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IOC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-06-2013 12:02 pm
Case Number: CGC-11-514980
Filing Date: May-30-2013 12:01
Filed by: VICKI MACK
Juke Box: 001 Image: 04082230
STATEMENT OF DECISION
JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS
001004082230
Instructions: /
Please place this sheet on top of the document to be scanned.24
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
JASON EVERETT THOMPSON and ) Case No.: CGC-11-514980
WIRED REAL ESTATE GROUP, INC. )
) PROPOSED STATEMENT
Plaintiffs, ) OF DECISION
)
)
vs.
)
DEAN GREGORY ASIMOS, dba DRAKE ;
REALTY, )
Defendant. }
)
AND RELATED CROSS ACTION )
)
INTRODUCTION
Most real estate agents deal with residential property or commercial property. Jason
Everett Thompson (Thompson) deals with the highly specialized kind of real estate needed to
house the hardware which makes the internet work. He does business under the name Wired
Real Estate Group. Initially, Wired Real Estate Group was a consulting business. Thompson
sold his advice and was paid an hourly rate, an activity not regulated by the California
Department of Real Estate (DRE). Thompson opined that his business would be more profitable
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25
if it included transactions regulated by the DRE in which Thompson would earn money through
commissions. California law requires a real estate agent to hold a license as a broker to collect
commissions. A real estate agent who holds only a real estate sales person’s license has to be
paid through a real estate broker who supervises the salesperson’s activities.
In 2008, Thompson did not have a real estate broker’s license. He was licensed
only as a salesperson. To be paid commissions he needed to associate with a licensed broker.
In May 2008 Thompson met Dean Gregory Asimos (Asimos). Asimos was a residential
real estate broker doing business as Drake Realty Services. The two men talked business. Their
talk yielded an agreement which was memorialized on a California Association of Realtors form
dated June 4, 2008. Asimos was to be the broker of record for Thompson’s transactions which
required a broker’s services and the two parties were to split commissions — 80% to Thompson
and 20% to Asimos. The contract expired by its terms on December 31, 2008. The parties
signed a new contract around March 2010, back dated to January 1, 2009. It was terminated in
May 2010. The new contract called for a different split of commissions — 85% to Thompson and
15% to Asimos. Both of the contracts contain a provision for the losing party to be liable for the
winning party’s attorney fees in the event of litigation.
THE PARTIES SUE EACH OTHER
In the end, the parties’ association did not work out. Thompson filed the instant
complaint against Asimos and Asimos cross complained against Thompson. The parties’
contentions are summarized below.
Both the first and second contract contain a recital that Asimos is “licensed as a real
estate broker by the State of California.” Thompson contends that this recital implicitly
constituted a promise by Asimos that Asimos would comply with the statutes and regulations
which regulate the activities of licensed real estate brokers. The court agrees.24
25
Thompson complains of alleged breaches by Asimos. The breach resulting in
measureable monetary harm is Asimos’ failure to register Thompson’s dba, Wired Real Estate
Group, with the Department of Real Estate. In early 2009, Thompson, using his Wired Real
Estate Group dba, closed a deal in which Thompson represented Astound Broadband LLC
(Astound), earning a commission of approximately $366,000. Astound refused to pay the
commission because it was earned under the name of Wired Real Estate Group, which had never
been registered with the DRE. Asimos and Thompson sued, naming Asimos as plaintiff because
the commission needed to be paid to him as licensed broker of record. To avoid the expense of
trial, the suit was settled for a payment of $155,000 by Astound. Because Thompson and
Asimos find themselves unable to agree on how to distribute the $155,000 it sits in the account
of William Gutierrez, the attorney who prosecuted the suit against Astound.
