"We are committed to: The highest ethical standards. Uncompromising honesty and integrity." —The Windermere Mission Statement "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." —Windermere CEO Geoff Wood's Public Affirmation

 

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Civil Jury Trial Scheduled 05/04/2012 VACATED on 4/26/2012. Superior Court Minute Order states in part: "...Plaintiff discusses with the Court with regards to the settlement agreement and requests an exparte hearing..." FURTHER CASE UPDATE: Superior Court Minute Order from Ex Parte hearing of 5/2/2012 states in part "...Counsel addresses the Court on the proposed request for PARTIAL dismissal. (emphasis added)

FRANCHISER WINDERMERE SERVICES COMPANY and WINDERMERE SERVICES SOUTHERN CALIFORNIA SUE SAN DIEGO'S FORMER WINDERMERE EXCLUSIVE PROPERTIES FRANCHISEES FOR BREACH OF CONTRACT/WARRANTY

 

Above L to R, 1-5: John W. Jacobi is Chairman and Founder of franchiser Windermere Services Company; Geoffrey P. Wood, Current Governing Person and Windermere Services Company CEO; Jill Jacobi-Wood, Windermere Services President and current Governing Person; current Governing Person and Windermere Services General Manager, John O'Brien "OB"Jacobi; Windermere Services Company General Counsel and Governing Person, attorney Paul Drayna—WSBA# 26636

 

Above L to R, 6&7: Bob Deville, Principal, Broker, Owner, and President of Windermere Services Southern California; Bennion & Deville Fine Homes, Inc., Coachella Valley, California. Bob Bennion, Principal and Owner of Windermere Services Southern California; Bennion & Deville Fine Homes, Inc., Coachella Valley, California.

Windermere Real Estate Services Company vs. Lifestyles Services Corp.

"67. Plaintiffs are informed and believe that defendants contend that the plaintiffs, in protecting their rights under the Franchise Agreements in light of defendants’ defaults, have somehow unlawfully interfered with defendants’ rights under the respective Franchise Agreements alleged in this Complaint. Plaintiffs dispute any such contention and allege that they have at all times acted properly and in accordance with the express terms of the Franchise Agreements and California law."

—From the SIXTH CAUSE OF ACTION in Plaintiff Windermere's

Complaint for Breaches of Contract and Declaratory Relief

Read the Lifestyles Cross-Complaint and Answer HERE

 

DOWNLOAD A PDF COPY OF THE COMPLAINT HERE

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO

Case No. 37-2011-00089709-CU-BC-CTL

COMPLAINT FOR BREACHES OF CONTRACT AND DECLARATORY RELIEF

WINDERMERE REAL ESTATE SERVICES COMPANY, a Washington corporation; and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation;

Plaintiffs;

v.

 

LIFESTYLES SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/RSF CORP., a California corporation; MRJR, Inc., a California corporation; STEPHEN D. RODGERS, an individual; MARK LOSCHER, an individual; MAUREEN LOSCHER, an individual; JAMES BROWNE, an individual; SHARON BROWNE, an individual; LARRY ANDERSON, an individual; BARBARA ANDERSON, an individual; ROBERT BEHIC, an individual; ROBIN BEHIC, an individual; and DOES 1 through 50, inclusive,

Defendants.

Plaintiffs Windermere Real Estate Services Company and Windermere Services Southern California, Inc. allege as follows:

PARTIES

1.            Plaintiff Windermere Real Estate Services Company (“WSC”) is a Washington Corporation. WSC owns certain trademarks including the trade names “Windermere” and Windermere Real Estate” and associated logo (the “Trademark”); and WSC has developed certain standards, techniques, methods, specifications, procedures and programs for the operation of a real estate brokerage business (the “Windermere System”). WSC has the exclusive right to use and license others to use the Trademark and the Windermere System and other WSC services. WSC is qualified to do business in California.

2.             Plaintiff Windermere Services Southern California, Inc. (“Windermere Southern California”) is a California corporation. Windermere Southern California is an “Area Representative” for WSC. Windermere Southern California and WSC offer licenses to use the Trademark and Windermere System in San Diego County, California. 1

3.            Defendant Lifestyles Services Corp. is a California corporation and a licensee pursuant to a Franchise License Agreement dated April 17, 2009, and amendments thereto (the “Lifestyles 2009 Franchise Agreement”). A copy of the Lifestyles 2009 Franchise Agreement with its amendments is attached hereto as Exhibit 1, and incorporated by reference.

4.            Defendant Lifestyles Services Solana Beach/RSF Corp. is a California corporation and a licensee pursuant to a Franchise Agreement dated March 23, 21010 (the “Lifestyles 2010 Franchise Agreement”). A copy of the Lifestyles 2010 Franchise Agreement with its amendments is attached hereto as Exhibit 2 and incorporated by reference.

5.            Defendant Stephen D. Rodgers (“Rodgers”) is a California resident. Resident is the sole principal of defendant Lifestyles Services Corp. and defendant Lifestyles Services Solana Beach/RSF Corp. Rodgers is a party to both the Lifestyles 2009 Franchise Agreement and the and the Lifestyles 2010 Franchise Agreement. Rodgers executed a personal guaranty in connection with the Lifestyles 2009 Franchise Agreement, and is thus a guarantor of the licensee’s obligations under this Franchise Agreement. A copy of Rodger’s personal guaranty is included within Exhibit 1. Rodgers also executed a personal guaranty in connection with the Lifetstyles 2010 Franchise Agreement, and is thus also a guarantor of the licensee’s obligations under this Franchise Agreement. A copy of Rodger’s personal guaranty is included within Exhibit 2.
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1 Collectively WSC and Windermere Southern California will be referred to herein as “Windermere” or simply “plaintiffs.”

6.            Defendant MRJR, Inc. (“MRJR””) is a California corporation and a licensee pursuant to a Windermere Real Estate License Agreement dated April 1, 2001 ((the “MRJR Franchise Agreement”). A copy of the MRJR Franchise Agreement with its amendments is attached hereto as Exhibit 3 and incorporated by reference.

7.            Defendant Mark Loscher is a California resident. Mark Loscher is a principal of MRJR, and guarantor of the licensee’s obligations under the MRJR Franchise Agreement.

8.            Defendant Maureen Loscher is a California resident. Maureen Loscher is a guarantor of the licensee’s obligations under the MRJR Franchise Agreement.

9.            Defendant James Browne is a California resident. James Browne is a principal of MRJR, and a guarantor of the licensee’s obligations the MRJR Franchise Agreement.

10.            Defendant Sharon Browne is a California resident. Sharon Browne is a guarantor of the licensee’s obligations under the MRJR Franchise Agreement.

11.            Plaintiffs are informed and believe that defendant Larry Anderson is a Montana resident. Larry Anderson is a principal of MRJR, and a guarantor of the of the licensee’s obligations under the MRJR Franchise Agreement, and these agreements were entered into within California.

12.            Plaintiffs are informed and believe that defendant Barbara Anderson is a Montana resident. Barbara Anderson is a principal of MRJR, and a guarantor of the of the licensee’s obligations under the MRJR Franchise Agreement, and these agreements were entered into within California.

13.            Plaintiff is informed and believes that defendant Robert Behic is a California resident. Robert Behic is a principal of MRJR, and a guarantor of the licensee’s obligations under the MRJR Franchise Agreement.

14.            Plaintiff is informed and believes that defendant Robin Behic is a California resident. Robin Behic is a guarantor of the licensee’s obligations under the MRJR Franchise Agreement.

15.            As alleged herein, the act and omissions upon which the claims alleged herein are based occurred in San Diego County.

