Preview
THE LAW OFFICE OF JESSICA R. BARSOTTI
Jessica R. Barsotti Esq. / SBN 209557
5032 Woodminster Lane
Oakland, CA 94602
510.530.4078
510.530.4725 / FAX
Attorney for Defendant/Cross-Complainant,
Dean Gregory Asimos, dba Drake Realty
ELECTRONICALLY
FILED
Superior Court of Caltfornta,
County of San Francisco
04/20/2017
Clerk of the Court
BY:SANDRA SCHIRO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
Case No.: CGC-11-514980
DEFENDANT DEAN GREGORY
Plaintiffs,
ASIMOS’S OPPOSTION TO MOTION
FOR ATTORNEY’S FEES
vs.
Time: 9:30am.
Dept.: 302
DEAN GREGORY ASIMOS, DBA DRAKE
REALTY
Defendant.
REALTY }
Cross-Complainant, }
vs. ;
JASON EVERETT THOMPSON and )
WIRED REAL ESTATE GROUP, INC. )
and DOES 1 through 50. }
)
)
Cross-Defendants.
I. INTRODUCTION
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2
} Date: May 3, 2017
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This fee motion is made on behalf of Plaintiff claiming that they prevailed in the appeal
in this matter because the liability on the contract claim was affirmed. However, the moving
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES
CGC-11514980
1party fails to explain that although the judgment was affirmed, damages were reduced from
$311,100 to approximately $87,000 as the court of appeal found the damages award speculative
and excessive. This reduction in damages was the main thrust of this appeal, mirrored the motion
to vacate the judgment filed by Defendant after trial and resulted in greater relief on appeal for
Defendant than for Plaintiff. As such, Defendant is making his own motion for fees that will be
heard on May 17, 2017, and on that basis opposes Plaintiff's instant motion and asks for a
continuance of the hearing on this matter until the motion of Defendant can be reviewed by this
Court.
Hi. FACTS
A court trial commenced on October 9, 2012 before Retired Judge Wallace Douglass who
was sitting on special assignment in Dept. 303 in San Francisco Superior Court. Trial continued
for 6 days, ending on October 17, 2012. A Tentative Decision was finally issued by the trial
court judge on February 15, 2013 finding in favor of Thompson and awarding $311,100 in
damages, plus interest.
Asimos timely filed and served objections to the proposed statement of decision on June
13, 2013, stating forty-one specific requests for clarity regarding the proposed statement of
decision and asking the court for specific findings of fact on material issues presented at trial.
The trial court never ruled on Asimos’ timely filed objections to the proposed statement of
decision. Judgment finally was entered against Asimos on August 28, 2013.
Thompson filed a motion for attorney’s fees on October 18, 2013. That motion was heard
on November 13, 2013. The motion was granted and Thompson was awarded attorney’s fees
under the contract action. Asimos then filed a motion for a new trial based on the award of
excessive damages and errors at trial on September 25, 2013. That motion was heard on October
18, 2013 and denied by the trial court. Final judgment was entered on August 28, 2013 and
Asimos Appealed.
The appeal by Asimos to this judgment asked the court to determine 8 issues, 2 issues
related to the liability under the contract, “Did the court err in finding Asimos liable for breach off
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES
CGC-11514980
2contract?” and “Did the court err in finding that Thompson committed no breach of the contracts
based on the undisputed facts?”. Asimos asserted an additional review requests regarding the
finding of Trademark Infringement, accounting and master service agreements. Id. But the crux
of this appeal related to excessive damages and improper damages calculations, and three of the
issues on appeal related to this, 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?
Thus, the gravamen of this appeal related to the award of excessive and/or speculative damages.
In its decision on appeal, the court agreed with Appellant that a large portion of the
damages awarded were excessive and speculative and while affirming the judgment below,
specifically reduced the damages awarded from $311,100 to $87,000, resulting in a win by
Asimos of approximately $224,000 and an ostensible “win” by Thompson of $87,000. Clearly
Asimos was afforded the greater relief on appeal and on that basis Thompson is ot entitled to
attorney fees on this motion.
Il. ASIMOS OBTAINED GREATER RELIEF IN THE COURT OF APPEAL ON
THE CONTRACT CLAIMS THAN THOMPSON, ENTITLING ASIMOS TO
FEES AND NEGATING THOMPSON’S CLAIM FOR FEES
“Under the rule of stare decisis, the governing case for “prevailing party” determinations
under section 1717 of the Civil Code? is Hsu v. Abbara (1995) 9 Cal.4th 863, 39 Cal Rptr.2d
824, 891 P.2d 804 (Hsu ), with some additional light thrown on the subject by Scott Co. v.
