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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
SUPERIOR COURT OF THE
ELECTRONICALLY
FILED
Superior Court of California,
County of Sar Francisco
04/25/2017
Clerk of the Court
BY:EDWARD SANTOS.
Deputy Clerk
STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
)
)
Plaintiffs, J
VS. }
)
)
)
)
DEAN GREGORY ASIMOS, DBA DRAKE,
REALTY
Defendant.
)
)
)
DEAN GREGORY ASIMOS, DBA DRAKE)
REALTY }
Cross-Complainant, }
vs. }
JASON EVERETT THOMPSON and )
WIRED REAL ESTATE GROUP, INC. )
and DOES 1 through 50. }
)
)
Cross-Defendants.
I, Jessica R. Barsotti declare:
Case No.: CGC-11-514980
DECLARATION OF JESSICA R.
BARSOTTI IN SUPPORT OF MOTION
FOR ATTORNEY’S FEES ON APPEAL
Date: May 17, 2017
Time: 9:30am
Dept.: 302
Reservation Number 04200517-18
1. Iam the attorney for Defendant and Appellant in this action and make this declaration in
support of this motion.
DECLARATION IN SUPPORT OF MOTION FOR ATTORNEY
CGC-11514980
I
FEES2. [am duly licensed to practice law in the State of California and my license is in good
standing.
3. I make this declaration of my own personal knowledge and if called to testify to the facts
contained herein I could do so competently.
4. [have been an attorney specializing in litigation for 17 years. I am a graduate of Hastings
College of Law.
5. My fee rate was established in the federal courts in 2010 at $350.00 per hour in the case
Jackson v. Pittsburg Police Department et al.
6, Attorneys in this geographical area with like skill and experience can be as high as $550
per hour according to the Laffey Matrix of 2015.
7. currently bill my clients at a rate of $450.00 per hour for litigation of this complexity
and nature.
8. Ihave reduced my usual and customary hourly rate by $100 per hour for the purposes of
this motion in an effort to make these fees reasonable.
9. All hours expended and claimed in this motion were necessary for the litigation
objectives in the appeal.
10. Attached hereto as Exhibit 1 is a true and correct copy of the billing records for my work
on this appeal. These entries were made contemporaneously with the tasks involved and were
entered in the regular course of business. I reviewed these time records and have removed a total
of 36 hours of time that were expended for issues unrelated to the attack on the damages awarded
in the contract action.
11. Attached hereto as Exhibit 2 is a true and correct copy of Defendant’s Motion to Vacate
Judgment.
12. Attached hereto as Exhibit 3 is as true and correct copy of the Court of Appeal decision
in Thompson v. Asimos case number A140096, the appeal at issue.
13. Attached hereto as Exhibit 4 is as true and correct copy of the judgment in this case
(CGC11-514-980) that was appealed.
DECLARATION IN SUPPORT OF MOTION FOR ATTORNEY FEES
CGC-11514980
214. Attached hereto as Exhibit 5 is as true and correct copy of contract between the parties
authorizing a fee award to the prevailing party.
15. The appeal by Asimos asked the court to determine 8 issues including: “1) If the court did|
not err in finding a breach of contract by Asimos, did the court err in determining that the
damages awarded were proven with specificity and flowed directly from the breach found? 2) Is
Appellant entitled to an offset of damages as calculated by the court for his commission share
under the agreements and for the amounts already paid in settlement?, and 3) Did the Court err
in denying the motion to vacate judgment on the issue of excessive damages and procedural
errors?
16. The majority of the 356.2 hours billed on Appeal of this action were spent researching
and writing the Opening Brief and Reply Brief, opposing and researching TWO failed motions t
dismiss the appeal, and review of the Respondent’s Brief.
17. Attached hereto as Exhibit 6 is a true and correct copy of my current resume.
18. Attached hereto as Exhibit 7 is a true and correct copy of the Remittitur in the Court of
Appeal case Thompson v. Asimos A140096.
DATED: April 21, 2017 THE LAW OFFICE OF JESSICA R. BARSOTTI
By
Attorneys for Defendant and Cross-Complainant
JESSICA R. BARSORTI
S{IMOS
DEAN GREGORY A:
DECLARATION IN SUPPORT OF MOTION FOR ATTORNEY FEES
CGC-11514980
3EXHIBIT 110/20
Soo
sescenanerascres
i 73/2012 Retreive and respond to emails féim client re BK; review emails frog 6cre re
10/342012 Research motions in limine; begin.de
10/4/2064 Cotriplete | motions in limine; research TM law and c conjpatt law for Sri 7 at
10/4/2012%gegin drafting trial brief =
10/5/2012 Cots @f prepare exhibit lists, g&* “Serre
of-Thompsorr 2
10/6/2012 draft exafyof client; Sechle 1; further pi prep of trial exhibits; researdl
oe none
LodefzeZ Review MIL'S tel Thompson; r resegysifsame and opposition ee 4
10/7/2012 Trial prep-revie psen-and Seielhuber 4
10/8/2012 research and draft opBpitions to MILS = a 4
10/8/2012 draft exam of Guttigffez aMelrevise client exam es 3
10/9/2012 Travel to and atyénd trial; meetg with client; trial prep further prepare ex 6.5
10/10/2012 Travel to atipattend trial, meeting WRG Ser eee ‘Sree 8.
“TO/TT/2012 Travel tgAnd attend trial: Meeting with-eiag re
10/12/2012 Travefo and attend trial; meeting with client ee
10/13/2012 ReAew trial exhibits; prepare exams and exhibits
10/14/2012 ffneeting with client-re+rtatreview contract and bank recs onion
10/15/2942 Travel to and attend trial; meeting with client re same; trial pr&,.prepare ¢ 10
0 2"Travelto-and-attend trial;.meeting with client re same; trial prep, finalize cl 8.25
10/77/20 ravel-tovend-attendriel=mer einreanebtriakteanscript 5
16 18/2012 R Retreive and resoanil to > emails re trial transcript 0.25
223.5
Appeal
Research appealable issues in trial court rulings; research motion for new
9/5/2013 trial or to vacate judgment as excessive 4.3
Research excessive damage awards, calculation of prejudgment interest,
10/2/2013 speculative damages for appeal 5.1
10/10/2013 Research appeal and notice of appeal; meeting with client re appeal and fe 2.3
Research on effect of failure to rule on objections to statement of
10/15/2013 decision 1.2
Begin drafting notice of appeal; research re appeal procedure; draft fee
10/17/2013 waiver application for appeal; TC client re same 2.2
Further research re Notice of Appeal; complete draft of same; file same;
10/23/2013 file fee waiver 2
Review order denying fee waiver; request hearing re same; TC client re
11/6/2013 same 0.9
11/14/2013 Review order denying hearing on fee waiver; TC client re same 0.3
Research appeal designation of records; review trial file re evidence of
11/20/2013 breach of contract damages; meeting with client re same 44
Research damages awards; speculative awards, excessive awards; rules of
11/23/2013 appeal and factors to determine 35
Begin drafting designation of records on appeal; review trial file re
11/29/2013 documents needed on appeal; meeting with client re same 5.3
Review clerks certificate re dismissal of appeal re payment of fees; TC
12/2/2013 client re payment of fees on appeal and order to show cause 0.3Research format of appeal documents and Appellate filing rules; further
12/5/2013 review of file re documents pertaining to appeal issues
Full review of trial file including exhibits, arguments, motions, and rulings
12/30/2013 for purposes of appeal
1/2/2014 Research request for transcripts and designation of record on appeal
Research standard of review on appeal; review statement of decision and
1/5/2014 objections; research effect of failure to rule on objections
Research contract damages and standards; research repudiation of
1/6/2014 contract, research case law re calculation of contract damages
Research real estate laws pertaining to broker and agent authority;
1/7/2013 review file re same; review exhibits re designation of records
Prepare designation of record on appeal, request for transcripts on
1/12/2014 appeal; TC client re same
1/14/2014 Meeting with client re appeal
1/24/2014 Finalize request for transcript on appeal; file same
1/26/2014 Amend request for transcript on appeal; file same
Research contract damages and prejudgment interest awards; review
2/15/2014 case law re start date of prejudgment interest on contract
Research applicable case law re real estate brokers and agents and
3/14/2014 stautory scheme re authority
Research effect of motion to vacate judgment denial on appealable
3/20/2014 issues; standard of review
Research procedural erros of trial court re appeal, including failure to rule
3/26/2014 on objections, failure to submit the judment in a timely fashion
Review notice of fees to prepare record on appeal; review and analyze
4/24/2014 the notice of default on appeal; TC client re same
Review Appellate certification of record and notice of due date of opening
5/6/2014 brief; TC client re same
5/7/2014 Further review of designation of records on appeal
Review records on appeal, research designation of additional records for
5/17/2014 purposes of appeal; TC client re same
Retreive and respond to emails from opposing counsel re augmentation
6/3/2014 of record on appeal; resarch re same
Review motion to augment record on appeal by respondent; research and
6/9/2014 analyze same
6/18/2014 Review order re augmentation of record on appeal, analyze same
6/25/2014 Further review of record on appeal and analysis of same in light of motion
7/1/2014 Research case law re damages offsets under contract
7/12/2014 Further review of record on appeal; analyze additional records needed
TC opposing counsel re augmentation of record on appeal; draft
7/29/2014 stipulation re same; email opposing counsel re same
Revise stipulation re augmentation of record on appeal; email opposing
7/30/2014 counsel re same; analyze additional documents to be included on appeal
Research standard of review on appeal in light of trial record and
8/6/2014 augmentation of record; begin drafting opening brief
15
3.1Continue research re contract damages and calculations for purposes of
appeal; determine additional records needed on appeal; prepare motion
8/27/2014 to augment
Review final augmentation of record notice; analyze same; research effect
9/24/2014 of same on brief
9/25/2014 Continue drafting opening brief; research re format and efiling rules
Research case law re standard of review and failure to rule on objections;
research effect of denied motion to vacate judgment on standard of
9/30/2014 review; research procedural history requirements
Continue drafting opening brief; research re deference to court findings;
10/3/2014 analyze judgment re same; further review of bound file on appeal
Continue drafting opening brief; research re proving contract damages
10/5/2014 and performance by other party
Continue drafting opening brief; review record on appeal re same; pull
10/6/2014 cites from record
Review transcipt and record on appeal, prepare statement of facts for
10/7/2014 opening brief
Continue drafting opening brief; research re speculative damages awards,
excessive awards; research re statutory scheme regarding brokers and
10/9/2014 agents; research bankruptcy implications
Continue drafting opening brief; further research on standard of review;
10/13/2014 revise facts section
10/16/2014 Continue drafting opening brief, prepare table of authorities
Continue drafting opening brief, review and coordinate table of
10/17/2014 authorities
10/18/2014 Continue drafting opening brief, review authority and shepardize
10/19/2014 Continue drafting opening brief, create Table of Contents
10/21/2014 Continue drafting opening brief, review format rules, TC Clerk re same
10/22/2014 Continue drafting opening brief, review case law file
Review draft of opening brief, final preparation of Table of Contents and
10/23/2014 Authorities; review rules on certification affidavit; final review of case law
Final preparation of opening brief; review of same; review filing rules and
10/24/2014 efiling procedure; file and confirm same
11/1/2014 Meeting with client re appeal; review Response and Reply schedule
Review motion to dismiss appeal, legal analysis of same; research
12/22/2014 standard for same; TC client re same
12/28/2014 Review Respondent's brief; legal analysis of same; research cases cited
Research and analyze legal arguments in Respondent's brief; research
12/29/2014 case law re damages and standard of review on appeal
Research Reply brief standards and format; begin to analyze differing
cases cited by Respondent; draft comparison of the appropriate standard
12/30/2014 of review
Begin drafting Reply brief; review record re same; review and analyze
Respondent's brief re same; draft opposition to motion to dismiss appeal;
1/2/2015 research re same
5.4
2.5
41
5.2
47
3.9
46
7.3
5.4
8.3
6.2
5.8
6.1
7.2
5.5
6.1
71
4.1
11.