16.            Plaintiffs are informed and believes and thereon alleges that the defendants sued under the fictitious named Does 1 through 50 are individuals or entities that have engaged  in the acts and omissions alleged herein and are also responsible for the harm caused (or to be caused) to plaintiffs. Plaintiffs are unaware of the true names or capacities of these fictitiously named defendants, and will amend this complaint to include their true names and capacities when they have been ascertained.

THE MRJR FRANCHISE AGREEMENTS AND RELATED PROMISSORY NOTES

17.            In or about April 1, 2001, plaintiff WSC entered into the MRJR franchise agreement that is attached hereto as Exhibit 3. The parties entered numerous amendments in connection with the MRJR Franchise Agreement. Plaintiff Windermere Southern California is a party to the most recent amendments.

18.            Defendants MRJR, Loscher, Browne, Anderson and Behic incurred and now owe substantial past due franchise fees to Windermere under the MRJR Franchise Agreement. That past due fees were reduced to two promissory notes in favor of WSC.

19.            The first promissory note is dated March 15, 2009, executed by defendant Mark Loscher, is in the amount of $892,212.46 (the “March 2009 Promissory Note”). A copy of the March 2009 Promissory Note is attached hereto as Exhibit 4, and is incorporated herein by reference. The sum of $810,949.37, plus interest, is past due and owing on this note.

20.            Defendants Mark Loscher, Maureen Loscher, James Browne, Sharon Browne, Robert Behic and Robin Behic executed an “Unconditional Guaranty of Payment” dated March 15, 2009 (the “March 2009 Guaranty”). These defendants thus personally guaranteed the payment of all amounts owed under the March 2009 Promissory Note. A copy of the March 2009 Guaranty is attached hereto as Exhibit 5, and is incorporated herein by reference.

21.            Neither defendants MRJR, Mark Loscher nor any of the guarantors have made all payments due and owing on the March 2009 Promissory Note and each are in default now. The March 2009 Promissory Note contains an acceleration clause. The sum of $810,949.37 remains due and owing under the March 2009 Promissory Note and the March 2009 Guaranty, plus interest which continues to accrue. The final amount due will be determined at trial.

22.            The second promissory note dated December 1, 2009, executed by defendant Mark Loscher, is in the amount of $96,112.29 ((the “December 2009 Promissory Note”). A copy of the December 2009 Promissory Note is attached hereto as Exhibit 6, and is incorporated herein by reference. The sum of $76,547.60, plus interest, is past due and owing on this note.

23.            Defendants Mark Loscher, Maureen Loscher, James Browne, Sharon Browne, Robert Behic and Robin Behic also executed an “Unconditional Guaranty of Payment” dated December 1, 2009 (the “December 2009 Guaranty”). These defendants thus personally guaranteed the payments of all amounts owed under the December 2009 Promissory Note. A copy of the December 2009 Guaranty is attached hereto as Exhibit 7, and is incorporated herein by reference.

24.            Neither defendants MRJR, Mark Loscher nor any of the guarantors have made all payments due and owing on the December 2009 Promissory Note and are each in default now. The December 2009 Promissory Note contains an acceleration clause. The sum of $76,547.60 remains due and owing under the December 2009 Promissory Note and the December 2009 Guaranty, plus interest which continues to accrue. The final amount due will be determined at trial.

25.            Since December 2009, defendants MRJR, Mark Loscher, James Browne, Sharon Browne, Larry Anderson, and Robert Behic continued to accrue past due franchise fees in the sum of $171,965.60 under the MRJR Franchise Agreement, which remain unpaid, plus interest which continues to accrue. Accordingly, these defendants are also in default under the MRJR Franchise Agreement. The final amount due will be determined at trial.

THE LIFESTYLES SERVICES FRANCHISE AGREEMENTS

26.            In or about April 17, 2009, defendants Lifestyles Services Corp. and its principal, defendant Stephen Rodgers entered into the Lifestyles 2009 Franchise Agreement that is attached hereto as Exhibit 1. As explained above defendant personally guaranteed the obligations of the licensee under the Lifestyles 2009 Franchise Agreement.

27.            Pursuant to this written agreement (Exhibit 1), monthly reports and fee payments are due by the fifth of each month and are considered delinquent if received after the 10th day of each month. Defendant Rodgers failed to make all payments due under the Lifestyles 2009 Franchise Agreement and is now in default. Defendant Rodgers owes $35,884.20, and interest continues to accrue on the unpaid amount.

28. In or about March 23, 2010, defendants Lifestyles Services Solana Beach/RSF Corp. and its principal, defendant Stephen Rodgers entered into the Lifestyles 2010 Franchise Agreement that is attached hereto as Exhibit 2. As set forth above, defendant Rodgers personally guaranteed the obligations of the licensee under the Lifestyles 2010 Franchise Agreement.

29.            Pursuant to this written agreement (Exhibit 2)), monthly reports and fee payments are due by the fifth of each month and are considered delinquent if received after the 10th day of each month. Defendant Rodgers failed to make all payments due under the Lifestyles 2010 Franchise Agreement and is now in default. Defendant Rodgers owes $14,534.18, and interest continues to accrue on the unpaid amount.

FIRST CAUSE OF ACTION

(Breach of Contract — March 2009 Promissory Note)

(Plaintiff WSC against Defendants MRJR, Mark Loscher, Maureen Loscher, James Browne, Sharon Browne, Robert Behic, Robin Behic and Does 1 through 10)

30.            Plaintiff WSC realleges and incorporates by reference paragraphs 1 through 29 above as though fully set forth herein.

31.            As alleged above, on or about March 15, 2009, WSC and defendants MRJR, Mark Loscher, Maureen Loscher, James Browne, Sharon Browne, Robert Behic and Robin Behic entered into the March 2009 Promissory Note and March 2009 Guaranty as described above, and attached hereto as Exhibits 4 and 5 respectively.

32.            The March 2009 Promissory Note and March 2009 Guaranty constitute valid and binding written contracts.

33.            Plaintiff WSC has performed all conditions, covenants, and promises required by the terms and conditions of these written agreements.

34.            Defendants’ failure to pay all amounts now due and owing on the March 2009 Promissory Notes constitutes a breach of this agreement.

35.            Defendants’ breaches of the March 2009 Promissory Note have caused damage to plaintiff WSC in an amount that will be proven at trial.

36.            Pursuant to the express terms of the March 2009 Promissory Note and March 2009 Guaranty, plaintiff WSC is entitled to recover its attorneys’ fees and costs in connection with this action.

SECOND CAUSE OF ACTION

(Breach of Contract — December 2009 Promissory Note)

(Plaintiff WSC against Defendants  MRJR, Mark Loscher, Maureen Loscher, James Browne, Sharon Browne, Robert Behic, Robin Behic and Does 11 through 20)

37.            Plaintiff WSC realleges and incorporates by reference paragraphs 1 through 29 above as though fully set forth herein.

38.            As alleged above, on or about December 1, 2009, WSC and defendants MRJR, Mark Loscher, Maureen Loscher, James Browne, Sharon Browne, Robert Behic and Robin Behic entered into the December 2009 Promissory Note and December 2009 Guaranty as described above and attached hereto as Exhibits 6 and 7 respectively.

39.            The December 2009 Promissory Note and December 2009 Guaranty constitute valid and binding written contracts.

40.            Plaintiff WSC has performed all conditions, covenants, and promises required by the terms and conditions of these written agreements.

41.            Defendants’ failure to pay all amounts now due and owing on the December 2009 Promissory Notes constitutes a breach of this agreement.

42.            Defendants’ breaches of the December 2009 Promissory Note and December 2009 Guaranty have caused damage to plaintiff WSC in an amount that will be proven at trial.

43.            Pursuant to the express terms of the December  2009 Promissory Note and December 2009 Guaranty, plaintiff WSC is entitled to recover its attorneys’ fees and costs in connection with this action.