Blount, Inc. (1999) 20 Cal.4th 1103, 1109, 86 Cal.Rptr.2d 614, 979 P.2d 974 (Scott ). ..Much of
the Hsu opinion represents the effort of the high court to reconcile what we might call the
“discretion clause” of section 1717 with the “entitlement clause” of section 1717. (See Hsu,
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES
CGC-11514980
3supra, 9 Cal.4th at pp. 871-876, 39 Cal.Rptr.2d 824, 891 P.2d 804.) Both clauses are set forth in
subdivision (b)(1) of the statute. Structurally, the entitlement clause comes first, with the statute
first declaring that (a) the trial court must determine who is the “prevailing party,” and then (b)
defining the “prevailing party” as the party who recovered a greater relief in the action on the
contract. ... But then comes the discretion clause, which gives a court permission to determine
no party prevailed on the contract. (“The court may also determine that there is no party
prevailing on the contract for purposes of this section.”).” De La Cuesta v. Benham (2011) 193
Cal. App.4th 1287, 1292-93.
However, this discretion is not limitless. If the results in a case are lopsided in terms of
one party obtaining “greater relief” than the other in comparative terms, it may be an abuse of
discretion for the trial court not to recognize that the party obtaining the “greater” relief was
indeed the prevailing party. (Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009) 173
Cal.App.4th 1533, 1541, 93 Cal.Rptr.3d 864 (Silver Creek ) [“Although a trial court has broad
discretion to determine the prevailing party in a mixed result case, its discretion is not
unlimited.”]; Hilltop Investment Associates v. Leon (1994) 28 Cal-App.4th 462, 468, 33
Cal.Rptr.2d 552 (Hilltop ) Id_at 1295.
Here, Asimos appealed the judgment in this matter primarily to overturn an award for
excessive and speculative damages. After appeal The Court of Appeal VACATED the damages
award in favor of Thompson to recalculate the damages. “Thompson’s motion to dismiss this
appeal is denied. The award in favor of Thompson for breach of contract damages
including prejudgment interest is vacated; the judgment and the permanent injunction are in
all other respects affirmed; and the case is remanded for further proceedings consistent with this
opinion to (1) recalculate damages, including the award of prejudgment interest, and (2) clarify
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES
CGC-11514980
4n
27
28
the judgment to ensure that any distribution to Thompson from the Carr McClellan trust account
shall be credited toward the discharge of Asimos’s judgment indebtedness. The parties are to
bear their own costs of appeal.” Thompson v. Asimos (2016) 6 Cal. App. 5th 970.
In its disposition on appeal the court specifically overturned the damages award and
reduced them to approximately $87,000: “Award of damages in amount of $311,100 in favor of
founder of consulting firm, which specialized in real estate needed to house internet
infrastructure, was excessive in founder's breach of contract action against real estate broker...
“Award of prejudgment interest in favor of founder of consulting firm that specialized in real
estate needed to house internet infrastructure on breach of contract damages in amount of
$366,000, running at 10% from date on which first independent contractor agreement terminated,
was excessive in founder's breach of contract action against real estate broker...; amount of
damages claimed as a result of breach was speculative, and first date broker could be charged
with knowing or being capable of calculating prejudgment interest on fixed amount was not date
first agreement terminated. Cal. Civ. Code § 3287(a).” Id. at 992
Finally, the court of appeal also overturned the calculation of damages, “Asimos claims
the court miscalculated the damages by adding the amount in the Carr McClellan trust account to
its award of $311,100 for the Astound commission. For this contention, he points to the way the
trial court *993 phrased its award to Thompson when it revised the disposition paragraph of the
Statement of Decision from the language in its tentative decision. The phrasing is, indeed,
somewhat ambiguous. The court states it is giving “[j]udgment for Thompson and against
Asimos in an amount which, when combined with funds to be distributed from Mr. Gutierrez's
account, fotal $311,100, plus $250 token damages for service mark infringement.” (Italics
added.) By using the phrase “when combined with,” we think the court's intent was to say that
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES
CGC-11514980
5the $102,911 in the Carr McClellan trust account was to be credited against the $311,100, and
thus that, when it announced judgment for Thompson in “an amount”—without stating a
figure—that amount was $208,189. This is academic now, of course, since we are reducing
the damages award to 85 percent of the net proceeds received in the Astound settlement.
