Answer: JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jan-30-2012 11:46 am

Case Number: CGC-11-514980
Filing Date: Dec-30-2011 11:45
Juke Box: 001 Image: 03472250
ANSWER

JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS

001003472250

Instructions:
Please place this sheet on top of the document to be scanned.Jessica R. Barsotti Esq. / SBN 209557
Eugene Zinovyev, Esq/ SBN 267245

kn Cx en San Francisco County Superior Court
510.530.4078
510.530.4725 / FAX DEC 302011

CLE! F THE COURT
Attorneys for Defendant/Cross-Complainant, BY: t Whe a
Dean Asimos and Drake Realty * Deputy Cler

ae

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
JASON EVERETE:THOMPSON and
WIRED REAL ESTATE GROUP, INC.
Plaintiffs,

Case No.: CGC-11-514980

ANSWER TO COMPLAINT
VS.
Assigned for all purposes to:
Department: 610
DEAN GREGORY ASIMOS, DBA DRAKE)
REALTY j
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Defendant.

DEAN GREGORY ASIMOS, DBA DRAKE
REALTY

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Plaintiff, }

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vs. }
JASON EVERETT THOMPSON and )
WIRED REAL ESTATE GROUP, INC. )
and DOES | through 50. }
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Cross-Defendants.

ASIMOS ANSWER TO COMPLAINT 1

aCOMES NOW DEFENDANT AND CROSS-COMPLAINANT DEAN G. ASIMOS,
dba Drake Realty, to answer the unverified allegations in the Complaint of Plaintiffs on file

herein as follows:

DENIAL OF GENERAL ALLEGATIONS

Under Code of Civil Procedure §431,30(d), in answering the allegations of the

Complainant on file herein, this answering Defendant and Cross Complainant deny each and

every allegation contained in said Complaint, all and singular, generally and specifically, and
each and every part: thereof and this answering Defendant further denies that Complainants have
been injured or damaged in any sum, or otherwise, or at all, by reason of any act, omission,
negligence or carelessness of this answering Defendant. Defendant has never used,
misappropriated, diluted, nor infringed on any interest of Plaintiffs.

Further, Plaintiff has improperly called the service mark “Wired Real Estate Group” a
trademark. Trademarks are used to indentify goods and not services under the Federal Lanham
Act, and therefore the Complaint fails to allege with particularity the service mark infringement.
Tn addition, Plaintiffs never used the service mark “Wired Real Estate Group” (“WREG”) in

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commerce prior to assigning use of the mark to Defendant and Cross-Complainant, and therefore

‘ietary interest in the mark.

AFFIRMATIVE DEFENSES

never gained any pro,

FIRST AFFIRMATIVE DEFENSE
(Failure to State Cause of Action)

That Complaint and each of the alleged causes of action fail to state facts sufficient to

constitute a cause of action against this answering Defendant.
* SECOND AFFIRMATIVE DEFENSE

(Statute of Limitations)

Each of the alleged causes of action stated in Complaint is barred by the applicable
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statute of limitations including, but not limited to, provisions of Subdivision 3, Section 340,

and/or Section 355.1 of the California code of Civil Procedure.

ASIMOS ANSWER TO COMPLAINT 2THIRD AFFIRMATIVE DEFENSE

(Comparative Negligence)

At all times #iéntioned in Complaint, the Plaintiffs so carelessly, recklessly and
negligently conducted and maintained themselves so as to cause and contribute in some degree to
the alleged incident and to the damages and injuries, if any, alleged to have been sustained by
said Plaintiffs and therefore said negligence completely bars any recovery or in the alternative, it
reduces the right of recovery by the amount said negligence contributed to this incident as set
forth under the doctrine of comparative negligence.

FOURTH AFFIRMATIVE DEFENSE
(Breach of the Covenant of Good Faith and Fair Dealing)

ed the implied covenant of good faith and fair dealing with respect to the

Agreement between Defendant/Cross-Complainant and Plaintiffs/ Cross-Defendants that is

attached to the Cross- Complaint in this matter as alleged in the Cross-Complaint on file herein.
FIFTH AFFIRMATIVE DEFENSE
(Unclean Hands)

Plaintiffs are guilty of unclean hands from the claims made by them against Defendant
and Cross-Complainant, based on their own fault and misconduct, and thus are barred from
prosecuting this suit and seeking the relief prayed for in their Complaint.