THIRD CAUSE OF ACTION

(Breach of Contract — MRJR Franchise Agreement)

(Plaintiffs WSC and Windermere Southern California against Defendants MRJR, Mark Loscher, Maureen Brown, James Browne, Sharon Browne, Larry Anderson, Barbara Anderson, Robert Behic, Robin Behic, and Does 21 through 30)

44.            Plaintiffs reallege and incorporate by reference paragraphs 1 through 29 above as though fully set forth herein.

45.            As alleged above, on or about April 1, 2001, plaintiffs and defendants MRJR, Mark Loscher, Maureen Browne, James Browne, Sharon Browne, Larry Anderson, Barbara Anderson, Robert Behic, and Robin Behic entered into the MRJR Franchise Agreement and personal guaranty of all licensees’ obligations under that agreement, as set forth in Exhibit 3.

46.            The MRJR agreement ia s valid and binding written contract.

47.            Plaintiffs have performed all conditions required by the terms and conditions of the MRJR Franchise Agreement.

48.            Defendants’ failure to pay all amounts now due and owing on the MRJR Franchise Agreement constitutes a breach of this agreement.

49.            Defendants’ breaches of the MRJR Franchise Agreement have caused damage to plaintiffs in an amount that will be proven at trial.

50.            Pursuant to the express terms of the MRJR Franchise Agreement, plaintiffs are entitled to recover their attorneys’ fees and costs in connection with this action.

FOURTH CAUSE OF ACTION

(Breach of Contract — Lifestyles 2009 Franchise Agreement)

(Plaintiffs WSC and Windermere Southern California against Defendants Lifestyles Services Corp., Stephen Rodgers, and Does 31 through 40)

51.            Plaintiffs reallege and incorporate by reference paragraphs 1 through 29 above as though fully set forth herein.

52.            As alleged above, on or about April 17, 2009, plaintiffs and defendants Lifestyles Services Corp. and Stephen Rodgers entered into the Lifestyles 2009 Franchise Agreement and personal guaranty of all licensees’ obligations under that agreement, as set forth in Exhibit 1.

53.            The Lifestyles 2009 Franchise  is a valid and binding written contract.

54.            Plaintiffs have performed all conditions required by the terms and conditions of the Lifestyles 2009 Franchise Agreement.

55.            Defendants’ failure to pay all amounts now due and owing on the Lifestyles  2009 Franchise Agreement constitutes a breach of this agreement.

56.            Defendants’ breaches of the Lifestyles 2009 Franchise Agreement have caused damage to plaintiffs in an amount that will be proven at trial.

57.            Pursuant to the express terms of the Lifestyles 2009 Franchise Agreement, plaintiffs are entitled to recover their attorneys’ fees and costs in connection with this action.

FIFTH CAUSE OF ACTION

(Breach of Contract — Lifestyles 2010 Franchise Agreement)

(Plaintiffs WSC and Windermere Southern California against Defendants Lifestyles Services Corp. Solana Beach/RSF and Stephen Rodgers, and Does 41 through 50)

58.            Plaintiffs reallege and incorporate by reference paragraphs 1 through 29 above as though fully set forth herein.

59.            As alleged above, on or about March 23, 2010, plaintiffs and defendants Lifestyles Services Corp. and Stephen Rodgers entered into the Lifestyles 2010 Franchise Agreement and personal guaranty of all licensees’ obligations under that agreement, as set forth in Exhibit 2.

60.            The Lifestyles 2010 Franchise Agreement is a valid and binding written contract.

61.            Plaintiffs have performed all conditions required by the terms and conditions of the Lifestyles 2010 Franchise Agreement.

62.            Defendants’ failure to pay all amounts now due and owing on the Lifestyles 2010 Franchise Agreement constitutes a breach of this agreement.

63.            Defendants’ breaches of the Lifestyles 2010 Franchise Agreement have caused damage to plaintiffs in an amount to be proven at trial.

64.            Pursuant to the express terms of the Lifestyles 2010 Franchise Agreement, plaintiffs are entitled to recover their attorneys’ fees and costs in connection with this action.

SIXTH CAUSE OF ACTION

(Declaratory Relief)

(All Plaintiffs Against All Defendants and Does 1 through 50, inclusive)

65.            Plaintiffs reallege and incorporate by reference paragraphs 1 through 29 above as though fully set forth herein.

66.            A dispute has arisen between plaintiffs on the one hand, and defendants, on the other hand, regarding the parties’ respective rights and obligations under the Franchise Agreements alleged in this action.

67.            Plaintiffs are informed and believe that defendants contend that the plaintiffs, in protecting their rights under the Franchise Agreements in light of defendants’ defaults, have somehow unlawfully interfered with defendants’ rights under the respective Franchise Agreements alleged in this Complaint. Plaintiffs dispute any such contention and allege that they have at all times acted properly and in accordance with the express terms of the Franchise Agreements and California law.

68.            Accordingly, plaintiffs seek a judicial declaration that plaintiffs actions have been justified, privileged, and in accordance with the terms and conditions of the Franchise Agreements, without any unlawful interference of defendants’ right under those agreements.

PRAYER

WHEREFORE, plaintiffs Windermere Real Estate Services Company and Windermere Services Southern California, Inc. pray for relief as follows:

1.            For an award of general and special damages against the defendants according to proof at trial;

2.            For interest as set forth in the written agreements;

3.            For costs of suit;

4.            For attorneys’ fees pursuant to the Franchise Agreements, Promissory Notes, and Guaranty’s alleged herein; and

5.            For such other and further relief that the Court deems just and proper.

April 15, 2011

PESTOTNIK + GOLD LLP

______________________________
Timothy R. Pestotnik
Russell A. Gold
Russell F. Winslow
Attorneys for Plaintiffs Windermere Real Estate Services

Company, and Windermere Services Southern California, Inc.

 

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Cross-Complaint filed by former Windermere Exclusive Properties franchisees Lifestyles Services Corp., Lifestyles Services Solana Beach/RSF Corp., MRJR, Inc., and Rodgers, Loschers, Brownes, Andersons and Behics, alleges...

"Cross-Defendants [Windermere Real Estate Services Company and Windermere Services Southern California] Engage in a Scheme to Disrupt and Destroy Cross-Complainants' Current Businesses and Future Business Endeavors"

"17.            From the time that the Cross-Complainants exercised their contractual right to terminate the Franchise License Agreement, and while Cross-Complainants were still operating as Windermere franchisees, Cross-Defendants engaged in a pattern of unlawful and predatory acts designed to specifically harm Cross-Complainants and destroy their businesses as Windermere franchisees and their future business endeavors.

18.            Namely, Windermere SoCal actively solicited Cross-Complainants' agents and managers and did, in fact, hire some of these individuals away from Cross-Complainants. This act is specifically prohibited by Windermere. These newly retained agents and managers were hired away to work at a Windermere franchise that is owned or operated by Windermere SoCal and which was located 1/2 of a block across the street from one of Cross-Complainants' Windermere franchises." JUMP TO THESE ALLEGATIONS HERE

CROSS-COMPLAINT CHARGES FRANCHISER WINDERMERE REAL ESTATE SERVICES COMPANY AND WINDERMERE SERVICES SOUTHERN CALIFORNIA WITH INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS, INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE, TRADE LIBEL, AND VIOLATION OF THE CALIFORNIA UNFAIR/UNLAWFUL COMPTETTION LAW

DOWNLOAD A PDF COPY OF THE CROSS-COMPLAINT HERE

 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO, CENTRAL DIVISION

CASE NO. 37-2011-00089709-CU-BC-CTL

Assigned for All Purposes:
Judge: William R. Nevitt
Dept.: C-64

CROSS-COMPLAINT FOR DAMAGES AND RESTITUTION

Complaint Filed: April 15, 2011

WINDERMERE REAL ESTATE SERVICES COMPANY, LLC, a Washington corporation; and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation

Plaintiffs,           

LIFESTYLES SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/ RSF CORP., a California corporation; MRJR, INC. a California corporation; STEPHEN D. RODGERS, an individual; MARK LOSCHER, an individual; MAUREEN LOSCHER, an individual; JAMES BROWNE, an individual;
SHARON BROWNE, an individual; LARRY ANDERSON, BARBARA ANDERSON, an individual; ROBERT BEHIC, an individual; ROBIN BEHIC, an individual; and DOES I through 50, inclusive,           

Defendants.

