Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 BATTA FULKERSON, LLP, Case No.: 25-cv-00551-AGS-GC 14 Plaintiff, ORDER ISSUING SANCTIONS AND 15 v. AWARDING ATTORNEY’S FEES AND REPORT AND 16 BULLDOG LAW, P.C., RECOMMENDATION RE: 17 Defendant. ADDITIONAL SANCTIONS 18 [ECF Nos. 85, 110, 119] 19 20 AND RELATED COUNTERCLAIM. 21 22 Counsel for Defendant Bulldog Law, P.C. (“Defendant”) have disobeyed virtually 23 every order entered in this case since they substituted in as counsel in mid-2025. Counsel’s 24 conduct necessitated four Orders to Show Cause, numerous discovery-related orders, and 25 otherwise unnecessary continuances. On July 20, 2026, the Court issued an order granting 26 in part a Motion for Further Sanctions (“Further Sanctions Motion”) filed by Plaintiff Batta 27 Fulkerson, LLP (“Plaintiff”) (“July 20 Order”). (ECF Nos. 85, 103.) The July 20 Order 28 gave Defendant one final opportunity to correct several of its deficiencies in complying 1 with discovery. Despite the Court spelling out every step Defendant needed to take to 2 correct its deficiencies, Defendant still failed to comply with the Court’s order. 3 To address Defendant’s deficiencies in compliance with the July 20 Order, the Court 4 issued an Order to Show Cause on August 12, 2026, and held a Show Cause hearing on 5 August 19, 2026. (ECF Nos. 110, 118.) To conceal their failures, rather than admitting 6 their deficiencies, Defendant and its counsel made misrepresentations to the Court. 7 Therefore, the Court issued a second Order to Show Cause on August 20, 2026, and held 8 another Show Cause Hearing on August 26, 2026. (ECF Nos. 119, 126.) Defendant and 9 defense counsel’s responses were not sufficient, and they continued the pattern of 10 misrepresentations to the Court. 11 Accordingly, for the reasons set forth below, the Court: (1) imposes monetary 12 sanctions on Mario P. Tafur and Philip R. Berwish for their failure to comply with the 13 July 20 Order and their lack of candor to the Court; (2) refers Mario P. Tafur to the Court’s 14 Standing Committee on Discipline; and (3) awards Plaintiff additional attorney’s fees and 15 costs. 16 In addition, the Court RECOMMENDS to the Honorable Andrew G. Schopler that 17 Philip R. Berwish’s pro hac vice admission be revoked. The Court further 18 RECOMMENDS the imposition of sanctions in the form of an adverse jury instruction. 19 I. BACKGROUND 20 A. Relevant Factual Background 21 On March 7, 2025, Plaintiff, a San Diego, California based law firm, filed suit 22 against Defendant, a Glendale, California based law firm. (ECF No. 1.) Plaintiff alleges 23 it “has advertised as ‘the bulldog lawyers’ since the firm’s inception in 2016.” (Id. ¶ 12) 24 It claims to be “the lawful owner of U.S. Registration No. 6304103 for the BULLDOG 25 ATTORNEYS Mark, registered March 30, 2021, for legal services, including legal advice, 26 legal information services, and providing information in the field of law in Class 045,” and 27 two registered design marks (Reg. No. 5295946 and Reg. No. 6152296) “for use in 28 connection with ‘attorney services’ and ‘legal advice; legal information services; legal 1 services; providing information in the field of law,’ respectively, in International Class 2 045,” which “were first used in commerce in 2017.” (Id. ¶¶ 9, 11.) Plaintiff also alleges it 3 “used the word marks, THE BULLDOG LAWYER, and INJURED IN AN ACCIDENT? 4 HIRE A BULLDOG ATTORNEY, in commerce in connection with, ‘attorney services; 5 legal services; legal advisory services; legal consultation services; legal information 6 services; legal support services; information, advisory and consultancy services relating to 7 legal matters; pro bono legal services,’ in International Class 045, since at least 8 May 10, 2016,” and has applications for these marks pending before the U.S. Patent and 9 Trademark Office (Serial Nos. 98761975 and 98761983). (Id. ¶ 12.) 10 Plaintiff alleges Defendant “was formed on August 30, 2022, and commenced 11 operation as a law firm under the name, BULLDOG LAW at some point thereafter.” (Id. 12 ¶ 18.) Plaintiff alleges Defendant’s “unauthorized use of marks substantially similar to 13 Plaintiff’s trademarks in connection with services identical to those provided by Plaintiff” 14 supports the following causes of action: (1) Trademark Infringement Under the Lanham 15 Act; (2) Common Law Trademark Infringement; (3) Unfair Competition Under the 16 Lanham Act; (4) False Designation of Origin Under the Lanham Act; (5) Violation of 15 17 U.S.C. § 1125(D); (6) Unfair Competition Under Cal. Bus. & Prof. Code § 17200; and (7) 18 Unjust Enrichment. (Id. ¶¶ 1, 32–71.) 19 Defendant filed its Answer and Counterclaim on April 7, 2025, and Amended 20 Answer and Counterclaim on April 28, 2025. (ECF Nos. 6, 8.) Defendant generally denies 21 the validity of Plaintiff’s claimed marks and seeks “a declaration that its use of 22 ‘BULLDOG LAW’ does not infringe Plaintiff’s alleged marks, and [requests that the court] 23 cancel Plaintiff’s registered trademarks insofar as the court finds that they are generic, 24 descriptive without secondary meaning, or abandoned.” (ECF No. 8 ¶ 60.) Defendant also 25 alleges “Plaintiff’s attempt to police the legal profession for uses of the term ‘Bulldog,’” 26 constitutes unfair business acts and practices. (Id. ¶ 83.) Defendant contends these facts 27 support the following causes of action: (1) Declaratory Judgment of Non-Infringement and 28 Cancellation of Registered Marks; (2) Violation of the First Amendment and California 1 Article I, § 2 of the California Constitution; (3) Unfair Competition Under Lanham Act, 15 2 U.S.C. § 1125(a); (4) Unfair Competition Under Cal. Bus. & Prof. Code § 17200 and 3 Common Law; and (5) Unjust Enrichment. (Id. ¶¶ 59–92.) 4 B. Discovery 5 After Defendant filed its Answer and Counterclaim, the Court set an Early Neutral 6 Evaluation (“ENE”) conference and Case Management Conference for May 15, 2025. 7 (ECF No. 7.) Defendant failed to participate in the filing of a Joint Discovery Plan and 8 failed to lodge its ENE statement by the May 8, 2025 deadline. (ECF Nos. 12, 13.) On 9 May 9, 2025, the Court ordered compliance by May 12, 2025, and cautioned that any 10 further failures to comply may result in the imposition of sanctions. (ECF No. 13.) 11 Defendant did not timely comply. Therefore, on May 14, 2025, the Court issued an Order 12 to Show Cause. (ECF No. 15.) Defendant ultimately lodged its ENE statement with the 13 Court on May 28, 2025, twenty days late. The Court discharged the Order to Show Cause. 14 (ECF No. 19.) 15 The Court held an ENE conference and issued the Scheduling Order on June 4, 2025. 16 (ECF Nos. 20, 21.) Discovery thereafter commenced. The Scheduling Order set a fact 17 discovery deadline of October 15, 2025, and a Final Pretrial Conference date of 18 June 5, 2026. (ECF No. 21.) 19 On June 13, 2025, Plaintiff served its First Set of Requests for Production (“RFPs”) 20 on Defendant. (ECF No. 58-2.) On July 14, 2025, Plaintiff served its Revised First Set of 21 Interrogatories (“Revised Interrogatories”).1 (ECF No. 58-3.) 22 On August 8, 2025, the Court conducted a Status Conference, during which 23 Plaintiff’s counsel brought to the Court’s attention concerns about Defendant’s discovery 24 responses, or lack thereof, and counsel’s refusal to meet and confer about discovery or a 25 26 27 1 Plaintiff’s Revised First Set of Interrogatories were propounded after Defendant objected wholesale to providing a substantive response to any interrogatory in the First Set 28 1 protective order. (ECF No. 31.) The Court then ordered counsel to, inter alia, “meet and 2 confer regarding: (1) the adequacy of defendant’s initial disclosures and discovery 3 responses no later than August 13, 2025; and (2) a protective order no later 4 than August 15, 2025.” (Id.) 5 On August 29, 2025, “[a]fter receiving an update from counsel regarding a dispute 6 about [D]efendant’s responses to [Plaintiff’s RFPs], the Court order[ed] [D]efendant [to] 7 make a supplemental production on or before September 2, 2025.” (ECF No. 36.) 8 On September 10, 2025, the parties lodged by email a Joint Discovery Statement 9 informing the Court that counsel had met and conferred regarding Defendant’s document 10 production and failure to respond to the Revised Interrogatories but had reached an 11 impasse. (ECF No. 42 at 4–27.)2 12 On September 19, 2025, the Court conducted a Discovery Conference and ordered: 13 Defendant must provide full and complete formal responses to plaintiff’s Revised First Set of Interrogatories on or before October 3, 2025. [] 14 Defendant has not shown good cause for its failure to timely respond and, 15 therefore, has waived all objections to these discovery requests. See FRCP 33(b)(4) (“Any ground not stated in a timely objection is waived unless the 16 court, for good cause, excuses the failure.”) 17 Defendant must provide a formal response to plaintiff’s [RFPs] and produce 18 non-privileged documents responsive to RFP Nos. 11, 12, and 26 on or before 19 October 3, 2025. [] Defendant must also produce non-privileged documents responsive to RFP 14 on or before October 3, 2025, unless the parties agree 20 to stipulate to facts relevant to defendant’s ownership and registration of 21 thebulldog.law domain in lieu of production. Id.