3.1
2.6
5.2
Al
8.31/3/2015 Continue drafting Reply brief and opposition to motion to dismiss appeal
Continue research re standard of review and statutory scheme re brokers
1/5/2015 and agents; finalize opposition to motion to dismiss
Continue to research re disentitlement doctrine, contract damages and
1/6/2015 relief on appeal.
1/7/2015 Continue drafting Reply brief; revise same
1/8/2015 Continue drafting Reply brief
Continue drafting Reply brief; research re case law cited by Respondent re
1/10/2015 standard of review and deference to trial court
1/11/2015 Finalize Reply brief; final review of same
1/12/2015 Prepare Reply brief for filing; review rules re eservice; confirm same
1/15/2015 Meeting with client re briefs and oral argument; review rules re same
2/28/2015 Review rules re oral argument; draft request for oral argument
3/25/2015 Review Oral argument notices; research procedure re same
Review request for oral argument and panel assignment; research re
8/26/2015 same
12/23/2015 Review second motion to dismiss appeal; analyze same
Research arguments re motion to dismiss appeal; research case law re
12/26/2015 same; review the record on appeal re same
12/29/2015 Draft opposition to motion to dismiss appeal; further research re same
Further research re second motion to dismiss appeal; finalize opposition;
1/3/2016 prepare for filing
Review notice of consolidation of appeal with motion to dismiss; analyze
1/25/2016 same; TC client re same
9/23/2016 Begin preparation for oral argument; review record re same
Begin draft of oral argument; review all briefs; continue to review record;
10/5/2016 analyze cites; Shepardize law
Continue to prepare for oral argument; create folder of applicable law
10/8/2016 and holding; create table re standard of review arguments
10/10/2016 Continue to prepare for oral argument; review reply brief
Review trial transcripts in preparation for oral argument; continue
10/12/2016 preparation
10/13/2016 Final preparation of oral argument; meeting with client re same
10/14/2016 Attend and argue at oral argument; post argument meeting with client
Receive and review Disposition on Appeal; analyze same; TC client re
12/16/2016 same
Further review of Appellate decision; analyze same, research case law
12/18/2016 cited in decision
4/5/2017 Receive and review Notice and Motion for Attorney fees filed by OC
4/10/2017 Research rules re motion for fees after appeal and remand to trial court
Further research re entitlement to fees on appeal and time for motion
and effect of premature motion; begin drafting opposition to motion by
4/11/2017 OC
Continue research re attorney fees motion after Appeal; research mixes
4/14/2017 result cases and failure to award costs
4.1Continue drafting opposition to motion for fees; begin Appellant's motion
4/17/2017 for fees 48
Finalize opposition to motion for fees; file same; continue drafting
4/20/2017 Appellant motion for fees 3.4
Further research case law re mixed result cases and entitlement to fees;
research finalization of judgment; draft motion for fees by Appellant;
4/21/2017 draft declaration re fee motion; research attachments 8.5
Continue drafting motion for fees; continue research re same; review
timesheets re same; remove time from time sheets inapplicable to
4/22/2017 motion 6.1
4/24/2017 Finalize motion for fees; prepare for filing; file same 14
356.2EXHIBIT 2LAW OFFICES OF JESSICA R. BARSOTTI
Jessica Barsotti, Esq., SBN 209557
5032 Woodminster Lane
Oakland, CA 94602-2614
510.530.4078
510.530.4725 (FAX)
Attorney for Defendant/Cross-Complainant,
Dean Gregory Asimos, dba Drake Realty
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
Plaintiffs,
vs.
d
)
)
)
2
)
2
)
)
)
)
)
DEAN GREGORY ASIMOS, DBA DRAKE.
REALTY
)
Defendant.
)
)
DEAN GREGORY ASIMOS, DBA DRAKE
REALTY
Cross-Complainant, :
vs. }
JASON EVERETT THOMPSON and )
WIRED REAL ESTATE GROUP, INC. )
and DOES 1 through 50. }
d
)
)
)
)
)
Cross-Defendants.
MOTION TO VACATE JUDGMENT
AND FOR NEW TRIAL
THOMPSON v. ASIMOS.
Case No.: CGC-11-514980
MOTION FOR NEW TRIAL OR TO
VACATE JUDGMENT, AND POINTS AND
AUTHORITIES IN SUPPORT THEREOF
Date: October 15, 2013
Time: 9:30am
Dept: 302
Trial Date: October 9, 2012TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that pursuant to the provisions of California Code of Civil Procedure
§657 and §659, Defendant and Cross-Complainant Dean Asimos hereby moves to vacate the
judgment entered on August 23, 2013 in the above-captioned matter and for a new trial.
Defendant gave notice of his intention to move for a new trial on September 6, 2013 when he
filed his Ex Parte Application to Stay Enforcement of the Judgment, indicating the grounds upon
which he intended to move for a new trial. This motion is based on CCP §657 and §659, the
court file, or the minutes of the Court or both and upon the evidence, oral and documentary, as
well as all papers, records, and documents on file herein, pursuant to Sections 657, 658, 659 and
660 of the Code of Civil Procedure of the State of California and the Points and Authorities
herein. This motion is brought on the following statutory grounds:
+ The award of damages was excessive, for at least the reasons that (1) there was no breach of
contract and thus no damages should have been awarded; (2) since there was no basis to award
damages, there was no basis to award interest; (3) the amount of interest is excessive due to thd
Court’s determination of the December 31, 2008 start date with no evidence to support such start
date; (4) since there was no breach of contract no award of attorney’s fees to Plaintiff is proper;
and; (5) No trademark damages or injunction could be awarded to Plaintiff because the evidenced
of infringement failed as a matter of law (C.C.P. § 657(5));
+ The evidence was insufficient to justify the Judgment (C.C.P. § 657(6));
* The Judgment is contrary to law (C.C.P. § 657(6));
+ Irregularity in the proceedings of the Court (C.C.P. § 657(1));
MOTION TO VACATE JUDGMENT 2
AND FOR NEW TRIAL
THOMPSON v. ASIMOS.27
28
Date:
MOTION TO VACATE JUDGMENT
AND FOR NEW TRIAL
THOMPSON v. ASIMOS
Jessica R. Barsotti, Attorney for DefendantPOINTS AND AUTHORITIES
I. THE COURT SHOULD GRANT A NEW TRIAL ON THE GROUND THAT EXCESSIVE
DAMAGES WERE AWARDED.
On August 23, 2013, nearly a year after trial, the Court entered judgment for Jason)
Everett Thompson in the amount of $450,038.00, which included $311,100.00 in what wag
termed “Astound Damages”, $250.00 in token damages for trademark infringement, and)
$138,688.00 in prejudgment interest. See Judgment 1:22-27.
C.C.P. § 657(5) expressly permits the Court to grant a new trial on the grounds of excessive
damages:
The verdict may be vacated and any other decision may be modified or vacated
.. and a new or further trial may be granted on all or part of the issues, on the
application of the party aggrieved, for any of the following causes, materially
affecting the substantial rights of such party: ...(5) Excessive or inadequate
damages.
The authorities make clear that a grant of a motion for new trial on this ground can appl
to all aspects of the trial-not just the award of damages. See, e.g., Collins v. Lucky Markets, Inc.|
274 Cal. App. 2d 645, 649 (1969) (“While the ground of excessive damages might seem tol
pertain more particularly to the issue of damages, Code of Civil Procedure, section 657 expressh
permits the granting of a new trial on all issues (i.¢., liability and damages) on that ground.”). In}
assessing a new trial motion on this ground, the Court has the power and responsibility t
reweigh the evidence. C.C.P. § 657. As discussed below, a new trial should be granted because
MOTION TO VACATE JUDGMENT 4
AND FOR NEW TRIAL,
THOMPSON v. ASIMOS.the damages awarded by the Court’s judgment are excessive and not supported by the law or the
evidence at trial.
A. Award of “Astound damages” and Interest thereon is Excessive Because Plaintiff
Failed to Prove that Asimos Breached Any Duty, or Caused Any Damage.
“Damages are defined as compensation for detriment from the unlawful act or omission of
another.” Perkins v. Benguet Consol. Mining Co., 55 Cal. App. 2d 720 (1942); see Cal. Civ.
Code § 3281. Indeed, a finding of an exact amount of damages resulting from an injury ig
required for a money judgment to issue. See Estate of Kampen, 201 Cal. App. 4th 971, 988
(2011) (“The court does not make any determination regarding a claim of injury and does not set
forth an exact amount of damages owed, which is a requirement for a money judgment.”),
Damages also are a prerequisite for an award of interest both under Civil Code § 3287(a) (“Every|
person who is entitled to recover damages ... is entitled also to recover interest thereon”) and §
3287(b) (“Every person who is entitled under any judgment to receive damages ... may also
recover interest thereon.”). If a Plaintiff fails to present evidence that shows that he was damaged]
by Defendant’s actions or omissions, and the amount of those damages, he cannot recover. Here.
Plaintiff failed as a matter of law that he was damaged by Asimos, and he failed to prove the
amount of any such claimed damages and thus any damages awarded were excessive.
1. Astound Damages Awarded are Wholly Speculative
“It is black-letter law that damages which are speculative, remote, imaginary, contingent, or
merely possible cannot serve as a legal basis for recovery.” Mozzetti v. City of Brisbane (1977)
67 Cal.App.3d 565, 577 (Mozzetti); see also Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953,
989 (Piscitelli) . “[I}t is fundamental that ‘damages which are speculative, remote, imaginary,
contingent, or merely possible cannot serve as a legal basis for recovery’ ” Lueter v. State of
uw
MOTION TO VACATE JUDGMENT
AND FOR NEW TRIAL
THOMPSON v. ASIMOSCalifornia (2002) 94 Cal.App.4th 1285, 1302. “ ‘Whatever the proper measure of damages may
be, in a given case, the recovery therefor is still subject to the fundamental rule that damages
which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal
basis for recovery’ ” Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661-662 . “ ‘[DJamages
may not be based upon sheer speculation or surmise, and the mere possibility or even probability
that damage will result from wrongful conduct does not render it actionable’ ” Jd.
