Del Junco v. Hufnagel

Filed 3/15/07 Del Junco v. Hufnagel CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Soussan G. Bruguera, Judge. Affirmed in part and reversed in part with directions.

James S. Link and William H. Dailey for Defendants and Appellants.

Moore, Sorensen & Horner and Michael J. Kaufman for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant V. Georges Hufnagel created a website that looked like the website of plaintiff and respondent Tirso Del Junco, Jr., M.D. Hufnagels website 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 cannot stand. Reversal of the judgment would ordinarily be necessary because it includes an award of $200,000 in punitive damages despite the fact that Dr. Del Junco never introduced evidence of Hufnagels financial condition. However, we are rendering a conditional appellate judgment providing Dr. Del Junco with a choice between accepting the judgment as modified or returning to the trial court to present to the trial court evidence on the issue of punitive damages.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

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.[1]

Dr. Del Junco had an internet web page with the domain name of drdeljuncojr.com. The purpose of the website 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 hysterectomies.

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 website that mimicked Dr. Del Juncos in many ways, including content, appearance, and layout. Hufnagels website had the domain name of drdeljunco.com. The counterfeit website had a photograph of Dr. Del Junco and a link to contact him. However, when it was engaged, the viewer was directed to a web page featuring Hufnagel and urged to contact Hufnagel. Additional links on the counterfeit website directed potential patients to contact Hufnagel for purposes of evaluation and potential surgery at her Mexican clinic.

The counterfeit website included, in large print, in the same font style as on Dr. Del Juncos website, the words, FEMALE ALTERNATIVE SURGERY. The contact information where Dr. Del Junco could be reached was on both websites, as was Dr. Del Juncos address.

Hufnagels counterfeit website contained the same logo as the one that appeared on Dr. Del Juncos website. 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 Juncos website, in rectangular boxes. Hufnagels website also placed the identical medical terms in rectangular boxes below the logo. However, on Hufnagels website, another box appeared in 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

records exist.

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.

Hufnagels website duplicated a quote found on Dr. Del Juncos website that stated having a hysterectomy for benign fibroid tumors or ovarian cysts is an archaic procedure . . . . However, underneath the quote on Hufnagels website, 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

further information.

Dr. del Junco Jr.

General/Vascular Surgeon

He has no training at all in womens medicine.

He is not a specialist.[2]

There were other differences in the two websites. As examples, at the top of Hufnagels counterfeit website there was a box that contained a disclaimer stating that the website had been created by the supporters of the work of Dr. Vicki 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] Hufnagels website stated that Dr. Del Junco had been using her work, for which he failed to give credit, and accused Dr. Del Junco of performing failed procedures.

Prior to April 2003, Dr. Del Juncos internet website generated a minimum of 75 email inquiries from women per month. Since Hufnagel began operating her counterfeit website, inquiries to Dr. Del Junco from potential patients dropped significantly. Further, as a result of the decline in inquires, there was a marked drop in surgeries performed by Dr. Del Junco and his receipts from surgeries decreased. The statements on the counterfeit website harmed Dr. Del Juncos reputation. Once he learned of the counterfeit website, Dr. Del Junco expended $3,212 in redesigning his website.

2. Procedure.

a. 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.

On January 23, 2004, the trial court entered a temporary restraining order restraining Hufnagel from operating a website with the domain name of drdeljunco.com or any variation of Dr. Del Juncos name.

Even though Hufnagel had been declared a vexatious litigant in the prior case, she initially represented herself in violation of the vexatious litigant order.

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 issue of whether it was proper to issue a preliminary injunction.

On February 23, 2004, Hufnagel, in propria persona,filed a one‑page answer that was combined with a request to dismiss Dr. Del Juncos complaint.

On February 23, 2004, Hufnagel, in propria persona, 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 Juncos complaint.

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 no written documents were filed. No substitution of attorney form was filed.

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 Hufnagels improper actions.

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 Juncos name. The trial court declined to rule on Dr. Del Juncos request for sanctions.

On April 28, 2004, Dr. Del Junco filed a motion to strike Hufnagels answer and cross‑complaint. Dr. Del Junco requested sanctions. He argued that the answer and cross‑complaint were in improper form and filed without leave of court and Hufnagels dilatory tactics forced Dr. Del Juncos 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 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 Juncos demurrer to the first amended cross-complaint without leave to amend. No opposition to the demurrer had been filed by Hufnagel.

