| Revised cover to The Teachings of Don Carlos by Corey Donovan The English translation of Victor Sanchez’s first book–The Teachings of Don Carlos: Practical Applications of the Works of Carlos Castaneda–was published by Bear & Company Publishing (“Bear”) in 1995. The book’s cover artwork looked a lot like one of Castaneda’s books–i.e., a sunset view over a desert scene, with a black silhouette of a shadowy man looking out over a windy road, and a crow or eagle flying overhead. The cover also gave prominence to Castaneda’s name across the middle of the book, identifying the actual author’s name in darker print in the bottom right-hand corner. On June 28, 1995, the three “Chacmools” issued a statement by way of the two Castaneda-related Internet mailing lists responding to complaints about the costs of the workshops. This statement asserted that, although Castaneda “had given lectures and demonstrations of Tensegrity for years without charging a cent . . . all he accomplished was to provide people like Victor Sanchez with vocabulary and ideas. Now, that gentleman teaches seminars in which he charges a fortune for teaching things that he claims were taught to him directly by Carlos Castaneda, with whom he said he has worked for years, assertions which are in no way true. Although Carlos Castaneda has given lectures for years, he has never taught anyone directly except us, the three chacmools.” On November 22, 1995, Castaneda, through his attorney Deborah Drooz, filed a complaint against Bear and Sanchez charging them with: (1) violation of section 43(a) of the Lanham Trademark Act; (2) violation of California statutes barring false or misleading advertising1; (3) unfair competition; (4) aiding and abetting/inducing conspiracy to violate the California statutes; and (5) fraud. Section 43(a) of the Lanham Act, the federal violation invoked in the complaint and the one for which treble damages can be recovered, bars the use in connection with goods or services of any “word . . . name, symbol, or device . . . or any false designation of origin . . . which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods . . . or commercial activities by another person.” On its face, the book cover presented a fairly good case for violation of this provision, since it appeared to have been designed to resemble a Castaneda book, and since Castaneda’s name was highlighted while Sanchez’s was minimized. It should be noted, however, that Castaneda’s lawsuit was not based on copyright, and that Castaneda never claimed that any part of Sanchez’s text infringed Castaneda’s copyrights by illegally appropriating any of Castaneda’s intellectual property. Since Castaneda’s claim based on the cover was a strong one, Bear chose not to fight it and instead settled with Castaneda in May 1996 for $11,000 and an agreement to change the cover and book advertising to less resemble the style of Castaneda’s books. This settlement, however, did not eliminate Sanchez as a defendant. Indeed, Sanchez had not yet even been served with the complaint, a prerequisite for giving the court jurisdiction to adjudicate a claim involving his interests. Over the next year and a half, Castaneda’s attorney continued to prosecute the case against Sanchez with a vengeance, suggesting to me that Castaneda and Co. might have been, at least to some extent, venting against Sanchez their general frustration against all the authors who had written books based in some way on Castaneda’s writings–i.e., Tomas, Merilyn Tunneshende, Ken Eagle Feather and Theun Mares–since the misleading cover of Sanchez’s book gave Castaneda the legal recourse that he lacked with respect to other authors. Sanchez was finally served with the complaint at his office in Mexico City sometime in early 1997 “[a]fter numerous attempts and much difficulty, pursuant to the Inter-American Convention of Letters Rogatory and Additional Protocol.” Sanchez did not immediately respond to the complaint. Later that same month, however, a New Mexico lawyer, Charles Aspinwall, contacted Deborah Drooz stating that he represented Sanchez. Discussions between the two lawyers regarding settlement, however, were fruitless. Sanchez later retained another counsel, James Blancarte, in July 1997. Drooz went ahead and filed a request for entry of default on July 22, 1997, serving it by mail on Sanchez and Aspinwall, and faxing a copy to Aspinwall. This filing requested no damages, but showed filing fees, process server’s fees, and various overhead expenses of $4,060.21. The trial court entered a default against Sanchez on July 24, 1997, for failure to file a written response to the complaint, although Blancarte was on hand to represent Sanchez at that hearing. On October 2, Sanchez was served with documents on behalf of Castaneda requesting judgment in the sum of $714,429.74, including interest, costs and attorney fees. On November 3, 1997, Sanchez filed a motion to set aside the entry of default, based on the alternative grounds of client and/or attorney error, inadvertence or excusable neglect under California procedural law. Sanchez’s motion set out Blancarte’s verison of numerous contacts he claimed to have had with Drooz (e.g., a courtroom clerk told another attorney at Blancarte’s firm that no default had been filed and the matter had been settled. The default had been filed the day before with the default clerk but had not yet reached the courtroom, and the courtroom clerk was referring to the Bear settlement.) Aspinwall also claimed he and Drooz had discussed settlement over a period of time and that they had “agreed that it would not be necessary for Sanchez to file a response to the Complaint.” Sanchez admitted having received mailed papers in November 1996. From discussions between Aspinwall and Drooz, Sanchez thought “it was agreed that it would not be necessary for me to file a response to the Complaint.” He claimed he was not trying to evade service. Drooz claimed she had repeatedly told Aspinwall that settlement would have to be reached by mid-July or she would be forced to seek default, since the court had stated its intention to dismiss the case on July 24.On November 25, 1997, the trial court denied Sanchez’s motion on the ground that his default “resulted, not from neglect (excusable or otherwise) but from defendant’s apparent decision not to respond to the complaint. Nothing in the defendant’s declaration, or in that of his attorney(s) suggests that the failure to respond was a mistake or based on neglect.” The court noted that Sanchez had known of the lawsuit for a long period of time during which he did nothing to protect his interests. The court also found the motion untimely, no explanation having been offered for waiting more than three months to seek relief. That same day Sanchez filed another motion to set aside the default on the grounds: (1) the default was improperly entered without service on him of Castaneda’s statement of damages; (2) Castaneda requested a default judgment seeking greater relief than that demanded