Motion to Amend Judgment in JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS| Trellis.Law

On October 11, 2011 a Motion-Secondary was filed involving a dispute between Asimos, Dean Gregory, Thompson, Jason Everett, Wired Real Estate Group, Inc., and Asimos, Dean Gregory, Thompson, Jason Everett, for civil in the District Court of San Francisco County.

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1 STEPHAN E. KYLE (SBN 158075)
KYLE LAW CORPORATION
2 465 California Street, 5th Floor
San Francisco, CA 94104
Telephone: (415) 839-8100 ELECTRONICALLY
3
Facsimile: (415) 839-8189 FILED
4 Email: skyle@kylelaw.com Superior Court of California,
County of San Francisco

5 Attorneys for Plaintiffs 03/22/2024
JASON EVERETT THOMPSON and Clerk of the Court
BY: SANDRA SCHIRO
6 WIRED REAL ESTATE GROUP, INC. Deputy Clerk

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO
10

11 JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.,
12 CASE NO. CGC-11-514980
Plaintiffs,
13 MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
14 MOTION FOR AMENDMENT OF
DEAN GREGORY ASIMOS, dba DRAKE JUDGMENT____________________
15 REALTY,
[Code Civ. Proc. §§ 128(a)(4), 187]
16 Defendant.
DATE: April 23, 2024
17 TIME: 9:30 A.M.
AND RELATED CROSS-ACTION. DEPT: 302
18

20 I. INTRODUCTION
21 A. Background of Litigation and Bankruptcy Filing
22
Plaintiff Jason Everett Thompson (“Plaintiff” or “Thompson”) filed the present action against
23
Defendant Dean Asimos (“Defendant” or “Asimos”) on October 11, 2011 alleging various causes of
24
action arising out of the failed business relationship between them, including Trademark
25
Infringement, Unfair Competition (Lanham Act), Unfair Competition (Cal. Bus. & Prof. Code),
26
Kyle
27 Injury To Business Reputation, False Description, Breach Of Contract, and Declaratory Relief.
Law
Corporation
28 Defendant Asimos filed a counter-suit against Plaintiff in the San Francisco Action on November 30,

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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980
1 2011, alleging multiple claims for damages against Plaintiff, including Breach of Contract, Breach of
2 Good Faith and Fair Dealing, Accounting, Fraud and Concealment, and Constructive Trust.
3
[Declaration of Stephan E. Kyle (“Kyle Decl.”) submitted herewith and incorporated herein by
4
reference at ¶¶ 5-6].
5
Unbeknownst to Plaintiff, Defendant Asimos had filed a voluntary petition for Chapter 13
6
7 Bankruptcy in United States Bankruptcy Court for the Northern District of California, Case No. 11-

8 13214 on or about August 29, 2011 (the “Chapter 13 Petition”). [Kyle Decl. ¶ 7; Exh. 1]. After

9 the bankruptcy was disclosed, the parties entered into a stipulation filed with this Court and,
10 pursuant to subsequent order, the Plaintiff and Defendant were granted leave from the Bankruptcy
11
Code’s automatic stay to proceed to trial on Plaintiff’s complaint and Defendant’s cross-complaint.
12
[Kyle Decl. ¶ 8].
13
A bench trial was then held in this case over the course of several days in October of 2012.
14

15 Ultimately, judgment was entered against Defendant Asimos on August 23, 2013 in the amount of

16 $450,038 (business damages plus prejudgment interest) plus additional attorney’s fees in the

17 amount of $181,250 (the “Contract Attorney Fee Award”) and court costs in the amount of
18
$9,175.45 (collectively, the “Business Damages Judgment”). The Court also issued a Permanent
19
Injunction against Defendant requiring him to “sign immediately any documents reasonably
20
necessary to effectuate the distribution” of certain monies held in trust by an attorney to Plaintiff
21
and Defendant Asimos (the “Permanent Injunction”). [Kyle Decl., ¶ 9; Exhs. 2, 3, 4 and 5].
22