But on remand, we will direct it be made clear in the judgment that any distribution Thompson
has received from the Carr McClellan trust account shall be credited toward the discharge of
Asimos's judgment indebtedness.
Third, and finally, Asimos claims that contractually he is entitled to 15 percent of the net
proceeds from the Astound settlement, since he was owed that amount under Paragraph 8 of the
2010 ICA. He is correct as a matter of contract entitlement, but he is incorrect that failing to
include that offset as a separately reflected item in the calculation of damages was reversible
error. Asimos's 15 percent share of the net Astound settlement amount (which appears to be
$15,436.65, or 15 percent of $102,911) will be included in the total offset we have ordered for
any distribution Thompson has received from the Carr McClellan account as a credit against
Asimos's judgment indebtedness. Thompson v. Asimos (2016) 6 Cal.App.Sth 970, 992-93 [212
Cal.Rptr.3d 158, 179] (emphasis added).
Simply put, Asimos was afforded the greater relief on the appeal of this matter in that the
damages against him were reduced from $311,100 to 85% of $102,911 or approximately
$87,474.35, a reduction of $223,625.65 in the judgment in favor of Asimos, in addition to a
reduction in interest awarded yet to be calculated. It was precisely this recalculation that was
sought by Asimos in his motion to vacate judgment, which was denied by the trial court, forcing
Asimos into this appeal which he substantially prevailed and is entitled to prevailing party status,
and on that basis, Thompson’s motion must be denied and Asimos’ motion must be granted.
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES.
CGC-11514980
6Iv. CONCLUSION
The court must exercise its discretion under Civil Code 1717 and declare Asimos the
prevailing party in this appeal based on his greater relief afforded by the decision compared to
Thompson and deny this motion in its entirety. In addition, Asimos’ own motion for attorney
fees should be simultaneously reviewed and granted as Asimos was the prevailing party under
Civil Code 1717 as the party that was afforded the greater relief on the appeal.
DATED: April 20, 2017 THE LAW OFFICE OF JESSICA R. BARSOTTI
vet /N
On fy
L
JESSIGA) R. BAR SOTTI
Attorneys for Defendant and Cross-Complainant
DEAN REGORY ASIMOS
v
By
ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES
CGC-11514980
7
Preview
THE LAW OFFICE OF JESSICA R. BARSOTTI Jessica R. Barsotti Esq. / SBN 209557 5032 Woodminster Lane Oakland, CA 94602 510.530.4078 510.530.4725 / FAX Attorney for Defendant/Cross-Complainant, Dean Gregory Asimos, dba Drake Realty ELECTRONICALLY FILED Superior Court of Caltfornta, County of San Francisco 04/20/2017 Clerk of the Court BY:SANDRA SCHIRO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. Case No.: CGC-11-514980 DEFENDANT DEAN GREGORY Plaintiffs, ASIMOS’S OPPOSTION TO MOTION FOR ATTORNEY’S FEES vs. Time: 9:30am. Dept.: 302 DEAN GREGORY ASIMOS, DBA DRAKE REALTY Defendant. REALTY } Cross-Complainant, } vs. ; JASON EVERETT THOMPSON and ) WIRED REAL ESTATE GROUP, INC. ) and DOES 1 through 50. } ) ) Cross-Defendants. I. INTRODUCTION ) ) ) ) ) 2 } Date: May 3, 2017 ) ) ) ) ) ) ) ) This fee motion is made on behalf of Plaintiff claiming that they prevailed in the appeal in this matter because the liability on the contract claim was affirmed. However, the moving ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES CGC-11514980 1party fails to explain that although the judgment was affirmed, damages were reduced from $311,100 to approximately $87,000 as the court of appeal found the damages award speculative and excessive. This reduction in damages was the main thrust of this appeal, mirrored the motion to vacate the judgment filed by Defendant after trial and resulted in greater relief on appeal for Defendant than for Plaintiff. As such, Defendant is making his own motion for fees that will be heard on May 17, 2017, and on that basis opposes Plaintiff's instant motion and asks for a continuance of the hearing on this matter until the motion of Defendant can be reviewed by this Court. Hi. FACTS A court trial commenced on October 9, 2012 before Retired Judge Wallace Douglass who was sitting on special assignment in Dept. 303 in San Francisco Superior Court. Trial continued for 6 days, ending on October 17, 2012. A Tentative Decision was finally issued by the trial court judge on February 15, 2013 finding in favor of Thompson and awarding $311,100 in damages, plus interest. Asimos timely filed and served objections to the proposed statement of decision on June 13, 2013, stating forty-one specific requests for clarity regarding the proposed statement of decision and asking the court for specific findings of fact on material issues presented at trial. The trial court never