Thursday, May 10, 2007
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Appeals Court Upholds Verdict Over Counterfeit Web Site
By Kenneth Ofgang, Staff Writer
A surgeon is entitled to compensation for damage to his business and reputation as a result of a competitor’s counterfeiting of his Web site, but cannot recover punitive damages because he did not present evidence of her finances, the Court of Appeal for this district ruled yesterday.
Div. Three, on rehearing, struck a $200,000 punitive damage award from a Los Angeles Superior Court judgment in favor of Dr. Tirso Del Junco Jr., but affirmed the remainder of the judgment, leaving the plaintiff entitled to nearly $360,000 in general and special damages, costs, and attorney fees.
In its original opinion, which was filed March 15 and was unpublished, the court reversed the punitive damage award, but granted the plaintiff the option of presenting additional evidence in the trial court on the issue.
That option was omitted from yesterday’s opinion, which was certified for partial publication. The panel did not explain why it changed its view, but other tribunals have held that a failure to present sufficient evidence of a defendant’s finances, in support of a claim for punitive damages, to the trial court cannot be cured on remand.
Del Junco, who operates the Institute for Female Alternative Medicine, offers a surgical alternative to hysterectomy for women with significant fibroid disease or endometriosis. He claims on his Web site to be the only physician performing such surgery in the United States.
His father, Dr. Tirso Del Junco, is also a surgeon and is prominent in Republican politics.
Del Junco sued Vikki G. Hufnagel, who has also used the name V. Georges Hufnagel, in 2004 after she created an Internet site that mimicked his. As described by the Court of Appeal, the site had a photograph of Del Junco and a link to contact him, but when viewers clicked on the link, they were directed to a site promoting Hufnagel’s Mexican clinic.
At the time, Hufnagel’s California and New York licenses had been revoked and she was facing disciplinary proceedings in Hawaii. Her counterfeit Web page, at drdeljunco.com, included statements that the Institute for Female Alternative Medicine was ìa fraud on the public, and that Del Junco has no specialized medical training in medicine or in female medicine, was a vascular student, had not studied hormonal sciences, had no training at all in women’s medicine, and was not a specialist.
The site also accused Del Junco of using Hufnagel’s work without giving her credit, and of performing failed procedures. The plaintiff claimed that the counterfeit site caused inquiries from potential patients to drop, cost him revenue, harmed his reputation, and forced him to spend over $3,000 to redesign his site.
Hufnagel represented herself in the early stages of the litigation, filing an answer and cross-complaint. The cross-complaint was withdrawn after Del Junco’s counsel moved to strike it on the ground that Hufnagel had been found to be a vexatious litigant in an unrelated suit and had not obtained leave of court to sue Del Junco in pro per.
Hufnagel later retained Encino attorney William H. Dailey as her counsel. In October 2004, Judge Soussan Bruguera awarded the plaintiff more than $6,000 in sanctions for various violations, including filing documents whose form did not conform with court rules, filing the cross-complaint without leave of court, failing to attach copies of federal cases cited in her opposition to the plaintiff’s preliminary injunction motion—which was granted—and filing a request for dismissal form regarding Del Junco’s complaint.
In January 2005, Del Junco moved for terminating sanctions. The judge granted the motion, striking the defendant’s answer and entering default, on grounds that the defendant had persisted in violating statutes, court rules, and orders of the court.
An ex parte application for an order shortening time for hearing on a motion to set aside the default, on the ground that the violations were Dailey’s fault and that Hufnagel could not afford to hire new counsel, was denied. Judgment was entered for the plaintiff.
In the published portions of yesterday’s opinion, Justice Richard Aldrich, writing for the court, said that the accusations that Del Junco was a student and not a doctor, and that he had no specialized medical training, constituted actionable defamation; and that the trial judge did not exceed her authority in entering terminating sanctions.
It was clear, the justice said, that Hufnagel, with Dailey’s assistance, was deliberately obstructing the litigation and would not be deterred by lesser sanctions.
Dailey, who represented Hufnagel on appeal along with James S. Link, did not return a METNEWS phone call. Michael J. Kaufman of Moore, Sorensen & Horner represented the plaintiff.
The case is Del Junco v. Hufnagel, B191456.
Copyright 2007, Metropolitan News Company