Clone Website Causes Major Lawsuit Mess For Doctor
From May it Please the Court:
If ever there was a horror story about stealing a website, then this case is it: Del
Junco v. Hufnagel. Dr. Tirso Del Junco, Jr. is a highly qualified surgeon who assists
women with alternative surgeries instead of hysterectomies. For reasons not stated in
the opinion, another individual, V. Georges Hufnagel, who had her medical license
revoked in California and New York and disciplinary proceedings pending against her
in the state of Hawaii, tried to steal Dr. Del Junco’s website.
Dr. Del Junco had a website entitled drdeljuncojr.com. Hufnagel started a mimic-style
website without the “jr” part of Dr. Del Junco’s URL. On her mimic website, she
defamed Dr. Del Junco and claimed he was not a vascular surgeon (he is) and he
had no specialized training (he does). Unfortunately for Dr. Del Junco, his business
started to fall off and he suffered financially as a result of the traffic directed away
from his website by the mimic website.
He consequently brought a lawsuit against Ms. Hufnagel and obtained an injunction
to prevent her from maintaining the mimic website and continuing to defame him.
That’s when the trouble doubled. A prior court had found Hufnagel was a “vexatious
litigant,” and this case proved to be more of the same. She filed a 140-page
response to the motion for injunction (you’re allowed only 15 pages). When the court
granted Dr. Del Junco’s injunction, she ignored it. She failed to show up for hearings.
She filed papers that didn’t comply with court rules. To top it off, she filed and
withdrew pleadings at will and without the court’s permission.
Then she hired an attorney, but things didn’t get better. The attorney and Hufnagel
succeeded in delaying the proceedings further. Finally, the trial court stepped in and
struck her answer and entered her default. Not surprisingly, she appealed.
The court of appeal had no problem sustaining the trial court’s primary orders.
As the justices observed about Hufnagel, “from the start of the case to the time
the trial court struck Hufnagel’s answer and entered default, Hufnagel
showed no interest in taking part in the case or in following orders of the
court. All of her actions were those of an obstructionist, not a participant in
the process. She filed documents in propria persona that did not follow
proper form, were lengthy, contained irrelevant information, and violated
court rules. She filed documents without serving them. She failed to comply
with the injunction and continued to operate the counterfeit web site. She
did not pay sanctions when ordered. When she had counsel, things did not
improve. Misrepresentations were made to the court, documents were not
filed when promised, responses to interrogatories were never delivered,
and phone calls were not returned. The actions of Hufnagel and her counsel
were willful and deliberate, caused unnecessary delay, and wasted the trial
court’s resources. The actions caused Dr. Del Junco to incur unnecessary
His final award? $358,724.90, after the court of appeal struck the trial court’s award
of punitive damages due to a lack of proof of Hufnagel’s financial worth...
|Filed 5/31/07 CERTIFIED FOR PUBLICATION
B191456 (Los Angeles County--Super. Ct. No. BC309389)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
TIRSO DEL JUNCO, JR., M.D., Plaintiff and Respondent,
V. GEORGES HUFNAGEL et al., Defendants and Appellants.
Civil Code section 3344 provides in subdivision (a) that “[a]ny person who
knowingly uses another’s name, . . . photograph, or likeness, in any manner, . . .
without such person’s prior consent, . . . shall be liable for any damages sustained
by the person or persons injured as a result thereof.” Subdivision (d) provides for
an exemption when the name or likeness is used in connection with any
news or public affairs.5
The exemption found in subdivision (d) of Civil Code section 3344 is
designed to protect uses that are not commercial, such as public affairs and news.
Reports that are “public affairs” are not limited to those “covered on public
television or public radio.” (Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th
They are protected because they report a matter of public interest. (Id.
at pp. 545-546 [documentary on surfing addresses significant influence of sport on
the popular culture and use of surfer’s name, voice and likeness in the film was not
actionable]; Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400,
415-417 [use of former baseball players’ names, images, and likenesses in web
5 Civil Code section 3344, subdivision (a) and (d) read in pertinent part:
“(a) Any person who knowingly uses another’s name, . . . photograph, or
likeness, in any manner, . . . without such person’s prior consent, . . . shall be
liable for any damages sustained by the person or persons injured as a result
thereof. In addition, in any action brought under this section, the person who
violated the section shall be liable to the injured party or parties in an amount
equal to the greater of seven hundred fifty dollars ($750) or the actual damages
suffered by him or her as a result of the unauthorized use, and any profits from the
unauthorized use that are attributable to the use and are not taken into account in
computing the actual damages. In establishing such profits, the injured party or
parties are required to present proof only of the gross revenue attributable to such
use, and the person who violated this section is required to prove his or her
deductible expenses. Punitive damages may also be awarded to the injured party
or parties. The prevailing party in any action under this section shall also be
entitled to attorney’s fees and costs.
“(d) For purposes of this section, a use of a name, . . . photograph, or
likeness in connection with any news, public affairs, or sports broadcast or
account, or any political campaign, shall not constitute a use for which consent is
required under subdivision (a).”
sites, print and video publications, audiovisual programs and television programs
come within public affairs exemption]; Montana v. San Jose Mercury News, Inc.
(1995) 34 Cal.App.4th 790 [reproduction of previously published pages depicting
football player in commercial poster was not actionable].)
Here, Hufnagel did not simply “borrow” Dr. Del Junco’s likeness or name
to promote new medical procedures, or to even discuss the options available to
women. She did not simply disagree with his medical judgment. Hufnagel’s web
site was not designed to provide options to women seeking medical advice.
Rather, Hufnagel’s use of Dr. Del Junco’s photograph and name were
purposefully designed to disparage his reputation and challenge his competency.
She accused him of lacking the education and credentials to practice medicine.
Hufnagel cites to no case concluding that the public affairs exception applies when
the information provided is false.
Hufnagel suggests that the disclaimer and the true statements about Dr. Del
Junco in the web site absolve her of liability. First, the disclosure actually
compounds the defamatory effect. It states that the counterfeit web site is
designed to provide “full and complete disclosure which [Dr. Del Junco’s] site
does not provide.” This disclaimer suggests that the information in the counterfeit
web site is accurate. However, as discussed above, the statements about Dr. Del
Junco’s qualifications to practice medicine are false. Hufnagel’s counterfeit web
site was designed to impersonate Dr. Del Junco’s web site and to steal patients
from Dr. Del Junco. The public affairs exception was not designed to protect this
type of writing.