Thus, where the trial court record provides no reasonable basis for ascertaining damages, a
claim for damages is speculative as a matter of law. (Piscitelli, supra, 87 Cal.App.4th at p. 990;
accord, Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696 . This is precisely the case
here where the damages awarded are based on speculation of an outcome of a trial that never
happened, or in the alternative, on the basis of what Plaintiff wished he had settled that case for.
During the time that Plaintiff was working as a real estate agent under Defendant Asimos,
Plaintiff entered into a contract with Astound to assist in “a licensing deal” in which Astound
would contract for internet services, security, power and space to hook up their internet servers.
Defendant had no knowledge of the Astound contract until after it was executed by Plaintiff.
Plaintiff attempted to collect his “commissions” from Astound pursuant to this contract, but
Astound refused to pay, citing the fact that Plaintiff was a real estate agent, who, by definition
and contract with Asimos, was unable to independently collect real estate “commissions”.
Plaintiff disputed at trial that the Astound commissions were “real estate commissions” at all and
testified as an expert on licensing deals that the Department of Real Estate “would never
regulate” these type of licensing deals. Nonetheless, Plaintiff asked Asimos to serve as the
Plaintiff in the suit against Astound using an attorney that Thompson had already hired for the
MOTION TO VACATE JUDGMENT 6
AND FOR NEW TRIAL.
THOMPSON v. ASIMOS27
28
task. After some litigation, the Astound suit was voluntarily settled, with the agreement of both
Thompson and Asimos for approximately $150,000.
William Guttierrez, the attorney who represented Asimos and Thompson in the action
against Astound testified that they settled the litigation to avoid the cost and uncertainty of trial,
and that if they had gone to trial he had no idea what the outcome would have been, or whether
the Astound’s various defenses would have been successful. Evidence at trial showed that
Astound was defending the action on the basis that Thompson did not participate in the
negotiations for the subject deals, and thus was not entitled to the full commission under its
agreement with WTEG. Another defense asserted by Astound in this prior litigation was that the
name “Wired Real Estate Group” which was used by Thompson in this deal, was not registered
as a dba with the Department of Real Estate. This was testified to by both parties at trial.
Guttierrez testified that he had no idea whether Astound’s varioius defenses would have been
successful or not. He also testified that he had no idea how much it would have cost to take the
case to trial in attorney’s fees or costs, but agreed that the amount would have exceeded the
amount that his firm had been paid out of the settlement funds. Plaintiff argued at trial that he
should have gotten closer to $400,000 from the Astound transaction had the case not settled, but
presented no evidence that he was entitled to such an amount, and he presented no evidence that
Defendant Asimos was responsible for the difference between the settlement amount and the
amount Plaintiff claimed he was owed from Astound. As such, the Court’s award of $311,100
plus interest of $138,688 is excessive, completely speculative and not supported by the evidence
at trial.
2. Uncontroverted Expert Testimony Showed Lack of Causation of Damages
MOTION TO VACATE JUDGMENT 7
AND FOR NEW TRIAL,
THOMPSON v. ASIMOS“[U]ncontradicted and unimpeached testimony of an expert witness may not be arbitrarily
disregarded by the trier of fact. Krause v. Apodaca (1960) 186 Cal.App.2d 413, 417, (Krause ).”
Lauderdale Associates v. Dep't of Health Servs., 67 Cal. App. 4th 117, 126 (1998). Here Plaintiff
testified as an expert on licensing deals that the Department of Real Estate does not regulate
licensing deals like the Astound deal. This testimony was uncontroverted and unimpeached.
Asimos testified as an expert in real estate transactions and Department of Real Estate
Regluations. Asimos testified that the Department of Real Estate regulations do not make any
real estate commissions uncollectable due to a failure to register a dba with the Department of
Real Estate so long as the dba was registered with the County in which the business was
operating. This expert testimony was also uncontroverted and unimpeached. Asimos also
testified that he had registered the name Wired Real Estate Group with the county where his
office was located, and submitted supporting documentation of such as trial exhibits. As such,
the Court cannot award $311,100 in damages, plus interest for breach of contract damages due to
Asimos’s purported failure to register the name “Wired Real Estate Group” as the
uncontroverted expert testimony, which cannot be arbitrarily rejected by the court, shows that
Defendant’s actions did not cause Plaintiff any damages.
B. Any Award Of Money Damages or an Injunction For Trademark Infringement is
Excessive Because The Plaintiff Failed to Properly Plead or Prove Trademark
Damages.
As discussed more fully in Asimos’ July 12, 2013 Objections to the (then) proposed
Judgment, which objections were never expressly ruled on by the Court prior to its issuance of
the ultimate judgment on August 23, 2013, and in his Trial Brief, the Judgment improperly
MOTION TO VACATE JUDGMENT 8
AND FOR NEW TRIAL
THOMPSON v. ASIMOSawards Thompson a money judgment of $250 as nominal damages for trademark infringement
under the Lanham Act. This is inappropriate for several reasons.
First, Plaintiff's Complaint fails to make the requisite allegations regarding the
protections to be afforded his so-called trademark as indicated in the Lanham Act. In his Second
Cause of Action Plaintiff claims that Asimos’ unauthorized use of plaintiffs’ Trademarks to
promote, market, or sell real estate services in competition with plaintiffs real estate services
constitutes Unfair Competition pursuant to 15 U.S.C. §1125(a).” Plaintiffs’ Complaint at J 13.
Because the claimed trademarks were never registered with the USPTO, Plaintiff would only be
able to recover damages for infringement under this section of the Lanham Act.
In order to determine if Plaintiff had protectable rights in an unregistered “mark” it must
first be determined what category such claimed mark falls into. “Potential trademarks fall into
four catagories: (1) generic, (2) descriptive, (3) suggestive and (4) fanciful. [citations omitted].
To establish a protectable trademark [Plaintiff] must prove either (1) that its mark is inherently
distinctive or (2) that the mark has acquired a secondary meaning associated with [Plaintiff]’s
business ” Glow Industries, Inc. v. Lopez 252 F.Supp.2d 962, 976 (2002). Generic terms are not
protectable as a trademark because “they are common words or phrases that describe a class of
goods rather than an individual product.” Telecom, Inc. v. Japan Telkecom Am. Inc., 287 F.3d
866, 872 (9" Cir. 2002). “Descriptive terms suffer from the same problem. Descriptive terms
relate more directly to a particular product than do generic terms as they describe a person, a
place or an attribute of the product. They will not support the grant of an exclusive property
tight, however, ‘[b]ecause they tend to consist of common words that might be the only way to
describe a category of goods.’” Glow, supra at 977, quoting Telecom. Under this analysis, if a
plaintiff fails to plead and prove that the mark is fanciful, or that the mark has secondary
MOTION TO VACATE JUDGMENT 9
AND FOR NEW TRIAL
THOMPSON v. ASIMOSmeaning, a court will not even reach the issue of “use” of the mark in commerce or likelihood of
confusion.
Here, the admittedly unregistered service mark “Wired Real Estate Group” can be
afforded no protection under the Lanham Act, and thus no damages can be awarded by the Court
because Plaintiff failed to plead or prove whether the mark is fanciful, or that the generic.
descriptive or suggestive mark had gained secondary meaning under the Lanham Act, aj
preliminary requirement to finding infringement under the Lanham Act. Id. at 976.
The Court’s issuance of a money judgment and injunction for trademark infringement is
improper because the Court may only award relief “justified by the allegations of the complaint
and the evidence.” Singleton v. Perry, 45 Cal. 2d 489, 499 (1955); see Hall v. Hickey, 156 Cal.
App. 2d 94, 101 (1957) ( “[FJindings and conclusions being outside the issues must be
disregarded and cannot furnish support for the judgment or any part thereof.” Hart v. Merchant:
Trust Co., 120 Cal. App. 231, 234 (1932). A judgment will be set aside where it is apparent tha’
there was no finding upon a material issue. Southern Pac. R. Co. v. Crampton (1883) 1]
P.C.L.J. 429, 63 Cal. 537.
Here, that is precisely the case, and the Court should set aside this judgment and
injunction and grant a new trial. A finding of a breach for the purposes of awarding nominal]
damages and an injunction for trademark infringement is improper where the Plaintiff failed to
plead and prove the type of unregistered mark to be protected, indeed there is nothing upon)
which the Court can base its determination. Not only did the Plaintiff fail to plead the type of
unregistered mark he was attempting to protect, and the Court made no findings on the type of
mark Plaintiff was attempting to protect, nor on any secondary meaning achieved, ove
Defendant’s objections. On this basis, the any award of damages is excessive and an injunction is
MOTION TO VACATE JUDGMENT 10
AND FOR NEW TRIAL
THOMPSON v. ASIMOSunjustified and thus the Court should grant a new trial.
C. The Damages Were Excessive Because The Court Improperly Tolled and Awarded
Prejudgment Interest
Every person who is entitled to recover damages certain, or capable of being madd
certain by calculation, and the right to recover which is vested in him upon a particular day, ig
entitled also to recover interest thereon from that day, except during such time as the debtor ig
prevented by law, or by the act of the creditor from paying the debt.
Cal. Civ. Code § 3287(a)(West)
The test for determining certainty under California's prejudgment interest statute is
whether the defendant knew the amount of damages owed to the claimant or could have
computed that amount from reasonably available information. Burgett, Inc. v. American Zuric.
Ins. Co., E.D.Cal.2011, 830 F.Supp.2d 953. If there is a factual dispute about the amount off
damages, or when those damages were due, then such damages are not capable of being certain!
under California law. Here, Astound disputed the amount of commissions owed to WREG i
their litigation based on the calculations required under the contract. Such dispute in the amount
of commissions owed was at the heart of the Astound litigation. Asimos had no idea how any,
purportedly owed commissions were calculated, and had no information about the contract itsel:
upon which to base any knowledge of what he supposedly owed Thompson from the Astound
transaction. Asimos never collected commissions from Astound as the broker of record, and wag
only aware of the Astound deal through information given to him by Thompson. Therefore the
damages were in no way certain or capable of being ascertained by Asimos which would allo
the Court to award prejudgment interest in the amount of $138, 688.
The Astound deal was entered into in October 2008 between Thompson on behalf of
MOTION TO VACATE JUDGMENT WW
AND FOR NEW TRIAL
THOMPSON v. ASIMOSWired Real Estate Group and Astound. The condition for payment under that contract did nol
occur sometime around June 2009, and even then, only a portion of the amounts Thompso:
claimed were owed were purportedly due at that time. In the Astound litigation, it claimed that
total commissions owed were approximately $66,000 in 2009, and that those commissions were
to be split between Thompson and another agent who negotiated the deal. Astound was required|
to calculate the commissions owed based on the number of cabinets ordered and those
commissions were to continue if the client continued beyond year 1 of the contract. As such.
there is no basis or evidence that would allow the Court to award interest on $311,100 from]
December 31, 2008 based on any breach of contract by Asimos and the judgment should bd
vacated and a new trial should be granted. This award of interest is on an uncertain and disputed]
amount which is unsupported by the facts or law and must be vacated and a new trial granted due
to its excessiveness.