22 If defendant withholds any documents based on objection, its response “must 23 state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit 24 25 26 2 On September 12, 2025, Philip R. Berwish was admitted pro hac vice for purposes 27 of this case. (ECF No. 39.) Mr. Berwish filed his first pro hac vice application on August 5, 2025. (ECF No. 27.) However, it took four tries before he correctly completed 28 1 inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). If any documents are withheld “based on a claimed protection or privilege [defendant] must identify 2 the withheld documents in a manner such that the requesting party can 3 reasonably identify and challenge the withholding of the documents.” Chambers Rules for Civil Pretrial Proceedings, IX. 4 5 (ECF No. 42 at 1-2.) 6 On January 19, 2026, Plaintiff filed a Motion for Sanctions alleging Defendant “has 7 never served any response – substantive or otherwise – to the Revised Interrogatories,” and 8 “failed to produce responsive documents in a meaningful or complete manner,” and 9 requesting the Court impose terminating or evidentiary sanctions. (ECF No. 58 at 3–4.) 10 On March 4, 2026, the Court issued an order granting in part Plaintiff’s Motion for 11 Sanctions (the “Sanctions Order”). (ECF No. 63.) In the Order, the Court found that 12 Defendant’s complete failure to respond to Plaintiff’s Revised Interrogatories warranted 13 compelled responses, in addition to a monetary sanction for Plaintiff’s reasonable attorney 14 fees and expenses. (Id. at 7.) Accordingly, the Court ordered Defendant to produce full 15 and complete written responses to the Revised Interrogatories by March 27, 2026. (Id. at 16 9.) The Court further ordered Defendant and defense counsel, Mario P. Tafur and Phillip 17 R. Berwish, to pay Plaintiff’s reasonable expenses, including attorney’s fees, caused by 18 their failure to produce responses to the Revised Interrogatories. (Id.) The Court ultimately 19 determined that Defendant and defense counsel were liable for payment of $22,543.00, 20 which are the fees caused by Defendant’s failure to respond to the Revised Interrogatories. 21 (ECF No. 80.)3 22 In the Sanctions Order, the Court also addressed Plaintiff’s argument that 23 Defendant’s failure to produce all nonprivileged documents responsive to RFP Nos. 11, 24 12, 14, and 26 and failure to produce a privilege log warranted sanctions under Federal 25 26 27 3 Defendant failed to timely pay the awarded $22,543.00 by June 8, 2026, as ordered, requiring the Court to issue an Order to Show Cause. (ECF No. 93.) The payment was 28 1 Rule of Civil Procedure 37(b)(2)(A). (ECF No. 63 at 7.) The Court further addressed 2 Plaintiff’s argument that Defendant’s method of production, i.e., Defendant “produced 3 only a small number of documents on a piecemeal basis, repeatedly re-produced the same 4 limited materials in successive productions, failed to Bates-stamp documents, and did not 5 produce responsive materials in native format where required, . . . substantially prejudiced 6 Plaintiff’s ability to litigate its claims and defenses.” (ECF No. 58 at 4.) However, the 7 Court determined that Plaintiff’s motion did not “set forth sufficient facts for the Court to 8 determine whether [Defendant] ha[d] produced sufficient documents responsive to RFP 9 Nos. 11, 12, 14, and 26, or whether ESI ‘that should have been preserved . . . is lost because 10 [Defendant] failed to take reasonable steps to preserve it, and it cannot be restored or 11 replaced through additional discovery.’” (ECF No. 63 at 8 (quoting Fed. R. Civ. P. 37(e)).) 12 Therefore, in lieu of sanctions related to Plaintiff’s RFPs, the Court ordered both 13 parties to “assign a unique, sequential bates number to all documents or ESI they produce 14 during this litigation,” and specifically ordered Defendant to “assign a unique, sequential 15 bates number to all documents or ESI it has produced to date, on or before March 27, 16 2026.” (Id. at 9.) The Court further ordered Defendant to produce all responsive materials 17 in native format, to the extent it had not already done so. (Id.) Based on the foregoing, the 18 Court denied without prejudice Plaintiff’s request for terminating sanctions related to 19 Defendant’s document production. (Id. at 8–9.) However, the Court cautioned Defendant 20 and its counsel that “should [Plaintiff] refile and prevail on said issues, additional sanctions, 21 including the imposition of additional fees and expenses, will likely be imposed.” (Id. at 22 10.) 23 C. Special Master 24 On April 10, 2026, the parties filed status reports to update the Court on Defendant’s 25 compliance with previous discovery orders. (ECF Nos. 68, 69.) Unfortunately, these status 26 reports revealed that Defendant had still not fully complied with the Court’s prior discovery 27 orders. (See id.) On April 20, 2026, the Court held another Discovery Conference. (ECF 28 No. 74.) During the Discovery Conference, the Court notified the parties of its intent to 1 appoint a special master pursuant to Federal Rule of Civil Procedure 53 to serve as a 2 discovery referee regarding Defendant’s compliance with the Sanctions Order. (ECF No. 3 75.) The parties agreed to the appointment of a special master. (ECF No. 76.) After being 4 given an opportunity to suggest candidates for appointment, both parties left the selection 5 up to the Court. (ECF Nos. 75, 76.) Therefore, the Court selected Bill VanDeWeghe at 6 JAMS and appointed him to function as special master pursuant to Rule 53 to determine 7 whether Defendant fully and completely complied with the Court’s September 19, 2025 8 Order (ECF No. 42) and the Sanctions Order (ECF No. 63). (ECF No. 76.) 9 On May 14, 2026, the special master filed a report and recommendation (“R&R”) 10 with the Court. (ECF No. 81.) As set forth in the R&R, the special master “found that 11 Defendant has not complied with the Court’s orders for discovery.” (Id. at 2.) Specifically, 12 Defendant’s responses to the Revised Interrogatories are “inconsistent and/or incomplete.” 13 (Id. at 2.) The R&R further identified the deficiencies in Defendant’s document 14 production. (Id. at 3–4.) The special master concluded that “Defendant does not appear to 15 have made good faith, diligent efforts to preserve potential evidence, locate documents or 16 ESI, or provide complete responses as ordered by the court.” (Id. at 4.) “As a consequence, 17 Plaintiff has not been able to identify or refute evidence that could be important for their 18 case.” (Id.) The special master recommended that “requiring Defendant to bear the costs 19 for this process seems to be justified,” as does the award of additional attorney’s fees. (Id. 20 at 4–5.) No party objected to the R&R. See Fed. R. Civ. P. 53(f)(2). 21 The Court held a Status Conference to discuss the R&R on May 22, 2026. (ECF No. 22 83.) Following the Status Conference, the Court ordered Defendant to complete its 23 document production and serve an amended response to Plaintiff’s Revised Interrogatories 24 by May 26, 2026. (ECF No. 84.) Given Defendant’s continued failure to fully respond to 25 discovery or comply with the Court’s orders, Plaintiff was also authorized to file a further 26 motion for sanctions. (Id.) Plaintiff filed its Further Sanctions Motion on June 5, 2026. 27 (ECF No. 85.) 28 /// 1 D. July 20 Order and Orders to Show Cause 2 On July 20, 2026, the Court granted in part Plaintiff’s Further Sanctions Motion. 3 (ECF No. 103.) The Court adopted the special master’s recommendation that (1) 4 Defendant bear the costs for the special master, and (2) the Court award Plaintiff additional 5 attorney’s fees and costs related to Defendant’s failure to comply with the Court’s orders 6 for discovery. (Id. at 32.) The Court further reopened discovery for the limited purpose of 7 allowing Plaintiff to take the deposition of Charles Farris. (Id. at 33.) Lastly, the Court 8 ordered Defendant to (1) produce native copies of all previously produced emails, 9 including all attachments, and (2) serve a fourth amended response to Plaintiff’s Revised 10 Interrogatories that (a) is verified under oath by Defendant, (b) attaches all pages of the 11 deposition transcripts cited in the answers with the relevant testimony underscored or 12 highlighted, (c) includes Bates-number citations for all referenced documents, and (d) 13 includes complete answers for each interrogatory. (Id. at 33–34.) Defendant was further 14 ordered to file a Notice of Service of its fourth amended response attaching a copy of the 15 response by August 7, 2026. (Id. at 34.) 