Monday, January 27, 2014
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C.A. Upholds Judgment for Los Defensores in Suit Against Lawyer, Others Over Diverted Phone Calls
By a MetNews Staff Writer
The Court of Appeal for this district Friday affirmed a judgment in favor of a legal advertising collective against an attorney and two laypersons who allegedly siphoned off business from the plaintiff by using similar phone numbers.
Div. Four affirmed a judgment for nearly $700,000 in favor of Los Defensores, Inc. The self-described “attorney joint advertising group” said in the course of the litigation that it had spent $123 million since 1984 on advertising.
The group is well-known among Spanish-speakers for its many ads, often featuring legendary Dodgers broadcaster Jaime Jarrin, and distinctive phone number string, 636-3636. It owns that number in the 213 and 714 area codes and has a toll free number, 1-800-636-3636.
In 2009, Los Defensores sued Armando Vera and his then-wife, Rosa Gomez, for unfair competition and “passing off.” It alleged that the pair had deliberately obtained the number 636-3636 in other Southern California area codes—949, 626, 818, 310, and 661—and referred callers who believed they were calling Los Defensores to other attorneys.
In May 2010, the complaint was amended to add Westside attorney Donald C. Amamgbo and Amamgbo & Associates as Doe defendants. The plaintiff also sought to depose Vera and Gomez.
The pair objected to being deposed on the ground of discharge in bankruptcy. The objections were overruled on the ground that the potential debt to Los Defensores was not discharged, and that the automatic stay had ended with the discharge.
The plaintiff also served requests for production, all of which were objected to, and served interrogatories and other discovery requests on Amamgbo. The attorney, the plaintiff alleged in a motion to compel, responded deficiently to some of its discovery requests and not at all to the rest of them.
Los Angeles Superior Court Judge Mary Ann Murphy ordered further discovery responses and imposed monetary sanctions of more than $6,800 against the defendants and their counsel.
At their ensuing depositions, Vera explained that he first used the telephone numbers for a car rental business, which he opened in 2000. When he realized that many of the callers were looking for legal services, not rental cars, he got the “big idea” of making the numbers available to lawyers, he testified.
In 2007, he and his then-wife were being paid $10,000 for the use of the numbers by Les Sherman, a Marina del Rey lawyer who was subsequently convicted on tax and conspiracy charges and disbarred. While facing prosecution, Sherman sold the bulk of his law practice for about $300,000 to Amamgbo, who continued to employ Vera and Gomez for more than $12,000 per month.
After Los Defensores sued, Vera and Gomez transferred the accounts for the phone numbers to Amamgbo.
Later, Los Defensores moved for sanctions and for a preliminary injunction. It claimed that the defendants had destroyed evidence rather than comply with an order requiring them to produce written documents and call logs, which Vera and Gomez testified were kept and which would have documented requests for legal services and referrals to Sherman and Amamgbo.
The defendants responded that they had complied with all orders of the court and that the plaintiffs had misinterpreted the deposition testimony regarding “documents that never existed.”
Murphy granted a preliminary injunction and imposed terminating sanctions in November 2011. After the plaintiff submitted supplemental briefing and evidence, the judge awarded $691,280 in damages and permanently enjoined the defendants from using their 636-3636 numbers.
Justice Nora Manella, writing for the Court of Appeal Friday, said the trial judge acted within her authority in granting injunctive relief, terminating sanctions, and damages.
The plaintiff, Manella wrote, established its entitlement to relief on its common law and statutory unfair competitions claim by showing that the defendants misappropriated the plaintiff’s trademark, rather than merely using their own telephone numbers to their advantage.
“[Los Defensores’] claim is predicated not on its ownership or control of phone numbers containing the pertinent numerical string, but on its right to prevent deceptive conduct aimed at consumers by exploiting the numerical string after it has acquired a secondary meaning,” the justice explained.
She distinguished a federal case holding that an attorney whose phone number translated alphanumerically to “INJURY-1” did not necessarily constitute infringement of another attorney’s trademark “INJURY-9.”
The difference between the two cases, Manella explained, is that “INJURY” is a generic phrase used by attorneys who represent plaintiffs, whereas 636-3636 “has no common descriptive meaning relating to legal services.”
The jurist went on to say that the defendants had adequate pre-default notice of their potential exposure, as required by statute, since the figure chosen by the trial judge resulted from a calculation included in a motion for sanctions. And the imposition of terminating sanctions, Manella said, was not an abuse of discretion given the evidence of multiple instances of willful noncompliance with the court’s orders.
Given the contradictions between Vera’s and his attorney’s declarations on the one hand and Vera’s deposition testimony on the other, the court would not disturb the trial judge’s finding that the defendants’ denials as to the existence of the documents lacked credibility, the justice said.
Attorneys on appeal were Roy G. Weatherup and Caroline E. Chan of Lewis Brisbois Bisgaard & Smith, and Robert C. Moest, for the defendants and James P. Maniscalco and Amanda R. Washton of Towle Denison Smith & Maniscalco for the plaintiff.
The case is Los Defensores, Inc. v. Gomez, 14 S.O.S. 365.
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