Il. THE COURT SHOULD GRANT A NEW TRIAL ON THE GROUNDS THAT THERE
WERE NUMEROUS IRREGULARITIES IN THE PROCEEDINGS OF THE COURT AND
THE COURT ABUSED ITS DISCRETION.
C.C.P. § 657(1) provides that the Court may grant a new trial if there was am
“[irregularity] in the proceedings of the court, jury or adverse party, or any order of the court o7
abuse of discretion by which either party was prevented from having a fair trial.” The authorities
make clear that “[the] language of the statute is sufficiently broad to include any departure by the
court from the due and orderly method of disposition of an action by which the substantial rights
of a party have been materially affected.” Jacoby v. Feldman, 81 Cal. App. 3d 432, 446 (1978).
As a preliminary matter, a number of the issues discussed in Section I above, as they are
supported through the accompanying Declaration of Jessica R. Barsotti, would merit the granting!
MOTION TO VACATE JUDGMENT 12
AND FOR NEW TRIAL
THOMPSON v. ASIMOSof this new trial motion under this separate statutory ground (in addition to the independent
reason that those issues led to excessive damages). This includes the Court’s inclusion of an|
award of excessive money damages and prejudgment interest in the judgment, even though n
evidence substantiates such damages, or any breaches that would have led to such damages,
which are discussed in more detail above.
it
A, The Court Failed to Issue a Judgment Within the Time Required
This case was tried in the first weeks of October of 2012, but a judgment was not rendered
until August 23, 2013, ten months later, without any justification.
California Rule of Court, Rule 3.1590. Announcement of tentative decision, statement of
decision, and judgment
(D Signature and filing of Judgment
If a written judgment is required, the court must sign and file the judgment within 50 days after
the announcement or service of the tentative decision, whichever is later, or, if a hearing was
held under (k), within 10 days after the hearing.
The Judgment constitutes the decision on which judgment is to be entered under Code of Civil
Procedure section 664.
(m) Extension of time; relief from noncompliance
The court may, by written order, extend any of the times prescribed by this rule and at any time
before the entry of judgment may, for good cause shown and on such terms as may be just,
excuse a noncompliance with the time limits prescribed for doing any act required by this rule.
Here the Court issued a tentative ruling on February 15, 2013, but the judgment was not
entered until August 23, 2013, 190 days later and the Court did not extend time for such
compliance with any written order. Such a substantial delay in making a decision in this matter
has prejudiced Defendant, is contrary to the duties of the court and is grounds for a new trial.
B. The Court Improperly Denied Defendant’s Motion for Nonsuit on Trademark Claim
MOTION TO VACATE JUDGMENT 13
AND FOR NEW TRIAL
THOMPSON v. ASIMOSAs discussed above, The Court improperly denied Defendant’s Motion for Nonsuit on the
Trademark Claims after the close of Plaintiffs evidence. It was clear that that time that the
Plaintiff had failed to plead or prove an essential element of a Trademark Claim under the
Lanham Act and evidence was closed. The Court not only improperly denied the motion for
nonsuit, but then went on to award an injunction and $250 damages for Trademark infringement
against Defendant. This error by the Court is but one irregularity that is grounds for a new trial.
E. The Court Refused To Grant or Recognize Asimos’ Stay Of This Action.
In addition, the Court’s refusal to recognize, or grant Asimos a stay further qualify as grounds fo
a new trial under these statutes. Asimos made a request for a routine, temporary stay off
enforcement of the judgment in this action under C.C.P. § 918 on September 10, 2013. The
Court summarily denied this routine request based on the stipulation between the parties thai
allowed the lawsuit to go forward despite Defendant’s Chapter 13 bankruptcy which stated that
no judgment would be stayed because of the bankruptcy. The Court’s refusal to stay the
enforcement of the judgment to allow Defendant to make this motion for new trial prejudiced)
Defendant in that the judgment is being executed before his arguments here have been ruled
upon. The stipulation did not anticipate a motion to stay under C.C.P. § 918, which request was
wholly outside of the stipulation between the parties. This refusal by the Court to grant thig
routine stay is yet another irregularity in the proceedings warranting a new trial.
IV. THE ERRORS DISCUSSED ABOVE ARE SUFFICIENT REASON TO GRANT A NEW
TRIAL UNDER A NUMBER OF OTHER STATUTORY GROUNDS.
The errors discussed above provide the Court with ample reason to grant a new trial onl
the ground of insufficiency of evidence under C.C.P. § 657(6) ( “insufficiency of evidence” and
“decision against law”) and C.C.P. § 657(7) (“error in law, occurring during trial and excepted to
MOTION TO VACATE JUDGMENT 4
AND FOR NEW TRIAL
THOMPSON v. ASIMOSby the party making the application”).
A. Insufficiency of Evidence.
“Tn passing upon a motion for a new trial based upon the insufficiency of the evidence, it
is the exclusive province of the trial court to judge the credibility of the witnesses, determine the
probative force of testimony, and weigh the evidence ... In considering the sufficiency of thd
evidence upon such motion the court may draw inferences opposed to those drawn at the trial ...
and where the only conflicts consist of inferences deduced from uncontradicted probative facts.
the court may resolve such conflicts in determining whether the case should be retried ....”
Richardson v. Ham, 44 Cal. 2d 772, 775 (1955).
The numerous errors discussed in Section I above, including the Court’s: (1) issuance off
a money judgment and injunction for Trademark infringement under the Lanham Act whe
presented with no evidence to allow a showing of infringement, (2) award of prejudgment
interest, (3) rejection of the evidence of secret transactions by Thompson; (4) failure to find
breach by Thompson where Thompson is required to come forward with the evidence to sho’
commissions owed to Asimos, and where Thompson admitted to doing several acts in
contradiction to the agreements; and (5) findings that Asimos breached the agreements, ard
supported by insufficient evidence for the same reasons discussed in that section.
B. Decision Against Law
The same errors are also “against law,” and thus likewise form a basis to grant thig
motion. A decision is against law “where the evidence is insufficient in law and without conflict
in any material point.” MeCown v. Spencer, 8 Cal. App. 3d 216, 229 (1970). In a nonjury trial, i
the court fails to find on material issues raised by the pleadings and as to which evidence wag
introduced, the judge's statement of decision is “against law.” A new trial is necessary to
MOTION TO VACATE JUDGMENT 15
AND FOR NEW TRIAL
THOMPSON v. ASIMOS.determine the issues left unresolved. Schmeltzer v. Gregory (1968) 266 Cal.App.2d 420, 423, —|
no findings made on special defenses raised in answer and supported by evidence]. Many of the
issues discussed in Sections | and II result from evidence as to which there is no conflict and thd
judgment is based on material disputes on which there were no stated findings of fact.
C. Error In Law During Trial
Finally, as discussed above, a number of errors during trial affected the ultimate outcome
of the trial to Asimos’ great prejudice. See Bristow v. Ferguson, 121 Cal. App. 3d 823. 826
(1981) (“But the trial court, no less than the appellate court, is expressly enjoined by article VI
section 4 1/2 [now § 13], of our Constitution from granting a new trial for error of law unless
such error is prejudicial.”). All of the errors discussed herein, particularly those concerning the
Court’s issuance of a money judgment against Asimos for breach of contract and trademark!
infringement and an injunction and the Court’s award of pre-judgment interest are errors in law.
V. CONCLUSION
For the reasons set forth above, the Court should grant Asimos’ motion for new trial.
Dated: September 19, 2013
Respectfully submitted,
[\—
Jessica R. re re for Defendant
MOTION TO VACATE JUDGMENT 16
AND FOR NEW TRIAL
THOMPSON vy. ASIMOS.EXHIBIT 3om COPY
Filed 12/15/16
CERTIFIED FOR PARTIAL PUBLICATION"
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA.
FIRST APPELLATE DISTRICT
DIVISION FOUR. ‘Court of Appeal First Appellate District
JASON EVERETT THOMPSON et al., DEC 15 2016
Plaintiffs, Cross-defendants and Diana Herbert, Clerk
Respondents, A140096 by : Deputy Clerk
v.
DEAN ASIMOS, Cc a
. ‘ity & County of San Francisco
Defendant, Cross-complainant and Super. Ct. No. CGC-11-514980)
Appellant.
Jason Everett Thompson founded a consulting firm and operated it as a sole
proprietorship under the dba Wired Real Estate Group (WREG) with the aim of advising
clients in a niche internet infrastructure industry called “colocation,” sometimes, but not
always, performing services that required WREG to have a real estate broker’s license.
Because Thompson did not have a broker’s license when he founded WREG, he decided
to collaborate with someone who did, Dean Asimos. To memorialize the terms of their
collaboration, Thompson and Asimos adapted a standard form independent contractor
agreement typically used by real estate brokers and agents.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts 1.B.3, I.A., and I.B.3.c.
1The form agreement Thompson and Asimos used tured out to be a poor fit for the
unique business context in which WREG operated. A series of disputes arose between
the two of them concerning, among other things, alleged underpayment of commissions
and alleged failure to comply with regulatory requirements governing real estate
brokerage. These disputes led to litigation, with the parties suing each other on various
breach of contract and business tort theories. After a bench trial, Thompson prevailed in
all respects, obtaining a substantial damages award, plus an award of attorney fees.
Asimos took nothing, and now appeals from the judgment. :
In the published portion of this opinion, we affirm the trial court’s rejection of all
of Asimos’s claims against Thompson and its determination of liability against Asimos
for breach of contract, but vacate the damages award and remand for recalculation and
clarification of the amount awardable. In the unpublished portions of the opinion we
deny Thompson’s motion to dismiss the appeal under the appellate disentitlement
doctrine, and affirm the trial court’s liability findings against Asimos on Thompson’s
claims for unfair competition and trademark infringement.
L BACKGROUND
Ina terse four-page Statement of Decision, the trial court framed the business
context giving rise to this lawsuit as follows: While “most real estate agents deal with
residential or commercial property[,] [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).” A great deal
is packed into these background observations about the business setting. To illuminate
how the business circumstances bear on our analysis of the trial court’s disposition of the
parties’ claims, we begin with a summary of the evidence presented at trial.A. — Evidence Presented at Trial
1 Thompson's Consulting Business, WREG
Thompson, a civil engineer with a background in the power plant industry,
testified that in the early 2000s, he was working for Equinix, a company operating in
what was then a nascent internet-infrastructure industry called “colocation services.”
Colocation, according to Thompson, means multitenancy; and colocation data services
means advice and consulting offered to companies involved in managing or locating
themselves in “data centers,” buildings which house computer servers and other
networking equipment, all of which must be powered, connected to the internet, and
cooled in a highly specialized way.