ruled on Asimos’ timely filed objections to the proposed statement of decision. Judgment finally was entered against Asimos on August 28, 2013. Thompson filed a motion for attorney’s fees on October 18, 2013. That motion was heard on November 13, 2013. The motion was granted and Thompson was awarded attorney’s fees under the contract action. Asimos then filed a motion for a new trial based on the award of excessive damages and errors at trial on September 25, 2013. That motion was heard on October 18, 2013 and denied by the trial court. Final judgment was entered on August 28, 2013 and Asimos Appealed. The appeal by Asimos to this judgment asked the court to determine 8 issues, 2 issues related to the liability under the contract, “Did the court err in finding Asimos liable for breach off ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES CGC-11514980 2contract?” and “Did the court err in finding that Thompson committed no breach of the contracts based on the undisputed facts?”. Asimos asserted an additional review requests regarding the finding of Trademark Infringement, accounting and master service agreements. Id. But the crux of this appeal related to excessive damages and improper damages calculations, and three of the issues on appeal related to this, 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? Thus, the gravamen of this appeal related to the award of excessive and/or speculative damages. In its decision on appeal, the court agreed with Appellant that a large portion of the damages awarded were excessive and speculative and while affirming the judgment below, specifically reduced the damages awarded from $311,100 to $87,000, resulting in a win by Asimos of approximately $224,000 and an ostensible “win” by Thompson of $87,000. Clearly Asimos was afforded the greater relief on appeal and on that basis Thompson is ot entitled to attorney fees on this motion. Il. ASIMOS OBTAINED GREATER RELIEF IN THE COURT OF APPEAL ON THE CONTRACT CLAIMS THAN THOMPSON, ENTITLING ASIMOS TO FEES AND NEGATING THOMPSON’S CLAIM FOR FEES “Under the rule of stare decisis, the governing case for “prevailing party” determinations under section 1717 of the Civil Code? is Hsu v. Abbara (1995) 9 Cal.4th 863, 39 Cal Rptr.2d 824, 891 P.2d 804 (Hsu ), with some additional light thrown on the subject by Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109, 86 Cal.Rptr.2d 614, 979 P.2d 974 (Scott ). ..Much of the Hsu opinion represents the effort of the high court to reconcile what we might call the “discretion clause” of section 1717 with the “entitlement clause” of section 1717. (See Hsu, ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES CGC-11514980 3supra, 9 Cal.4th at pp. 871-876, 39 Cal.Rptr.2d 824, 891 P.2d 804.) Both clauses are set forth in subdivision (b)(1) of the statute. Structurally, the entitlement clause comes first, with the statute first declaring that (a) the trial court must determine who is the “prevailing party,” and then (b) defining the “prevailing party” as the party who recovered a greater relief in the action on the contract. ... But then comes the discretion clause, which gives a court permission to determine no party prevailed on the contract. (“The court may also determine that there is no party prevailing on the contract for purposes of this section.”).” De La Cuesta v. Benham (2011) 193 Cal. App.4th 1287, 1292-93. However, this discretion is not limitless. If the results in a case are lopsided in terms of one party obtaining “greater relief” than the other in comparative terms, it may be an abuse of discretion for the trial court not to recognize that the party obtaining the “greater” relief was indeed the prevailing party. (Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1541, 93 Cal.Rptr.3d 864 (Silver Creek ) [“Although a trial court has broad discretion to determine the prevailing party in a mixed result case, its discretion is not unlimited.”]; Hilltop Investment Associates v. Leon (1994) 28 Cal-App.4th 462, 468, 33 Cal.Rptr.2d 552 (Hilltop ) Id_at 1295. Here, Asimos appealed the judgment in this matter primarily to overturn an award for excessive and speculative damages. After appeal The Court of Appeal VACATED the damages award in favor of Thompson to recalculate the damages. “Thompson’s motion to dismiss this appeal is denied. The award in favor of Thompson for breach of contract damages including prejudgment interest is vacated; the judgment and the permanent injunction are in all other respects affirmed; and the case is remanded for further proceedings consistent with this opinion to (1) recalculate damages, including the award of prejudgment interest, and (2) clarify ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES CGC-11514980 4n 27 28 the judgment to ensure that any distribution to Thompson from the Carr