The parties have asked the court to issue a statement of decision which includes
directions for distribution of the $155,000 which Mr. Gutierrez holds. In an effort to satisfy the
parties’ request, the court reasons as follows. If the Astound transaction had gone smoothly,
distribution of the proceeds would have been governed by the parties’ second contract, calling
for 85% ($311,100)to Thompson. Asimos’ breach caused the transaction not to go smoothly. As
part of an effort to put Thompson in the situation he would be in were it not for Asimos’ breach,
Mr. Gutierrez should distribute the Astound funds which he holds entirely to Thompson, after
deduction for any fees and expenses to which Mr. Gutierrez and his law firm are entitled.
Wired Real Estate Group is an unregistered service mark owned by Thompson which
enjoys protection under the Lanham Act (15 U.S.C. § 1051). Asimos had Thompson’s
permission to represent to the public that he was associated with Wired Real Estate Group only
so long as that representation was accurate, but not after Asimos and Thompson had become
disassociated from each other. In this case, Asimos has continued to represent himself as being
associated with Wired Real Estate despite repeated requests that he stop. This persistence
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constitutes unfair competition under both the Lanham Act and California law (Bus. & Prof.
Code, § 17200), actionable if Asimos used Thompson’s mark in a way that was likely to cause
confusion. In this case, Asimos’ use of Thompson’s mark did cause confusion. Thompson
received multiple inquiries asking what relationship Asimos had with Wired Real Estate Group.
However, there is not enough evidence to calculate money losses to Thompson or gains to
Asimos, so money damages for service mark infringement will be a token amount. (See Ericson
v. Playgirl, Inc.(1977) 73 Cal.App3d 850, 859, 140 Cal.Rptr. 921; Hutcherson v. Alexander
(1968) 264 Cal.App.2d 126, 135, 70 Cal.Rptr. 366.)
Asimos asserts five theories of relief in his cross complaint, as follows. (1) Breach of
contract. Asimos complains that Thompson secretly carried out transactions in which Asimos
should have been included. The court has been presented with no credible evidence of such
secret transactions. (2) Breach of a covenant of good faith and fair dealing. Absent pleading and
proof of a special relationship between the parties, this theory of relief duplicates the breach of
contract theory of relief. No such special relationship exists in the present case. (3), (4), and (5)
Accounting, Fraud and Concealment, and Constructive Trust. To have viability, these theories of
relief, like the first two, require some credible evidence of concealment, and the court finds no
such credible evidence.
DISPOSITION
Judgment for Thompson and against Asimos in an amount which, when combined with
funds to be distributed from Mr. Gutierrez’s account, total $311,100, plus $250 token damages
for service mark infringement. Prejudgment interest to be calculated at the time of judgment.
The court further orders a permanent injunction prohibiting Asimos’ use in any way of the
service mark Wired Real Estate Group and similar marks such as WiredRE, and WREG, and
directing Asimos to cancel all of his registrations of the Wireless Real Estate Group mark and24
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similar marks. Thompson is to recover his costs of suit, including attorney fees to be determined
on noticed motion.
Asimos is to take nothing on his cross complaint and must bear his own costs, including
attorney fees. Thompson to prepare a proposed judgment.
Date: May 29, 2013
Vulboe » [Teas lo.
WALLACE P. DOUGLAAS
Superior Court Judge (Rétired)
Sitting on Assignment by the
Chairperson of the Judicial CouncilSUPERIOR COURT OF CALIFORNIA
County of San Francisco
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC., Case Number: CGC-11-514980
Plaintiff(s)
CERTIFICATE OF MAILING
vs. (CCP 1013a (4) )
DEAN GREGORY ASIMOS, dba DRAKE REALTY,
Defendant(s)
I, Vicki Mack, a Deputy Clerk of the Superior Court of the County of San Francisco,
certify that I am not a party to the within action.
On May 30, 2013, I served the attached PROPOSED STATEMENT OF DECISION by
placing a copy thereof in a sealed envelope, addressed as follows:
C. Todd Norris, Esq. Jessica R. Barsotti, Esq.
BULLIVANT HOUSER BAILEY PC LAW OFFICE OF JESSICA R. BARSOTTI
601 California Street, Suite 1800 5032 Woodminster Lane
San Francisco, CA 94108 Oakland, CA 94602
and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco,
CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and
mailing on that date following standard court practices.