LIFESTYLES SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/ RSF CORP., a California corporation; MRJR, INC., a California corporation;

Cross-Complainants,

vs.

WINDERMERE REAL ESTATE SERVICES COMPANY, LLC, a Washington corporation; and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation; and ROES I through 50, inclusive.

Cross-Defendants.

Cross-Complainants, LIFE STYLES SERVICES CORP., LIFE STYLES SERVICES SOLANA BEACH/RSF CORP., and MRJR, INC. (hereinafter also collectively referred to as "Cross-Complainants"), by and through undersigned counsel, hereby sue Cross-Defendants, WINDERMERE REAL ESTATE SERVICES COMPANY CORPORATION and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., as follows:

Jurisdiction and Venue

I.            Jurisdiction in the Superior Court of the County of San Diego is proper under article 6, section 10 of the Constitution of the State of California.

2.           Venue in the Superior Court of the County of San Diego is proper under section 395.5 of the California Code of Civil Procedure on the grounds that the liability of Cross-Defendants arose in the County of San Diego.

Parties

3.            Cross-Complainant, LIFE STYLES SERVICES CORP. (individually referred to as "LS"), is a California corporation with its principal place of business in San Diego, California.

4.            Cross-Complainant, LIFE STYLES SERVICES SOLANA BEACH/RSF CORP. ("LS Solana"), is a California corporation with its principal place of business in Solana Beach, California.

5.            Cross-Complainant, MRJR, INC. ("MRJR"), is a California corporation with its
principal place of business in Escondido, California.

6.             Cross-Defendant, WINDERMERE REAL ESTATE SERVICES COMPANY CORPORATION ("Windermere"), is a Washington corporation with its principal place of business located at 5424 Sand Point Way NE, Seattle, Washington. Windermere is a franchisor which offers franchises for the establishment, development, and operation of businesses that specialize in providing real estate brokerage services. Upon information and belief, Windermere has filed necessary registration documents with the California Department of Corporations in order to offer and sell Windermere franchises in California and has designated an agent for service in California.

7.            Cross-Defendant, WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC. ("Windermere SoCal"), is a California corporation with its principal place of business located at 71-691 Highway 111, Rancho Mirage, California. Windermere SoCal is an Area Representative of the Windermere franchises system charged with the responsibility of directing growth and operation of the Windermere franchise in Southern California, and overseeing the development of the Windermere brand in Southern California. Windermere contracts with Windermere SoCal to administer the Windermere System in Southern California.

8.            Cross-Complainants are unaware of the true names and capacities of cross-defendants sued herein as DOES I through 50, inclusive, and therefore sues these cross-defendants by such fictitious names. Cross-Complainants will amend this Cross-Complaint to allege their true names and capacities when ascertained. Cross-Complainants are informed and believe and based thereon allege that each of the fictitiously named cross-defendants is responsible in some manner for the occurrences alleged in this Cross-Complaint.

9.            Cross-Complainants are informed and believe and based thereon allege that at all times herein mentioned each of the cross-defendants, including the fictitiously names cross-defendants, was the agent and employee of each of the remaining cross-defendants and, in doing the things alleged in this Cross-Complaint, was acting within the course and scope of such agency and employment.

General Allegations

10.            In or about April 1, 2001, MRJR executed a Windermere Franchise License Agreement for the operation of a Windermere franchise. (A copy of the subject franchise agreement is annexed hereto as Exhibit "A").

11.            On April 17, 2009, LS executed a Windermere Franchise License Agreement for the operation of a Windermere franchise. (A copy of the subject franchise agreement is annexed hereto as Exhibit "B").

12.            On March 23, 2010, LS Solana executed a Windermere Franchise License Agreement for the operation of a Windermere franchise. (A copy of the subject franchise agreement is annexed hereto as Exhibit "C").

13.            As a result of the operation of these Windermere franchises, Cross-Complainants have developed substantial business relationships with numerous clients and real estate agents.

14.            Under the terms of each of the Franchise License Agreements, either party may terminate the Franchise License Agreement at any time and for any reason so long as notice of intent to terminate is provided 180 days prior to the termination date.

15.            In December, 2010, Cross-Complainants exercised their right to terminate their respective Franchise License Agreements by supplying written notice to Cross-Defendants of their intent to terminate the Franchise License Agreements.

16.            Each of the Cross-Complainants intended to no longer operate its business as a Windermere franchisee after the end of the 180 days, and instead intended to operate a business competitive to Windermere.

Cross-Defendants Engage in a Scheme to Disrupt and Destroy
Cross-Complainants' Current Businesses and Future Business Endeavors

17.            From the time that the Cross-Complainants exercised their contractual right to terminate the Franchise License Agreement, and while Cross-Complainants were still operating as Windermere franchisees, Cross-Defendants engaged in a pattern of unlawful and predatory acts designed to specifically harm Cross-Complainants and destroy their businesses as Windermere franchisees and their future business endeavors.

18.            Namely, Windermere SoCal actively solicited Cross-Complainants' agents and managers and did, in fact, hire some of these individuals away from Cross-Complainants. This act is specifically prohibited by Windermere. These newly retained agents and managers were hired away to work at a Windermere franchise that is owned or operated by Windermere SoCal and which was located 1/2 of a block across the street from one of Cross-Complainants' Windermere franchises.

19.            In addition, Windermere SoCal placed a full page advertisement in local newspapers that not only advertised its new Windermere franchises in extremely close proximity to Cross-Complainants' Windermere franchises, but also listed the offices and addresses of Cross-Complainants' franchises, absent receiving prior written authorization from Cross-Complainants.

20.            Although Windermere SoCal apparently found it appropriate to list Cross-Complainants' businesses in the advertisement, the only website address that was listed is that of Windermere SoCal, thus ensuring that any internet leads generated by this advertisement would be directed solely to Windermere SoCal (even though Cross-Complainants' businesses are being used as part of the advertisement).

21.            Clearly, this is a direct effort by Windermere SoCal to mislead consumers and to gain a competitive advantage using tactics that are unprofessional and contrary to law.

22.            Cross-Complainants recognized that once they ceased being Windermere franchisees, Windermere and Windermere SoCal intend on competing against them in the marketplace.

23.            However, Cross-Complainants did not anticipate that such "competition” would take place while they were still operating as Windermere franchisees.

24.            At the time that the Franchise License Agreements were signed, it was disclosed to Cross-Complainants that Windermere and Windermere SoCal would be involved in approving the location of each of the Cross-Complainants' franchises.

25.            A clear and unequivocal conflict of interest exists in Windermere and Windermere SoCal opening, operating and advertising a Windermere franchise in direct competition with Cross-Complainants' businesses when they were still operating as Windermere franchisees. This is especially so given the access to information that Windermere and Windermere SoCal possess in relation to the general location, neighborhood, and traffic patterns of Cross-Complainants' business locations.

26.            It is particularly distasteful and improper that Windermere's new businesses are now being staffed by Cross-Complainants' former agents.

27.            Indeed, such intentional and wrongful conduct by Windermere and Windermere SoCal interfered with Cross-Complainants' ability to operate their businesses when they were still Windermere franchisees, and constituted a tortious interference of the rights that Cross-Complainants possessed pursuant to the Franchise License Agreements.

