Preview
THE LAW OFFICE OF JESSICA R. BARSOTTI
Jessica R. Barsotti Esq. / SBN 209557
5032 Woodminster Lane
Oakland, CA 94602
510.530.4078
510.530.4725 / FAX
Attorney for Defendant/Cross-Complainant,
Dean Gregory Asimos, dba Drake Realty
ELECTRONICALLY
FILED
Supertor Court of California,
County of San Francisco
09/14/2015
Clerk of the Court
BY:CAROL BALISTRERI
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
Plaintiffs,
vs.
DEAN GREGORY ASIMOS, DBA DRAKE
REALTY
Defendant.
REALTY
Cross-Complainant,
vs.
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
and DOES | through 50.
Cross-Defendants.
Case No.: CGC-11-514980
DEAN GREGORY ASIMOS’S
OPPOSITION TO MOTION FOR AN
ORDER TO SHOW CAUSE RE
CONTEMPT
DATE: September 24, 2015
TIME: 9:30am.
DEPT: 206
1
DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTINTRODUCTION
The Court of Appeals is due to set a hearing regarding the appeal in this case any day, yet
Plaintiff is attempting to enforce this non-final judgement through threats of criminal prosecution in the
form of contempt of court. No one is fooled. Plaintiff has filed this frivolous and meritless motion for an
order to show cause re contempt against defendant Dean Asimos in another attempt to harass, vex and
drain the resources of this litigant, nothing more.
The Plaintiff has filed this motion attempting to enforce an order that is currently under appeal
with the court of appeals and, as such, the enforcement of the claimed order has been stayed and is
unenforceable by this court. In an egregious attempt to mislead this Court, Plaintiff fails to even mention|
the pending appeal in this complex case and is wrongfully attempting to enforce this stayed judgment.
Due to the wrongful, vexatious and frivolous nature of this motion, and the clear attempt to mislead this
Court regarding it’s jurisdiction over this matter during this appeal, Plaintiff and his counsel should be
sanctioned and be ordered to pay attorney’s fees in the amount of $2400.00 under CCP 128.5 for
wasting the court’s time and forcing Mr. Asimos to responding to this nonsense.
Further, Defendant’s counsel is on calendar in Department 19 in Alameda County on September
24, 2015 at 9:00am for a Motion for Summary Adjudication, and thus this hearing date creates a conflict
for counsel. Defendant asks that the hearing date be moved to the following week of September 28,
2015 to accommodate the schedule of counsel.
BACKGROUND
This case went to a bench trial in October 2012 before Honorable Wallace Douglass. There were
several; causes of action and defendant filed a cross-complaint for damages. There was a two week trial.
For an unknown reason a judgment was not entered until many months later on August 2013 and the
judgment was in favor of Plaintiff. The judgment contained numerous errors and problems with
2
DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTdamages calculations.
Defendant duly filed and perfected an appeal on October 23, 2013. That appeal addresses many
issues in the case, containing 18 appealable issues, including the mandatory injunction and the
ownership of the approximately $100,000 held in trust with Carr, McClellan which Plaintiff has been
attempting to wrestle away for himself for many months, this motion being the latest in these
shenanigans. This appeal is pending in the 1" Appellate District, Case Number A140096. Opposing
counsel is the attorney handling this appeal on behalf of Plaintiff and is well aware of the pending
decision there. The Appeal has been fully briefed and the parties have requested oral argument. No date
for argument has yet been set. See Declaration of Jessica R. Barsotti, Exhibit A (filed herewith). As
such, this judgment is not final, is clearly unenforceable, and has been stayed.
ARGUMENT
A. A Judgment on Appeal is Not Enforceable and Refusal to Comply Cannot be the Basis for
Contempt
It is well established that a refusal to comply with an order of the court, pending an appeal that stays
proceedings, does not constitute contempt. Ruggles v. Superior Court of City and County of San
Francisco, 103 Cal. 125, 37 P. 211 (1894) (administrator refusing to pay a family allowance pending
appeal from an order granting such an allowance); Ex parte Orford, 102 Cal. 656, 36 P. 928 (1894).