Dated: May 30, 2013
Clerk Of The Court
we Orne —
Vicki Mack, Deputy Clerk
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IOC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-06-2013 12:02 pm Case Number: CGC-11-514980 Filing Date: May-30-2013 12:01 Filed by: VICKI MACK Juke Box: 001 Image: 04082230 STATEMENT OF DECISION JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS 001004082230 Instructions: / Please place this sheet on top of the document to be scanned.24 25 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION JASON EVERETT THOMPSON and ) Case No.: CGC-11-514980 WIRED REAL ESTATE GROUP, INC. ) ) PROPOSED STATEMENT Plaintiffs, ) OF DECISION ) ) vs. ) DEAN GREGORY ASIMOS, dba DRAKE ; REALTY, ) Defendant. } ) AND RELATED CROSS ACTION ) ) INTRODUCTION Most real estate agents deal with residential property or commercial property. Jason Everett Thompson (Thompson) deals with the highly specialized kind of real estate needed to house the hardware which makes the internet work. He does business under the name Wired Real Estate Group. Initially, Wired Real Estate Group was a consulting business. Thompson sold his advice and was paid an hourly rate, an activity not regulated by the California Department of Real Estate (DRE). Thompson opined that his business would be more profitable -l-24 25 if it included transactions regulated by the DRE in which Thompson would earn money through commissions. California law requires a real estate agent to hold a license as a broker to collect commissions. A real estate agent who holds only a real estate sales person’s license has to be paid through a real estate broker who supervises the salesperson’s activities. In 2008, Thompson did not have a real estate broker’s license. He was licensed only as a salesperson. To be paid commissions he needed to associate with a licensed broker. In May 2008 Thompson met Dean Gregory Asimos (Asimos). Asimos was a residential real estate broker doing business as Drake Realty Services. The two men talked business. Their talk yielded an agreement which was memorialized on a California Association of Realtors form dated June 4, 2008. Asimos was to be the broker of record for Thompson’s transactions which required a broker’s services and the two parties were to split commissions — 80% to Thompson and 20% to Asimos. The contract expired by its terms on December 31, 2008. The parties signed a new contract around March 2010, back dated to January 1, 2009. It was terminated in May 2010. The new contract called for a different split of commissions — 85% to Thompson and 15% to Asimos. Both of the contracts contain a provision for the losing party to be liable for the winning party’s attorney fees in the event of litigation. THE PARTIES SUE EACH OTHER In the end, the parties’ association did not work out. Thompson filed the instant complaint against Asimos and Asimos cross complained against Thompson. The parties’ contentions are summarized below. Both the first and second contract contain a recital that Asimos is “licensed as a real estate broker by the State of California.” Thompson contends that this recital implicitly constituted a promise by Asimos that Asimos would comply with the statutes and regulations which regulate the activities of licensed real estate brokers. The court agrees.24 25 Thompson complains of alleged breaches by Asimos. The breach resulting in measureable monetary harm is Asimos’ failure to register Thompson’s dba, Wired Real Estate Group, with the Department of Real Estate. In early 2009, Thompson, using his Wired Real Estate Group dba, closed a deal in which Thompson represented Astound Broadband LLC (Astound), earning a commission of approximately $366,000. Astound refused to pay the commission because it was earned under the name of Wired Real Estate Group, which had never been registered with the DRE. Asimos and Thompson sued, naming Asimos as plaintiff because the commission needed to be paid to him as licensed broker of record. To avoid the expense of trial, the suit was settled for a payment of $155,000 by Astound. Because Thompson and Asimos find themselves unable to agree on how to distribute the $155,000 it sits in the account of William Gutierrez, the attorney who prosecuted the suit against Astound. The parties have asked the court to issue a statement of decision which includes directions for distribution of the $155,000 which Mr. Gutierrez holds. In an effort to satisfy the parties’ request, the court reasons as follows. If the Astound transaction had gone smoothly, distribution of the proceeds would have been governed by the parties’ second contract, calling for 85% ($311,100)to Thompson. Asimos’ breach caused the transaction not to go smoothly. As part of an effort to put Thompson in the situation he would be in were it not for Asimos’ breach, Mr. Gutierrez should distribute the Astound funds which he holds entirely to Thompson, after deduction for any fees and expenses to which Mr. Gutierrez and his law firm are entitled. Wired Real Estate Group is an unregistered service mark owned by Thompson which enjoys protection under the Lanham Act (15 U.S.C. § 1051). Asimos had Thompson’s permission to represent to the public that he was associated with Wired Real Estate Group only so long as that representation was accurate, but not after Asimos and Thompson had become disassociated from each other. In this case, Asimos has continued to represent himself as being associated with Wired Real Estate despite repeated requests that he stop. This persistence -3-24 25 constitutes unfair competition under both the Lanham Act and California law (Bus. & Prof. Code, § 17200), actionable if Asimos used Thompson’s mark in a way that was likely to cause confusion. In this case, Asimos’ use of Thompson’s mark did cause confusion. Thompson received multiple inquiries asking what relationship Asimos had with Wired Real Estate Group. However, there is not enough evidence to calculate money losses to Thompson or gains to Asimos, so money damages for service mark infringement will be a token amount. (See Ericson v. Playgirl, Inc.(1977) 73 Cal.App3d 850, 859, 140 Cal.Rptr. 921; Hutcherson v. Alexander (1968) 264 Cal.App.2d 126, 135, 70 Cal.Rptr. 366.) Asimos asserts five theories of relief in his cross complaint, as follows. (1) Breach of contract. Asimos complains that Thompson secretly carried out transactions in which Asimos should have been included. The court has been presented with no credible evidence of such secret transactions. (2) Breach of a covenant of good faith and fair dealing. Absent pleading and proof of a special relationship between the parties, this theory of relief duplicates the breach of contract theory of relief. No such special relationship exists in the present case. (3), (4), and (5) Accounting, Fraud and Concealment, and Constructive Trust. To have viability, these theories of relief, like the first two, require some credible evidence of concealment, and the court finds no such credible evidence. DISPOSITION Judgment for Thompson and against Asimos in an amount which, when combined with funds to be distributed from Mr. Gutierrez’s account, total $311,100, plus $250 token damages for service mark infringement. Prejudgment interest to be calculated at the time of judgment. The court further orders a permanent injunction prohibiting Asimos’ use in any way of the service mark Wired Real Estate Group and similar marks such as WiredRE, and WREG, and directing Asimos to cancel all of his registrations of the Wireless Real Estate Group mark and24 25 similar marks. Thompson is to recover his costs of suit, including attorney fees to be determined on noticed motion. Asimos is to take nothing on his cross complaint and must bear his own costs, including attorney fees. Thompson to prepare a proposed judgment. Date: May 29, 2013 Vulboe » [Teas lo. WALLACE P. DOUGLAAS Superior Court Judge (Rétired) Sitting on Assignment by the Chairperson of the Judicial CouncilSUPERIOR COURT OF CALIFORNIA County of San Francisco JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC., Case Number: CGC-11-514980 Plaintiff(s) CERTIFICATE OF MAILING vs. (CCP 1013a (4) ) DEAN GREGORY ASIMOS, dba DRAKE REALTY, Defendant(s) I, Vicki Mack, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On May 30, 2013, I served the attached PROPOSED STATEMENT OF DECISION by placing a copy thereof in a sealed envelope, addressed as follows: C. Todd Norris, Esq. Jessica R. Barsotti, Esq. BULLIVANT HOUSER BAILEY PC LAW OFFICE OF JESSICA R. BARSOTTI 601 California Street, Suite 1800 5032 Woodminster Lane San Francisco, CA 94108 Oakland, CA 94602 and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices. Dated: May 30, 2013 Clerk Of The Court we Orne — Vicki Mack, Deputy Clerk