SIXTH AFFIRMATIVE DEFENSE
(Breach of Contract)

Bre

Plaintiffs breached their Agreement with Defendant/Cross-Complainant by failing to
abide by the express conditions in that contract, and are therefore barred from seeking the relief
prayed for in their Complaint,
SEVENTH AFFIRMATIVE DEFENSE
(Waiver, Estoppel, Consent)
The Complaint and each of its causes of action are barred by the doctrines of waiver,

estoppel and consent.

HWEIGHTH AFFIRMATIVE DEFENSE
(Apportionment)

If Plaintiffs suffered any losses, damages, injuries, and/or harm, such losses, harm,
damages and/or injuries were proximately caused, contributed to and/or initiated by persons
and/or entities other than the answering Defendant, and the liability of all Defendants named or
unnamed, should bi apportioned according to their relative degrees of fault, and the liability, if
any, of the answeririg’ Defendant should be reduced accordingly.

'_NINETH AFFIRMATIVE DEFENSE
(Allocation)

Under and pursuant to the terms of Civil Code Sections 1431.1 and 1431.5, Plaintiffs are
barred and precluded from recovery against this answering Defendant for any damages except
those allocated in direct proportion to the percentage of fault allocated to answering Defendant,
if any.

TENTH AFFIRMATIVE DEFENSE
(After-Acquired Evidence)

The Complaint and each of its causes of action are barred either in whole or in part by the
doctrine of after-acquired evidence.
ELEVENTH AFFIRMATIVE DEFENSE
(Laches)
The Complaint and each of its causes of action are barred by the doctrine of laches.
TWELFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)

The Complaint and each of its causes of action are barred either in whole or in part by Plaintiffs’

failure to mitigate their alleged damages.

THIRTEENTH AFFIRMATIVE DEFENSE
(Willful Misconduct)

The complaint and each of its causes of action are barred by Plaintiffs’ willful misconduct.

ASIMOS ANSWER TO COMPLAINT 4.., FOURTEENTH AFFIRMATIVE DEFENSE

(Failure to Gain Secondary Meaning)

The Complaint and each of its causes of action fail to establish a secondary meaning to the
descriptive service mark “WREG,” Without such secondary meaning the mark has no
protectable or proprietary value, and therefore Plaintiffs have failed to state facts sufficient to

state a cause of action for infringement.

WHEREFORE, Defendant and Cross-Complainant pray that Plaintiffs take nothing by

ak

; that Defendant/Cross-Complainant be awarded their costs of suit;

attorney’s fees, and for such other and further relief as the Court may deem proper.

Dated: November 30,2011

2 inovyev, Esq.
ofney for Defendant and Cross-Complainant,
DEAN G. ASIMOS dba Drake Realty

ASIMOS ANSWER TO COMPLAINT 5PROOF OF SERVICE BY MAIL

I, the undersigned, declare: ] am employed in the City of Oakland, County of Alameda
California; I am over the age of eighteen years and not a party to the within action. My
address is 5032 Woodminster Lane, Oakland, CA 94602

On November 30, 2011, 1 served, in the manner indicated below, the within:
Answer
Cross-Complaint
individually on the interested parties in said action by placing true copies thereof, enclosed in a
sealed envelope, addressed as follows:

Todd Norris

Bullivant Houser Bailey

601 California Street

Suite 1800

San Francisco, CA 94108-2823
(415) 352-2701

(Attorneys for Plaititift/Cross-Defendant)
ver
eH
x___ (By Regular __.. Express Mail) | caused such envelopes with postage thereon fully
prepaid to be'placed in the U.S. Mail at Oakland, California.

(By Certified Mail, Return Receipt Requested), | caused such envelope(s), with
postage thereon fully prepaid, and fees paid for certified mail and return of the
attached receipt to be placed in the U.S. Mail at Oakland, California.

(By Federal Express) 1 caused such envelope(s) to be delivered by hand to the
office(s) of the addressee(s).

(By Personal Delivery) I caused such envelope(s) to be delivered by hand to the
office of the addressee(s).

(By Facsimile and Subsequently by Mail) | caused such copies to be sent with the

I am readily: familiar with this firm's practice of collection and processing
correspondence for.mailing with the U.S. Postal Service; it is deposited with the U.S. Post
Service on that same day in the ordinary course of business.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on November 30, 2011, at Oakland, California.

Eugene Zinovyev, Esq.

PROOF OF SERVICE