The defamatory statements in the counterfeit web site are not protected by
the public affairs exemption in Civil Code section 3344, subdivision (d).
C. The complaint stated a cause of action for violating the Unfair
Competition Law (Bus. & Prof. Code, § 17200).
Hufnagel cites Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163 (Cel-Tech) to argue that Dr. Del Junco was
required to include allegations of anti-trust violation in order to plead a violation
of Business and Professions Code section 17200. This contention is not
Business and Professions Code section 17200 et seq. prohibits unfair
competition, in any “unlawful, unfair or fraudulent business act or practice
and unfair, deceptive, untrue or misleading advertising and any act prohibited
by [Business and Professions Code sections 17500-17577].” The words in the statute
are in the disjunctive. They list separate wrongs. (Cel-Tech, supra, 20 Cal.4th at
In Cel-Tech, cellular telephone sellers brought an action against a
company that sold cellular telephones below cost to gain subscribers for its
cellular service. Hufnagel points to the following sentence found on page 187 of
Cel-Tech: “When a plaintiff who claims to have suffered injury from a direct
competitor’s ‘unfair’ act or practice invokes section 17200, the word ‘unfair’ in
that section means conduct that threatens an incipient violation of an antitrust law,
or violates the policy or spirit of one of those laws because its effects are
comparable to or the same as a violation of the law, or otherwise significantly
threatens or harms competition.” (Italics added, fn. omitted.) Cel-Tech limited
this statement to the facts before it: “This case involves an action by a competitor
alleging anticompetitive practices. Our discussion and this test are limited to that
context. Nothing we say relates to actions by consumers or by competitors
alleging other kinds of violations of the unfair competition law such as
‘fraudulent’ or ‘unlawful’ business practices or ‘unfair, deceptive, untrue or
misleading advertising.’ ” (Id. at p. 187, fn. 12.)
Unlike Cel-Tech, the allegations in Dr. Del Junco’s complaint focused on
prongs in Business and Professions Code section 17200 addressing “fraudulent,”
“deceptive,” and “untrue” business practices.
Here, Hufnagel’s web site was designed to redirect prospective patients
from Dr. Del Junco to Hufnagel. The counterfeit web site had a domain name
(drdeljunco.com) that was almost identical to the domain name of Dr. Del Junco’s
web site (dr.deljuncojr.com).
Hufnagel’s web site was identical to Dr. Del Junco’s
in its lay-out and contained the same logo, which would lead users to believe that
the counterfeit web site was actually Dr. Del Junco’s.
Yet, if a user accessed links
on the counterfeit web site, they were directed to information on Hufnagel and
her institute in Mexico. The counterfeit web site defamed Dr. Del Junco. Thus,
the counterfeit web site was designed to steal patients from Dr. Del Junco and to
defame him. As such, it violated Business and Professions Code section 17200 as
it was likely to deceive the public. (Cf. Olsen v. Breeze, Inc. (1996) 48
Cal.App.4th 608, 618 [requires showing that public is likely to be deceived];
Standard Oil Co. of California v. F.T.C. (9th Cir. 1978) 577 F.2d 653, 658-659
[commercial speech not exempt from First Amendment protection, but comment
on subject of public interest may not be misleading or deceptive]; accord,
Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35
Cal.3d 197, 211.)
Dr. Del Junco pled a violation of Business and Professions Code section 17200.
D. The complaint stated a cause of action for intentional interference with
prospective economic advantage.
Hufnagel contends Dr. Del Junco failed to state a cause of action for
intentional interference with prospective business advantage.6 This contention is
The tort of intentional interference with prospective business advantage
“consists of intentional and improper methods of diverting or taking business from
another that are not within the privilege of fair competition. [Citations.] [¶] . . .
[¶] It has been suggested that the tort of inducing breach of contact ‘is merely a
6 The tort is variously known as interference with “ ‘prospective economic
advantage,’ ” “ ‘prospective contractual relations,’ ” and “ ‘prospective economic
relations.’ ” (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th
species of the broader tort of interference with prospective economic advantage.’
[Citations.] However, interference with prospective economic advantage, unlike
inducing breach of contract, requires wrongful conduct other than the act of
interference itself. (Della Penna v. Toyota Motor Sales, U.S.A., [Inc.,] supra, 11
[Cal.4th] 393.)” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 741,
pp. 1069-1071.) “In this context, ‘an act is independently wrongful if it is
unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory,
common law, or other determinable legal standard.’ [Citation.]” (Stevenson Real
Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138
Cal.App.4th 1215, 1220.)
Hufnagel contends no independently wrongful act was shown. This
argument ignores the pleadings. The complaint alleged that the counterfeit web
site was designed to disrupt and damage Dr. Del Junco’s practice by diverting
potential patients to Hufnagel. Hufnagel’s deceptive actions violated Business and
Professions Code section 17200. Thus, we need not address other “independently
Dr. Del Junco stated a cause of action for intentional interference with
prospective business advantage.
E. The trial court had the jurisdiction to issue the terminating sanction.
Hufnagel contends the trial court lacked the jurisdiction to issue what
amounted to a terminating sanction. She argues the court exceeded its powers in
striking the answer and entering default. This contention is not persuasive.
A number of statutes provide authority for the trial court to terminate a
case. For example, Code of Civil Procedure section 575.2 permits dismissal of a
case for the violation of fast track rules where noncompliance is the fault of the
party and not counsel. (Garcia v. McCutchen (1997) 16 Cal.4th 469; Tliche v. Van
Quathem (1998) 66 Cal.App.4th 1054, 1061.) Former Code of Civil Procedure
section 2023 permits trial courts to impose terminating sanctions and strike
pleadings as a discovery sanction. (See fn. 4.) Additionally, the statutes recognize
that the courts have the inherent authority to dismiss an action. (Code Civ. Proc.,
§§ 581, subd. (m), 583.150; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915;
Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540, 551.)7
Trial courts should only exercise this authority in extreme situations, such
as when the conduct was clear and deliberate, where no lesser alternatives
remedy the situation (Lyons v. Wickhorst, supra, 42 Cal.3d at 917), the fault lies
with the client and not the attorney (cf. Garcia v. McCutchen, supra, 16 Cal.4th
469), and when the court issues a directive that the party fails to obey. (E.g.,
former Code Civ. Proc., § 2023.)