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 courts 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 for (1) filing a volume of documents that purported to oppose Dr. Del Juncos motion for preliminary injunction, but the documents were not in proper form and did not conform with Court Rules; (2) filing a cross-complaint without permission of the court which violated the 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 Juncos counsel; and (4) filing and serving on March 5, 2004, a request for dismissal form requesting Dr. Del Juncos complaint be dismissed. The trial court found Hufnagels 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 website 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 Juncos 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 appearance.

b. 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 former 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 Hufnagels 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. In the opposition document, it was 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 website server company had not been able to immediately deactivate the links in Hufnagels counterfeit website.

On February 14, 2005, the trial court granted the motion for terminating sanctions. The trial court struck Hufnagels 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 sanctions.

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 Hufnagels 14 line declaration she declared that her finances had not allowed her to hire other legal counsel and her health was poor. The application was denied.

c. 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 that of his attorney. Dr. Del Junco requested damages in the total sum of $563,585.26.

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.

DISCUSSION

1. The defamatory statements are actionable.

Hufnagel contends that the statements in the counterfeit website 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 website stated that Dr. Del Junco has no specialized medical training in medicine or in female medicine. He is a vascular student. The website also stated that Dr. Del Junco has no training at all in womens 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 website stated that Dr. Del Junco was a General/Vascular Surgeon, any reasonable reader of her counterfeit website would conclude that Dr. Del Junco lacked the medical training to perform the surgeries he promotes and performs. As such, the statements in Hufnagels website cast serious doubt on Dr. Del Juncos 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 Hufnagels argument, the quoted statements, taken in context and when the website 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 [emails expressed opinions].)

The statements in the counterfeit website damaged Dr. Del Juncos professional reputation and were actionable.

2. The public affairs exemption to Civil Code section 3344 does not apply.

Dr. Del Juncos photograph was on a link of Hufnagels website. Hufnagel contends this knowingly use of Dr. Del Juncos likeness is not a violation of Civil Code section 3344 because the website comes under the public affairs exemption. This contention is not persuasive.

Civil Code section 3344 provides in subdivision (a) that [a]ny person who knowingly uses anothers name, . . . photograph, or likeness, in any manner, . . . without such persons 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 536, 546.) 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 surfers 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 websites, 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 Juncos 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. Hufnagels website was not designed to provide options to women seeking medical advice. Rather, Hufnagels use of Dr. Del Juncos 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 website absolve her of liability. First, the disclosure actually compounds the defamatory effect. It states that the counterfeit website is designed to provide full and complete disclosure which [Dr. Del Juncos] site does not provide. This disclaimer suggests that the information in the counterfeit website is accurate. However, as discussed above, the statements about Dr. Del Juncos qualifications to practice medicine are false. Hufnagels counterfeit website was designed to impersonate Dr. Del Juncos website 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 website are not protected by the public affairs exemption in Civil Code section 3344, subdivision (d).

3. 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 persuasive.

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 p. 180.) 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 competitors 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 Juncos complaint focused on prongs in Business and Professions Code section 17200 addressing fraudulent, deceptive, and untrue business practices.

Here, Hufnagels website was designed to redirect prospective patients from Dr. Del Junco to Hufnagel. The counterfeit website had a domain name (drdeljunco.com) that was almost identical to the domain name of Dr. Del Juncos website (dr.deljuncojr.com). Hufnagels website was identical to Dr. Del Juncos in its lay-out and contained the same logo, which would lead users to believe that the counterfeit website was actually Dr. Del Juncos. Yet, if a user accessed links on the counterfeit website, they were directed to information on Hufnagel and her institute in Mexico. The counterfeit website defamed Dr. Del Junco. Thus, the counterfeit website 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 Childrens 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.

4. 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 not persuasive.

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 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 website was designed to disrupt and damage Dr. Del Juncos practice by diverting potential patients to Hufnagel. Hufnagels deceptive actions violated Business and Professions Code section 17200. Thus, we need not address other independently wrongful acts.

Dr. Del Junco stated a cause of action for intentional interference with prospective business advantage.