23 B. The Chapter 7 Conversion and Discharge Order

24 Defendant Asimos subsequently converted his Chapter 13 case to one under Chapter 7 on

25 October 10, 2013. [Kyle Decl. ¶ 10]. The Bankruptcy Court thereafter entered Defendant Asimos’
26 discharge on May 19, 2014 (the “Discharge”) and subsequently closed the main bankruptcy case on
Kyle
27
Law
Corporation
June 11, 2014. Asimos’ chapter 7 proceeding was determined to be a “no-asset” bankruptcy. [Kyle
28
Decl., ¶ 11; Exh. 6].
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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980
1 C. The Appeal of the Business Damages Judgment and the Attorney Fee Award

2 After the conversion of Defendant’s bankruptcy case to one under Chapter 7, Defendant’s
3 attorney appealed the Business Damages Judgment on October 23, 2013 (California Court of
4
Appeal, First Appellate District Court of Appeal Case No. A140096) (the “First Appeal”). [Kyle
5
Decl. ¶ 12].
6
On December 15, 2016, the California Court of Appeal filed its decision in the First Appeal,
7

8 which affirmed the Business Damages Judgment and Permanent Injunction, and remanded the case

9 to the trial court for further damages calculations with respect to the Business Damages Judgment.

10 In light of Defendant’s Chapter 7 discharge, further damages calculations with respect to the
11 Business Damages Judgment were moot and no further action was taken by this Court with respect
12
to the Business Damages Judgment. [Kyle Decl. ¶ 14].
13
The California Court of Appeal issued its remittitur in the First Appeal on February 22,
14
2017, and the decision of the Court became final, thereby restoring this Court’s jurisdiction over the
15

16 matter such that it could hear further motions filed by the parties in connection therewith. [Kyle

17 Decl. ¶ 15]. Shortly thereafter, on April 4, 2017, Plaintiff filed a motion for an award of attorneys’

18 fees and costs incurred in the First Appeal. Defendant filed a counter-motion seeking attorneys’
19
fees incurred by him in the First Appeal. [Kyle Decl. ¶ 16].
20
On June 7, 2017, this Court entered an order awarding further attorneys’ fees to Plaintiff in
21
connection with the First Appeal in the amount of $74,911.50 (the “First Appeal Fee Award”).
22
The trial court also denied the counter-motion filed by Defendant for requested attorneys’ fees
23

24 incurred in the First Appeal. [Kyle Decl. ¶ 17; Exh. 7].

25 D. The Contempt Proceedings and Contempt Judgment

26 Meanwhile, in August 2015, Plaintiff initiated contempt proceedings against Defendant
Kyle
Law
27 related to Defendant’s failure to comply with the requirements of the Permanent Injunction (the
Corporation
28
“Contempt Proceedings”). After multiple hearings before Presiding Judge Teri L. Jackson, this
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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980
1 Court entered its judgment of contempt against Defendant Asimos on November 13, 2015 and
2 subsequently ordered Mr. Asimos to pay reasonable attorneys’ fees in the amount of $62,785.37 to
3
Plaintiff (the “Contempt Judgment Fee Award”). [Kyle Decl. ¶¶ 18-20; Exhs. 8 and 9].
4
E. The Appeal of the Contempt Judgment Fee Award
5
Defendant then filed a second appeal (California Court of Appeal, First Appellate District
6
Court of Appeal Case No. A147960) on March 2, 2016 (the “Second Appeal”), challenging the
7

8 Contempt Judgment Fee Award. [Kyle Decl. ¶ 21].

9 The California Court of Appeal filed its decision on the Second Appeal on September 5,

10 2018, affirming the trial court’s February 24, 2016 Order. The Remittitur was issued on November
11 16, 2018. [Kyle Decl. ¶ 23].
12
Shortly thereafter, upon motion filed by Plaintiff, this Court entered an order on February 1,
13
2019, awarding further attorneys’ fees to Plaintiff in connection with the Second Appeal in the
14
amount of $55,808.00 (the “Second Appeal Fee Award”). [Kyle Decl. ¶ 24; Exh. 10].
15