Here, from the start of the case to the time the trial court struck Hufnagel’s
answer and entered default, Hufnagel showed no interest in taking part in the case
or in following orders of the court.
All of her actions were those of an obstructionist, not a participant in the
She filed documents in propria persona that did not follow proper form, were
lengthy, contained irrelevant information, and violated court rules.
She filed documents without serving them.
She failed to comply with the injunction and continued to operate the counterfeit
She did not pay sanctions when ordered.
When she had counsel, things did not improve.
Misrepresentations were made to the court,
documents were not
filed when promised, responses to interrogatories
were never delivered, and phone calls were not returned.
The actions of Hufnagel and her counsel were willful and
deliberate, caused unnecessary delay, and wasted the
trial court’s resources. The actions caused Dr. Del Junco
to incur unnecessary expense. Under these
circumstances the trial court had the jurisdiction to strike
Hufnagel’s answer and enter default.
7 Code of Civil Procedure section 583.150 reads:
“This chapter does not limit or affect the authority of a court to dismiss an action or impose
sanctions under a rule adopted by the court pursuant to Section 575.1 or by the
Judicial Council pursuant to statute, or otherwise under inherent authority of the court.”
Code of Civil Procedure section 581, subdivision (m) reads:
“The provisions of this section shall not be deemed to be an exclusive enumeration of
the court’s power to dismiss an action or dismiss a complaint as to a defendant.”
Hufnagel correctly states that she could have been held in contempt for
violating court orders and the trial court could have issued other orders, such as
an order compelling her to answer discovery.
She suggests that the trial court had to
take such actions before issuing what amounted to a terminating sanction by
striking her answer and entering default. However, there is nothing in the record
to suggest that such hearings or sanctions would have provided the impetus
Hufnagel needed to properly participate in this case. She had already been
deemed a vexatious litigant in another case. Here, she filed documents in propria
persona that did not comply with court rules. Given the history of this case it
would have been futile for the trial court to issue additional orders before striking
Hufnagel’s answer and entering default. It is clear that Hufnagel had no intention
of answering discovery, filing proper and timely papers, or complying with court
orders. She and her counsel had withdrawn from the case. No lesser remedy
would have changed Hufnagel’s conduct.
We agree with Hufnagel that some of the responsibility for the problems
fall at the feet of her counsel. However, the record suggests that attorney
Dailey’s actions were part and parcel of Hufnagel’s strategy of delaying and
throwing darts at others, rather than taking responsibility for her own actions.
The trial court had the jurisdiction to strike Hufnagel’s answer and enter
F. There was substantial evidence of special damages.
Dr. Del Junco was awarded damages in the sum of $558,724.90 broken
down as follows: $200,000 in general damages; $136,212 in special damages;
$200,000 in punitive damages; $21,914 in attorney fees; and $598.90 in costs.
As part of the special damages, Dr. Del Junco requested and received
$133,000 in special damages for loss of income. This award was based upon the
following evidence: Hufnagel began to operate her counterfeit web site in 2003.
In April 2003, Dr. Del Junco’s internet web site generated e-mail inquiries, many
of which resulted in surgeries Since Hufnagel began operating her web site, the
inquiries Dr. Del Junco received from potential patients dropped significantly. As
a result of the decline in inquiries, Dr. Del Junco performed far fewer surgeries in
2004 than he had performed in 2003, and his income from surgeries was reduced
by $141,000. Dr. Del Junco attributed the decline in the number of surgeries and
his loss of income in 2004 to the confusion caused in the minds of prospective
patients by Hufnagel’s web site and the chilling effect it had on them. Dr. Del
Junco typically booked surgeries nine months to one year in advance. Thus, the
impact of the Hufnagel’s web site was felt in 2004.8
Hufnagel argues it is speculative to assume that Dr. Del Junco’s drop in
income for 2004 was related to the counterfeit web site. She argues as
(1) In the first quarter of 2005, Dr. Del Junco performed 7 major surgeries and 28
major surgeries in 2003;
(2) The amount of surgeries performed by Dr. Del Junco
for the first quarter of 2005 was comparatively the same as those performed in
(3) If her web site caused Dr. Del Junco to lose income from surgeries, then
the number of surgeries in the first quarter of 2005 should have been less than the
number performed in 2003.8
Dr. Del Junco presented the following evidence with regard to the number
of surgeries he performed and the amount of income he derived therefrom:
28 majors - $280,000 $328,000
16 minors - $ 48,000
16 majors - $160,000 $187,000
9 minors - $ 27,000
2005 through March
7 Majors - $70,000
1 minor - $ 3,000
(3 minors scheduled for May)
However, it is Hufnagel who speculates. She makes the assumption that
the surgeries in the first quarter of 2005 correlate to the statistics provided for the
full years of 2003 and 2005. Hufnagel may not take Dr. Del Junco’s discussion
and statistics extrapolate them to 2005, when she knows nothing about the
surgeries in 2005. Without more information, Hufnagel’s argument is hollow as it
lacks sufficient data and information. Dr. Del Junco provided sufficient proof that
he lost earnings in 2004. This evidence is not speculative.
G. The failure to present evidence of Hufnagel’s financial worth requires
striking the punitive damages.
Adams v. Murakami (1991) 54 Cal.3d 105 held that evidence of a
defendant’s financial condition is a prerequisite to an award of punitive damages
and the burden of proof is on the plaintiff to introduce such evidence. There was
no such evidence presented to the trial court by Dr. Del Junco in support of his
motion for default judgment. Thus, as Hufnagel contends, the punitive damage
award of $200,000 must be stricken.
