Westlake Village etc. Medical Clinic v. Howell HealthCare CA2/6

Filed 5/29/14 Westlake Village etc. Medical Clinic v. Howell HealthCare CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

WESTLAKE VILLAGE URGENT CARE, 2d Civil No. B250135 OCCUPATIONAL AND FAMILY (Super. Ct. No. 56-2013-434320- MEDICAL CLINIC, INC., CU-BT-VTA) (Ventura County) Plaintiff and Appellant,

v.

HOWELL HEALTHCARE, INC., et al.,

Defendants and Respondents.

For over 25 years, Howell HealthCare, Inc. (Howell Inc.), Howell Healthcare, LLC (Howell LLC) and Michael Andrew Howell, M.D. (collectively respondents) and their predecessors have operated a medical clinic in Westlake Village named "Westlake Urgent Care." For the past 13 years, appellant Westlake Village Urgent Care, Occupational and Family Medical Clinic, Inc., and its predecessor have operated a similar clinic called "Westlake Village Urgent Care." In 2013, appellant sued respondents to prevent them from using "Westlake Urgent Care" as a fictitious business name. Appellant contends the trial court abused its discretion by denying a preliminary injunction. The record, however, does not disclose the basis for the denial. The court orally stated its reasons at the hearing, but appellant did not provide a reporter's transcript or suitable substitute. Based on the limited record

presented, we conclude the trial court, in balancing the harm to be suffered, if any, and the equities of the parties, did not abuse its discretion by denying the requested relief. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 1987, Dr. Aziz Ghaussy founded an urgent care clinic called "Westlake Urgent Care," at 3180 Willow Lane in Westlake Village. He filed a fictitious business statement in that name. Dr. Ghaussy and his brother operated Westlake Urgent Care at that address until September 2012. At that time, Dr. Ghaussy transferred the business name and telephone number to Dr. Howell, who began operating the clinic at the same address, without an interruption in service. Howell LLC filed a fictitious business name statement for "Westlake Urgent Care." At present, Howell LLC's status with the Secretary of State is listed as "canceled." In approximately 2000, appellant's predecessor began operating an urgent care clinic in Westlake Village under the name "Westlake Village Urgent Care." When appellant assumed that business in 2005, it filed a fictitious business name statement. The clinic is located at 1220 La Venta Drive in Westlake Village. In April 2013, appellant filed a complaint for damages and injunctive relief to prevent respondents from using the name "Westlake Urgent Care." Respondents' counsel accepted service of the complaint on their behalf. The trial court denied appellant's request for a temporary restraining order (TRO), stating "[n]o urgency of matter is shown." It issued an order to show cause (OSC) and set a hearing on the request for preliminary injunction. Appellant argued it was entitled to a preliminary injunction because it had established a "secondary meaning" in the name "Westlake Village Urgent Care." It also asserted it was "illegal" for defendants to operate a business under the fictitious name "Westlake Urgent Care" without complying with the fictitious business name statutes. Dr. Howell opposed the OSC. He contended the name "Westlake Village Urgent Care" was comprised of a geographic term, a description of services and words in common use,