28.            What has also become apparent is that Windermere and Windermere SoCal have capitalized upon the knowledge that they possessed regarding Cross-Complainants' intention to terminate the Franchise License Agreement and the expiration of their Lease Agreements for their own personal benefit.

29.            For example, knowing full well that MRJR's lease was due to expire, Windermere SoCal entered into negotiations with MRJR's landlord for purposes of trying to enter into a lease agreement at the very premises where MRJR's current Windermere franchise is located.

30.            As a result, the landlord initially refused to enter into discussions with MRJR about extending/renewing the current lease agreement. After several discussions with the landlord, it was ultimately agreed that the landlord would enter into a new Lease Agreement with MRJR.

31.            However, such a Lease Agreement came at a substantial increase in the monetary terms of the Lease Agreement that were provided to MRJR. Again, Windermere SoCal's actions, with knowledge of and/or participation by Windermere, have had a direct, adverse impact on Cross-Complainants' businesses.

32.            In addition, Windermere SoCal has engaged in a campaign to disparage the Cross-Complainants to other Windermere franchisees in the Southern California market and to other competitors of the Cross-Complainants. Namely, when one of LS Solana's top agents was being recruited recently by another Windermere franchisee, an act which is specifically prohibited by Windermere, the agent was being solicited with a cautionary sales pitch that if he did not leave the employ of LS Solana, "he would be on the wrong team." When asked what that meant, the rival franchisee stated that they were aware that LS Solana and LS owed One Million Dollars to Windermere and Windermere SoCal and that Windermere SoCal was out to "get" LS Solana and LS.

33.            The amount of money allegedly owed to Windermere and Windermere SoCal was
not common knowledge, and would only be known to another Windermere franchisee by virtue of Windermere and/or Windermere SoCal stating this to the franchisee. However, such a statement that One Million Dollars was owed was knowingly false and misleading. At the time, Windermere was only claiming that it was owed an amount substantially less than One Million Dollars. There is certainly no reason for another Windermere franchisee to have access to Cross-Complainants' financial situation, much less know that Windermere SoCal has targeted our clients.

34.            Clearly, such disparaging and untrue comments were designed to damage Cross-Complainants and destroy any possibility that they could continue to carry out the remainder of their Windermere franchises, much less their respective future business endeavors.

35.            Because of Windermere and Windermere SoCal's injurious and anticompetitive conduct, Cross-Complainants transitioned over to their new brand, Real Living, as of April 26, 2011. Cross-Complainants simultaneously accomplished a complete de-association with and de-identification of their business from their former posture as Windermere franchises. Windermere and Windermere SoCal's injurious conduct has continued unabated however.

36.            As a result, Cross-Complainants have suffered damages.

37.            All conditions precedent to the commencement of this action have occurred, or have been performed, excused, satisfied or waived.

38.            Cross-Complainants have been compelled to retain the services of the undersigned attorneys and have agreed to pay their attorneys a reasonable fee for services rendered. Cross-Complainants are entitled to recover from Cross-Defendants their attorney's fees and costs.

CAUSES OF ACTION

FIRST CAUSE OF ACTION

(Against All Cross-Defendants For Intentional Interference With Contractual Relations)

39.            Cross-Complainants incorporate each and every allegation set forth in paragraphs I through 38, supra, as if fully set forth herein.

40.            Cross-Complainants possess several valid and enforceable contractual relations with agents for the purposes of providing real estate brokerage services.

41.            Cross-Defendants knew about the agreements between Cross-Complainants and their agents and, were, indeed, compensated by virtue of royalty payments as a result of these agreements.

42.            Cross-Defendants arbitrarily, wrongfully, and intentionally interfered with the agreements between Cross-Complainants and their agents. Cross-Defendants' intentional acts were designed to induce a breach or disruption of the contractual relationships that Cross-Complainants enjoyed with their agents.

43.            Cross-Defendants' intentional acts caused an actual breach or disruption of the contractual relationships that Cross-Complainants enjoyed with their agents.

44.            Cross-Defendants' actions as explained above, were undertaken in outrageous disregard for the rights of the Cross-Complainants, and as such support an award of punitive damages.

45.            As a direct, proximate and foreseeable result of Cross-Defendants' intentional and tortious interference with the contractual relations between Cross-Complainants and their agents, Cross-Defendants have caused Cross-Complainants to suffer substantial damages.

SECOND CAUSE OF ACTION

(Against All Cross-Defendant for Interference with Prospective Economic Advantage)

46.            Cross-Complainants incorporate each and every allegation set forth in paragraphs I through 38, supra, as if fully set forth herein.           

47.            Cross-Complainants have economic relationships with their agents, with the probability of future economic benefit to the Cross-Complainants.

48.            As described above, Cross-Defendants committed intentional acts designed to disrupt the relationships between Cross-Complainants and their agents. Specifically, Cross-Defendants' actions are designed to deceive Cross-Complainants' former agents that the business relationships maintained with Cross-Complainants are in some way unlawful.

49.            Cross-Defendants' actions were independently unlawful, in addition to interfering with Cross-Complainants' relationship with their agents, to the extent that they violate California's Unfair/Unlawful Competition Law and constitute a tortious violation of duties imposed by law.

50.            Cross-Defendants' intentional acts of interference have resulted in actual disruption to the relationships between Cross-Complainants and their agents, and have proximately caused economic harm to Cross-Complainants, and Cross-Complainants have suffered substantial damages.

THIRD CAUSE OF ACTION

(Against All Cross-Defendants for Trade Libel)

51.            Cross-Complainants incorporate each and every allegation set forth in paragraphs I through 38, supra, as if fully set forth herein.

52.            Cross-Defendants have made false statements concerning the quality of services of Cross-Complainants' business.

53.            Cross-Defendants' false statements were intended to cause Cross-Complainants' business financial harm.

54.            Cross-Defendants' false statements have in fact caused financial harm to the Cross-Complainants' business.

55.            Cross-Defendants' intentionally false statements have proximately caused economic harm to Cross-Complainants, and Cross-Complainants have suffered substantial damages.

FOURTH CAUSE OF ACTION
           
(Against All Cross-Defendants for Violation of the California Unfair/Unlawful Competition Law)

56.            Cross-Complainants adopt and re-allege the allegations set forth in paragraphs I through 55, supra, as if fully set forth herein.

57.            Pursuant to § 17201, Cross-Complainants possess standing to bring an action under the State of California's "Unfair Competition Law," Cal. Bus. & Prof. Code § 17200 et seq.

58.            At all times material to this action, Cross-Defendants have violated and continue to violate California's "Unfair Competition Law" by engaging in "unlawful, unfair or fraudulent business practices" by using such tactics as, but not limited to, contacting Cross-Complainants' agents for the purpose of interfering with and misappropriating the business relationships enjoyed by Cross-Complainants with these agents.

59.            Cross-Defendants' conduct is likely to, and, in fact, has deceived members of the public.

60.            Specifically, Cross-Defendants' actions are designed to deceive Cross-Complainants' former agents that the business relationships maintained with Cross-Complainants are in some way unlawful.

61.            As a result of Cross-Defendants' continuing "unlawful, unfair or fraudulent
business practices," Cross-Complainants have suffered and will continue to suffer substantial harm. As such, Cross-Complainants seek restitution and disgorgement of all profits gained as a result of Cross-Defendants' wrongful conduct.

62.            Cross-Complainants have developed and maintained business relationships with their agents.

63.            Cross-Defendants have misappropriated assets from the Cross-Complainants' businesses which have served to destroy the Cross-Complainants' businesses as an ongoing concern.

64.            In addition, Cross-Complainants maintain existing and prospective business relationships with their agents, which Cross-Defendants have interfered with and are attempting to destroy.