5. The trial court had the jurisdiction to issue the terminating sanction.

Hufnagel contends the trial court lacked the jurisdiction to issue the 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 575.2permits 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. 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 would 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 issued the terminating sanction, 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 personally filed documents that violated a prior vexatious litigant order. She failed to comply with the injunction and continued to operate the counterfeit website. 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 and caused unnecessary delay and wasted the trial courts resources. The actions caused Dr. Del Junco to incur unnecessary expense. Under these circumstances the trial court had the jurisdiction to strike Hufnagels answer and enter default.

Hufnagel correctly states 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. Thus, she suggests that the trial court had to take such actions before issuing the terminating sanctions. However, there is nothing in the record to suggest that such hearings, or sanctions, would have provided the impetus Hufnagel needed to properly prosecute this case. She had already been deemed a vexatious litigant in another case, yet 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 other orders before striking Hufnagels 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 Hufnagels 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 Daileys actions were part and parcel of Hufnagels strategy of delaying and throwing darts at others, rather than taking responsibility for her own actions.

The trial court had the jurisdiction to strike Hufnagels answer and enter default.

6. The matter must be returned to the trial court for additional evidence on 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 website in 2003. In April 2003, Dr. Del Juncos internet website generated e-mail inquiries, many of which resulted in surgeries Since Hufnagel began operating her website, 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 Hufnagels website 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 Hufnagels website was felt in 2004.[8]

Hufnagel argues it is speculative to assume that Dr. Del Juncos drop in income for 2004 was related to the counterfeit website. She argues as follows: (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 2003; (3) If her website 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.

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 Juncos discussion and statistics extrapolate them to 2005, when she knows nothing about the surgeries in 2005. Without more information, Hufnagels 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.

As Hufnagel contends, Adams v. Murakami (1991) 54 Cal.3d 105 held that evidence of a defendants 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.

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 Juncos 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 courts order to produce financial records defendant waived right to complain that there was no evidence of defendants 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 Hufnagels financial condition. Further, the statement in Dr. Del Juncos brief that Hufnagel failed to appear for a deposition is unsupported by citation to the record, and thus cannot be considered by us.

The foregoing conclusion would normally lead to a reversal of the judgment because the $200,000 award for punitive damages cannot stand. However, we believe that justice will be served by issuing a conditional reversal that permits Dr. Del Junco to accept the judgment as modified or to return to the trial court for additional proceedings, during which he can present the required evidence.

c. 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 action under this section shall . . . be entitled to attorneys 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 Juncos 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 Kaufmans 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.) Based on this record, we cannot conclude that the record lacked substantial evidence to support the attorney fee award.

DISPOSITION

The judgment is affirmed in all respects except as to the award of punitive damages. The award of punitive damages is reversed and remanded to the trial court for further proceedings only on the issue of the amount of punitive damages, unless within 20 days of the date this opinion is filed Dr. Del Junco files with the clerk of the court and serves on Hufnagel a written consent to modify the judgment by striking the punitive damage award of $200,000, in which event the

judgment is modified to award Dr. Del Junco $363,585.26, and in such event the judgment is affirmed as modified.

Dr. Del Junco is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] Hufnagel was also known as Vikki G. Hufnagel.

[2] The underlining did not appear in Hufnagels counterfeit website. We have added this emphasis as the underlined statements are discussed in detail in subsequent parts of this opinion.

[3] The disclaimer at the top of the counterfeit website 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 Juncos 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 Chapters [sic] were removed in the infamous raid by the [California Medical Board] on Dr. Hufnagels home.

It appears that during its investigation of Hufnagel, the California Medical Board searched her home. We assume that the reference to a raid is to this search.

[4] The relevant portion of former Code of Civil Procedure section 2023 is currently found in Code of Civil Procedure section 2023.030.

[5] Civil Code section 3344, subdivision (a) and (d) read in pertinent part:

(a) Any person who knowingly uses anothers name, . . . photograph, or likeness, in any manner, . . . without such persons 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 attorneys 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).

[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 376, 378.)

[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 other 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 courts power to dismiss an action or dismiss a complaint as to a defendant.

[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:

2003

28 majors - $280,000 $328,000

16 minors - $ 48,000

2004

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)