B. A Mandatory Injunction Cannot be Enforced Pending Appeal
While statute seems to limit definition of injunction to prohibitory injunctions, an injunction may
also be a "mandatory injunction," compelling the performance of an affirmative act, such that
"injunction" may be more completely defined as a writ or order commanding a person either to perform
or to refrain from performing a particular act. Cal. Civ. Proc. Code § 525. People v. Brewer, 235 Cal.
3
DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTApp. 4th 122, 2015 WL 1137884 (3d Dist. 2015). With regard to the effect of an appeal from an
injunction, a distinction is drawn between a mandatory injunction and a prohibitory injunction. A
mandatory injunction cannot be enforced pending a duly perfected appeal. Consequently, a court has no
authority to punish disobedience of such an order by contempt proceedings. Byington v. Superior Court
of Stanislaus County, 14 Cal. 2d 68, 92 P.2d 896 (1939); Clute v. Superior Court in and for City and
County of San Francisco, 155 Cal. 15, 99 P. 362 (1908); Ex parte Donovan, 94 Cal. App. 2d 399, 210
P.2d 860 (2d Dist. 1949). Here, this is precisely the case. Plaintiff is attempting to enforce a mandatory
injunction when the matter is on appeal and thus this Court does not have jurisdiction. See Declaration
of Jessica R. Barsotti (filed herewith).
Affirmative relief is available by way of mandatory injunction, which commands affirmative
action by the defendant. United Railroads of San Francisco v. Superior Court in and for City and County
of San Francisco, 172 Cal. 80, 155 P. 463 (1916); Central Valley General Hosp. v. Smith, 162 Cal. App.
4th 501, 75 Cal. Rptr. 3d 771 (Sth Dist. 2008). The purpose of a mandatory injunction is to compel the
performance of a substantive act or a change in the relative positions of the parties. An injunction is
mandatory in effect if its enforcement would be to change the position of the parties and compel them to
act in accordance with the judgment rendered. Musicians Club of Los Angeles v. Superior Court In and
For Los Angeles County, 165 Cal. App. 2d 67, 331 P.2d 720 (2d Dist. 1958). In particular, when an
injunction directly or indirectly grants affirmative relief, it is mandatory. Ohaver v. Fenech, 206 Cal.
118, 273 P. 555 (1928). It is mandatory if its effect is to compel the performance of a substantive act
Mark v. Superior Court of City and County of San Francisco, 129 Cal. 1, 61 P. 436 (1900) (injunction
prohibiting use of certain textbooks and commanding use of others is mandatory in main purpose;
prohibitory provision is subordinate to mandatory provision and inseparably connected therewith).
4
DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTor if it necessarily contemplates a change in the relative positions or rights of the parties at the time the
injunction is granted or the decree is entered.) Mark v. Superior Court of City and County of San
Francisco, 129 Cal. 1, 61 P. 436 (1900); Ambrose v. Alioto, 62 Cal. App. 2d 680, 145 P.2d 32 (4th Dist.
1944). 38 Cal. Jur. 3d Injunctions § 9.
C. Sanctions Are Appropriate Against Plaintiff and his Attorney
Plaintiff has wrongfully filed this motion for a frivolous and vexatious purpose, knowing that the
arguments put forth are without merit AND intentionally concealing the information regarding the
appeal in this matter in an attempt to mislead this Court. This motion comes from a seasoned attorney,
who himself is handling the appeal of the very judgement at issue. This attorney and his client are
threatening criminal prosecution against Asimos for not endorsing enforcement of a knowingly
unenforceable mandatory injunction. If this isn’t frivolous and in bad faith, I don’t know what is.
