Thompson v. Asimos
6 Cal. App. 5th 970
| Cal. Ct. App. | 2016Background
- Jason Thompson operated a colocation consulting business as Wired Real Estate Group (WREG); some transactions required a real estate broker’s license. Thompson was a licensed salesperson but not a broker until June 2010.
- Thompson and broker Dean Asimos entered two independent contractor agreements (ICAs) (2008 and 2010) allocating commission splits and addressing licensed activity; the 2010 ICA broadened what generated commissions.
- Disputes arose over DRE registration of the WREG dba, commission payments (notably the Astound/Amazon transaction), and use of the WREG mark; Astound settled its claim for $155,000 (net ~$102,911 after fees).
- Thompson sued Asimos (trademark, Lanham Act, unfair competition, breach of contract); Asimos cross-complained (breach, fraud, accounting, constructive trust). After a bench trial Thompson prevailed; court awarded damages, prejudgment interest, fees, and a permanent injunction barring Asimos from using WREG.
- On appeal the court affirmed liability findings (including breach and trademark/unfair competition), denied dismissal under the disentitlement doctrine, but vacated and remanded the damages and prejudgment interest for recalculation/clarification (crediting of trust funds and correct accrual date).
Issues
| Issue | Plaintiff's Argument (Thompson) | Defendant's Argument (Asimos) | Held |
|---|---|---|---|
| Applicability of appellate disentitlement for failure to comply with injunction | Asimos’ refusal to promptly authorize release of trust funds warrants dismissal of his appeal | Contempt and procedural disputes over lodging authorization and stayed enforcement excuse conduct | Denied dismissal; appellate disentitlement not applied because doubts about contempt jurisdiction and stay required merits review |
| Breach of contract: did Asimos breach by failing to register WREG with DRE and violate ICA duties | ICA recitals and course of dealing imposed obligation on Asimos to comply with broker regulations, including registering WREG; breach caused collection difficulties | ICA obligated only to remain a licensed broker; Thompson committed breaches too; trial findings insufficient | Affirmed liability: court reasonably implied Asimos had duty to comply with DRE rules and failed to register WREG; substantial evidence supports breach finding |
| Damages for breach (amount and causation) | Thompson entitled to full commission claim (net $311,100 after offsets) and prejudgment interest from Dec. 31, 2008 | Award speculative; causation and amount uncertain; prejudgment interest date improper; trust distributions should offset | Damages vacated and remanded: breach caused harm but full claimed commission speculative; damages limited to 85% of net Astound settlement proceeds and prejudgment interest must be recalculated from settlement date; credit trust distributions against judgment |
| Trademark / Lanham Act & state unfair competition claim | Asimos’ continued use of WREG caused public confusion; WREG is a protectable, suggestive service mark; injunction and damages appropriate | No evidence of protectable mark or secondary meaning; findings inadequate | Affirmed liability and injunction under Lanham Act and §17200; mark is suggestive (inherently distinctive) so secondary meaning not required; nominal damages upheld |
Key Cases Cited
- Stoltenberg v. Ampton Investments, Inc., 215 Cal.App.4th 1225 (2013) (disentitlement doctrine applied for willful disobedience or obstructive tactics)
- MacPherson v. MacPherson, 13 Cal.2d 271 (1939) (parties cannot seek court relief while in contempt of court orders)
- Arceneaux v. Superior Court, 51 Cal.3d 1130 (1990) (presumption of correctness for trial court judgments and implied findings doctrine)
- Winet v. Price, 4 Cal.App.4th 1159 (1992) (contract interpretation: ambiguity question is legal; parol evidence and deference standards)
- Fladeboe v. American Isuzu Motors, Inc., 150 Cal.App.4th 42 (2007) (doctrine of implied findings after bench trial)
- Central Valley General Hospital v. Smith, 162 Cal.App.4th 501 (2008) (ultimate facts vs. evidentiary facts; sufficiency of statement of decision)