65.            Cross-Complainants have a substantial likelihood of prevailing on the merits of their claims.

66.            There is no legal remedy available to address the loss of goodwill, reputation and customer base that the Cross-Complainants will suffer if Cross-Defendants continue to engage in the aforementioned conduct until these claims are resolved on the merits.

67.            Cross-Defendants' actions have and will continue to destroy the Cross-Complainants' businesses and prevent the Cross-Complainants from operating their business.

68.            Public interest factors also weigh heavily in favor of granting the requested injunctive relief. Most notably, if Cross-Defendants refuse to cease engaging in the subject conduct, Cross-Complainants will have no other alternative than to cease operating their businesses.

69.            The relief sought by the Cross-Complainants will not harm Cross-Defendants, but will only assure that the status quo is preserved pending resolution of this controversy.

PRAYER FOR RELIEF

            WHEREFORE, Cross-Complainants pray that judgment be entered against the Cross-Defendants, and each of them, on all claims for relief, as follows:                      

FIRST CAUSE OF ACTION

A.            As against Cross-Defendants for actual and compensatory damages according to proof at trial;

B.            For reasonable attorneys' fees and costs of suit incurred in the prosecution of this action pursuant to the Franchise License Agreement between the parties;

C.            For punitive or exemplary damages which sum should be sufficient to punish Cross-Defendants' conduct and by way of example;

D.            For interest at the maximum legal rate on all sums awarded; and

E.            For such other and further relief as this Court deems appropriate.

SECOND CAUSE OF ACTION

A.            As against Cross-Defendants for actual and compensatory damages according to proof at trial;

B.            For reasonable attorneys' fees and costs of suit incurred in the prosecution of this action pursuant to the Franchise License Agreement between the parties;

C.            For punitive or exemplary damages which sum should be sufficient to punish Cross-Defendants' conduct and by way of example;

D.            For interest at the maximum legal rate on all sums awarded; and

E.            For such other and further relief as this Court deems appropriate.

THIRD CAUSE OF ACTION

A.            As against Cross-Defendants for actual and compensatory damages according to proof at trial;

B.            For reasonable attorneys' fees and costs of suit incurred in the prosecution of this action pursuant to the Franchise License Agreement between the parties;

C.            For punitive or exemplary damages which sum should be sufficient to punish Cross-Defendants' conduct and by way of example;

D.            For interest at the maximum legal rate on all sums awarded; and

E.            For such other and further relief as this Court deems appropriate.          

FOURTH CAUSE OF ACTION

A.            As against Cross-Defendants for restitution and disgorgement of all profits gained as a result of their wrongful conduct;

B.            For a preliminary and permanent injunction against Cross-Defendants requiring Cross-Defendants to cease contacting any of Cross-Complainants' agents for the purpose of interfering with and misappropriating the business relationships enjoyed by Cross Complainants with these agents.

C.            That the requested TRO remain in effect until such time as the Cross-Complainants' Motion for Preliminary and Permanent Injunction can be heard by this Court, and a full hearing can take place; and

D.            For reasonable attorneys' fees and costs of suit incurred in the prosecution of this action pursuant to the Franchise License Agreement between the parties;

E.            For interest at the maximum legal rate on all sums awarded; and

F.            For such other and further relief as this Court deems appropriate.

Dated: May 23, 2011

Respectfully submitted,
Winton Larson & Solecki, LLP

By: ______________________
Steven W. Winton
Attorneys for Cross-Complainants

 

____________________________________________________________

 

 

Windermere Services Pleads Twenty Affirmative Defenses in Answer To LifeStyles' Unverified Cross-Complaint:

 

DOWNLOAD THE ANSWER TO UNVERIFIED CROSS-COMPLAINT HERE

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

COUNTY OF SAN DIEGO

 

Case No. 37-2011-00089709-CU-BC-CTL

 

Assigned for All Purposes to Hon. Lisa Foster

 

Dept: C-60

 

ANSWER TO UNVERIFIED CROSS-COMPLAINT

 

WINDERMERE REAL ESTATE SERVICES COMPANY, a Washington corporation; and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation;

 

Plaintiffs;

 

v.

 

LIFESTYLES, SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/RSF CORP., a California corporation; MRJR, Inc., a California corporation; STEPHEN D. RODGERS, an individual; MARK LOSCHER, an individual; MAUREEN LOSCHER, an individual; JAMES) BROWNE, an individual; SHARON BROWNE, an individual; LARRY ANDERSON, an individual; BARBARA ANDERSON, an individual; ROBERT BEHIC, an individual; ROBIN BEHIC, an individual; and DOES I through 50, inclusive,

 

Defendants.

 

LIFESTYLES SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/RSF CORP., a California corporation; MRJR, INC., a California corporation;

 

Cross-Complainants;

 

v.

 

WINDERMERE REAL ESTATE SERVICES COMPANY, LLC, a Washington corporation; and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation; and ROES I through 50, inclusive,

 

Cross-Defendants.

 

Pursuant to California Code of Civil Procedure Section 431.30(d) and all other relevant and applicable law, cross-defendants Windermere Real Estate Services Company and Windermere Services Southern California, Inc. (collectively "Cross-Defendants") deny generally and specifically each and every allegation contained in cross-complainants Life Styles Services Corp., Life Styles Services Solana Beach/RSF Corp., and MRJR, Inc.'s (collectively "Cross-Complainants") unverified cross-complaint (the "Cross-Complaint").

 

Cross-Defendants further deny that Cross-Complainants have sustained, or will sustain, any injury, damage, or loss by reason of statement, act, omission, breach or any other conduct, or the absence thereof that is alleged by Cross-Complainants in the Cross-Complaint.

 

AFFIRMATIVE DEFENSES

 

As separate and distinct affirmative defenses, Cross-Defendants allege on information and belief as follows:

 

FIRST AFFIRMATIVE DEFENSE

 

(Failure to State Facts Sufficient to Constitute a Cause of Action)

 

The Cross-Complaint, and the purported causes of action alleged therein, fails to state facts sufficient to constitute any cause of action against Cross-Defendants.

 

SECOND AFFIRMATIVE DEFENSE

 

(Estoppel)

 

As a result of the acts, conduct and omissions of Cross-Complainants and their agents, each of the claims alleged in the Cross-Complaint is barred by the doctrine of estoppel.

 

THIRD AFFIMATIVE DEFENSE

 

(Waiver)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because their purported causes of action are barred by the doctrine of waiver.

 

FOURTH AFFIRMATIVE DEFENSE

 

(Laches)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because their purported causes of action are barred by the doctrine of laches.

 

FIFTH AFFIRMATIVE DEFENSE

 

(Lack of Causation)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because no act or omission allegedly committed by Cross-Defendants (which Cross-Defendants deny) was the cause in fact or the proximate cause of any injury or damage alleged by Cross-Complainants.

 

SIXTH AFFIRMATIVE DEFENSE

 

(No Damages)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because Cross-Complainants have suffered no damages.

 

SEVENTH AFFIRMATIVE DEFENSE

           

(Unclean Hands)

 

Cross-Complainants, by their own conduct, are barred by their unclean hands, shared fault and otherwise from all legal and equitable relief sought in their Cross-Complaint.

 

EIGHTH AFFIRMATIVE DEFENSE

           

(Privilege/Justification)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because Cross-Defendants' conduct was justified and/or privileged.

 

NINTH AFFERMATIVE DEFENSE

 

(Truth and/or Opinion)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because Cross-Defendants' alleged statements were opinions and/or true statements.

 

TENTH AFFIRMATIVE DEFENSE

 

(Set-off)

 

Any recovery sought by Cross-Complainants is subject to Cross-Defendants' claims for relief against Cross-Complainants.