According to Thompson, companies needing large-scale internet storage (ie.,
“cloud”) capability and high-speed broadband access to the internet tend to cluster
together in data center colocation arrangements under the umbrella of “management
services agreements.” To advise such companies, Thompson left Equinix to start his own
independent colocation services consulting business. In 2005, when he left Equinix,
Thompson was not set up to take advantage of real estate brokerage opportunities in his
colocation services consulting practice. He was a licensed zeal estate agent, but he was
not a licensed real estate broker.
: In 2008, Thompson met Asimos, a real estate broker whose expertise was mostly
jnsesidential real estate. Asimos had little knowledge of colocation services, but he did
have a real estate broker’s license. Seeing the potential for mutual advantage, Thompson
and Asimos, after brief discussion, “pretty quickly” agreed to enter into what would
become a two-year business collaboration. :
On June 4, 2008, Thompson and Asimos signed the first of two successive
independent contractor agreements governing their relationship (the “ICAs”), the first
covering the period from inception through December 31, 2008, and the second,
negotiated in March 2010 but covering the period January 1, 2009 through September 30,
2010. The renewal contract included two written amendments, added
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 SUPERIOR COURT OF THE ELECTRONICALLY FILED Superior Court of California, County of Sar Francisco 04/25/2017 Clerk of the Court BY:EDWARD SANTOS. Deputy Clerk STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. ) ) Plaintiffs, J VS. } ) ) ) ) DEAN GREGORY ASIMOS, DBA DRAKE, REALTY Defendant. ) ) ) DEAN GREGORY ASIMOS, DBA DRAKE) REALTY } Cross-Complainant, } vs. } JASON EVERETT THOMPSON and ) WIRED REAL ESTATE GROUP, INC. ) and DOES 1 through 50. } ) ) Cross-Defendants. I, Jessica R. Barsotti declare: Case No.: CGC-11-514980 DECLARATION OF JESSICA R. BARSOTTI IN SUPPORT OF MOTION FOR ATTORNEY’S FEES ON APPEAL Date: May 17, 2017 Time: 9:30am Dept.: 302 Reservation Number 04200517-18 1. Iam the attorney for Defendant and Appellant in this action and make this declaration in support of this motion. DECLARATION IN SUPPORT OF MOTION FOR ATTORNEY CGC-11514980 I FEES2. [am duly licensed to practice law in the State of California and my license is in good standing. 3. I make this declaration of my own personal knowledge and if called to testify to the facts contained herein I could do so competently. 4. [have been an attorney specializing in litigation for 17 years. I am a graduate of Hastings College of Law. 5. My fee rate was established in the federal courts in 2010 at $350.00 per hour in the case Jackson v. Pittsburg Police Department et al. 6, Attorneys in this geographical area with like skill and experience can be as high as $550 per hour according to the Laffey Matrix of 2015. 7. currently bill my clients at a rate of $450.00 per hour for litigation of this complexity and nature. 8. Ihave reduced my usual and customary hourly rate by $100 per hour for the purposes of this motion in an effort to make these fees reasonable. 9. All hours expended and claimed in this motion were necessary for the litigation objectives in the appeal. 10. Attached hereto as Exhibit 1 is a true and correct copy of the billing records for my work on this appeal. These entries were made contemporaneously with the tasks involved and were entered in the regular course of business. I reviewed these time records and have removed a total of 36 hours of time that were expended for issues unrelated to the attack on the damages awarded in the contract action. 11. Attached hereto as Exhibit 2 is a true and correct copy of Defendant’s Motion to Vacate Judgment. 12. Attached hereto as Exhibit 3 is as true and correct copy of the Court of Appeal decision in Thompson v. Asimos case number A140096, the appeal at issue. 13. Attached hereto as Exhibit 4 is as true and correct copy of the judgment in this case (CGC11-514-980) that was appealed. DECLARATION IN SUPPORT OF MOTION FOR ATTORNEY FEES CGC-11514980 214. Attached hereto as Exhibit 5 is as true and correct copy of contract between the parties authorizing a fee award to the prevailing party. 15. The appeal by Asimos asked the court to determine 8 issues including: “1) If the court did| not err in finding a breach of contract by Asimos, did the court err in determining that the damages awarded were proven with specificity and flowed directly from the breach found? 2) Is Appellant entitled to an offset of damages as calculated by the court for his commission share under the agreements and for the amounts already paid in settlement?, and 3) Did the Court err in denying the motion to vacate judgment on the issue of excessive damages and procedural errors? 16. The majority of the 356.2 hours billed on Appeal of this action were spent researching and writing the Opening Brief and Reply Brief, opposing and researching TWO failed motions t dismiss the appeal, and review of the Respondent’s Brief. 17. Attached hereto as Exhibit 6 is a true and correct copy of my current resume. 18. Attached hereto as Exhibit 7 is a true and correct copy of the Remittitur in the Court of Appeal case Thompson v. Asimos A140096. DATED: April 21, 2017 THE LAW OFFICE OF JESSICA R. BARSOTTI By Attorneys for Defendant and Cross-Complainant JESSICA R. BARSORTI S{IMOS DEAN GREGORY A: DECLARATION IN SUPPORT OF MOTION FOR ATTORNEY FEES CGC-11514980 3EXHIBIT 110/20 Soo sescenanerascres i 73/2012 Retreive and respond to emails féim client re BK; review emails frog 6cre re 10/342012 Research motions in limine; begin.de 10/4/2064 Cotriplete | motions in limine; research TM law and c conjpatt law for Sri 7 at 10/4/2012%gegin drafting trial brief = 10/5/2012 Cots @f prepare exhibit lists, g&* “Serre of-Thompsorr 2 10/6/2012 draft exafyof client; Sechle 1; further pi prep of trial exhibits; researdl oe none LodefzeZ Review MIL'S tel Thompson; r resegysifsame and opposition ee 4 10/7/2012 Trial prep-revie psen-and Seielhuber 4 10/8/2012 research and draft opBpitions to MILS = a 4 10/8/2012 draft exam of Guttigffez aMelrevise client exam es 3 10/9/2012 Travel to and atyénd trial; meetg with client; trial prep further prepare ex 6.5 10/10/2012 Travel to atipattend trial, meeting WRG Ser eee ‘Sree 8. “TO/TT/2012 Travel tgAnd attend trial: Meeting with-eiag re 10/12/2012 Travefo and attend trial; meeting with client ee 10/13/2012 ReAew trial exhibits; prepare exams and exhibits 10/14/2012 ffneeting with client-re+rtatreview contract and bank recs onion 10/15/2942 Travel to and attend trial; meeting with client re same; trial pr&,.prepare ¢ 10 0 2"Travelto-and-attend trial;.meeting with client re same; trial prep, finalize cl 8.25 10/77/20 ravel-tovend-attendriel=mer einreanebtriakteanscript 5 16 18/2012 R Retreive and resoanil to > emails re trial transcript 0.25 223.5 Appeal Research appealable issues in trial court rulings; research motion for new 9/5/2013 trial or to vacate judgment as excessive 4.3 Research excessive damage awards, calculation of prejudgment interest, 10/2/2013 speculative damages for appeal 5.1 10/10/2013 Research appeal and notice of appeal; meeting with client re appeal and fe 2.3 Research on effect of failure to rule on objections to statement of 10/15/2013 decision 1.2 Begin drafting notice of appeal; research re appeal procedure; draft fee 10/17/2013 waiver application for appeal; TC client re same 2.2 Further research re Notice of Appeal; complete draft of same; file same; 10/23/2013 file fee waiver 2 Review order denying fee waiver; request hearing re same; TC client re 11/6/2013 same 0.9 11/14/2013 Review order denying hearing on fee waiver; TC client re same 0.3 Research appeal designation of records; review trial file re evidence of 11/20/2013 breach of contract damages; meeting with client re same 44 Research damages awards; speculative awards, excessive awards; rules of 11/23/2013 appeal and factors to determine 35 Begin drafting designation of records on appeal; review trial file re 11/29/2013 documents needed on appeal; meeting with client re same 5.3 Review clerks certificate re dismissal of appeal re payment of fees; TC 12/2/2013 client re payment of fees on appeal and order to show cause 0.3Research format of appeal documents and Appellate filing rules; further 12/5/2013 review of file re documents pertaining to appeal issues Full review of trial file including exhibits, arguments, motions, and rulings 12/30/2013 for purposes of appeal 1/2/2014 Research request for transcripts and designation of record on appeal Research standard of review on appeal; review statement of decision and 1/5/2014 objections; research effect of failure to rule on objections Research contract damages and standards; research repudiation of 1/6/2014 contract, research case law re calculation of contract damages Research real estate laws pertaining to broker and agent authority; 1/7/2013 review file re same; review exhibits re designation of records Prepare designation of record on appeal, request for transcripts on 1/12/2014 appeal; TC client re same 1/14/2014 Meeting with client re appeal 1/24/2014 Finalize request for transcript on appeal; file same 1/26/2014 Amend request for transcript on appeal; file same Research contract damages and prejudgment interest awards; review 2/15/2014 case law re start date of prejudgment interest on contract Research applicable case law re real estate brokers and agents and 3/14/2014 stautory scheme re authority Research effect of motion to vacate judgment denial on appealable 3/20/2014 issues; standard of review Research procedural erros of trial court re appeal, including failure to rule 3/26/2014 on objections, failure to submit the judment in a timely fashion Review notice of fees to prepare record on appeal; review and analyze 4/24/2014 the notice of default on appeal; TC client re same Review Appellate certification of record and notice of due date of opening 5/6/2014 brief; TC client re same 5/7/2014 Further review of designation of records on appeal Review records on appeal, research designation of additional records for 5/17/2014 purposes of appeal; TC client re same Retreive and respond to emails from opposing counsel re augmentation 6/3/2014 of record on appeal; resarch re same Review motion to augment record on appeal by respondent; research and 6/9/2014 analyze same 6/18/2014 Review order re augmentation of record on appeal, analyze same 6/25/2014 Further review of record on appeal and analysis of same in light of motion 7/1/2014 Research case law re damages offsets under contract 7/12/2014 Further review of record on appeal; analyze additional records needed TC opposing counsel re augmentation of record on appeal; draft 7/29/2014 stipulation re same; email opposing counsel re same Revise stipulation re augmentation of record on appeal; email opposing 7/30/2014 counsel re same; analyze additional documents to be included on appeal Research standard of review on appeal in light of trial record and 8/6/2014 augmentation of record; begin drafting opening brief 15 3.1Continue research re contract damages and calculations for purposes of appeal; determine additional records needed on appeal; prepare motion 8/27/2014 to augment Review final augmentation of record notice; analyze same; research effect 9/24/2014 of same on brief 9/25/2014 Continue drafting opening brief; research re format and efiling rules Research case law re standard of review and failure to rule on objections; research effect of denied motion to vacate judgment on standard of 9/30/2014 review; research procedural history requirements Continue drafting opening brief; research re deference to court findings; 10/3/2014 analyze judgment re same; further review of bound file on appeal Continue drafting opening brief; research re proving contract damages 10/5/2014 and performance by other party Continue drafting opening brief; review record on appeal re same; pull 10/6/2014 cites from record Review transcipt and record on appeal, prepare statement of facts for 10/7/2014 opening brief Continue drafting opening brief; research re speculative damages awards, excessive awards; research re statutory scheme regarding brokers and 10/9/2014 agents; research bankruptcy implications Continue drafting opening brief; further research on standard of review; 10/13/2014 revise facts section 10/16/2014 Continue drafting opening brief, prepare table of authorities Continue drafting opening brief, review and coordinate table of 10/17/2014 authorities 10/18/2014 Continue drafting opening brief, review authority and shepardize 10/19/2014 Continue drafting opening brief, create Table of Contents 10/21/2014 Continue drafting opening brief, review format rules, TC Clerk re same 10/22/2014 Continue drafting opening brief, review case law file Review draft of opening brief, final preparation of Table of Contents and 10/23/2014 Authorities; review rules on certification affidavit; final review of case law Final preparation of opening brief; review of same; review filing rules and 10/24/2014 efiling procedure; file and confirm same 11/1/2014 Meeting with client re appeal; review Response and Reply schedule Review motion to dismiss appeal, legal analysis of same; research 12/22/2014 standard for same; TC client re same 12/28/2014 Review Respondent's brief; legal analysis of same; research cases cited Research and analyze legal arguments in Respondent's brief; research 12/29/2014 case law re damages and standard of review on appeal Research Reply brief standards and format; begin to analyze differing cases cited by Respondent; draft comparison of the appropriate standard 12/30/2014 of review Begin drafting Reply brief; review record re same; review and analyze Respondent's brief re same; draft opposition to motion to dismiss appeal; 1/2/2015 research re same 5.4 2.5 41 5.2 47 3.9 46 7.3 5.4 8.3 6.2 5.8 6.1 7.2 5.5 6.1 71 4.1 11. 