At oral argument, Dr. Del Junco argued for the first time that Hufnagel is
foreclosed from asserting there was no evidence of her financial worth. This
argument is premised upon Dr. Del Junco’s statement that Hufnagel refused to
respond to discovery on this issue. (Mike Davidov Co. v. Issod (2000) 78
Cal.App.4th 597, 608-609 [by failing to abide by court’s order to produce
financial records defendant waived right to complain that there was no evidence of
defendant’s financial condition].) However, the only evidence presented to the
trial court was that Hufnagel had failed to respond to form interrogatories. These
interrogatories did not inquire about Hufnagel’s financial condition. Further, the
statement in Dr. Del Junco’s brief that Hufnagel failed to appear for a deposition is
unsupported by citation to the record, and thus cannot be considered by us.
We shall remand the matter to the trial court so that the judgment can be
H. The trial court did not err in awarding attorney fees.
Hufnagel contends we must strike the attorney fees award. This contention
is not persuasive.
Civil Code section 3344 states that the “prevailing party in any
this section shall . . . be entitled to attorney’s fees and costs.” (See fn. 5.) As
stated above, Dr. Del Junco stated a cause of action for violating Civil Code
section 3344. Thus, when he proved the allegations in the complaint with regard
to this cause of action, he was entitled to attorney fees and costs.
Dr. Del Junco’s counsel (attorney Michael J. Kaufman) declared that the
attorney fees incurred by Dr. Del Junco as of April 19, 2005, the date of the
motion for judgment, was $21,914. In a motion filed in June 2004, attorney
Kaufman declared that his customary hourly billing rate was $300 per hour, based
upon his over 25 years in practice and extensive trial experience; however, he was
billing Dr. Del Junco $250 per hour.
The trial court had before it the voluminous
file containing many pleadings filed by Dr. Del Junco in response to the
inappropriate and lengthy documents filed by Hufnagel and her attorney.
Thus,the trial court had evidence of attorney Kaufman’s hourly rate and the amount
billed to Dr. Del Junco. Additionally, the trial court could use its own expertise in
evaluating the attorney fee request. (In re Marriage of Jovel (1996) 49
Cal.App.4th 575, 588; In re Marriage of Ananeh-Firempong (1990) 219
Cal.App.3d 272, 280.) We cannot conclude that the record lacked substantial
evidence to support the attorney fee award.
The judgment is reversed with respect to the award of punitive
all other respects, the judgment is affirmed. The matter is remanded to the
court with directions to modify the judgment by striking the punitive damages.
Dr. Del Junco is awarded costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
KLEIN, P. J.
APPEAL from a judgment of the Superior Court of Los Angeles County, Soussan G. Bruguera,
Affirmed in part, reversed in part and remanded with directions.
James S. Link and William H. Dailey for Defendants and Appellants.
Moore, Sorensen & Horner and Michael J. Kaufman for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for
publication with the exception of parts III.B., III.C., III.D., III.F., III.G., and III.H.
Defendant and appellant V. Georges Hufnagel created a web site that
looked like the web site of plaintiff and respondent Tirso Del Junco, Jr., M.D.
Hufnagel’s web site libeled Dr. Del Junco. Hufnagel appeals from the
default judgment entered in favor of Dr. Del Junco.
We find unpersuasive all contentions raised by Hufnagel
except for the argument that the punitive damage award
In the published portions of this opinion (parts I., II., III.A., III.E., and IV.),
we hold that Hufnagel’s counterfeit web site contained defamatory statements and
the trial court had the jurisdiction to strike Hufnagel’s answer and enter default.
We reverse the judgment with regard to the punitive
damages because there was no proof of Hufnagel’s
financial condition. In all other respects the judgment is
We remand the matter to the trial court with directions to modify the judgment by
striking the punitive damages.
II. FACTUAL AND PROCEDURAL BACKGROUND
Dr. Del Junco was a trained general and vascular surgeon licensed in
California. As part of his general surgery residency, Dr. Del Junco received
rotations in female or gynecological surgery, including pre-operative management,
surgery, and post-operative management. He is a fully licensed, practicing doctor
specializing in general and vascular surgery. Hufnagel had her medical license
revoked in California and New York and disciplinary proceedings were pending
against her in the state of Hawaii.
Hufnagel was also known as Vikki G. Hufnagel.
Dr. Del Junco had an internet web page with the domain name of
“drdeljuncojr.com.” The purpose of the web site was to provide information about
procedures performed by him for women who had significant fibroid disease or
endometriosis. He promoted these surgical procedures as alternatives to
On November 25, 1998, in an unrelated lawsuit, Hufnagel was declared a
vexatious litigant. (Code Civ. Proc., § 391.1.)
In March 2003, Hufnagel began operating a counterfeit web site that
mimicked Dr. Del Junco’s in many ways, including content, appearance, and
layout. Hufnagel’s web site had the domain name of “drdeljunco.com.” The
counterfeit web site had a photograph of Dr. Del Junco and a link to contact
However, when viewers engaged the link, they were directed to a web page
featuring Hufnagel and urged to contact Hufnagel. Additional links on the
counterfeit web site directed potential patients to contact Hufnagel for purposes
evaluation and potential surgery at her Mexican clinic.
The counterfeit web site included, in large print, in the same font style as on
Dr. Del Junco’s web site, the words, “FEMALE ALTERNATIVE SURGERY.”
The contact information where Dr. Del Junco could be reached was on both web
sites, as was Dr. Del Junco’s address.
Hufnagel’s counterfeit web site contained the same logo as the one that
appeared on Dr. Del Junco’s web site. The logo had an artistic drawing of a
woman with the words “INSTITUTE for ALTERNATIVE MEDICINE” in an arc
above the woman. There was a list of medical terminology underneath the logo on
Dr. Del Junco’s web site, in rectangular boxes. Hufnagel’s web site also placed
the identical medical terms in rectangular boxes below the logo. However, on
Hufnagel’s web site, another box appeared between the logo and the list of terms.
The box contained the following statements:
“Please note the Institute for Female
Alternative Medicine is not
registered by California State
Department of Corporations.
This is not a regulated entity. It
pays no taxes and no Corporate
“This does not officially exist. This
is a fraud on the public.
Furthermore, Dr. Del Junco has no
specialized medical training in
medicine or in female medicine. He is
a vascular student.”
Hufnagel’s web site duplicated a quote found on Dr. Del Junco’s web site
that stated having a “hysterectomy for benign fibroid tumors or ovarian cysts is an
archaic procedure . . . .”