Effective January 1, 2015, in all civil cases, the judge may order a party or counsel, or both, to pay
the reasonable expenses, including attorney fees, incurred by the other party “as a result of bad-faith
actions or tactics that are frivolous or solely intended to cause unnecessary delay.” CCP § 128.5(a
(emphasis added). “Actions or tactics” sanctionable under CCP § 128.5 specifically include: making or
opposing motions (CCP § 128.5(b)(1)). “Frivolous” means either, “totally and completely without
merit”; or “for the sole purpose of harassing an opposing party.” CCP § 128.5(b)(2) (emphasis added).
“When a tactic or action utterly lacks merit, a court is entitled to infer the party knew it lacked merit
yet pursued the action for some ulterior motive.” Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th
1500, 1505, 29 CR2d 903, 906; Abbett Elec. Corp. v. Sullwold (1987) 193 Cal.App.3d 708, 713, 238
CR 496, 499. Here, the attempt by Plaintiff and his counsel to pursue criminal sanctions in the form of
contempt for a clearly unenforceable mandatory injunction is a tactic that is an abuse of our legal system|
5
DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTand should be punished by the court. This is precisely the behavior by counsel that the recent
amendments to this code section were meant to deter. Everyone is sick of this kind of thing.
“Section 128.5 permits the trial court to impose sanctions ... (if) the opposing party's action or tactic
was (1) totally and completely without merit, measured by the objective, reasonable attorney standard,
or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective
standard.” Weisman v. Bower (1987) 193 CA3d 1231, 1236, 238 CR 756, 759 (emphasis and
parentheses added; internal quotes omitted); Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185
Cal.App.3d 1170, 1177, 230 CR 289, 292—finding that plaintiff “knew or should have known” facts
and law precluded action, held sufficient; see also Bach v. McNelis (1989) 207 Cal.App.3d 852, 876.
Here we have BOTH a total lack of merit AND a clear intention to harass, thus sanctions should be
awarded to Defendant.
CONCLUSION
This motion for an order to show cause re contempt is completely without merit and both
Plaintiff and his counsel know this. These litigants are attempting to enforce a judgment they will likely
lose on appeal in an attempt to gain advantage over defendant and deprive him of these funds that he
will likely be entitled to after the decision on the appeal. As such, Plaintiff and his counsel should be
sanctioned in the amount of $2400.00. OV
Date: Y-(p AT
Jessica ore
Attorney for ne ndant and Cross-Complainant, DEAN G.
ASIMQS dba Drake Realty
6
DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPT
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THE LAW OFFICE OF JESSICA R. BARSOTTI Jessica R. Barsotti Esq. / SBN 209557 5032 Woodminster Lane Oakland, CA 94602 510.530.4078 510.530.4725 / FAX Attorney for Defendant/Cross-Complainant, Dean Gregory Asimos, dba Drake Realty ELECTRONICALLY FILED Supertor Court of California, County of San Francisco 09/14/2015 Clerk of the Court BY:CAROL BALISTRERI Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. Plaintiffs, vs. DEAN GREGORY ASIMOS, DBA DRAKE REALTY Defendant. REALTY Cross-Complainant, vs. JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. and DOES | through 50. Cross-Defendants. Case No.: CGC-11-514980 DEAN GREGORY ASIMOS’S OPPOSITION TO MOTION FOR AN ORDER TO SHOW CAUSE RE CONTEMPT DATE: September 24, 2015 TIME: 9:30am. DEPT: 206 1 DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTINTRODUCTION The Court of Appeals is due to set a hearing regarding the appeal in this case any day, yet Plaintiff is attempting to enforce this non-final judgement through threats of criminal prosecution in the form of contempt of court. No one is fooled. Plaintiff has filed this frivolous and meritless motion for an order to show cause re contempt against defendant Dean Asimos in another attempt to harass, vex and drain the resources of this litigant, nothing more. The Plaintiff has filed this motion attempting to enforce an order that is currently under appeal with the court of appeals and, as such, the enforcement of the claimed order has been stayed and is unenforceable by this court. In an egregious attempt to mislead this Court, Plaintiff fails to even mention| the pending appeal in this complex case and is wrongfully attempting