3.1 2.6 5.2 Al 8.31/3/2015 Continue drafting Reply brief and opposition to motion to dismiss appeal Continue research re standard of review and statutory scheme re brokers 1/5/2015 and agents; finalize opposition to motion to dismiss Continue to research re disentitlement doctrine, contract damages and 1/6/2015 relief on appeal. 1/7/2015 Continue drafting Reply brief; revise same 1/8/2015 Continue drafting Reply brief Continue drafting Reply brief; research re case law cited by Respondent re 1/10/2015 standard of review and deference to trial court 1/11/2015 Finalize Reply brief; final review of same 1/12/2015 Prepare Reply brief for filing; review rules re eservice; confirm same 1/15/2015 Meeting with client re briefs and oral argument; review rules re same 2/28/2015 Review rules re oral argument; draft request for oral argument 3/25/2015 Review Oral argument notices; research procedure re same Review request for oral argument and panel assignment; research re 8/26/2015 same 12/23/2015 Review second motion to dismiss appeal; analyze same Research arguments re motion to dismiss appeal; research case law re 12/26/2015 same; review the record on appeal re same 12/29/2015 Draft opposition to motion to dismiss appeal; further research re same Further research re second motion to dismiss appeal; finalize opposition; 1/3/2016 prepare for filing Review notice of consolidation of appeal with motion to dismiss; analyze 1/25/2016 same; TC client re same 9/23/2016 Begin preparation for oral argument; review record re same Begin draft of oral argument; review all briefs; continue to review record; 10/5/2016 analyze cites; Shepardize law Continue to prepare for oral argument; create folder of applicable law 10/8/2016 and holding; create table re standard of review arguments 10/10/2016 Continue to prepare for oral argument; review reply brief Review trial transcripts in preparation for oral argument; continue 10/12/2016 preparation 10/13/2016 Final preparation of oral argument; meeting with client re same 10/14/2016 Attend and argue at oral argument; post argument meeting with client Receive and review Disposition on Appeal; analyze same; TC client re 12/16/2016 same Further review of Appellate decision; analyze same, research case law 12/18/2016 cited in decision 4/5/2017 Receive and review Notice and Motion for Attorney fees filed by OC 4/10/2017 Research rules re motion for fees after appeal and remand to trial court Further research re entitlement to fees on appeal and time for motion and effect of premature motion; begin drafting opposition to motion by 4/11/2017 OC Continue research re attorney fees motion after Appeal; research mixes 4/14/2017 result cases and failure to award costs 4.1Continue drafting opposition to motion for fees; begin Appellant's motion 4/17/2017 for fees 48 Finalize opposition to motion for fees; file same; continue drafting 4/20/2017 Appellant motion for fees 3.4 Further research case law re mixed result cases and entitlement to fees; research finalization of judgment; draft motion for fees by Appellant; 4/21/2017 draft declaration re fee motion; research attachments 8.5 Continue drafting motion for fees; continue research re same; review timesheets re same; remove time from time sheets inapplicable to 4/22/2017 motion 6.1 4/24/2017 Finalize motion for fees; prepare for filing; file same 14 356.2EXHIBIT 2LAW OFFICES OF JESSICA R. BARSOTTI Jessica Barsotti, Esq., SBN 209557 5032 Woodminster Lane Oakland, CA 94602-2614 510.530.4078 510.530.4725 (FAX) Attorney for Defendant/Cross-Complainant, Dean Gregory Asimos, dba Drake Realty SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. Plaintiffs, vs. d ) ) ) 2 ) 2 ) ) ) ) ) DEAN GREGORY ASIMOS, DBA DRAKE. REALTY ) Defendant. ) ) DEAN GREGORY ASIMOS, DBA DRAKE REALTY Cross-Complainant, : vs. } JASON EVERETT THOMPSON and ) WIRED REAL ESTATE GROUP, INC. ) and DOES 1 through 50. } d ) ) ) ) ) Cross-Defendants. MOTION TO VACATE JUDGMENT AND FOR NEW TRIAL THOMPSON v. ASIMOS. Case No.: CGC-11-514980 MOTION FOR NEW TRIAL OR TO VACATE JUDGMENT, AND POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: October 15, 2013 Time: 9:30am Dept: 302 Trial Date: October 9, 2012TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to the provisions of California Code of Civil Procedure §657 and §659, Defendant and Cross-Complainant Dean Asimos hereby moves to vacate the judgment entered on August 23, 2013 in the above-captioned matter and for a new trial. Defendant gave notice of his intention to move for a new trial on September 6, 2013 when he filed his Ex Parte Application to Stay Enforcement of the Judgment, indicating the grounds upon which he intended to move for a new trial. This motion is based on CCP §657 and §659, the court file, or the minutes of the Court or both and upon the evidence, oral and documentary, as well as all papers, records, and documents on file herein, pursuant to Sections 657, 658, 659 and 660 of the Code of Civil Procedure of the State of California and the Points and Authorities herein. This motion is brought on the following statutory grounds: + The award of damages was excessive, for at least the reasons that (1) there was no breach of contract and thus no damages should have been awarded; (2) since there was no basis to award damages, there was no basis to award interest; (3) the amount of interest is excessive due to thd Court’s determination of the December 31, 2008 start date with no evidence to support such start date; (4) since there was no breach of contract no award of attorney’s fees to Plaintiff is proper; and; (5) No trademark damages or injunction could be awarded to Plaintiff because the evidenced of infringement failed as a matter of law (C.C.P. § 657(5)); + The evidence was insufficient to justify the Judgment (C.C.P. § 657(6)); * The Judgment is contrary to law (C.C.P. § 657(6)); + Irregularity in the proceedings of the Court (C.C.P. § 657(1)); MOTION TO VACATE JUDGMENT 2 AND FOR NEW TRIAL THOMPSON v. ASIMOS.27 28 Date: MOTION TO VACATE JUDGMENT AND FOR NEW TRIAL THOMPSON v. ASIMOS Jessica R. Barsotti, Attorney for DefendantPOINTS AND AUTHORITIES I. THE COURT SHOULD GRANT A NEW TRIAL ON THE GROUND THAT EXCESSIVE DAMAGES WERE AWARDED. On August 23, 2013, nearly a year after trial, the Court entered judgment for Jason) Everett Thompson in the amount of $450,038.00, which included $311,100.00 in what wag termed “Astound Damages”, $250.00 in token damages for trademark infringement, and) $138,688.00 in prejudgment interest. See Judgment 1:22-27. C.C.P. § 657(5) expressly permits the Court to grant a new trial on the grounds of excessive damages: The verdict may be vacated and any other decision may be modified or vacated .. and a new or further trial may be granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: ...(5) Excessive or inadequate damages. The authorities make clear that a grant of a motion for new trial on this ground can appl to all aspects of the trial-not just the award of damages. See, e.g., Collins v. Lucky Markets, Inc.| 274 Cal. App. 2d 645, 649 (1969) (“While the ground of excessive damages might seem tol pertain more particularly to the issue of damages, Code of Civil Procedure, section 657 expressh permits the granting of a new trial on all issues (i.¢., liability and damages) on that ground.”). In} assessing a new trial motion on this ground, the Court has the power and responsibility t reweigh the evidence. C.C.P. § 657. As discussed below, a new trial should be granted because MOTION TO VACATE JUDGMENT 4 AND FOR NEW TRIAL, THOMPSON v. ASIMOS.the damages awarded by the Court’s judgment are excessive and not supported by the law or the evidence at trial. A. Award of “Astound damages” and Interest thereon is Excessive Because Plaintiff Failed to Prove that Asimos Breached Any Duty, or Caused Any Damage. “Damages are defined as compensation for detriment from the unlawful act or omission of another.” Perkins v. Benguet Consol. Mining Co., 55 Cal. App. 2d 720 (1942); see Cal. Civ. Code § 3281. Indeed, a finding of an exact amount of damages resulting from an injury ig required for a money judgment to issue. See Estate of Kampen, 201 Cal. App. 4th 971, 988 (2011) (“The court does not make any determination regarding a claim of injury and does not set forth an exact amount of damages owed, which is a requirement for a money judgment.”), Damages also are a prerequisite for an award of interest both under Civil Code § 3287(a) (“Every| person who is entitled to recover damages ... is entitled also to recover interest thereon”) and § 3287(b) (“Every person who is entitled under any judgment to receive damages ... may also recover interest thereon.”). If a Plaintiff fails to present evidence that shows that he was damaged] by Defendant’s actions or omissions, and the amount of those damages, he cannot recover. Here. Plaintiff failed as a matter of law that he was damaged by Asimos, and he failed to prove the amount of any such claimed damages and thus any damages awarded were excessive. 1. Astound Damages Awarded are Wholly Speculative “It is black-letter law that damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.” Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 577 (Mozzetti); see also Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989 (Piscitelli) . “[I}t is fundamental that ‘damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery’ ” Lueter v. State of uw MOTION TO VACATE JUDGMENT AND FOR NEW TRIAL THOMPSON v. ASIMOSCalifornia (2002) 94 Cal.App.4th 1285, 1302. “ ‘Whatever the proper measure of damages may be, in a given case, the recovery therefor is still subject to the fundamental rule that damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery’ ” Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661-662 . “ ‘[DJamages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable’ ” Jd. Thus, where the trial court record provides no reasonable basis for ascertaining damages, a claim for damages is speculative as a matter of law. (Piscitelli, supra, 87 Cal.App.4th at p. 990; accord, Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696 . This is precisely the case here where the damages awarded are based on speculation of an outcome of a trial that never happened, or in the alternative, on the basis of what Plaintiff wished he had settled that case for. During the time that Plaintiff was working as a real estate agent under Defendant Asimos, Plaintiff entered into a contract with Astound to assist in “a licensing deal” in which Astound would contract for internet services, security, power and space to hook up their internet servers. Defendant had no knowledge of the Astound contract until after it was executed by Plaintiff. Plaintiff attempted to collect his “commissions” from Astound pursuant to this contract, but Astound refused to pay, citing the fact that Plaintiff was a real estate agent, who, by definition and contract with Asimos, was unable to independently collect real estate “commissions”. Plaintiff disputed at trial that the Astound commissions were “real estate commissions” at all and testified as an expert on licensing deals that the Department of Real Estate “would never regulate” these type of licensing deals. Nonetheless, Plaintiff asked Asimos to serve as the Plaintiff in the suit against Astound using an attorney that Thompson had already hired for the MOTION TO VACATE JUDGMENT 6 AND FOR NEW TRIAL. THOMPSON v. ASIMOS27 28 task. After some litigation, the Astound suit was voluntarily settled, with the agreement of both Thompson and Asimos for approximately $150,000. William Guttierrez, the attorney who represented Asimos and Thompson in the action against Astound testified that they settled the litigation to avoid the cost and uncertainty of trial, and that if they had gone to trial he had no idea what the outcome would have been, or whether the Astound’s various defenses would have been successful. Evidence at trial showed that Astound was defending the action on the basis that Thompson did not participate in the negotiations for the subject deals, and thus was not entitled to the full commission under its agreement with WTEG. Another defense asserted by Astound in this prior litigation was that the name “Wired Real Estate Group” which was used by Thompson in this deal, was not registered as a dba with the Department of Real Estate. This was testified to by both parties at trial. Guttierrez testified that he had no idea whether Astound’s varioius defenses would have been successful or not. He also testified that he had no idea how much it would have cost to take the case to trial in attorney’s fees or costs, but agreed that the amount would have exceeded the amount that his firm had been paid out of the settlement funds. Plaintiff argued at trial that he should have gotten closer to $400,000 from the Astound transaction had the case not settled, but presented no evidence that he was entitled to such an amount, and he presented no evidence that Defendant Asimos was responsible for the difference between the settlement amount and the amount Plaintiff claimed he was owed from Astound. As such, the Court’s award of $311,100 plus interest of $138,688 is excessive, completely speculative and not supported by the evidence at trial. 2. Uncontroverted Expert Testimony Showed Lack of Causation of Damages MOTION TO VACATE JUDGMENT 7 AND FOR NEW TRIAL, THOMPSON v. ASIMOS“[U]ncontradicted and unimpeached testimony of an expert witness may not be arbitrarily disregarded by the trier of fact. Krause v. Apodaca (1960) 186 Cal.App.2d 413, 417, (Krause ).” Lauderdale Associates v. Dep't of Health Servs., 67 Cal. App. 4th 117, 126 (1998). Here Plaintiff testified as an expert on licensing deals that the Department of Real Estate does not regulate licensing deals like the Astound deal. This testimony was uncontroverted and unimpeached. Asimos testified as an expert in real estate transactions and Department of Real Estate Regluations. Asimos testified that the Department of Real Estate regulations do not make any real estate commissions uncollectable due to a failure to register a dba with the Department of Real Estate so long as the dba was registered with the County in which the business was operating. This expert testimony was also uncontroverted and unimpeached. Asimos also testified that he had registered the name Wired Real Estate Group with the county where his office was located, and submitted supporting documentation of such as trial exhibits. As such, the Court cannot award $311,100 in damages, plus interest for breach of contract damages due to Asimos’s purported failure to register the name “Wired Real Estate Group” as the uncontroverted expert testimony, which cannot be arbitrarily rejected by the court, shows that Defendant’s actions did not cause Plaintiff any damages. B. Any Award Of Money Damages or an Injunction For Trademark Infringement is Excessive Because The Plaintiff Failed to Properly Plead or Prove Trademark Damages. As discussed more fully in Asimos’ July 12, 2013 Objections to the (then) proposed Judgment, which objections were never expressly ruled on by the Court prior to its issuance of the ultimate judgment on August 23, 2013, and in his Trial Brief, the Judgment improperly MOTION TO VACATE JUDGMENT 8 AND FOR NEW TRIAL THOMPSON v. ASIMOSawards Thompson a money judgment of $250 as nominal damages for trademark infringement under the Lanham Act. This is inappropriate for several reasons. First, Plaintiff's Complaint fails to make the requisite allegations regarding the protections to be afforded his so-called trademark as indicated in the Lanham Act. In his Second Cause of Action Plaintiff claims that Asimos’ unauthorized use of plaintiffs’ Trademarks to promote, market, or sell real estate services in competition with plaintiffs real estate services constitutes Unfair Competition pursuant to 15 U.S.C. §1125(a).” Plaintiffs’ Complaint at J 13. Because the claimed trademarks were never registered with the USPTO, Plaintiff would only be able to recover damages for infringement under this section of the Lanham Act. In order to determine if Plaintiff had protectable rights in an unregistered “mark” it must first be determined what category such claimed mark falls into. “Potential trademarks fall into four catagories: (1) generic, (2) descriptive, (3) suggestive and (4) fanciful. [citations omitted]. To establish a protectable trademark [Plaintiff] must prove either (1) that its mark is inherently distinctive or (2) that the mark has acquired a secondary meaning associated with [Plaintiff]’s business ” Glow Industries, Inc. v. Lopez 252 F.Supp.2d 962, 976 (2002). Generic terms are not protectable as a trademark because “they are common words or phrases that describe a class of goods rather than an individual product.” Telecom, Inc. v. Japan Telkecom Am. Inc., 287 F.3d 866, 872 (9" Cir. 2002). “Descriptive terms suffer from the same problem. Descriptive terms relate more directly to a particular product than do generic terms as they describe a person, a place or an attribute of the product. They will not support the grant of an exclusive property tight, however, ‘[b]ecause they tend to consist of common words that might be the only way to describe a category of goods.’” Glow, supra at 977, quoting Telecom. Under this analysis, if a plaintiff fails to plead and prove that the mark is fanciful, or that the mark has secondary MOTION TO VACATE JUDGMENT 9 AND FOR NEW TRIAL THOMPSON v. ASIMOSmeaning, a court will not even reach the issue of “use” of the mark in commerce or likelihood of confusion. Here, the admittedly unregistered service mark “Wired Real Estate Group” can be afforded no protection under the Lanham Act, and thus no damages can be awarded by the Court because Plaintiff failed to plead or prove whether the mark is fanciful, or that the generic. descriptive or suggestive mark had gained secondary meaning under the Lanham Act, aj preliminary requirement to finding infringement under the Lanham Act. Id. at 976. The Court’s issuance of a money judgment and injunction for trademark infringement is improper because the Court may only award relief “justified by the allegations of the complaint and the evidence.” Singleton v. Perry, 45 Cal. 2d 489, 499 (1955); see Hall v. Hickey, 156 Cal. App. 2d 94, 101 (1957) ( “[FJindings and conclusions being outside the issues must be disregarded and cannot furnish support for the judgment or any part thereof.” Hart v. Merchant: Trust Co., 120 Cal. App. 231, 234 (1932). A judgment will be set aside where it is apparent tha’ there was no finding upon a material issue. Southern Pac. R. Co. v. Crampton (1883) 1] P.C.L.J. 429, 63 Cal. 537. Here, that is precisely the case, and the Court should set aside this judgment and injunction and grant a new trial. A finding of a breach for the purposes of awarding nominal] damages and an injunction for trademark infringement is improper where the Plaintiff failed to plead and prove the type of unregistered mark to be protected, indeed there is nothing upon) which the Court can base its determination. Not only did the Plaintiff fail to plead the type of unregistered mark he was attempting to protect, and the Court made no findings on the type of mark Plaintiff was attempting to protect, nor on any secondary meaning achieved, ove Defendant’s objections. On this basis, the any award of damages is excessive and an injunction is MOTION TO VACATE JUDGMENT 10 AND FOR NEW TRIAL THOMPSON v. ASIMOSunjustified and thus the Court should grant a new trial. C. The Damages Were Excessive Because The Court Improperly Tolled and Awarded Prejudgment Interest Every person who is entitled to recover damages certain, or capable of being madd certain by calculation, and the right to recover which is vested in him upon a particular day, ig entitled also to recover interest thereon from that day, except during such time as the debtor ig prevented by law, or by the act of the creditor from paying the debt. Cal. Civ. Code § 3287(a)(West) The test for determining certainty under California's prejudgment interest statute is whether the defendant knew the amount of damages owed to the claimant or could have computed that amount from reasonably available information. Burgett, Inc. v. American Zuric. Ins. Co., E.D.Cal.2011, 830 F.Supp.2d 953. If there is a factual dispute about the amount off damages, or when those damages were due, then such damages are not capable of being certain! under California law. Here, Astound disputed the amount of commissions owed to WREG i their litigation based on the calculations required under the contract. Such dispute in the amount of commissions owed was at the heart of the Astound litigation. Asimos had no idea how any, purportedly owed commissions were calculated, and had no information about the contract itsel: upon which to base any knowledge of what he supposedly owed Thompson from the Astound transaction. Asimos never collected commissions from Astound as the broker of record, and wag only aware of the Astound deal through information given to him by Thompson. Therefore the damages were in no way certain or capable of being ascertained by Asimos which would allo the Court to award prejudgment interest in the amount of $138, 688. The Astound deal was entered into in October 2008 between Thompson on behalf of MOTION TO VACATE JUDGMENT WW AND FOR NEW TRIAL THOMPSON v. ASIMOSWired Real Estate Group and Astound. The condition for payment under that contract did nol occur sometime around June 2009, and even then, only a portion of the amounts Thompso: claimed were owed were purportedly due at that time. In the Astound litigation, it claimed that total commissions owed were approximately $66,000 in 2009, and that those commissions were to be split between Thompson and another agent who negotiated the deal. Astound was required| to calculate the commissions owed based on the number of cabinets ordered and those commissions were to continue if the client continued beyond year 1 of the contract. As such. there is no basis or evidence that would allow the Court to award interest on $311,100 from] December 31, 2008 based on any breach of contract by Asimos and the judgment should bd vacated and a new trial should be granted. This award of interest is on an uncertain and disputed] amount which is unsupported by the facts or law and must be vacated and a new trial granted due to its excessiveness. Il. THE COURT SHOULD GRANT A NEW TRIAL ON THE GROUNDS THAT THERE WERE NUMEROUS IRREGULARITIES IN THE PROCEEDINGS OF THE COURT AND THE COURT ABUSED ITS DISCRETION. C.C.P. § 657(1) provides that the Court may grant a new trial if there was am “[irregularity] in the proceedings of the court, jury or adverse party, or any order of the court o7 abuse of discretion by which either party was prevented from having a fair trial.” The authorities make clear that “[the] language of the statute is sufficiently broad to include any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected.” Jacoby v. Feldman, 81 Cal. App. 3d 432, 446 (1978). As a preliminary matter, a number of the issues discussed in Section I above, as they are supported through the accompanying Declaration of Jessica R. Barsotti, would merit