However, underneath the quote on Hufnagel’s web site,
the following appeared:
“This is a quote [from] Dr. Hufnagel. Del
Junco has not studied hormonal sciences. He
misdiagnosed Susan Bucher as a key issue.
See Susan Bucher button on this site for
“Dr. del Junco Jr.
“He has no training at all in women’s medicine.
He is not a specialist.”2
There were other differences in the two web sites. As examples, at the top
of Hufnagel’s counterfeit web site there was a box that contained a disclaimer
stating that the web site was “created by the supporters of the work of Dr. Vicki
2 The underlining did not appear in Hufnagel’s counterfeit web site. We
have added this emphasis as the underlined statements are discussed in detail in
subsequent parts of this opinion.
Hufnagel.” The box also provided information about her book and stated that
chapters from the book had been “removed in the infamous raid by the [California
Medical Board] . . . .”3 Hufnagel’s web site stated that Dr. Del Junco had been
using Hufnagel’s work, for which he failed to give credit, and accused Dr. Del
Junco of performing failed procedures.
Prior to April 2003, Dr. Del Junco’s internet web site generated a minimum
of 75 email inquiries from women per month. Since Hufnagel began operating her
counterfeit web site, inquiries to Dr. Del Junco from potential patients dropped
significantly. Further, as a result of the decline in inquires, Dr. Del Junco
experienced a marked drop in surgeries and his receipts from surgeries decreased.
The statements on the counterfeit web site harmed Dr. Del Junco’s reputation.
Once he learned of the counterfeit web site, Dr. Del Junco expended $3,212 in
redesigning his web site.
1. The initial proceedings.
On January 22, 2004, Dr. Del Junco filed a complaint for damages and for
injunctive relief. Dr. Del Junco alleged causes of action for defamation,
unauthorized use of name and likeness for business purposes (Civ. Code, § 3344),
unfair business practices (Bus. & Prof. Code, § 17200), interference with
prospective business advantage, and permanent injunction.
3 The disclaimer at the top of the counterfeit web site read: “This site was
created by the supporters of the work of Dr. Vicki Hufnagel. The site is
informational [and provides] full and complete disclosure which Dr. Del Junco’s
site does not provide. This site is to make  aware of the politics of medicine and
the economic driving forces that take place everyday that . . . drive all medical
care. [¶] Dr. Hufnagel had worked on a book titled Prescription for Evil which
had several Chapters of Dr. Del Junco  are posted here. These Chapter’s [sic]
were removed in the infamous raid by the [California Medical Board] on Dr.
It appears that during its investigation of Hufnagel, the California Medical
Board searched her house. We assume that the reference to a “raid” is to this
On January 23, 2004, the trial court entered a temporary restraining
order restraining Hufnagel from operating a web site with the domain name
of “drdeljunco.com” or any variation of Dr. Del Junco’s name.
On February 11, 2004, in propria persona, Hufnagel filed approximately
140 pages purporting to respond to the request for a preliminary injunction and
purporting to include allegations of a cross-complaint. These documents had no
semblance of proper pleadings and did not conform to court rules.
On February 23, 2004, Hufnagel, in propria persona, filed and served an
amended opposition to preliminary injunction. The pleading did not conform to
court rules as it cited federal cases, but did not attach them.
The opposition never addressed the question of whether it was proper to
issue a preliminary injunction.
On February 23, 2004, Hufnagel, in propria persona, filed a one-page
answer combined with a request to dismiss Dr. Del Junco’s complaint. On that
date, Hufnagel, in propria persona, also filed a cross-complaint without permission
of the court. These documents were not served on Dr. Del Junco.
Dr. Del Junco filed a motion to strike the answer and cross-complaint.
Hufnagel, in propria persona, subsequently withdrew the cross-complaint.
On March 5, 2004, Hufnagel filed a request to dismiss Dr. Del Junco’s
On March 9, 2004, attorney William H. Dailey appeared in court to
substitute in as counsel for Hufnagel. Upon his statements that he was going to
file an opposition to the motion for preliminary injunction, the trial court
continued the hearing on the motion. However, thereafter neither Hufnagel nor
attorney Dailey filed an opposition to the motion, nor did they file a substitution of
On April 5, 2004, Dr. Del Junco filed a motion requesting sanctions be
imposed on Hufnagel. In addition to other arguments, Dr. Del Junco noted that his
counsel was forced to spend considerable time because of Hufnagel’s improper
On April 9, 2004, the trial court issued a preliminary injunction against
Hufnagel enjoining her “from operating or continuing to operate a website with
the domain name of ‘drdeljunco.com’ or any variation of” Dr. Del Junco’s
The trial court declined to rule on Dr. Del Junco’s request for sanctions.
On April 28, 2004, Dr. Del Junco filed a motion to strike Hufnagel’s
answer and cross-complaint and requested sanctions. He argued that the answer
and cross-complaint were in improper form and filed without leave of court and
Hufnagel’s dilatory tactics forced Dr. Del Junco’s counsel to expend unnecessary
time in reviewing, researching, and responding to baseless filings.
On May 24, 2004, the trial court denied the motion to strike as moot, based
upon the representation that an answer and amended cross-complaint had been
filed. The trial court reserved the issue of sanctions.
On May 24, 2004, Hufnagel filed an answer through attorney Dailey.
On June 3, 2004, Dr. Del Junco filed a motion for reconsideration of the
May 24, 2004, ruling with regard to the issue of sanctions. The reconsideration
motion informed the trial court that contrary to prior representations, no amended
cross-complaint had been filed by Hufnagel.
Hufnagel filed no opposition to the motion for reconsideration.
