Monday, August 10, 2026
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Ninth Circuit Affirms, in One Sentence, Judge’s Denial of Attorney Fees in ‘Puppy Mill’ Case
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals—not being bound by a requirement, such as that set forth in California’s Constitution, that appellate decisions put forth “reasons stated”—has affirmed a decision denying attorney fees and a trebling of damages in a trademark-infringement action against proprietors of “puppy mills,” saying, only: “We affirm on all issues for the reasons given by the district court.”
Signing Thursday’s memorandum opinion were Circuit Judges Lucy H. Koh and Holly A. Thomas, along with Senior Circuit Judge Susan Graber.
Damages had been assessed by a jury at $3.5 million in favor of plaintiff PetConnect Rescue, Inc. and others in a lawsuit against Ray Rothman, Alysia Rothman, and Pet Connect Rescue, Inc.—the corporate defendant having the same name as that of the plaintiff, except that the infringer uses a space between “Pet and Connect.” There is also a judgment against David Salinas and National City Puppy, LLC for $383,000 and against Jason Duhammel, an individual who made no appearance, for $78,457.
The operative pleading alleges that the defendants used the slightly altered name of the plaintiff—a tax-exempt, multi-state dog-rescue outfit—to create the false impression that their operations are those of a benevolent, rather than profit-making, nature. The purpose, it was pled, was to circumvent California legislation, effective Jan. 1, 2019, prohibiting, in Health & Safety Code §122354.5, the commercial sale of non-rescue dogs, cats, and rabbits in retail pet stores.
Puppies being peddled were, in actuality, not from rescue operations but were being shipped to California by breeders back east.
While ordering entry of judgment in accordance with the jury’s verdict, District Court Judge Robert S. Huie of the Southern District of California denied the plaintiffs’ request for attorney fees. Such an award is authorized, under the federal Lanham Act, also known as the Trademark Act of 1946, in “exceptional cases.”
Argument for Fees
PetConnect sought fees of about $750,000. In its memorandum of points, signed by San Diego attorney Bryan W. Pease, it quoted the Ninth Circuit’s 1984 decision in Sealy, Inc. v. Easy Living, Inc. as saying:
“A trademark case is exceptional for purposes of an award of attorneys’ fees where the infringement is malicious, fraudulent, deliberate or willful.”
The lawyer said:
“In this case, those requisite elements exist in abundance as shown by the Defendants’ carefully plotted out plan to hijack and counterfeit Plaintiffs’ PETCONNECT RESCUE trademark and use it - with the aid of a single blank space as ‘Pet Connect’ in order to disguise the source and origin of puppy mill puppies in order that they could be illegally and pretextually passed off to unsuspecting consumers as rescue puppies. Defendants made such infringing use on governmental interstate health certificates, paperwork supplied to consumers at the point of sale, cage cards indicating the source of the dogs, and by means of forming an entire fake pet rescue as PET CONNECT RESCUE.”
Bribery Alleged
Pease argued:
“This was an exceptional case. Defendants engaged in extensive efforts to perpetrate and conceal their fraud to continue profiting from the sale of puppy mill puppies in pet stores in California after it was illegal to do so, including even going to such extremes as sending former defense counsel to local humane societies to attempt to bribe them with donations in exchange for ‘cooperative agreements’ that Defendants could use to continue to evade law enforcement.”
The lawyer charged that the defendants “attempted to pass off what was evidently an attorney-designed and procured damage control report based upon strategically unproduced and inadequate financial data as expert opinion…and repeatedly filed false statements as to the sourcing of the puppy mill puppies sold in California pet stores,” adding:
“Despite Defendants’ scorched earth litigation strategy, Plaintiffs ultimately prevailed in this case by proving that what was self-evident all along: that Defendants reaped millions in revenue through the sale of puppy mill puppies in California by means of passing the puppies off as rescue dogs through the pretextual use of the Plaintiffs’ PETCONNECT RESCUE name and mark.”
Contention Rejected
Huie ruled that the plaintiffs failed “to show by a preponderance of the evidence that this is an exceptional case for which it is entitled to attorney fees,” elaborating:
“Plaintiff cites the volume of puppies that Defendants transferred and sold…, but this does not establish fraudulent, deliberate, or willful infringement. Additionally, the procedural history of this case does not reflect that this lawsuit was ‘exceptional’ in a manner favoring an award of fees to Plaintiff.”
He also denied fees under California’s private attorney general statute. While noting that Code of Civil Procedure §1021.5 “allows attorney fees to be granted under a ‘catalyst theory’ in an action that has resulted in enforcement ‘of an important right affecting the public interest,” Huie declared:
“…Plaintiffs mention other lawsuits and injunctions in state court targeting the same conduct and fail to specify why the instant lawsuit was a ‘substantial causal factor,’…in stopping the shipment and sale of these puppies.”
Rejecting the plaintiff’s call for a trebling of damages, the District Court judge explained:
“Plaintiff also seeks treble damages of $1,149,000 against David Salinas and National City Puppy, LLC and $10,500,000 against Ray Rothman, Alyssa Rothman, and Pet Connect Rescue, Inc….Plaintiff argues that Defendants’ infringement of the PetConnect mark was ‘willful’ in that it was deliberately undertaken as part of a scheme to illegally circumvent the California law banning the retail sale of puppy mill dogs.”
Finding no indication of willfulness, as would justify a triple damages, Huie wrote:
“Plaintiff’s motion does not identify any trial evidence indicating that Defendants intentionally used a mark knowing it to be counterfeit. Indeed, Plaintiff offered relatively sparse evidence at trial, calling only four witnesses. The Court declines to order the trebling of damages, based on the lack of evidence of intentional infringement.”
The case is PetConnect Rescue, Inc. v. Salinas, 24-5460.
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