16 F. The Bankruptcy Court Determination of Non-Dischargeability

17 In order to resolve the uncertainty surrounding the viability of Plaintiff’s various

18 judgments and post-judgment awards in light of Defendant’s Chapter 7 bankruptcy discharge,
19
Plaintiff and Defendant filed cross-motions for summary judgment in the Bankruptcy Court
20
Adversary Proceeding (Adversary Case No. 14-1018 CN) seeking an order and determination
21
regarding the scope of Defendant’s Chapter 7 bankruptcy discharge and its effect, if any, on the
22

23 Business Damages Judgment (including the Contract Attorney Fee Award), the First Appeal

24 Fee Award, the Contempt Judgment Fee Award, and the Second Appeal Fee Award. [Kyle
25 Decl. ¶ 25].
26
The Bankruptcy Court resolved this uncertainty on December 16, 2020, by way of entry
Kyle
Law
27
Corporation of its Revised And Final Order Partially Granting And Partially Denying Cross-Motions For
28

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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980
1 Summary Judgment. The Bankruptcy Court ruled that only the Business Damages Judgment and
2 $1,537 of the First Appeal Fee Award were discharged by Defendant’s Chapter 7 discharge. The
3
Bankruptcy Court expressly ruled that (i) $73,374 of the First Appeal Fee Award, (ii) the Contempt
4
Judgment Fee Award ($62,785.37), and (iii) the Second Appeal Fee Award ($55,808.20) are all
5
post-petition claims and are not subject to Defendant’s Chapter 7 discharge. [Kyle Decl. ¶ 26, Exh.
6
7 11].

8
For the reasons set forth herein, Plaintiff respectfully request that the Court grant this
9
Motion for Amendment of the Judgment and enter an Amended Judgment that reflects the
10
determinations of the Bankruptcy Court and incorporates the additional fee awards that were made
11
post-judgment (and associated accrued interest) that were not discharged in Defendant’s Chapter 7
12
bankruptcy.
13
II. THE COURT HAS INHERENT POWER TO AMEND ITS JUDGMENTS
14
Every court has the power to compel obedience to its judgments, orders, and process, and to
15
the orders of a judge out of court, in an action or proceeding pending therein. Cal. Code Civ. Proc.
16
§128(a)(4).
17
“When jurisdiction is, by the Constitution or this code, or by any other statute, conferred on
18
a court or judicial officer, all the means necessary to carry it into effect are also given; and in the
19
exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code
20
or the statute, any suitable process or mode of proceeding may be adopted which may appear most
21
conformable to the spirit of this code.” Cal. Code Civ. Proc. § 187.
22
Code Civ. Proc. § 187 has often served as the basis for amending a judgment, for example,
23
to add additional judgment debtors pursuant to the alter ego doctrine. The general rule is that a court
24
may amend its judgment at any time so that the judgment will properly reflect the orders of the
25
court. See, e.g., Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 148-149.
26
As shown in the Kyle Declaration filed and served herewith, (i) $73,374 of the First Appeal
Kyle
27
Law Fee Award, (ii) the Contempt Judgment Fee Award ($62,785.37), and (iii) the Second Appeal Fee
Corporation
28
Award ($55,808.20) were determined by the Bankruptcy Court to all be post-petition claims that are
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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980
1 not subject to Defendant’s Chapter 7 discharge. Accordingly, the Court should exercise its inherent

2 power to amend the judgment to include these post-judgment awards (and the accrued interested

3 associated therewith) and to reflect the credit against the original judgment amount that Defendant

4 benefits from as a result of the Chapter 7 bankruptcy discharge.

5 III. CONCLUSION
6 In view of the foregoing, Plaintiff Jason Everett Thompson respectfully requests an Order

7 amending the Judgment originally rendered/entered on August 23, 2013 for the reasons stated

8 herein and upon the facts set forth in the Declaration of Stephan E. Kyle and exhibits attached

9 thereto.