16 On August 5, 2026, Defendant filed a Notice of Service attaching its fourth amended 17 response without exhibits. (ECF No. 107.) Upon review of the response, the Court found 18 that Defendant violated the July 20 Order by failing to attach all cited deposition pages, to 19 include complete answers for each propounded interrogatory, to include Bates-number 20 citations for all referenced documents, and to verify the interrogatories under oath. (ECF 21 Nos. 107-1 at 2–18.) On August 10, 2026, Plaintiff filed a Notice of Defendant’s 22 Noncompliance identifying the above deficiencies. (ECF No. 108.) Plaintiff also stated 23 that Defendant did not comply with the Court’s directive to produce native copies of all 24 previously produced emails, including all attachments. (Id. at 3–4.) 25 In its July 20 Order, the Court warned Defendant as follows: 26 The Court finds that Defendant’s discovery conduct throughout this 27 litigation has added unnecessary delay and costs and required significant judicial resources to address and attempt to rectify. As a result, if 28 1 Court will issue an Order to Show Cause why (1) Mario P. Tafur and Philip R. Berwish should not pay a monetary sanction pursuant to Local 2 Civil Rule 83.1 in the amount of $5,000.00 each for their discovery 3 conduct outlined herein; and (2) the Court should not recommend that the District Judge impose evidentiary sanctions at trial. 4 5 (ECF No. 103 at 34.) 6 1. August 12, 2026 Order to Show Cause 7 Given the foregoing, on August 12, 2026, the Court issued an Order to Show Cause 8 regarding Defendant’s failure to comply with the Court’s July 20 Order. (ECF No. 110.) 9 The Court set a Show Cause hearing for August 19, 2026 and ordered Defendant to file a 10 declaration showing cause why the Court “should not recommend that the District Judge 11 impose the evidentiary sanctions previously requested by Plaintiff, including precluding 12 Defendant from introducing any evidence of revenues, profits, advertising expenditures, or 13 damages, and from supporting any claim or defense that depends on the discovery it has 14 failed to produce, as well as an adverse inference jury instruction regarding Defendant’s 15 failure to preserve intake call recordings.” (Id. at 3.) The Court further ordered 16 Defendant’s counsel, Phillip R. Berwish and Mario P. Tafur, to file declarations showing 17 cause “why they should not pay a monetary sanction pursuant to Local Civil Rule 83.1 in 18 the amount of $5,000.00 each for their discovery misconduct as outlined in the Court’s 19 July 20 Order.” (Id. at 2–3.) 20 On August 17, 2026, Defendant and defense counsel timely filed their declarations. 21 (ECF Nos. 113, 114, 115.) Upon review of Defendant’s declaration, the Court noticed that 22 the fourth amended response attached thereto as Exhibit A, which Defendant stated under 23 oath was served on August 3, 2026, was different from the one Defendant attached to its 24 August 5, 2026 Notice of Service. (ECF Nos. 113 at 1, 4–5; 113-1 at 18.) Specifically, 25 the version of the fourth amended response attached to Defendant’s declaration included a 26 verification that was not previously present. (Compare ECF No. 107-1 at 18, with ECF 27 No. 113-1 at 18.) The version of the fourth amended response attached to Defendant’s 28 declaration claims that Mr. Tafur signed and verified under penalty of perjury the fourth 1 amended response on August 3, 2026. (ECF No. 113-1 at 18.) The Court found it unclear 2 which version was served on Plaintiff, but it appeared that the verification page was added 3 for purposes of Defendant’s declaration, backdated to August 3, 2026, and never served on 4 Plaintiff. During the Show Cause hearing on August 19, 2026, Defendant did not explain 5 this discrepancy to the Court’s satisfaction. 6 2. August 20, 2026 Order to Show Cause 7 As Defendant failed to explain the discrepancies in declarations to the Court’s 8 satisfaction, the Court issued an additional Order to Show Cause (ECF No. 119) and 9 continued the August 19, 2026 Show Cause hearing to August 26, 2026. (ECF No. 118.) 10 On August 24, 2026, Defendant’s counsel filed declarations attempting to explain the 11 discrepancy in the verification. (ECF Nos. 120, 121.) Mr. Tafur stated that he signed a 12 verification attesting to the truth of the answers contained in the fourth amended response 13 on August 3, 2026, but, “[d]ue to an inadvertent error,” he failed to attach the verification 14 page to the electronic filing on August 5, 2026. (ECF No. 121 at 2.) Mr. Tafur further 15 stated that, in response to the Court’s August 12 Order to Show Cause, he “filed a 16 declaration that attached as Exhibit A a complete copy of the Fourth Amended Response, 17 including the verification page.” (Id.) Mr. Tafur claimed he “did not realize that the date 18 on the verification page had not been changed.” (Id.) In his declaration, Mr. Berwish 19 stated that he “has separately filed a Corrected 4th [Amended] Supplemental Answers to 20 Plaintiff’s Revised First Set of Interrogatories.” (ECF No. 120 at 1.) However, he did not 21 file a “Corrected” version with his declaration or separately. 22 On August 25, 2026, the following day, Mr. Berwish filed the “Corrected” version 23 of Defendant’s fourth amended response. (ECF Nos. 122, 125, 129.) This version included 24 a verification page signed and dated by Mr. Tafur on August 24, 2026. (ECF No. 122-1 at 25 31.). This verification page was completely different from the verification attached to the 26 August 17, 2026 declaration. (Compare ECF No. 113-1 at 18, with ECF No. 122-1 at 31.) 27 The Court held a second Show Cause hearing on August 26, 2026. (ECF No. 126.) 28 Mr. Tafur appeared in person, but Mr. Berwish did not appear. (Id.) Mr. Berwish 1 subsequently filed a declaration stating that he intended to appear, but he used the login 2 information from the prior Order to Show Cause, and not from the Order to Show Cause 3 setting the August 26 hearing. (ECF No. 127.) 4 During the hearing, Mr. Tafur addressed his verification of Defendant’s fourth 5 amended response. He stated that when he signed the verification attached to Defendant’s 6 response to the initial Order to Show Cause, it should have been dated August 17. (See 7 ECF No. 113-1 at 18.) The fact that it was dated August 3 was a clerical error and not an 8 attempt to backdate the document. (See id.) Mr. Tafur did not address his August 24 claim 9 that he had signed a verification page on August 3 but failed to attach it to Defendant’s 10 filing on August 5 “due to an inadvertent error in assembling the PDF for electronic filing.” 11 (See ECF No. 121 at 2.) He also did not address the inconsistency between this claim and 12 his prior statements that when he signed the August 3 fourth amended response he believed 13 he did not need to include a verification as his signature alone constituted a verification. 14 (See ECF Nos. 107-1 at 18, 115 at 3.) 15 II. LEGAL STANDARDS 16 Federal Rule of Civil Procedure 37 “authorizes the district court, in its discretion, to 17 impose a wide range of sanctions when a party fails to comply with the rules of discovery 18 or with court orders enforcing those rules.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 19 585, 589 (9th Cir. 1983). If a party “fails to obey an order to provide or permit discovery,” 20 the court may issue “further just orders,” including dismissing the action in whole or in 21 part or rendering a default judgment against the disobedient party. Fed. R. Civ. P. 22 37(b)(2)(A)(v)–(vi). A finding that a discovery order has been violated “is entitled to 23 considerable weight” because the presiding judge is “best equipped to assess the 24 circumstances of the non-compliance.” Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 25 1997) (citation omitted). 26 District courts also have inherent authority to sanction parties or their lawyers for 27 improper conduct. Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001); see also Wyle, 709 28 F.2d at 589 (“[C]ourts have inherent power to dismiss an action when a party has willfully 1 deceived the court and engaged in conduct utterly inconsistent with the orderly 2 administration of justice.”); Grizzle v. County of San Diego, 2022 WL 2706151, at *1 (S.D. 3 Cal., July 12, 2022) (“Courts ‘unquestionably’ possess the inherent power to assess 4 sanctions for disobedience of a court order.) (citing Alyeska Pipeline Service Co. v. 5 Wilderness Society, 421 U.S. 240, 258-59 (1975); Chambers v. NASCO, Inc., 501 U.S. 32, 6 45 (1991)). 7 Under both Rule 37 and the court’s inherent authority, terminating sanctions should 8 be imposed only in circumstances where the violation is due to “willfulness, fault, or bad 9 faith.” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). In determining whether 10 terminating sanctions for noncompliance with discovery is appropriate, the court must 11 weigh the following five factors: “(1) the public’s interest in expeditious resolution of 12 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 [opposing party]; (4) the public policy favoring disposition of cases on their merits; and (5) 14 the availability of less drastic sanctions.” Computer Task Grp., Inc. v. Brotby, 364 F.3d 15 1112, 1115 (9th Cir. 2004) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th 16 Cir. 1987)); see also Leon, 464 F.3d at 958 n.4 (“Although this five-factor test is usually 17 used to review the propriety of Rule 37 sanctions, this same test was applied in [Anheuser- 18 Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)] to review 19 sanctions granted under a court’s ‘inherent power’.”). 20 This is not a “mechanical” test but rather is intended to help a district court “think 21 about what to do.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 22 F.3d 1091, 1096 (9th Cir. 2007). Terminating sanctions may be warranted “where at least 23 four factors support dismissal, or where at least three factors strongly support dismissal.” 24 Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (citation omitted). “The most 25 critical factor to be considered in case-dispositive sanctions is whether a party’s discovery 26 violations make it impossible for a court to be confident that the parties will ever have 27 access to the true facts.” Connecticut Gen. Life Ins. Co., 482 F.3d at 1097 (citation and 28 internal quotation marks omitted); see also Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1 1051, 1057 (9th Cir. 1998) (when considering terminating sanctions, factors three and five 2 “are decisive”). 3 District courts in this Circuit apply the preponderance of evidence standard when 4 considering sanctions. See Smahi v. STMIcroelectronics, Inc., 825 F. Supp. 3d 1143, 1146 5 (N.D. Cal. 2026); WeRide Corp. v. Kun Huang, No. 5:18-cv-07233-EJD, 2020 WL 6 1967209, at *9 (N.D. Cal. Apr. 24, 2020); CrossFit, Inc. v. Nat’l Strength & Conditioning 7 Ass’n, No. 14-cv-1191 JLS (KSC), 2019 WL 6527951, at *10 (S.D. Cal. Dec. 4, 2019). 8 On considering a motion for sanctions, a district court may make factual findings and assess 9 the credibility of witnesses. See Leon, 464 F.3d at 958; Valley Eng’rs Inc., 158 F.3d at 10 1054. 11 In addition, Local Civil Rule 83.1 authorizes sanctions against parties and counsel 12 for noncompliance “with [the District’s Local Rules], with the Federal Rules of Civil or 13 Criminal Procedure, or with any order of the Court.” CivLR 83.1(a). The Court is 14 authorized to impose “any and all sanctions authorized by statute or rule or within the 15 inherent power of the Court, including, without limitation, dismissal of any actions, entry 16 of default, finding of contempt, imposition of monetary sanctions or attorneys’ fees and 17 costs, and other lesser sanctions.” Id. “A showing of bad faith is not necessary when the 18 Court issues sanctions under . . . the Local Rules.” White v. Papoutis, No. 16-cv-02694- 19 JLS (DHB), 2017 WL 1020585, at *2 (S.D. Cal. Mar. 16, 2017) (citing Lucas Auto. Eng’g, 20 Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001) (finding appropriate 21 the district court’s issuance of sanctions under Federal Rule of Civil Procedure 16 and the 22 district court’s local rules when the president of the plaintiff-business failed to appear at a 23 mediation session and gave no prior notice)); see also Mereu v. Delaware N. Companies 24 Sportservice, Inc., No. 25-CV-00710-BJC-MMP, 2026 WL 1490135, at *11 (S.D. Cal. 25 May 27, 2026); Musgrove v. Hanifin, No. 20-cv-614-JO-BLM, 2022 WL 17574075, at *2 26 (S.D. Cal. Dec. 8, 2022). 27 /// 28 /// 1 III. DISCUSSION 2 A. Current Status of Discovery 3 In the Further Sanctions Motion, Plaintiff sought sanctions under Rule 37 and the 4 Court’s inherent authority based on Defendant’s violation of multiple court orders 5 compelling the same discovery. (ECF No. 85.) The orders at issue concerned Defendant’s 6 responses to Plaintiff’s Revised Interrogatories and RFP Nos. 11, 12, 14, and 26. (See ECF 7 Nos. 42, 63, 84.) Plaintiff also sought sanctions for spoliation due to Defendant’s failure 8 to preserve ESI. In the Court’s July 20 Order, the Court addressed the status and history 9 of the disputed discovery at length, which is incorporated herein by reference. (ECF No. 10 103 at 9–20.) 11 As of the date of this Order, it appears Defendant has now, finally, served a complete 12 verified response to the Revised Interrogatories that were first served well over a year ago. 13 This compliance required the issuance of two Orders to Show Cause, the filing of two 14 motions for sanctions, multiple Discovery Conferences and orders, and the appointment of 15 a special master. Despite Defendant finally providing a response to the Revised 16 Interrogatories that complies with the Court’s orders, Plaintiff has not, however, received 17 any intake call recordings, intake call transcripts (except for one call transcript), or intake 18 call notes or summaries—all of which potentially could have contained evidence of 19 confusion.4 20 This is largely due to Defendant’s failure to preserve ESI, the timeline of which is 21 as follows: 22 February 19, 2025 Plaintiff alerted the Defendant 23 about the need to preserve ESI in a demand letter. 24 25 26 27 4 Plaintiff has also not received native copies of Defendant’s emails with Mr. Farris, 28 1 June 13, 2025 Plaintiff served RFPs seeking ESI 2 and other documents. 3 July 14, 2025 Plaintiff served interrogatories 4 requesting that communications be identified, which would have 5 included ESI. 6 July 31, 2025 David Precilla, the person 7 responsible for administrative matters in Defendant’s office, 8 testified during his deposition that 9 he did not know what a “Litigation Hold” is, and that no special 10 process was put in place to 11 preserve evidence. 12 May 13, 2026 During a conference call with the 13 special master, Defendant’s counsel could not confirm whether 14 ESI documents exist, were 15 deleted, or never existed. 16 17 B. Spoliation and Adverse Jury Inference 18 In the Further Sanctions Motion, Plaintiff’s spoliation argument focused primarily 19 on the loss of the intake call recordings. (ECF No. 85-1 at 20–21.) Plaintiff argued that 20 the Court “should, at a minimum, issue the adverse-inference jury instruction Plaintiff has 21 requested with respect to the intake-call recordings and transcripts.” (Id. at 23.) 22 Specifically, Plaintiff requested a “jury instruction that Defendant failed to preserve intake 23 call recordings during the pendency of this litigation despite its obligation to do so, and 24 that the jury may infer that those recordings would have been unfavorable to Defendant, 25 including as evidence of actual consumer confusion.” (ECF No. 68 at 6; see also ECF No. 26 85-1 at 23.) 