McClellan trust account shall be credited toward the discharge of Asimos’s judgment indebtedness. The parties are to bear their own costs of appeal.” Thompson v. Asimos (2016) 6 Cal. App. 5th 970. In its disposition on appeal the court specifically overturned the damages award and reduced them to approximately $87,000: “Award of damages in amount of $311,100 in favor of founder of consulting firm, which specialized in real estate needed to house internet infrastructure, was excessive in founder's breach of contract action against real estate broker... “Award of prejudgment interest in favor of founder of consulting firm that specialized in real estate needed to house internet infrastructure on breach of contract damages in amount of $366,000, running at 10% from date on which first independent contractor agreement terminated, was excessive in founder's breach of contract action against real estate broker...; amount of damages claimed as a result of breach was speculative, and first date broker could be charged with knowing or being capable of calculating prejudgment interest on fixed amount was not date first agreement terminated. Cal. Civ. Code § 3287(a).” Id. at 992 Finally, the court of appeal also overturned the calculation of damages, “Asimos claims the court miscalculated the damages by adding the amount in the Carr McClellan trust account to its award of $311,100 for the Astound commission. For this contention, he points to the way the trial court *993 phrased its award to Thompson when it revised the disposition paragraph of the Statement of Decision from the language in its tentative decision. The phrasing is, indeed, somewhat ambiguous. The court states it is giving “[j]udgment for Thompson and against Asimos in an amount which, when combined with funds to be distributed from Mr. Gutierrez's account, fotal $311,100, plus $250 token damages for service mark infringement.” (Italics added.) By using the phrase “when combined with,” we think the court's intent was to say that ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES CGC-11514980 5the $102,911 in the Carr McClellan trust account was to be credited against the $311,100, and thus that, when it announced judgment for Thompson in “an amount”—without stating a figure—that amount was $208,189. This is academic now, of course, since we are reducing the damages award to 85 percent of the net proceeds received in the Astound settlement. But on remand, we will direct it be made clear in the judgment that any distribution Thompson has received from the Carr McClellan trust account shall be credited toward the discharge of Asimos's judgment indebtedness. Third, and finally, Asimos claims that contractually he is entitled to 15 percent of the net proceeds from the Astound settlement, since he was owed that amount under Paragraph 8 of the 2010 ICA. He is correct as a matter of contract entitlement, but he is incorrect that failing to include that offset as a separately reflected item in the calculation of damages was reversible error. Asimos's 15 percent share of the net Astound settlement amount (which appears to be $15,436.65, or 15 percent of $102,911) will be included in the total offset we have ordered for any distribution Thompson has received from the Carr McClellan account as a credit against Asimos's judgment indebtedness. Thompson v. Asimos (2016) 6 Cal.App.Sth 970, 992-93 [212 Cal.Rptr.3d 158, 179] (emphasis added). Simply put, Asimos was afforded the greater relief on the appeal of this matter in that the damages against him were reduced from $311,100 to 85% of $102,911 or approximately $87,474.35, a reduction of $223,625.65 in the judgment in favor of Asimos, in addition to a reduction in interest awarded yet to be calculated. It was precisely this recalculation that was sought by Asimos in his motion to vacate judgment, which was denied by the trial court, forcing Asimos into this appeal which he substantially prevailed and is entitled to prevailing party status, and on that basis, Thompson’s motion must be denied and Asimos’ motion must be granted. ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES. CGC-11514980 6Iv. CONCLUSION The court must exercise its discretion under Civil Code 1717 and declare Asimos the prevailing party in this appeal based on his greater relief afforded by the decision compared to Thompson and deny this motion in its entirety. In addition, Asimos’ own motion for attorney fees should be simultaneously reviewed and granted as Asimos was the prevailing party under Civil Code 1717 as the party that was afforded the greater relief on the appeal. DATED: April 20, 2017 THE LAW OFFICE OF JESSICA R. BARSOTTI vet /N On fy L JESSIGA) R. BAR SOTTI Attorneys for Defendant and Cross-Complainant DEAN REGORY ASIMOS v By ASIMOS OPPOSITION TO MOTION FOR ATTORNEY FEES CGC-11514980 7