the granting! MOTION TO VACATE JUDGMENT 12 AND FOR NEW TRIAL THOMPSON v. ASIMOSof this new trial motion under this separate statutory ground (in addition to the independent reason that those issues led to excessive damages). This includes the Court’s inclusion of an| award of excessive money damages and prejudgment interest in the judgment, even though n evidence substantiates such damages, or any breaches that would have led to such damages, which are discussed in more detail above. it A, The Court Failed to Issue a Judgment Within the Time Required This case was tried in the first weeks of October of 2012, but a judgment was not rendered until August 23, 2013, ten months later, without any justification. California Rule of Court, Rule 3.1590. Announcement of tentative decision, statement of decision, and judgment (D Signature and filing of Judgment If a written judgment is required, the court must sign and file the judgment within 50 days after the announcement or service of the tentative decision, whichever is later, or, if a hearing was held under (k), within 10 days after the hearing. The Judgment constitutes the decision on which judgment is to be entered under Code of Civil Procedure section 664. (m) Extension of time; relief from noncompliance The court may, by written order, extend any of the times prescribed by this rule and at any time before the entry of judgment may, for good cause shown and on such terms as may be just, excuse a noncompliance with the time limits prescribed for doing any act required by this rule. Here the Court issued a tentative ruling on February 15, 2013, but the judgment was not entered until August 23, 2013, 190 days later and the Court did not extend time for such compliance with any written order. Such a substantial delay in making a decision in this matter has prejudiced Defendant, is contrary to the duties of the court and is grounds for a new trial. B. The Court Improperly Denied Defendant’s Motion for Nonsuit on Trademark Claim MOTION TO VACATE JUDGMENT 13 AND FOR NEW TRIAL THOMPSON v. ASIMOSAs discussed above, The Court improperly denied Defendant’s Motion for Nonsuit on the Trademark Claims after the close of Plaintiffs evidence. It was clear that that time that the Plaintiff had failed to plead or prove an essential element of a Trademark Claim under the Lanham Act and evidence was closed. The Court not only improperly denied the motion for nonsuit, but then went on to award an injunction and $250 damages for Trademark infringement against Defendant. This error by the Court is but one irregularity that is grounds for a new trial. E. The Court Refused To Grant or Recognize Asimos’ Stay Of This Action. In addition, the Court’s refusal to recognize, or grant Asimos a stay further qualify as grounds fo a new trial under these statutes. Asimos made a request for a routine, temporary stay off enforcement of the judgment in this action under C.C.P. § 918 on September 10, 2013. The Court summarily denied this routine request based on the stipulation between the parties thai allowed the lawsuit to go forward despite Defendant’s Chapter 13 bankruptcy which stated that no judgment would be stayed because of the bankruptcy. The Court’s refusal to stay the enforcement of the judgment to allow Defendant to make this motion for new trial prejudiced) Defendant in that the judgment is being executed before his arguments here have been ruled upon. The stipulation did not anticipate a motion to stay under C.C.P. § 918, which request was wholly outside of the stipulation between the parties. This refusal by the Court to grant thig routine stay is yet another irregularity in the proceedings warranting a new trial. IV. THE ERRORS DISCUSSED ABOVE ARE SUFFICIENT REASON TO GRANT A NEW TRIAL UNDER A NUMBER OF OTHER STATUTORY GROUNDS. The errors discussed above provide the Court with ample reason to grant a new trial onl the ground of insufficiency of evidence under C.C.P. § 657(6) ( “insufficiency of evidence” and “decision against law”) and C.C.P. § 657(7) (“error in law, occurring during trial and excepted to MOTION TO VACATE JUDGMENT 4 AND FOR NEW TRIAL THOMPSON v. ASIMOSby the party making the application”). A. Insufficiency of Evidence. “Tn passing upon a motion for a new trial based upon the insufficiency of the evidence, it is the exclusive province of the trial court to judge the credibility of the witnesses, determine the probative force of testimony, and weigh the evidence ... In considering the sufficiency of thd evidence upon such motion the court may draw inferences opposed to those drawn at the trial ... and where the only conflicts consist of inferences deduced from uncontradicted probative facts. the court may resolve such conflicts in determining whether the case should be retried ....” Richardson v. Ham, 44 Cal. 2d 772, 775 (1955). The numerous errors discussed in Section I above, including the Court’s: (1) issuance off a money judgment and injunction for Trademark infringement under the Lanham Act whe presented with no evidence to allow a showing of infringement, (2) award of prejudgment interest, (3) rejection of the evidence of secret transactions by Thompson; (4) failure to find breach by Thompson where Thompson is required to come forward with the evidence to sho’ commissions owed to Asimos, and where Thompson admitted to doing several acts in contradiction to the agreements; and (5) findings that Asimos breached the agreements, ard supported by insufficient evidence for the same reasons discussed in that section. B. Decision Against Law The same errors are also “against law,” and thus likewise form a basis to grant thig motion. A decision is against law “where the evidence is insufficient in law and without conflict in any material point.” MeCown v. Spencer, 8 Cal. App. 3d 216, 229 (1970). In a nonjury trial, i the court fails to find on material issues raised by the pleadings and as to which evidence wag introduced, the judge's statement of decision is “against law.” A new trial is necessary to MOTION TO VACATE JUDGMENT 15 AND FOR NEW TRIAL THOMPSON v. ASIMOS.determine the issues left unresolved. Schmeltzer v. Gregory (1968) 266 Cal.App.2d 420, 423, —| no findings made on special defenses raised in answer and supported by evidence]. Many of the issues discussed in Sections | and II result from evidence as to which there is no conflict and thd judgment is based on material disputes on which there were no stated findings of fact. C. Error In Law During Trial Finally, as discussed above, a number of errors during trial affected the ultimate outcome of the trial to Asimos’ great prejudice. See Bristow v. Ferguson, 121 Cal. App. 3d 823. 826 (1981) (“But the trial court, no less than the appellate court, is expressly enjoined by article VI section 4 1/2 [now § 13], of our Constitution from granting a new trial for error of law unless such error is prejudicial.”). All of the errors discussed herein, particularly those concerning the Court’s issuance of a money judgment against Asimos for breach of contract and trademark! infringement and an injunction and the Court’s award of pre-judgment interest are errors in law. V. CONCLUSION For the reasons set forth above, the Court should grant Asimos’ motion for new trial. Dated: September 19, 2013 Respectfully submitted, [\— Jessica R. re re for Defendant MOTION TO VACATE JUDGMENT 16 AND FOR NEW TRIAL THOMPSON vy. ASIMOS.EXHIBIT 3om COPY Filed 12/15/16 CERTIFIED FOR PARTIAL PUBLICATION" IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA. FIRST APPELLATE DISTRICT DIVISION FOUR. ‘Court of Appeal First Appellate District JASON EVERETT THOMPSON et al., DEC 15 2016 Plaintiffs, Cross-defendants and Diana Herbert, Clerk Respondents, A140096 by : Deputy Clerk v. DEAN ASIMOS, Cc a . ‘ity & County of San Francisco Defendant, Cross-complainant and Super. Ct. No. CGC-11-514980) Appellant. Jason Everett Thompson founded a consulting firm and operated it as a sole proprietorship under the dba Wired Real Estate Group (WREG) with the aim of advising clients in a niche internet infrastructure industry called “colocation,” sometimes, but not always, performing services that required WREG to have a real estate broker’s license. Because Thompson did not have a broker’s license when he founded WREG, he decided to collaborate with someone who did, Dean Asimos. To memorialize the terms of their collaboration, Thompson and Asimos adapted a standard form independent contractor agreement typically used by real estate brokers and agents. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 1.B.3, I.A., and I.B.3.c. 1The form agreement Thompson and Asimos used tured out to be a poor fit for the unique business context in which WREG operated. A series of disputes arose between the two of them concerning, among other things, alleged underpayment of commissions and alleged failure to comply with regulatory requirements governing real estate brokerage. These disputes led to litigation, with the parties suing each other on various breach of contract and business tort theories. After a bench trial, Thompson prevailed in all respects, obtaining a substantial damages award, plus an award of attorney fees. Asimos took nothing, and now appeals from the judgment. : In the published portion of this opinion, we affirm the trial court’s rejection of all of Asimos’s claims against Thompson and its determination of liability against Asimos for breach of contract, but vacate the damages award and remand for recalculation and clarification of the amount awardable. In the unpublished portions of the opinion we deny Thompson’s motion to dismiss the appeal under the appellate disentitlement doctrine, and affirm the trial court’s liability findings against Asimos on Thompson’s claims for unfair competition and trademark infringement. L BACKGROUND Ina terse four-page Statement of Decision, the trial court framed the business context giving rise to this lawsuit as follows: While “most real estate agents deal with residential or commercial property[,] [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).” A great deal is packed into these background observations about the business setting. To illuminate how the business circumstances bear on our analysis of the trial court’s disposition of the parties’ claims, we begin with a summary of the evidence presented at trial.A. — Evidence Presented at Trial 1 Thompson's Consulting Business, WREG Thompson, a civil engineer with a background in the power plant industry, testified that in the early 2000s, he was working for Equinix, a company operating in what was then a nascent internet-infrastructure industry called “colocation services.” Colocation, according to Thompson, means multitenancy; and colocation data services means advice and consulting offered to companies involved in managing or locating themselves in “data centers,” buildings which house computer servers and other networking equipment, all of which must be powered, connected to the internet, and cooled in a highly specialized way. According to Thompson, companies needing large-scale internet storage (ie., “cloud”) capability and high-speed broadband access to the internet tend to cluster together in data center colocation arrangements under the umbrella of “management services agreements.” To advise such companies, Thompson left Equinix to start his own independent colocation services consulting business. In 2005, when he left Equinix, Thompson was not set up to take advantage of real estate brokerage opportunities in his colocation services consulting practice. He was a licensed zeal estate agent, but he was not a licensed real estate broker. : In 2008, Thompson met Asimos, a real estate broker whose expertise was mostly jnsesidential real estate. Asimos had little knowledge of colocation services, but he did have a real estate broker’s license. Seeing the potential for mutual advantage, Thompson and Asimos, after brief discussion, “pretty quickly” agreed to enter into what would become a two-year business collaboration. : On June 4, 2008, Thompson and Asimos signed the first of two successive independent contractor agreements governing their relationship (the “ICAs”), the first covering the period from inception through December 31, 2008, and the second, negotiated in March 2010 but covering the period January 1, 2009 through September 30, 2010. The renewal contract included two written amendments, added