27 Rule 37(e) provides for sanctions for the spoliation of ESI that the party was under 28 a duty to preserve. The duty to preserve evidence attaches when litigation is “pending or 1 reasonably foreseeable.” The Sunrider Corp. v. Bountiful Biotech Corp., No. SACV 08- 2 1339, 2010 WL 4590766, at *29 (C.D. Cal. Oct. 8, 2010), adopted by 2010 WL 4589156 3 (C.D. Cal. Nov. 3, 2010) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 4 (S.D.N.Y. 2003)); see also United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 5 (9th Cir. 2002). In the Ninth Circuit, courts generally agree that this duty arises “[a]s soon 6 as a potential claim is identified.” Apple, Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 7 991 (N.D. Cal. 2012) (citations omitted). This duty extends to evidence that parties knew 8 or should have known was relevant or may be relevant to future litigation. See Kitsap, 314 9 F.3d at 1001; The Sunrider Corp., 2010 WL 4590766, at *29; see also Wm. T. Thompson 10 Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (“Sanctions may be 11 imposed against a litigant who is on notice that documents and information in its possession 12 are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the 13 discovery of admissible evidence, and destroys such documents and information.”). 14 Under Rule 37, “[s]anctions that a federal court may impose for spoliation include 15 assessing attorney’s fees and costs, giving the jury an adverse inference instruction, 16 precluding evidence, or imposing the harsh, case-dispositive sanctions of dismissal or 17 judgment.” Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 18 1052 (S.D. Cal. 2015) (quoting United States v. Town of Colorado City, Ariz., No. 3:12- 19 cv-8123-HRH, 2014 WL 3724232, at *7 (D. Ariz. July 28, 2014)). “While the court has 20 discretion to impose spoliation sanctions, it must determine which sanction best (1) deters 21 parties from future spoliation; (2) places the risk of an erroneous judgment on the spoliating 22 party; and (3) restores the innocent party to their rightful litigation position.” Id. (citation 23 omitted). “Ultimately, the choice of appropriate spoliation sanctions must be determined 24 on a case-by-case basis, and should be commensurate to the spoliating party’s motive or 25 degree of fault in destroying the evidence.” Id. (citation omitted). 26 In its July 20 Order, the Court found that although Defendant was under a duty to 27 preserve its intake call recordings and failed to take adequate steps to do so, there was no 28 evidence at the time that Defendant intended to deprive Plaintiff of this information or that 1 Plaintiff was prejudiced by Defendant’s failure. (ECF No. 103 at 22.) The Court focused 2 on the fact Defendant collected and retained intake information in multiple formats and 3 therefore such information has remained largely available to Defendant. (Id.) In addition, 4 the Court relied on Defendant’s principal and administrator testifying under oath that 5 Defendant has received only one intake call evidencing confusion, and the fact a transcript 6 of that call was produced to Plaintiff. (Id. at 24.) 7 However, during the August 19, 2026 Show Cause hearing, Plaintiff stated that 8 although Defendant may have retained intake call information in multiple formats, none of 9 the information had been produced. In response, Defendant argued that it did not produce 10 such information because it was not relevant, i.e., there was no evidence of confusion in 11 the information.5 Plaintiff further stated that there is no indication that Defendant started 12 preserving the intake call recordings after explicitly being informed that it must do so by 13 the special master and the Court. In response, Defendant seemed to admit it was not 14 currently preserving such recordings. 15 Given this additional information, coupled with defense counsel’s intentional 16 misrepresentations to the Court and lack of candor, the Court finds that Plaintiff has 17 sufficiently demonstrated that Defendant has acted with the requisite intent to deprive 18 Plaintiff of the intake call recordings and that Plaintiff has been prejudiced by Defendant’s 19 failure to preserve. Despite ample notice of its ongoing duty to retain the intake call 20 recordings, Defendant is not currently doing so. Moreover, Defendant has not produced 21 its call intake information in any format, thus prejudicing Plaintiff. While Defendant 22 claims it has only received one call from a client looking for Plaintiff, due to Defendant’s 23 conduct, Plaintiff is unable to test the veracity of that representation with any of the records 24 that could have provided such evidence. 25 26 27 5 RFP No. 7 requests “[a]ll documents and communications relating to actual, potential, or reported consumer confusion between [Defendant] and [Plaintiff].” (ECF No. 28 1 Accordingly, the Court finds that a jury instruction stating that Defendant failed to 2 preserve intake call recordings during the pendency of this litigation despite its obligation 3 to do so, and that the jury may infer that at least some of those recordings may have been 4 unfavorable to Defendant, including as evidence of actual consumer confusion, is 5 appropriate. 6 C. Terminating Sanctions 7 In the Further Sanctions Motion, Plaintiff argued that terminating sanctions are 8 warranted for Defendant’s willful defiance of the Court’s September 19 and May 22 9 Orders, as well as the Sanctions Order. (ECF No. 85-1 at 16.) In the Court’s July 20 Order, 10 the Court found that terminating sanctions were unwarranted at that time. (ECF No. 103 11 at 32.) The Court still finds that consideration of the Malone factors weighs against 12 terminating sanctions. The Court finds that with the additional recommendation of an 13 adverse jury instruction and the deposition of Mr. Farris, the parties will have access to the 14 true facts such that this case can be decided on the merits. See Connecticut Gen. Life Ins. 15 Co., 482 F.3d at 1097 (“The most critical factor to be considered in case-dispositive 16 sanctions is whether a party’s discovery violations make it impossible for a court to be 17 confident that the parties will ever have access to the true facts.”). 18 D. Sanctions Against Counsel 19 In the August 12 Order to Show Cause, the Court ordered Mr. Tafur and Mr. Berwish 20 to each show cause in a written declaration why they should not pay a monetary sanction 21 pursuant to Local Civil Rule 83.1 in the amount of $5,000.00 each for their discovery 22 misconduct as outlined in the Court’s July 20 Order. (ECF No. 110 at 3.) In the August 20 23 Order to Show Cause, the Court further ordered Mr. Tafur and Mr. Berwish to each show 24 cause in a written declaration why they should not (1) pay an additional monetary sanction 25 pursuant to Local Civil Rule 2.2 in the amount of $5,000.00 each, and (2) be referred to 26 the Court’s Standing Committee on Discipline, for violating their duties of candor and 27 accuracy to the Court; and (3) as to Mr. Berwish, why the Court should not recommend to 28 the District Court that his pro hac vice admission be revoked. (ECF No. 119 at 4–5.) 1 i Violation of Duty of Candor 2 Counsel owes a duty of candor to the court. See Malkeet Lnu v. Blanche, 177 F Ath 3 }/1014, 1029 (9th Cir. 2026). Under the California Rules of Professional Conduct, “[a] 4 || lawyer shall not . . . knowingly make a false statement of fact or law to a tribunal or fail to 5 correct a false statement of material fact or law previously made to the tribunal by the 6 ||lawyer.” Cal. R. Prof] Conduct 3.3(a)(1): see also Cal. Bus. & Prof. Code § 6068(d) (“It 7 the duty of an attorney . . . to employ, for the purpose of maintaining the causes confided 8 ||to him or her those means only as are consistent with truth, and never to seek to mislead 9 || the judge or any judicial officer by an artifice or false statement of fact or law’); Jn re 10 || Domestic P’ship of Torres Campos & Munoz, 118 Cal. App. 5th 1112, 1128-30 (2026). 11 || Moreover, as set forth in this District’s Local Rules, “[w]e expect lawyers to be accurate 12 |/in written communications intended to make a record,” and “to honor and maintain the 13 ||integrity of our justice system.” CivLR 2.1(a)(2)(h), (3)(f). 14 Here, the Court finds that defense counsel violated their duty of candor to the Court. 15 || As set forth herein, the declarations filed by Mr. Tafur and Mr. Berwish in response to the 16 ||Court’s Orders to Show Cause and the statements made by Mr. Tafur and Mr. Berwish at 17 ||the Show Cause hearings are internally inconsistent and contain multiple 18 || misrepresentations to the Court. Specifically, Defendant and defense counsel made the 19 || following representations to the Court with respect to the verification of its fourth amended 20 response to the Revised Interrogatories:

No.