 

ELEVENTH AFFIRMATIVE DEFENSE

 

(No Wrongful Conduct)

 

Cross-Complainants are not entitled to any relief from Cross-Defendants because Cross-Defendants did not engage in any wrongful acts or conduct.

 

TWELFTH AFFIRMATIVE DEFENSE

 

(Contributory Fault)

 

Cross-Complainants are not entitled to any relief from Cross-Defendant because a loss, if any, sustained by Cross-Complainants was proximately caused and contributed to by the negligence, improper conduct, or intervening acts of Cross-Complainants or Cross-Complainants' agents, officers, or employees.

 

THIRTEENTH AFFIRMATIVE DEFENSE

 

(Third-Party Fault)

 

Cross-Complainants are not entitled to any relief from Cross-Defendant because Cross-Complainants' alleged damages and loss were proximately caused or contributed to, in whole or in part, by the fault of third parties.

 

FOURTEENTH AFFIRMATWE DEFENSE

 

(Failure to Minimize or Mitigate Damages)

 

Cross-Complainants have failed to take adequate steps to mitigate, alter, avoid, or otherwise diminish their alleged injury and damages, if any, and any damages awarded to Cross-Complainants should be reduced accordingly by such failure to minimize or mitigate damages.

 

FIFTEENTH AFFIRMATIVE DEFENSE

           

(Punitive Damages)

 

Cross-Complainants' claims for punitive damages cannot be sustained because, among other things, all award of punitive damages under California law without proof of every element by clear and convincing evidence would violate California law and Cross Defendants' rights under the due process clauses of the United States and California Constitutions.

 

SIXTEENTH AFFIRMATIVE DEFENSE

           

(Uncertainty)

 

Cross-Defendants object to the Cross-Complaint on the grounds that the Cross-Complaint is uncertain in material respects and falls to allege any wrongful, actionable conduct by the Cross-Defendants.

 

SEVENTEENTH AFFIRMATIVE DEFENSE

           

(No Unfair Competition)

 

Cross-Defendants have not engaged in unfair competition as alleged in the Cross-Complainants. Further, Cross-Defendants are informed and believe that the conduct of Cross-Defendants as alleged in the Cross-Complaint is not an unlawful, unfair, or fraudulent business practice within the meaning of the Unfair Competition Law, Business and Professions Code section 17200 et seq.

 

EIGHTEENTH AFFIRMATIVE DEFENSE

 

(Adequate Remedy at Law)

 

Without conceding that Cross-Complainants are entitled to any relief whatsoever, to the extent Cross-Complainants seek equitable relief, any alleged injury or damage claimed by Cross-Complainants can be adequately compensated in an action at law. As such, Cross-Complainants are not entitled to equitable relief under the Unfair Competition Law statute, Business and Professions Code section 17200 et seq., or otherwise.

 

NINETEENTH AFFIRMATIVE DEFENSE

           

(Business Justification)

 

Cross-Complainants' alleged Unfair Competition Law claims are barred because the alleged conduct of Cross-Defendants was at all times lawful, justified, fair, and undertaken in the good faith exercise of a valid business purpose.

 

TWENTIETH AFFIRMATIVE DEFENSE

           

(Reservation of Rights)

 

Cross-Defendants presently have insufficient knowledge upon which to form a belief as to whether they may have additional, as yet unstated, affirmative defenses available. These Cross-Defendants hereby reserve their night to assert additional affirmative defenses in the event that further investigation and discovery indicates that such defenses would be appropriate.

 

PRAYER FOR RELIEF

 

WHEREFORE, Cross-Defendants pray:

 

            1. That Cross-Complainants' Cross-Complaint be dismissed with prejudice,

            2. That Cross-Complainants take nothing by their Cross-Complaint;

            3. For costs of this suit;

            4. Reasonable attorneys' fees incurred herein; and

            5. For such other and further relief as the Court deems just and proper.

 

June 22, 2011                       

 

PESTOTNIK + GOLD LLP

 

 

__________________________________________

Timothy R. Pestotnik

Russell A. Gold

Russell F. Winslow

Attorneys for Plaintiffs and Cross-Defendants

Windermere Real Estate Services Company, and

Windermere Services Southern California, Inc.

 

 

___________________________________________________________

 

OTHER PERTINENT CASES OF INTEREST:

WINDERMERE SUED FOR UNFAIR TRADE PRACTICES AGAIN... Windermere Coachella Valley and franchiser Windermere Services sued for Unfair Trade Practices in California: Bennion & Deville Fine Homes, Realtor Peggy Shambaugh, sued for Professional Negligence and other claims in $30 million-plus deal. Complaint alleges Windermere Services is an "unlicensed entity." READ THIS REPORT

____________________

Maxwell Answer and Counterclaims: “Plaintiff's claims are barred by Plaintiff’s fraud, duress, and unclean hands.” $4,000,000 in Damages and Violation of Washington Franchise Investment Protection Act alleged:

"13. In early 2006, WSC and Jacobi decided to open another WSC office in the territory in which WPCR was operating, despite the objections of Maxwell. As a result of the opening of this new WSC office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new office in Graham, Washington.

14. As a direct result of these actions taken by WSC and Jacobi, WPCR was left with a large debt burden and overhead, and WPCR’s revenue was significantly reduced.

15. Maxwell made repeated verbal and written complaints to WSC and Jacobi about the decision to open the office in Graham. Maxwell filed a formal written complaint with WSC’s internal dispute resolution board. WSC and Jacobi did not take any action in response to Maxwell’s complaints.

16. After WPCR opened the Tacoma office as agreed, Jacobi and WSC agreed to the opening of another WSC franchise located only blocks away from WPCR’s Tacoma office. This was done without the knowledge or consent of Maxwell." and...

"22. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received and email from WSC notifying him WPCR’s franchise had been terminated. This notice was sent to WPCR’s real estate agents before Maxwell learned of the termination of WPCR’s franchise." READ THIS REPORT

 

__________________________________________________________

 

Lifestyles Services Corp's. Answer to Windermere Services' Complaint

DOWNLOAD A PDF COPY OF THE ANSWER HERE

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO, CENTRAL DIVISION

CASE NO. 37-2011-00089709-CU-BC-CTL

Assigned for All Purposes:
Judge: William R. Nevitt
Dept.: C-64

ANSWER TO COMPLAINT

Complaint Filed: April 15, 2011

WINDERMERE REAL ESTATE SERVICES COMPANY, LLC, a Washington corporation; and WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation

Plaintiffs,           

LIFESTYLES SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/ RSF CORP., a California corporation; MRJR, INC. a California corporation; STEPHEN D. RODGERS, an individual; MARK LOSCHER, an individual; MAUREEN LOSCHER, an individual; JAMES BROWNE, an individual;
SHARON BROWNE, an individual; LARRY ANDERSON, BARBARA ANDERSON, an individual; ROBERT BEHIC, an individual; ROBIN BEHIC, an individual; and DOES I through 50, inclusive,           

Defendants.

Defendants LIFESTYLES SERVICES CORP., a California corporation; LIFESTYLES SERVICES SOLANA BEACH/ RSF CORP., a California corporation; MRJR, INC. a California corporation; STEPHEN D. RODGERS, an individual; MARK LOSCHER, an individual; MAUREEN LOSCHER, an individual, JAMES BROWNE, an individual; SHARON BROWNE, an individual; LARRY ANDERSON, an individual, BARBARA ANDERSON, an individual; ROBERT BEHIC, an individual; and ROBIN BEHIC, an individual, for themselves alone, and for no other person, corporation or legal entity, answer the unverified Complaint on file herein as follows:

1.            Pursuant to the provisions of Section 431.30(d) of the California Code of Civil Procedure, Defendants deny, generally and specifically, each and every allegation in each and every paragraph, in each and every cause of action, of the unverified Complaint, and the whole thereof, and further deny that Plaintiffs have been injured or damaged in the sum or sums alleged, or in any sum or sums at all, and state that Plaintiffs are not entitled to the relief sought in the Complaint, or any other relief whatsoever.