to enforce this stayed judgment. Due to the wrongful, vexatious and frivolous nature of this motion, and the clear attempt to mislead this Court regarding it’s jurisdiction over this matter during this appeal, Plaintiff and his counsel should be sanctioned and be ordered to pay attorney’s fees in the amount of $2400.00 under CCP 128.5 for wasting the court’s time and forcing Mr. Asimos to responding to this nonsense. Further, Defendant’s counsel is on calendar in Department 19 in Alameda County on September 24, 2015 at 9:00am for a Motion for Summary Adjudication, and thus this hearing date creates a conflict for counsel. Defendant asks that the hearing date be moved to the following week of September 28, 2015 to accommodate the schedule of counsel. BACKGROUND This case went to a bench trial in October 2012 before Honorable Wallace Douglass. There were several; causes of action and defendant filed a cross-complaint for damages. There was a two week trial. For an unknown reason a judgment was not entered until many months later on August 2013 and the judgment was in favor of Plaintiff. The judgment contained numerous errors and problems with 2 DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTdamages calculations. Defendant duly filed and perfected an appeal on October 23, 2013. That appeal addresses many issues in the case, containing 18 appealable issues, including the mandatory injunction and the ownership of the approximately $100,000 held in trust with Carr, McClellan which Plaintiff has been attempting to wrestle away for himself for many months, this motion being the latest in these shenanigans. This appeal is pending in the 1" Appellate District, Case Number A140096. Opposing counsel is the attorney handling this appeal on behalf of Plaintiff and is well aware of the pending decision there. The Appeal has been fully briefed and the parties have requested oral argument. No date for argument has yet been set. See Declaration of Jessica R. Barsotti, Exhibit A (filed herewith). As such, this judgment is not final, is clearly unenforceable, and has been stayed. ARGUMENT A. A Judgment on Appeal is Not Enforceable and Refusal to Comply Cannot be the Basis for Contempt It is well established that a refusal to comply with an order of the court, pending an appeal that stays proceedings, does not constitute contempt. Ruggles v. Superior Court of City and County of San Francisco, 103 Cal. 125, 37 P. 211 (1894) (administrator refusing to pay a family allowance pending appeal from an order granting such an allowance); Ex parte Orford, 102 Cal. 656, 36 P. 928 (1894). B. A Mandatory Injunction Cannot be Enforced Pending Appeal While statute seems to limit definition of injunction to prohibitory injunctions, an injunction may also be a "mandatory injunction," compelling the performance of an affirmative act, such that "injunction" may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. Cal. Civ. Proc. Code § 525. People v. Brewer, 235 Cal. 3 DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTApp. 4th 122, 2015 WL 1137884 (3d Dist. 2015). With regard to the effect of an appeal from an injunction, a distinction is drawn between a mandatory injunction and a prohibitory injunction. A mandatory injunction cannot be enforced pending a duly perfected appeal. Consequently, a court has no authority to punish disobedience of such an order by contempt proceedings. Byington v. Superior Court of Stanislaus County, 14 Cal. 2d 68, 92 P.2d 896 (1939); Clute v. Superior Court in and for City and County of San Francisco, 155 Cal. 15, 99 P. 362 (1908); Ex parte Donovan, 94 Cal. App. 2d 399, 210 P.2d 860 (2d Dist. 1949). Here, this is precisely the case. Plaintiff is attempting to enforce a mandatory injunction when the matter is on appeal and thus this Court does not have jurisdiction. See Declaration of Jessica R. Barsotti (filed herewith). Affirmative relief is available by way of mandatory injunction, which commands affirmative action by the defendant. United Railroads of San Francisco v. Superior Court in and for City and County of San Francisco, 172 Cal. 80, 155 P. 463 (1916); Central Valley General Hosp. v. Smith, 162 Cal. App. 4th 501, 75 Cal. Rptr. 3d 771 (Sth Dist. 2008). The purpose of a mandatory injunction is to compel the performance of a substantive act or a change in the relative positions of the parties. An injunction is mandatory in effect if its enforcement would be to change the