23 the attached fourth amended response on Plaintiff on August 3, 2026. The attached fourth amended response served by 24 Defendant was signed by Mr. Tafur but not verified under oath. 25 26 27 28 1 Date Event/Representation ECE No. 2 e. January 30, 2024 —Case Number: 23-O-23011 — Respondent: Raoul Severo — Complainant: Christopher Merrill By: /s/_Marto Tawr 5 Mario Tafur, Esq.Bulldog Law, P.C. 500 N. Central Avenue - Suite 610 6 Glendale, CA 91203 Phone: 818-649-3007 Email: mario@thebulldog.law 7 Berwish Direct: 800 547 8717 berwish@ gmail.com 8 Philip R. Berwish, Esq. - OF Counsel 9 8/12/26 Court issues Order to Show Cause regarding, inter alia, Defendant’s failure to verify the fourth amended response under oath in 10 accordance with the Court’s July 20 Order and Federal Rule of Civil ll Procedure 33. 12 8/17/26 In its declaration filed in response to the August 12 Order to Show | 113 Cause, which was signed by Mr. Berwish, Defendant represented 13 that it “served the attached fourth amended response on Plaintiff on August 3, 2026.” The attached fourth amended response is signed 14 by Mr. Tafur under oath and dated August 3, 2026. 15 Defendant also argues that “Mr. Tafur’s signature as both counsel and principal of the responding party satisfies the Court’s 16 requirement that the response be verified under oath by Defendant. . .. That defect was cured by the timely production of Exhibit A 17 bearing Mr. Tafur’s signature.” 18 [This version of the fourth amended response was not served on Plaintiff on August 3, 2026.] 9 A. Verification Under Oath 20 The Fourth Amended Response (Exhibit A) is the same set of supplemental answers previously provided, now verified by Mario Tafur as principal, sole officer, director, and 2 | shareholder of Defendant. It was timely served on August 3, 2026. Mr. Tafur’s signature as both 29 counsel and principal of the responding party satisfies the Court’s requirement that the response be verified under oath by Defendant. The Court required verification “by Defendant” precisely 23 26 ase 3:25-cv-00551-AGS-GC Document113 Filed 08/17/26 PagelD.1516 Page! of 13 2 7 because prior responses had been signed only by outside counsel. That defect was cured by the 2 8 timely production of Exhibit A bearing Mr. Tafur’s signature.

1 Date Event/Representation ECE No. 2 e. January 30, 2024 — Case Number: 23-0-23011 — Respondent: Raoul Severo - Complainant: Christopher Merrill 3 4 VERIFICATION I, Mario Tafur, am the President, Chief Executive Officer, sole Director, and sole 5 shareholder of Defendant Bulldog Law, P.C. | have read the foregoing Defendant's Fourth 6 Amended Supplemental Answers to Plaintiffs Revised First Set of Interrogatories and know the contents thereof. The answers are truc of my own knowledge, except as to those matters stated on information and belief, and as to those matters | believe them to be true. 8 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 9 Executed on August 3, 2026, at Glendale, California. 10 By: /s/ Mario Taur Mario Tafur, Esq.Bulldog Law, P.C. 500 N. Central Avenue - Suite 610 | ead CA Sp Phone: $18-649-3007 ‘mail: mario@éthebulldog. law 2 Sawick Se ie 547 8717 berwishia@ gmail.com ] 3 Philip R. Berwish, Esq. - Of Counsel 8/17/26 Mr. Tafur filed a declaration in response to the August 12 Order to | 115 14 po: gus Show Cause stating: “With respect to verification, I signed the ing Sp gn 15 Fourth Amended Response as ‘Mario Tafur, Esq., Bulldog Law, P.C.” in my capacity as the sole principal, officer, and authorized Yy cap P pal, > 16 representative of the Defendant corporate entity. As the only person 17 with authority to bind the Firm, my signature constitutes verification by Defendant. The Court required verification “by Defendant’ 18 precisely because prior responses had been signed only by outside counsel. That defect was cured. The accompanying Proof of Service 19 was executed by Defendant’s paralegal, Jennifer Munguia, under penalty of perjury. To the extent the Court finds that additional 20 formal verification language under penalty of perjury is 7] required, Defendant is prepared to immediately cure any such technical deficiency by serving a verified declaration or 99 amended verification page.” (emphasis added) 73 [This statement acknowledges that the fourth amended response served on August 3, 2026 was not signed under oath by Mr. Tafur. | 24 8/19/26 Show Cause hearing held. Mr. Tafur stated that the fourth amended 25 response served on Plaintiff on August □□ 2026 was not signed under penalty of perjury. He further stated that on August 17, 2026, 26 Defendant filed a version of its fourth amended response with the 7 penalty of perjury language added to satisfy the Court. Mr. Berwish acknowledged that the August 3, 2026 filing did not gu & 28 have the verification language. He claimed that it was not required y7> No. 2 under Rule 11. However, in an abundance of caution, Defendant 3 resubmitted the verification with the proper language on August 17,2026. Mr. Berwish confirmed that August 17, 2026 4 version was not served on Plaintiff on August 3, 2026, despite Defendant’s representation in its August 17, 2026 declaration that it 5 had been served on that date. [Defense counsel acknowledged that the verification was added on August 17, 2026, but did not address why the verification 7 resubmitted on August 17, 2026, is dated August 3, 2026 and Defendant claimed to have served the verification on 8 August 3, 2026.] 9 8/20/26 The Court issues an Order to Show Cause regarding Defendant’s 10 lack of candor regarding the verification of its fourth amended response. M 8/24/26 Mr. Berwish filed a declaration in response to the August 20 Order | 120, 12 to Show Cause stating that “[tJhe original submission failed to have | 121 the verification signed under oath and, when it was discovered, it 13 was corrected by resubmitting with the proper language. In the haste 14 to correct the oversight the date was not changed but there was no intent to misrepresent the facts or to deceive the court.” 15 Mr. Tafur filed a declaration in response to the Order to Show Cause stating: “On or about August 3, 2026, our office prepared 16 Defendant’s [fourth amended response]. On that same date, I signed a verification under penalty of perjury attesting to the truth of the answers contained in the Fourth Amended Responses. 18 On August 5, 2026, Defendant filed a Notice of Service attaching 19 the Fourth Amended Responses (ECF No. 107). Due to an inadvertent error in assembling the PDF for electronic filing, the 20 signed verification page was omitted from the attachment to the Notice of Service. The body of the responses themselves was 21 included. On August 17, 2026, in response to the Court’s prior Order to Show Cause issued August 12, 2026 (ECF No. 110), I filed a declaration 23 that attached as Exhibit A a complete copy of the Fourth Amended Responses, including the verification page. The purpose of 24 attaching the complete, verified version was to correct the prior 25 omission of the verification page from the August 5 Notice of Service, not to create a new or different document, and not to 26 mislead the Court. 7 I did not realize that the date on the verification page had not been changed, or that the version attached to the August 5 Notice of 8 Service differed from the version attached to my August 17 yz 1 Date Event/Representation ECE No. 2 declaration, until the Court raised the discrepancy during the Show 3 Cause hearing on August 19, 2026.” 3. On or about August 3, 2026, our office prepared Defendant’s Fourth Amended Responses - to Plaintiff's Revised Interrogatories (the “Fourth Amended Responses”). On that same 5 date, [ signed a verification under penalty of perjury attesting to the truth of the answers contained in the Fourth Amended Responses. 6 4. On August 5, 2026, Defendant filed a Notice of Service attaching the Fourth Amended 7 Responses (ECF No. 107). Due to an inadvertent error in assembling the PDF for electronic filing. the signed verification page was omitted from the attachment to the 8 Notice of Service. The body of the responses themselves was included.