in the complaint; and (3) Sanchez had defenses which, if proven, would establish his nonliability. At that point, Castaneda’s damages demand exceeded $700,000.In response, Drooz filed a request to modify the default request, seeking $100,000 in damages, plus approximately $13,000 in interest, costs and attorney fees.On December 18, 1997, a different judge denied the motion to set aside the default and concluded that Sanchez had been adequately notified by the complaint that damages could exceed $100,000. Castaneda was then ordered to file an amended request for judgment in the amount of $100,000 or less, supported by appropriate evidence. On January 28, 1998, Sanchez filed a “renewal” of his motion to set aside entry of default and, if applicable, any default judgment. This motion was based “on the grounds that new facts and law exist than were presented at the time of his prior motion . . .. ” The new facts and law consisted in asking the court to (1) invoke its equitable jurisdiction independent of California procedural law; (2) consider the Bear/Castaneda settlement agreement, reached in May 1996; and (3) “further consider” the effect of Sanchez’s general appearance at the July 24, 1997, hearing. On February 18, 1998, the court denied the motion on the ground Sanchez had “raised no facts, law or circumstances which either were not previously presented in his two motions to set aside the default or could not have been raised in those motions.” The court then set a hearing for sanctions against Sanchez’s counsel for bringing the redundant motion. On March 5, 1998, Drooz filed numerous supporting declarations aimed at proving Castaneda’s “damages” against Sanchez. Many of these declarations dealt primarily with Sanchez’s alleged conduct at his small workshops, held in Mexico and other countries. These included a declaration by Castaneda that states: “Because Sanchez conducts activities at his seminars that pose a danger to life and limb (e.g., directing participants to walks dangerously close to precipices, burying participants in desert sand, etc.) I fear that I might be sued if anyone is injured during such activities. Further, Sanchez’s wrongful diversion of participants away from the Cleargreen seminars is a constant drain on my business activities that will undoubtedly continue unless enjoined.” Another declaration by Francisco Victor Bringas, a former Sanchez workshop participant, claimed, “I stopped attending Mr. Sanchez’s seminars because I came to know Mr. Sanchez as an egocentric person who took advantage of his magnetism with women. Specifically, I noticed that individuals and couples suffered psychological harm when Mr. Sanchez would use his charisma to seduce married and single women, although he never forced them.” A Georgina Silva also signed a declaration that claimed, “I stopped attending Sanchez’s seminars because some of the exercises he taught made me feel uncomfortable. For example, he would instruct everyone to sit on the floor and turn off the lights so that it was very dark. Then he would tell us to reach out and touch each other. This made me feel violated. I couldn’t understand how such an exercise could come from the teachings of Carlos Castaneda.” On March 6, 1998, the court declined to impose sanctions against Sanchez, but ordered a judgment after default against him. Damages were awarded in the amounts requested in Castaneda’s modified request. The court also issued an injunction, preventing use of the original cover artwork of Sanchez’s book, or using the name “Carlos Castaneda” to suggest affiliation or for promotional purposes or to suggest an student/teacher relationship or personal acquaintance. Sanchez appealed from this judgment, claiming that his failure to file a timely response was the result of mistake, inadvertence or excusable neglect, and that he was therefore entitled to discretionary relief. He also claimed that the default judgment was void as a matter of law because it exceeded the relief demanded in the complaint, and asserted that he had a defense to the complaint. The appellate court, in an unpublished order filed July 21, 1999, rejected all these claims and affirmed the default judgment. As is typical, the court refused to reweigh the trial court’s factual findings in rejecting Sanchez’s explanations for the delay and accepting Drooz’s version of events. The appeals court also affirmed the trial court’s finding that Sanchez had received sufficient notice from the original complaint that Castaneda’s claim could exceed $100,000. One moral of this story is that if you fail to succeed in avoiding service of a complaint, you have a lot to lose, and nothing to gain, by failing to formally respond to it on a timely basis. California courts do not look kindly on defendants who obstruct the orderly process of justice by simply failing to respond to complaints, and it is not at all unusual for them to impose significant penalties on those who fail to avail themselves of the usual procedures for contesting lawsuits. In this light, it is inconceivable that Sanchez’s initial lawyer would not have advised him to file a response after service of the complaint was finally made on him. Nonetheless, one can also seriously question Castaneda’s conduct in first bringing the action on the basis of a misleading book cover, and then, following his settlement with the publisher, pursuing the case vendetta-style against the author for damages amounting to seventy times what he settled for with the publisher, based in part on brand new allegations about Sanchez’s conduct at small workshops. —– Footnote 1. The California statutes cited in Castaneda’s complaint against Bear and Sanchez included Business and Professions Code section 17500. Section 17500 reads, in pertinent part: “It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to . . . perform services . . . or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto . . . in any . . . publication, or any advertising device, . . . or in any other manner or means whatever, any statement, concerning such . . . services . . . or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading . . . . Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or both.” This statute is an ironic choice because it is arguably one that Cleargreen itself has violated many times by advertising lectures at workshops by “the three female disciples of don Juan,” when the evidence increasingly indicates that none of the three so-called “Witches” likely had any contact with Castaneda’s claimed Yaqui informant. Cleargreen may also have violated this provision in other minor ways, e.g., by claiming that passes taught at some of the workshops (and which receive a chapter in the book Magical Passes) were taught to the “Blue Scout” by don Juan, when the real-life chronology of the woman identified as the “Blue Scout” shows that it would not have been possible for her to meet don Juan before his claimed departure from the world. |
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