In July 2004, Hufnagel filed a first amended cross-complaint. The trial
court sustained Dr. Del Junco’s demurrer to the first amended cross-complaint
without leave to amend. No opposition to the demurrer had been filed by
In a minute order dated August 17, 2004, the trial court granted the motion
for reconsideration and sanctioned Hufnagel the sum of $2,036.30 for the reasons
stated in the motion. Additionally, the trial court sanctioned Hufnagel $6,036.30
in the form of attorney fees. Pursuant to the trial court’s directive, Dr. Del Junco
prepared a proposed order detailing the reasons for the sanction order. On
October 21, 2004, the trial court ordered Hufnagel to pay $6,036.30 in sanctions
(1) filing a volume of documents that purported to oppose Dr. Del Junco’s
motion for preliminary injunction, but the documents were not in proper form
did not conform with Court Rules;
(2) filing a cross-complaint without permission of the court which violated the
November 25, 1998, vexatious litigant order;
(3) filing and serving an opposition to the preliminary injunction that failed to
comply with the court rules as it cited federal cases but did not attach them, thus,
burdening Dr. Del Junco’s counsel; and
(4) filing and serving on March 5, 2004, a
request for dismissal form requesting Dr. Del Junco’s complaint be
The trial court found Hufnagel’s documents were procedurally defective and
her actions were willful and without justification and improperly burdened
Dr. Del Junco to incur unnecessary expense. The sanctions were due and
payable within 45 days.
(The October 2004 order did not mention the $2,036.30 sanction order
contained in the August 2004 minute order.)
Hufnagel did not pay the sanctions, which remained unpaid as of
January 10, 2005.
As of September 12, 2004, Hufnagel was still operating a web site in
violation of the injunction. She did so through March 2005.
On September 14, 2004, Dr. Del Junco served interrogatories on Hufnagel.
Hufnagel did not respond to this discovery. Dr. Del Junco’s counsel telephoned
attorney Dailey in an attempt to meet and confer; attorney Dailey did not return
the telephone calls.
A case management conference was held in October 2004. Hufnagel did
not appear and she did not file a case management conference statement.
Attorney Dailey called the court stating he would be late. However, he never made an
2. The motion for terminating sanctions.
On January 11, 2005, Dr. Del Junco filed a motion for terminating
sanctions pursuant to Code of Civil Procedure sections 128, 128.6, and
2023.4 The motion was supported by the declaration of attorney Michael
Kaufman. The motion recounted the events that preceded the motion, and
argued it was appropriate to strike Hufnagel’s answer and
enter default because she
failed to respond to discovery,
failed to abide by court orders and procedures,
failed to pay sanctions, and
violated the preliminary injunction.
On January 24, 2005, Hufnagel, through attorney Dailey, filed a
single-page opposition to the motion for terminating sanctions. The opposition
document stated without evidentiary support, that Hufnagel was impoverished,
discovery would be answered prior to the hearing on the motion to terminate, and
Hufnagel had complied with the injunction but due to a misunderstanding the web
site server company had not been able to immediately deactivate the links in
Hufnagel’s counterfeit web site.
On February 14, 2005, the trial court granted the motion for terminating
sanctions. The trial court struck Hufnagel’s answer and entered default based
upon a pattern of conduct by Hufnagel and her counsel, and the violation of court
rules, local rules, fast track rules, the Code of Civil Procedure, and orders of the
court. The trial court did not base its decision on the failure to pay monetary
On July 25, 2005, Hufnagel filed an ex parte application for an order
shortening time for a hearing of a motion to set aside the default. In an attached
declaration, attorney Dailey declared, with little explanation, that he caused the
delays. In Hufnagel’s 14 line declaration she declared that her finances had not
allowed her to hire other legal counsel and her health was poor. The application
3. Default judgment.
On November 30, 2005, Dr. Del Junco filed an application for entry of
default judgment. Dr. Del Junco supported his request with his declaration and
4 The relevant portion of former Code of Civil Procedure section 2023 is
currently found in Code of Civil Procedure section 2023.030.
that of his attorney. Dr. Del Junco requested damages in the total sum of
On November 30, 2005, judgment by court after entry of default was
entered against Hufnagel in favor of Dr. Del Junco in the sum of $558,724.90,
broken down as follows: $200,000 in general damages; $136,212 in special
damages; $200,000 in punitive damages; $21,914 in attorney fees; and $598.90 in
costs. The trial court also entered a permanent injunction.
Hufnagel appeals from the judgment.
A. The defamatory statements are actionable.
Hufnagel contends that the statements in the counterfeit web site are not
actionable because they are not defamatory. This contention is not persuasive.
“ ‘The sine qua non of recovery for defamation . . . is the existence of
falsehood.’ [Citation.]” (Franklin v. Dynamic Details, Inc. (2004) 116
Cal.App.4th 375, 384; Civ. Code, § 45 [“Libel is a false and unprivileged
publication by writing . . . or other fixed representation to the eye, which exposes
any person to hatred, contempt, ridicule, or obloquy, or which causes him to be
shunned or avoided, or which has a tendency to injure him in his occupation.”].)
Dr. Del Junco received, as part of his general surgery residency, rotations in
female or gynecological surgery, including pre-operative management, surgery
and post operative management. He is a fully licensed, practicing doctor
specializing in general and vascular surgery with all of the necessary medical
training to perform surgeries. He is not a student. However, the counterfeit web
site stated that “Dr. Del Junco has no specialized medical training in medicine or
in female medicine. He is a vascular student.” The web site also stated that Dr.
Del Junco “has no training at all in women’s medicine. [¶] He is not a specialist.”
The false import of these statements is that Dr. Del Junco is not a licensed
physician and does not have the educational background to perform the procedures
he promotes. Even though, as Hufnagel notes in her reply brief, her web site
stated that Dr. Del Junco was a “General/Vascular Surgeon,” any reasonable
reader of her counterfeit web site would conclude that Dr. Del Junco lacked the
medical training to perform the surgeries he promotes and performs. As such, the
statements in Hufnagel’s web site cast serious doubt on Dr. Del Junco’s
professional ability and are defamatory. (Civ. Code, § 46(3) [slander is a false
statement that tends to injure one in his or her “profession, trade or business, either
by imputing to him [or her] general disqualification in those respects which the
office or other occupation peculiarly requires, or by imputing something with
reference to his [or her] office, profession, trade, or business that has a natural
tendency to lessen its profits”].)
Contrary to Hufnagel’s argument, the quoted statements, taken in context
and when the web site is read as whole, are not statements of opinion. (Franklin v.