10 {[Mr. Tafur clams that he signed a verification form on August 3, 2026, but failed to attach it. This is in direct contradiction 1] with his prior statements that he thought his initial signature was sufficient under Rule 11 and he corrected the emor on 12 August 17, 2026.] 15 8/25/26 Final version of Defendant’s fourth amended response filed with | 122, 14 Mr. Tafur verifying the response under oath on August 24, 2026. 175; 129 15 VERIFICATION 1, Mario Tafur, am the President, Chief Executive Officer, sole Director, and sole shareholder of Defendant Bulldog Law, P.C. I have read the foregoing Defendant's Fourth Amended 17 Supplemental Answers to Plaintiff's Revised First Set of Interrogatories and know the contents ] & thereof. The answers are true of my own knowledge, except as to those matters stated on 19 information and belief, and as to those matters | believe them to be true. | declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 20 Executed on August 24, 2026, at Glendale, California. 21 By: /s / Mario [gfe 02 Mario Tafur, Esq.Bulldog Law, P.C. 500 N. Central Avenue - Suite 610 Glendale, CA 91203 Phone: 818-649-3007 Email; mario@thebulldog.law Berwish Direct: 800 547 8717 2 5 berwish@) gmail.com 6 Philip R. Berwish, Esq. - Of Counsel 07 8/26/26 During the Show Cause hearing, Mr. Tafur addressed his | 126 verification of Defendant’s fourth amended response. He stated that 28 when he signed the verification attached to Defendant’s response to “A 2 aS 3 August 17,2026. The fact that it was dated August 3, 2026 was a clerical error and not an attempt to backdate the document. 4 [Mr. Tafur does not address the statements in his declaration that he attached due to a clerical error. ] 6 7 While defense counsel argue that these discrepancies and misrepresentations were 8 ||mere “formatting and technical issues” and there was no intent to deceive the Court, the 9 ||Court disagrees. The statements were not typographical errors. Rather, based on all the 10 || circumstances, the Court can only infer they were knowing misrepresentations to the Court 11 ||intended to cover up their failures to comply. See Malkeet Lnu, 177 F 4th at 1031 (“The 12 nature of the errors we have identified, and the lack of any plausible alternative explanation, 13 || further support the inference of actual knowledge.”). Accordingly, the Court sanctions 14 || Mr. Berwish and Mr. Tafur, individually and severally, each $2,000.00 under the Court’s 15 |}/inherent authority and Local Rule 83.1(a) for violating their duty of candor to the Court. 16 Violation of the Court’s July 20 Order Ly The Court further finds it appropriate to sanction Mr. Berwish and Mr. Tafur 18 || pursuant to Local Civil Rule 83.1 and the Court’s inherent authority further for violating 19 || the Court’s July 20 Order. The Court gave Defendant and its counsel, which in this case 20 one and the same, the benefit of the doubt in the July 20 Order, giving Defendant a final 21 || opportunity to correct several of its discovery failures. However, Defendant once again 22 || failed to comply with the Federal Rules of Civil Procedure and with an order of this Court. 23 The Court emphasizes that this was not a one-off, unique event, but rather a pattern 24 || and practice in this case. For example, Defendant completely and inexplicably failed to 25 ||respond to the Revised Interrogatories by the initial August 13, 2025 deadline set by 26 || Federal Rule of Civil Procedure 33 and then compounded that error by failing to respond 27 ||by the Court-ordered deadline of October 3, 2025. (See Bruss Decl. 93; ECF No. 42.) 28 || Defendant did not bother to respond to the Revised Interrogatories until after the Court 1 issued the Sanctions Order on March 4, 2026, which ordered compliance by 2 March 27, 2026. (See Bruss Decl. ¶3; ECF No. 63.) Defendant served its first response to 3 the Revised Interrogatories on March 27, 2026, seven months after they were due, and its 4 second response on May 11, 2026. (Bruss Decl. ¶¶ 3, 10.) As set forth above, both were 5 deficient. 6 During a May 11, 2026 hearing, the special master found the second response “to be 7 inconsistent and/or incomplete.” (ECF No. 81 at 2.) The special master also found it 8 “difficult to follow the sequence of events and discussions that allegedly took place.” (Id.) 9 Incredibly, during the hearing, Mr. Berwish represented that “his client had not yet 10 reviewed the interrogatory responses sent on May 11, 2026, despite bearing Mr. Tafur’s s/ 11 signature.” (Bruss Decl. ¶ 11.) The special master stated in his R&R that “Defendant does 12 not appear to have made good faith, diligent efforts to . . . provide complete responses as 13 ordered by the court.” (Id. at 4.) On June 5, 2026, Plaintiff pointed out in its Further 14 Sanctions Motion that Defendant had failed to verify its response to the Revised 15 Interrogatories pursuant to Rule 33. (ECF No. 85-1 at 17.) It still took Defendant an 16 additional three months, the July 20 Sanctions Order, and two Orders to Show Cause to 17 serve a verified, complete set of responses to the Revised Interrogatories. In the process, 18 as set forth above, defense counsel compounded its multitude of failures by making 19 misrepresentations to the Court and failing to fully comply with each Court order.6 20 Based on the foregoing, the Court finds that non-monetary and monetary sanctions 21 intended to vindicate the Court’s authority and deter future conduct are appropriate. See 22 23 24 6 Moreover, as set forth above, Defendant did not comply with the Court’s ENE Order, 25 necessitating an Order to Show Cause. (ECF No. 15.) Defendant also failed to comply with the Court’s Order setting the Mandatory Settlement Conference (“MSC”), first by 26 failing to timely lodge its MSC brief and participant information, and then by failing to 27 appear at the MSC with a party representative with full settlement authority. (ECF Nos. 57, 60.) Additionally, Defendant failed to timely pay a Court-ordered sanction, which led 28 1 Mereu, 2026 WL 1490135, at *14 (citing Fleming & Assocs. v. Newby & Tittle, 529 F.3d 2 631, 641 (5th Cir. 2008) (“[D]istrict courts retain the ability to police their own rules 3 through various punitive sanctions mechanisms, including issuing written opinions that 4 describe attorney misconduct. Such admonitions play an important role in discouraging 5 bad behavior by litigators . . . .”)). Thus, the Court finds punitive sanctions appropriate. 6 See HM Elecs., Inc. v. R.F. Techs., Inc., 171 F. Supp. 3d 1020, 1027 (S.D. Cal. 2016) (“[I]f 7 the sanction primarily aims to vindicate the authority of the court by punishing the 8 offending party, the sanction is punitive.”). 9 Pursuant to Local Civil Rule 83.1 and the Court’s inherent authority, the Court 10 sanctions Mr. Berwish and Mr. Tafur an additional $1,250.00 each for violating the Court’s 11 July 20 Order. 