position of the parties and compel them to act in accordance with the judgment rendered. Musicians Club of Los Angeles v. Superior Court In and For Los Angeles County, 165 Cal. App. 2d 67, 331 P.2d 720 (2d Dist. 1958). In particular, when an injunction directly or indirectly grants affirmative relief, it is mandatory. Ohaver v. Fenech, 206 Cal. 118, 273 P. 555 (1928). It is mandatory if its effect is to compel the performance of a substantive act Mark v. Superior Court of City and County of San Francisco, 129 Cal. 1, 61 P. 436 (1900) (injunction prohibiting use of certain textbooks and commanding use of others is mandatory in main purpose; prohibitory provision is subordinate to mandatory provision and inseparably connected therewith). 4 DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTor if it necessarily contemplates a change in the relative positions or rights of the parties at the time the injunction is granted or the decree is entered.) Mark v. Superior Court of City and County of San Francisco, 129 Cal. 1, 61 P. 436 (1900); Ambrose v. Alioto, 62 Cal. App. 2d 680, 145 P.2d 32 (4th Dist. 1944). 38 Cal. Jur. 3d Injunctions § 9. C. Sanctions Are Appropriate Against Plaintiff and his Attorney Plaintiff has wrongfully filed this motion for a frivolous and vexatious purpose, knowing that the arguments put forth are without merit AND intentionally concealing the information regarding the appeal in this matter in an attempt to mislead this Court. This motion comes from a seasoned attorney, who himself is handling the appeal of the very judgement at issue. This attorney and his client are threatening criminal prosecution against Asimos for not endorsing enforcement of a knowingly unenforceable mandatory injunction. If this isn’t frivolous and in bad faith, I don’t know what is. Effective January 1, 2015, in all civil cases, the judge may order a party or counsel, or both, to pay the reasonable expenses, including attorney fees, incurred by the other party “as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” CCP § 128.5(a (emphasis added). “Actions or tactics” sanctionable under CCP § 128.5 specifically include: making or opposing motions (CCP § 128.5(b)(1)). “Frivolous” means either, “totally and completely without merit”; or “for the sole purpose of harassing an opposing party.” CCP § 128.5(b)(2) (emphasis added). “When a tactic or action utterly lacks merit, a court is entitled to infer the party knew it lacked merit yet pursued the action for some ulterior motive.” Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1505, 29 CR2d 903, 906; Abbett Elec. Corp. v. Sullwold (1987) 193 Cal.App.3d 708, 713, 238 CR 496, 499. Here, the attempt by Plaintiff and his counsel to pursue criminal sanctions in the form of contempt for a clearly unenforceable mandatory injunction is a tactic that is an abuse of our legal system| 5 DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPTand should be punished by the court. This is precisely the behavior by counsel that the recent amendments to this code section were meant to deter. Everyone is sick of this kind of thing. “Section 128.5 permits the trial court to impose sanctions ... (if) the opposing party's action or tactic was (1) totally and completely without merit, measured by the objective, reasonable attorney standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard.” Weisman v. Bower (1987) 193 CA3d 1231, 1236, 238 CR 756, 759 (emphasis and parentheses added; internal quotes omitted); Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1177, 230 CR 289, 292—finding that plaintiff “knew or should have known” facts and law precluded action, held sufficient; see also Bach v. McNelis (1989) 207 Cal.App.3d 852, 876. Here we have BOTH a total lack of merit AND a clear intention to harass, thus sanctions should be awarded to Defendant. CONCLUSION This motion for an order to show cause re contempt is completely without merit and both Plaintiff and his counsel know this. These litigants are attempting to enforce a judgment they will likely lose on appeal in an attempt to gain advantage over defendant and deprive him of these funds that he will likely be entitled to after the decision on the appeal. As such, Plaintiff and his counsel should be sanctioned in the amount of $2400.00. OV Date: Y-(p AT Jessica ore Attorney for ne ndant and Cross-Complainant, DEAN G. ASIMQS dba Drake Realty 6 DEAN GREGORY ASIMOS OPPOSITION TO MOTION FOR OSC RE CONTEMPT