Appeal of P.S. Docket MD-5 -- JOHN J. GUTIERREZ and RAMON A. BORRERO

In the Matter of a Mail Dispute Between: JOHN J. GUTIERREZ and RAMON A. BORRERO P.S. Docket MD-5 January 19, 1988

INITIAL DECISION

This mail dispute matter has been docketed pursuant to Domestic Mail Manual 153.72 which requires regional counsel to forward certain unresolved mail disputes to this department for decision. The mail in dispute is being held by the Postmaster at Manteca, CA. Both disputants have filed written submittals as required by 965.5 of the applicable Rules of Practice. Neither party has filed comments required by 965.6 which were due on January 5, l988.

FINDINGS OF FACT

1. Disputants are both requesting that mail addressed to Chiropractic Family Clinic, 243 North Sherman, Manteca, CA 95336, be forwarded to their respective addresses.

2. The submittals show that by contract of sale executed on May 1, l987, Dr. Borrero sold to Dr. Gutierrez his chiropractic practice at 243 North Sherman, Manteca, California, including the name Chiropractic Family Clinic under which the practice had been conducted by Dr. Borrero (see also Uniform Commercial Code - Financial Statement - Form UCC-1, dated 5-1-87).

3. The submittals also show that on August 31, l987, Dr. Gutierrez secured a business license from the City of Manteca to transact business as Chiropractic Family Clinic at the same address and on September 1, l987, filed with the County Clerk, County of San Joaquin, California a fictitious business name statement for doing business as Chiropractic Family Clinic at the same address.

4. Both disputants have filed suits in the Superior Court of the State of California in and for the County of San Joaquin alleging various breaches by the other of the contract of sale and a lease agreement covering premises at the address in question and asking for damages, injunctive relief, etc. As of the date of this decision there has not been filed with the recorder any order of the Superior Court in those actions which would resolve the instant mail dispute. It is not the purpose of this proceeding to decide any of the issues involved in the suits pending in that court.

CONCLUSIONS OF LAW

On the basis of the documentation filed by the parties, it is determined that disputant John J. Gutierrez has the right to use the name Chiropractic Family Clinic at 243 North Sherman, Manteca, CA, 95336 and the right to receive mail so addressed. The attached order should be issued.

                                   Quentin E. Grant 
                                   Chief Administrative Law Judge

ORDER

All mail addressed to Chiropractic Family Clinic at 243 North Sherman, Manteca, CA 95336 should be forwarded to John J. Gutierrez at 1308 Robinhood, Suite 20, Stockton, CA 95207.

James A. Cohen Judicial Officer