12 Pursuant to Local Civil Rule 2.2(e), the Court further refers Mr. Tafur to the 13 District’s Standing Committee on Discipline for consideration of his conduct in this case, 14 specifically his violations of the Court’s orders, the Federal Rules of Civil Procedure, and 15 his duty of candor to the Court, so the Committee may evaluate the propriety of Mr. Tafur’s 16 continued admission to practice in the Southern District of California and to determine 17 whether additional discipline is appropriate. This sanction is both necessary and 18 appropriate considering the magnitude of Mr. Tafur’s conduct at issue. 19 Lastly, the Court finds it appropriate to recommend that Mr. Berwish’s pro hac vice 20 admission be revoked for purposes of this case. Whether to grant or revoke pro hac vice 21 status is discretionary. See United States v. Ensign, 491 F.3d 1109, 1116 (9th Cir. 2007) 22 (citing Gallo v. U.S. Dist. Ct. For Dist. of Arizona, 349 F.3d 1169, 1185 (9th Cir. 2003)). 23 The Court’s inherent authority includes “the power to control admission to its bar and to 24 discipline attorneys who appear before it.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 25 (1991); see also Lasar v. Ford Motor Co., 399 F.3d 1101, 1118 (9th Cir. 2005) (revoking 26 pro hac vice status based on its power to control admission to its bar and to discipline 27 attorneys before it); Brooks v. Motsenbocker Advanced Devs., Inc., No. 07CV0773-MMA 28 (NLS), 2009 WL 10671895, at *3 (S.D. Cal. Mar. 2, 2009) (upholding revocation of pro 1 hac vice status where counsel misrepresented the parties’ and the court’s actions, engaged 2 in excessive and abusive motion practice, insulted the intelligence of the court and violated 3 the local rule prohibiting an attorney from degrading or impugning the integrity of the 4 court). “Pro hac vice counsel, once admitted, are entitled to notice and an opportunity to 5 respond before being disqualified and having their status revoked.” Cole v. U.S. Dist. Ct. 6 For Dist. of Idaho, 366 F.3d 813, 822 (9th Cir. 2004). 7 Here, Mr. Berwish was given notice and an opportunity to respond by way of the 8 Court’s August 20 Order to Show Cause and August 26 Show Cause hearing. As set forth 9 above, Mr. Berwish missed virtually every deadline in this case, failed to advise his client 10 to preserve evidence, and failed to diligently engage in discovery in good faith. Moreover, 11 as previously determined, Mr. Berwish violated his duty of candor to the Court. 12 Remarkably, after being on notice of the serious issues with his failure to comply with the 13 Court’s orders, Mr. Berwish failed to appear for the August 26 Show Cause hearing 14 because he apparently did not read the order that provided the Zoom information for that 15 hearing. (ECF No. 127.) Instead, Mr. Berwish informed the Court by declaration after the 16 hearing that he had called in using the August 19 Show Cause hearing Zoom information. 17 (Id.) The Court finds Mr. Berwish’s continued admission for purposes of this case would 18 impair the integrity of this case moving forward. Accordingly, the Court recommends that 19 Mr. Berwish’s pro hac vice status be revoked for purposes of this case. 20 E. Additional Attorney’s Fees and Costs 21 In addition to the foregoing sanctions, pursuant to Local Civil Rule 83.1 and the 22 Court’s inherent authority, the Court awards Plaintiff additional attorney’s fees and costs 23 related to Defendant’s failure to comply with the July 20 Order. Specifically, Plaintiff is 24 awarded the fees and costs incurred by Plaintiff in responding to Defendant’s failure to 25 comply with the July 20 Order, including, but not limited to, preparing for and attending 26 the Show Cause hearings. 27 /// 28 /// 1 IV. CONCLUSION AND RECOMMENDATION 2 For the foregoing reasons, the Court ORDERS as follows: 3 1. Pursuant to Local Civil Rule 83.1 and the Court’s inherent authority, 4 Philip R. Berwish and Mario P. Tafur, individually and severally, shall 5 EACH pay $3,250.00 to the Miscellaneous Fines, Penalties and Forfeitures, 6 Not Otherwise Classified, fund of the United States Treasury no later than 7 September 25, 2026. 8 2. Philip R. Berwish and Mario P. Tafur must EACH file a declaration of 9 compliance within three business days of payment attesting to payment in the 10 ordered amount to the Court. 11 3. Pursuant to California Business & Professions Code section 6068(o)(3), 12 Mario P. Tafur SHALL report the sanctions imposed by this Order to the 13 California State Bar no later than October 2, 2026. 14 4. The Court REFERS Attorney Mario P. Tafur to the Southern District of 15 California’s Standing Committee on Discipline pursuant to Local Civil Rule 16 2.2(e) to investigate Mr. Tafur’s fitness to practice law in this District and 17 determine whether additional sanctions are appropriate. 18 5. The Court further ADMONISHES Philip R. Berwish and Mario P. Tafur, as 19 well as the law firm Bulldog Law, P.C., that they MUST comply with the 20 applicable Federal Rules of Civil Procedure, Southern District of California’s 21 Local Civil Rules, the undersigned’s Chambers Rules, the District Judge’s 22 Chambers Rules, as well as all court orders. 23 6. The Clerk of the Court is directed to serve a copy of this Order on the State 24 Bar of California. 25 7. No later than September 21, 2026, Plaintiff shall file declaration(s) detailing 26 the fees and costs incurred by Plaintiff in responding to Defendant’s failure to 27 comply with the July 20 Order, including, but not limited to, preparing for and 28 attending the Show Cause hearings. 1 In addition, based on the foregoing, the Cour. RECOMMENDS that the District 2 || Judge issue an Order: 3 1. approving and adopting this Report and Recommendation; 4 2. finding Defendant had a duty to preserve its intake call recordings during the 5 pendency of this litigation and intentionally spoliated this evidence to deprive 6 Plaintiff from obtaining and using this information; 7 3. giving an adverse inference instruction at trial that the jury may infer that at 8 least some of Defendant’s intake call recordings may have been unfavorable 9 to Defendant, including as evidence of actual consumer confusion, with the 10 specific language of the instruction to be decided by the District Judge at the 11 pretrial conference; and 12 4. revoking the pro hac vice admission of Mr. Berwish for purposes of this case. 13 IT IS HEREBY ORDERED that, pursuant to 28 U.S.C. § 636(b)(1)(C), any party 14 || to this action may file written objections to the Report and Recommendation with the Court 15 serve a copy on all parties no later than September 22, 2026. The document should 16 captioned “Objections to Report and Recommendation.” 17 IT IS FURTHER ORDERED that if objections are filed, any reply is due by 18 || October 6, 2026. The parties are advised that failure to file objections within the specified 19 || time may waive the right to appeal the district judge’s order. Martinez v. Yist, 951 F.2d 20 1153, 1157 (9th Cir. 1991). 21 IT IS SO ORDERED. 22 || Dated: September 8, 2026 23 | 4.— 24 25 Hon. Guillermo Cabrera 46 United States Magistrate Judge 27 28 ah