Dynamic Details, Inc. supra, 116 Cal.App.4th at p. 385 [under totality of
circumstances opinions are protected unless “a reasonable fact finder could
conclude the published statement declares or implies a provably false assertion of
fact”]; see discussions in Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19;
Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.) Accusing a
physician of being untrained and lacking the proper credentials are not statements
of opinion. They are statements of fact. (Compare with Franklin v. Dynamic
Details, Inc., supra, 116 Cal.App.4th 375 [e-mails expressed opinions]; Standing
Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1438-1439.)
Accordingly, the statements in the counterfeit web site damaged Dr. Del
Junco’s professional reputation and were actionable.
B. The public affairs exemption to Civil Code section 3344 does not apply.
Dr. Del Junco’s photograph was on a link of Hufnagel’s web site.
Hufnagel contends this knowingly use of Dr. Del Junco’s likeness is not a
violation of Civil Code section 3344 because the web site comes under the
public affairs exemption. This contention is not persuasive.
Other cases where copycats got a
web address that appeared to
belong to someone else
2. Okorocha (see below), who sued
John Travolta, filed suit against a
disgruntled former client who
bought the domain name
okorieokorocha.com and has set
up a site disparaging Okorocha's
After John Travolta lawsuit
fizzles, questions about
After John Travolta lawsuit fizzles,
questions about attorney remain
Tawdry allegations about John
Travolta became a sensation after
they appeared in a lawsuit. But the
accusers soon withdrew the suit,
leaving questions about their
attorney and how the matter got so
much publicity. The actor's attorney
says the allegations are baseless.
By Harriet Ryan and Amy Kaufman,
Los Angeles Times
May 19, 2012
It was billed as a "shocking tell-all"
and a "world exclusive," but the
National Enquirer's March 26 cover
story landed with a thud. TMZ,
Page Six and other major players in
celebrity gossip ignored the article
in which a masseur claimed John
Travolta offered money for sex.
FOR THE RECORD:
An earlier version of this article
used the term "masseuse"; it
should have said "masseur."
Five weeks after the issue left the
checkout aisle, a DUI attorney from
Pasadena put the anonymous
masseur's tawdry tale in a lawsuit
and it became an overnight pop
culture sensation, topping Google
News, trending on Twitter and
meriting a segment on "Good
Morning America." Another
anonymous accuser joined the suit,
and Travolta found himself in an
embarrassing spot just as he was
preparing to promote a new Oliver
The case imploded this week with
the accusers voluntarily dismissing
the suit. What remained were
questions about how a small-time
attorney with financial problems
and a desire to boost his legal
profile got the case in the first
place and why a sloppy and
inaccurate court filing was able
generate so much unwanted
attention on an A-list star.
Travolta's attorney, who has
repeatedly called the allegations
baseless, said he suspected the
National Enquirer played some role
in connecting the Texas masseur
with Okorie Chukwudimm
Okorocha, the Pasadena lawyer.
"I don't know how you would pick
Okorie Okorocha out of a phone
book," said Martin Singer, the
Hollywood power player whose
clientele includes Arnold
Schwarzenegger, Charlie Sheen
and Sylvester Stallone. He said he
had assigned a private investigator
to look into Okorocha.
A spokeswoman for the Enquirer's
parent company, American Media
Inc., did not respond to questions
about the tabloid's involvement.
Okorocha initially said in a
telephone interview that he did not
recall how he got the case.
Moments later he said the Enquirer
story was brought to his attention
by a stranger at a farmer's market
and that by coincidence the
masseur contacted him via email
two days later.
"That's a little surreal, right?" he
said. Pressed about a connection
to the Enquirer, Okorocha said he
and an editor from Radar Online,
an American Media gossip site that
posted a dozen exclusive stories
about the scandal, attended the
same church and he considered
her a "family friend," but insisted
she had not played any part in the
masseur retaining him.
The editor, Jen Heger, disputed his
account of a relationship in an
email, saying she was "not aware of
ever meeting Okorie Okorocha,"
had never attended church with
him and had not heard his name
before the Okorocha suit. A lawyer
for AMI subsequently sent
Okorocha a letter demanding that
he "refrain from making any further
statement or suggestion that you
have a personal friendship with Ms.
Heger or any other person at
Hours later, Okorocha sent an
email to The Times, copied to the
AMI attorney, disavowing his
previous claims: "I do NOT know
anyone associated or employed
there. I have no personal
relationship with anyone there at
all. I apologize for the harm I
Okorocha approached Travolta's
representatives last month in an
effort to settle the masseur's
grievance privately. An attorney
since 2003, the 36-year-old
Okorocha had one previous brush
with celebrity when he was accused
of trying to broker the sale of a sex
tape featuring Verne Troyer, the
actor who played Mini Me in the
"Austin Powers" films. Okorocha's
normal caseload was sexual
harassment and wrongful
termination claims and DUI
defenses, work that didn't make for
big headlines or paychecks.
Okorocha often worked for free as
a DUI expert for other lawyers in
hopes they would throw him some
business, he wrote in a court filing
in March in an ongoing child
custody dispute with his ex-wife. In
recent years, he slid into debt. He
filed for bankruptcy last summer,
declaring an annual income of
about $70,000 and debts of $1.2
Okorocha said that when he
approached Travolta's camp, he
didn't demand a specific amount of
money: "I never threw a number out
there. I didn't even say 50 cents."
It's not unusual in Hollywood for
celebrities to avoid bad press by
paying off individuals making
salacious claims, even if they
dispute the allegations. Okorocha
said he expected that was what
would transpire with his client, but
"there was some
"I gave [a Travolta attorney] a
deadline and I said, 'We need to
have something by a certain day.
We're not going to wait around
forever.' I think somebody was on
vacation or dropped the ball," he
Singer confirmed the negotiations
occurred and that Okorocha
provided a draft copy of a suit, but
said he wasn't involved until late in
the process because Okorocha
initially contacted another law firm
that handles Travolta's business
On May 4, Okorocha filed suit in U.
S. District Court in Los Angeles.
The nine-page assault and battery
complaint demanded $2 million on
behalf of a plaintiff identified only
as John Doe and gave his sordid
allegations a legitimacy the
Enquirer did not. Since the
allegations were in court filings,
news outlets could report on them
without fear of libel claims.
