law unfair competition. | Defendants argued plaintiff cannot claim ownership of defendants’ phone numbers and allegations are insufficient. | Court affirmed: claims for passing off/unfair competition based on phone numbers are permitted when secondary meaning and deceptive intent are alleged; SAC adequate. |
| 3) Did plaintiff give adequate predefault notice of the amount of damages? | Plaintiff served a predefault motion/statement identifying wrongful profits sought (at least $1,051,596/year and alternative figures) and thus provided required notice for an accounting‑type recovery. | Defendants argued CCP §580 requires the complaint or predefault notice to specify damages; complaint did not state amount. | Court affirmed: plaintiff pleaded an accounting and served predefault notice of damages; notice was timely and adequate under Ely/Cassel analysis. |
| 4) Were damages excessive or unsupported? | Plaintiff’s prove‑up offered alternative calculations; court reasonably relied on payments to Vera/Gomez to approximate defendants’ net profits when defendants failed to produce records. | Defendants contended award unrelated to their actual profits and unsupported by evidence. | Court affirmed: award (~$691,280) tracks witness testimony about payments to Vera/Gomez over 4.42 years and is a conservative, permissible measure of defendants’ profits when they failed to prove deductible costs. |
Key Cases Cited
- Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 967 (Cal. Ct. App.) (broad trial court discretion to impose discovery sanctions)
- Mileikowsky v. Tenet Healthsystem, 128 Cal.App.4th 262 (Cal. Ct. App.) (terminating sanctions justified where violation is willful and history of abuse exists)
- Modesto Creamery v. Stanislaus Creamery Co., 168 Cal. 289 (Cal.) (unfair competition/passing off may support injunction and an accounting when mark acquires secondary meaning and defendant acts with intent to mislead)
- North Carolina Dairy Foundation, Inc. v. Foremost‑McKesson, Inc., 92 Cal.App.3d 98 (Cal. Ct. App.) (secondary meaning and public mental association are central to unfair competition protection)
- Cytanovich Reading Center v. The Reading Game, 162 Cal.App.3d 107 (Cal. Ct. App.) (telephone numbers may support unfair competition claim where secondary meaning, deception, and overlapping market exist)
- Greenup v. Rodman, 42 Cal.3d 822 (Cal.) (default judgments as discovery sanctions still implicate CCP §580 notice concerns)