10 Respectfully submitted,

12 DATED: March 22, 2024 KYLE LAW CORPORATION
13
By:_________________________________
14 STEPHAN E. KYLE
Attorneys for Plaintiffs/Cross-Defendants
15 JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
16

26
Kyle
Law
27
Corporation
28

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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980
1 Thompson v. Asimos
San Francisco Superior Court Case No. CGC-11-514980
2
PROOF OF SERVICE
3

4 I, the undersigned, state:

5 I am a citizen of the United States. My business address is 465 California Street, 5th Floor,
San Francisco, California 94104. I am employed in the City and County of San Francisco. I am
6 over the age of eighteen years and not a party to this action. On the date set forth below, I served
7 the foregoing documents described as follows:

8 MEMORANDUM OF POINTS AND AUTHORITIES

9 on the following person(s) in this action by placing a true copy thereof enclosed in a sealed envelope
addressed as follows:
10
Jessica R. Barsotti, Esq. Joe Angelo, Esq.
11 LAW OFFICE OF JESSICA R. BARSOTTI GALE, ANGELO, & JOHNSON, P.C.
5032 Woodminster Lane 2999 Douglas Blvd, Suite 111
12 Oakland, CA 94602 Roseville, CA 95661-3828

13 Email: barsottilaw@gmail.com Email: JAngelo@GAJPLaw.com

14
[x] BY FIRST CLASS MAIL – I am readily familiar with my firm’s practice for collection and
15 processing of correspondence for mailing with the United States Postal Service, to wit, that
correspondence will be deposited with the United States Postal Service this same day in the
16 ordinary course of business. I sealed said envelope and placed it for collection and mailing
this date, following ordinary business practices.
17
[ ] BY PERSONAL SERVICE – Following ordinary business practices, I caused to be served,
18 by hand delivery, such envelope(s) by hand this date to the offices of the addressee(s).

19 [ ] BY OVERNIGHT MAIL – I caused such envelope to be delivered by a commercial carrier
service for overnight delivery to the office(s) of the addressee(s).
20
[ ] BY FACSIMILE – I caused said document to be transmitted by Facsimile machine to the
21 number indicated after the address(es) noted above.

22 [x] BY EMAIL – I caused said document to be transmitted by email, as an electronic file in
Adobe PDF format, to the email address indicated after the address(es) noted above.
23
I declare under penalty of perjury under the laws of the State of California that the foregoing
24 is true and correct and that this declaration was executed this date in San Francisco, California.
25 Dated: March 22, 2024
26
Kyle
GABRIEL M. CORPUZ
Law
27
Corporation
28

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MEMORANDUM OF POINTS AND AUTHORITIES
CGC-11-514980

Case Info

Judge

Richard B. Ulmer, Jr. Track Judge’s New Case

Case No.

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Document Filed Date

March 22, 2024

Case Filing Date

October 11, 2011

County

Parties

ASIMOS, DEAN GREGORY Appellant
ASIMOS, DEAN GREGORY Cross Complainant
ASIMOS, DEAN GREGORY Defendant
BARSOTTI, JESSICA R Attorney
BARSOTTI, JESSICA R Attorney for the Appellant
BARSOTTI, JESSICA R Attorney for the Defendant
DOE 1-100 Cross Defendant
KYLE, STEPHAN E Attorneys for Plaintiffs
KYLE, STEPHAN E Attorney for the Plaintiff
NORRIS, C.TODD Attorney
NORRIS, C.TODD Attorney for the Plaintiff
THOMPSON, JASON EVERETT Cross Defendant
THOMPSON, JASON EVERETT Plaintiff
THOMPSON, JASON EVERETT Respondent
WIRED REAL ESTATE GROUP, INC. Cross Defendant
WIRED REAL ESTATE GROUP, INC. Plaintiff
Christopher Norris Attorneys for Plaintiffs
Eugene Zinovyev Attorneys for Defendants
Norman Ronneberg Attorneys for Plaintiffs
Andrew Winetroub Attorneys for Plaintiffs
Edward Winchester Attorneys for Plaintiffs
Johanna Kwasniewski Attorney
William Gutierrez Attorney
Robert Bleicher Attorney
Mark Hudak Attorneys for Plaintiffs
Joseph Angelo Attorneys for Plaintiffs
Arlena Carrozzi Attorneys for Plaintiffs

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Motion-Secondary: JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS

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