Copies of the lawsuit were widely
available online and readers
discovered a filing that appeared
hastily written – one paragraph that
referred to "assault and battery by
a peace officer" seemed to have
been cut and pasted from another
document – but struck many as
titillating and funny. There were
graphic descriptions of Travolta's
genitals as well as irrelevant details
of an alleged January encounter at
the Beverly Hills Hotel. It described
a personal chef preparing
hamburgers for the star and "2 or 3
wrappers from chocolate cake
packages" on the floor of his SUV.
In less than 24 hours, Okorocha
became a sought-after interview,
his headshot running alongside
Travolta's in stories about the suit.
It was welcome attention for
Okorocha. He had been eager to
"build a name" as a lawyer, he
wrote two months before in a
declaration in his custody case.
"I…am doing all I can to try and
gain recognition so that I can one
day have a thriving practice
choosing what cases to take," he
Travolta's lawyers identified
problems with the masseur's suit
almost immediately. The actor's
legal team provided photos, flight
records and receipts showing
Travolta had been in New York on
the date in question. Okorocha
said his client made a mistake
about the timing, but stood by the
allegations. He told a camera crew
in a video posted on TMZ that he
was being inundated with calls by
other potential victims and said he
was in the process of vetting
hundreds of similar claims.
But even as he was making these
statements publicly, Okorocha was
in search of additional accusers,
according to a Los Angeles author
Robert Randolph, who published a
book this year containing
allegations against Travolta, said
Okorocha emailed him repeatedly
looking for people with potential
claims against Travolta. In a May
11 email Randolph provided to the
Times, Okorocha wrote, "Is there a
Travolta related matter you think I
may want to look at?" After
Randolph wrote that some men
were fearful of coming forward,
Okorocha responded: "I will keep
them all confidential. They dont
ever need to be disclosed."
Randolph said he was worried by
Okorocha's media appearance and
This week both clients fired
Okorocha, withdrew their cases
and hired Gloria Allred. The media-
savvy veteran said the men were
still weighing whether to proceed
with legal action.
Travolta has not talked publicly
about the scandal, though he will
likely be asked about it at press
junkets this summer. In July, the 58-
year-old actor will star as a federal
agent in Stone's crime thriller
"Savages." Singer said he didn't
want to talk about the case's effect
on Travolta's career, but said that
from a legal standpoint, his client
had achieved a complete victory:
"You couldn't ask for anything
better when two people drop their
For his part, Okorocha said he
doesn't regret taking the case,
though it has come with costs.
On Thursday, he filed suit
against a disgruntled former
client who bought the domain
name okorieokorocha.com and
has set up a site disparaging
Okorocha's legal abilities.
|San Diego Education Report
|San Diego Education Report
TIRSO DEL JUNCO, JR., M.D., Plaintiff and Respondent,
V. GEORGES HUFNAGEL et al., Defendants and Appellants.
injunction was clear
and was limited: not
to operate a website
with specific URLs.
CAL. CIV. CODE
(a)Any person who knowingly
uses another's name, voice,
signature, photograph, or
likeness, in any manner, on or in
products, merchandise, or goods, or
for purposes of advertising or selling,
or soliciting purchases of, products,
merchandise, goods or services,
without such person's prior consent,
or, in the case of a minor, the prior
consent of his parent or legal
guardian, shall be liable for any
damages sustained by the person or
persons injured as a result thereof.
In addition, in any action brought
under this section, the person who
violated the section shall be liable to
the injured party or parties in an
amount equal to the greater of seven
hundred fifty dollars ($750) or the
actual damages suffered by him or her
as a result of the unauthorized use,
and any profits from the unauthorized
use that are attributable to the use and
are not taken into account in
computing the actual damages. In
establishing such profits, the injured
party or parties are required to present
proof only of the gross revenue
attributable to such use, and the
person who violated this section is
required to prove his or her deductible
expenses. Punitive damages may also
be awarded to the injured party or
parties. The prevailing party in any
action under this section shall also be
entitled to attorney's fees and costs.
(b)As used in this section,
"photograph" means any photograph
or photographic reproduction, still or
moving, or any videotape or live
television transmission, of any person,
such that the person is readily
(1)A person shall be deemed to be
readily identifiable from a photograph
when one who views the photograph
with the naked eye can reasonably
determine that the person depicted in
the photograph is the same person
who is complaining of its unauthorized
(2)If the photograph includes more
than one person so identifiable, then
the person or persons complaining of
the use shall be represented as
individuals rather than solely as
members of a definable group
represented in the photograph. A
definable group includes, but is not
limited to, the following examples: a
crowd at any sporting event, a crowd in
any street or public building, the
audience at any theatrical or stage
production, a glee club, or a baseball
(3)A person or persons shall be
considered to be represented as
members of a definable group if they
are represented in the photograph
solely as a result of being present at
the time the photograph was taken and
have not been singled out as
individuals in any manner.
(c)Where a photograph or likeness of
an employee of the person using the
photograph or likeness appearing in
the advertisement or other publication
prepared by or in behalf of the user is
only incidental, and not essential, to
the purpose of the publication in which
it appears, there shall arise a
rebuttable presumption affecting the
burden of producing evidence that the
failure to obtain the consent of the
employee was not a knowing use of
the employee's photograph or likeness.
(d)For purposes of this section, a use
of a name, voice, signature,
photograph, or likeness in connection
with any news, public affairs, or sports
broadcast or account, or any political
campaign, shall not constitute a use
for which consent is required under
(e)The use of a name, voice,
signature, photograph, or likeness in a
commercial medium shall not constitute
a use for which consent is required
under subdivision (a) solely because
the material containing such use is
commercially sponsored or contains
paid advertising. Rather it shall be a
question of fact whether or not the use
of the person's name, voice, signature,
photograph, or likeness was so directly
connected with the commercial
sponsorship or with the paid
advertising as to constitute a use for
which consent is required under
(f)Nothing in this section shall apply to
the owners or employees of any
medium used for advertising, including,
but not limited to, newspapers,
magazines, radio and television
networks and stations, cable television
systems, billboards, and transit ads, by
whom any advertisement or solicitation
in violation of this section is published
or disseminated, unless it is
established that such owners or
employees had knowledge of the
unauthorized use of the person's
name, voice, signature, photograph, or
likeness as prohibited by this section.
(g)The remedies provided for in this
section are cumulative and shall be in
addition to any others provided for by