AFFIRMATIVE DEFENSES

First Affirmative Defense

(Failure to State a Claim)

2.            Plaintiffs' Complaint fails to state a cause of action upon which relief may be granted

Second Affirmative Defense

(Unclean Hands)

3.            Plaintiffs' claims are barred by the doctrine of unclean hands. As set forth in Defendants' Cross Complaint, filed concurrently herewith, Plaintiffs' claims are barred in whole or in part by Plaintiffs' prior breaches of the franchise agreements with Defendants. Specifically, Plaintiffs wrongfully and intentionally interfered with Defendants' ability to operate their businesses when they were still Windermere franchisees, constituting a tortious interference of the rights that Defendants possessed pursuant to the Franchise License Agreements.

Third Affirmative Defense

(Failure to Mitigate Damages)

4.            Plaintiffs have failed to take reasonable steps to mitigate their alleged damages. Plaintiffs failed to take any action to cure the breaches of contract and other wrongful conduct alleged in Defendants' Cross-Complaint. But for Plaintiffs' actions and inactions, Plaintiffs' alleged damages, to the extent they are proven, to exist, would have been mitigated.

Fourth Affirmative Defense

(Plaintiffs' Wrongful Conduct)

5.            Any damages suffered by Plaintiffs resulted from their own wrongful actions and wrongful conduct, as alleged in Defendants' Cross Complaint.

Fifth Affirmative Defense

(Set Off)

6.            Defendants assert that to the extent the Plaintiffs are awarded any damages, liability for which Defendants wholly deny, that Defendants are entitled to claim a set-off for the amounts owed to Defendants by Plaintiffs.

Sixth Affirmative Defense

(Plaintiffs' Breach)

7.            As to any alleged breaches by Defendants, even if true, such breaches are excused by earlier repeated and substantial breaches by Plaintiffs of the franchise agreements.

Seventh Affirmative Defense

(Estoppel)

8.            Any recovery by Plaintiffs is barred by the doctrine of estoppel.

Eighth Affirmative Defense

(Waiver)

9.            Any recovery by Plaintiffs is barred by the doctrine of waiver.

Ninth Affirmative Defense

(Failure of Consideration)

10.            The consideration relied upon by Plaintiffs in assertion of their claims against these Answering Defendants failed in all material respects as to certain of these Answering Defendants.

Tenth Affirmative Defense

(Reservation of Rights to Amend Answer)

11.            These Answering Defendants expressly reserve their right to amend this Answer to assert additional affirmative defense hereafter and to supplement those asserted herein upon further investigation and discovery.

WHEREFORE, Defendants pray for judgment as follows:

I.            That judgment be entered in favor of Defendants and against Plaintiffs;

2.           That the Complaint be dismissed in its entirety with prejudice;

3.           That Defendants be awarded their attorney's fees;
4.           That Defendants be awarded their costs of suit incurred herein; and
5.           That Defendants be awarded such other and further relief as the Court may deem proper and just.

Dated: May 23, 2011

Respectfully submitted,
Winton Larson & Solecki, LLP
By: _______________________
Steven W. Winton
Attorneys for Cross-Complainants

 

 

 

 

21 Former Windermere California Offices Drop the Windermere Brand

(1) Former Windermere Real Estate Bay Area, Berkeley, CA, office has become a Keller Williams Realty office.

(2, 3, 4 and 5) Former Windermere Real Estate Welcome Home, with locations in Castro Valley, Livermore, Pleasanton, and San Ramon, CA, have all become Prudential Real Estate Affiliates.

(6) Former proprietor of Windermere Silicon Valley Properties, Mountain View, CA, has moved to The Sereno Group.

(7) Windermere North State Properties, Redding, CA, has gone out of business.

(8 and 9) Former Windermere Dunnigan Realtors of Sacramento, CA, with locations in American River and Land Park has become Dunnigan Realtors.

(10 and 11) Former Windermere Pacific Coast Properties, CA, with locations in La Mesa and San Diego have joined the Sotheby’s International Realty Network.

(12) Former Windermere Property Professionals of Tracy, CA, have become RE/MAX Property Professionals.

(13) Former Windermere Placer County Properties of Auburn, CA, has become Gold Country Realty.

(14 and 15) The former Carlsbad Village Windermere Exclusive Properties has become Real Living Lifestyles Carlsbad Village; and the former Carlsbad Village Faire Windermere Exclusive Properties has become Real Living Lifestyles Carsbad Faire.

(16) Former Windermere Exclusive Properties Escondido has become Real Living Lifestyles Real Estate, Escondido.

(17) Former Windermere Exclusive Properties La Costa / Encinitas has become Real Living Lifestyles La Costa / Encinitas Real Estate.

(18) Former Windermere Exclusive Properties Rancho Bernardo has become Real Living Lifestyles Rancho Bernardo Real Estate.

(19) The former Windermere Exclusive Properties Rancho Santa Fe has become Real Living Lifestyles Rancho Santa Fe / Fairbanks Ranch Real Estate.

(20) Former Windermere Exclusive Properties San Diego — Carmel Valley / La Jolla has become Real Living Lifestyles Carmel Valley Real Estate.

(21) The Former Windermere Exclusive Properties Solana Beach has become Real Living Lifestyles Solana Beach Real Estate.

 

_______________________________________________

 

The Windermere Real Estate Relocation Rape Case:

Court Declares that Windermere "...condoned a rape by a business colleague..."

 

Editorial Preface: The incredibly violent and insidious psychological ramifications of rape, connected through an “abusive work environment” serves as an unfortunate yet credible subtext for the way in which Windermere Real Estate treats employees and damaged customers alike: Windermere’s application of aggressive, wasteful and mendacious litigation to stall and ruin innocent consumers, serves as the coercive metaphor of corporate power and arrogance: Windermere has no concern for the social damage it has done to people or communities. It cares only about how to manipulate the law and the courts to avoid any legal responsibility.

 

(Above L to R) Windermere CEO Geoff Wood (far left) is currently listed as a Governing Person of Windermere Relocation. Peggy Scott (second from left), also a current Governing Person of Windermere Relocation, "... did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little." Windermere General Counsel, attorney Paul Drayna (third from left) is listed as the registered agent of RELO LLC, the current entity name of Windermere Relocation. Windermere Founder John W. Jacobi (fourth from left) along with Gayle Glew (far right) are listed as Governing Persons of Windermere Relocation during the Little case. Glew told Ms. Little he did not want any "clouds in the office," and subsequently, after she would not accept a pay cut, that she should clean out her desk.

All citizens who abhor such treatment of women in the workplace should recall Maureen Little v. Windermere Relocation when choosing real estate services. WindermereWatch visitors will also want to read the United States District Court of Appeals Ninth Circuit's Order and Amended Opinion from the Little case.

 

Summarized and excerpted from a decision by the U.S. Court of Appeals

 

Maureen Little was employed by Windermere Relocation Services (“Windermere”) as a Corporate Services Manager, a position that required her “to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees.” Until she was terminated, she received only positive feedback from her supervisors. Windermere’s records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.

Unlike the other managers, Little’s employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The override was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make the target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.

One of Windermere’s clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would “do whatever it takes to get this account” and that Little should “do the best job she could.” Thus, little believed that, as part of her job, she was to build a business relationship with Guerrero to try and get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.

On October 14, Little accepted Guerrero’s invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drover her to her car.

Little was reluctant to tell anyone at Windermere about the rape because, in her own words, “I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account.” This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little’s supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared “what might happen to [Little] if [she] did tell.”

On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere’s Harassment Policy as a complaint-receiving manager. Little described Scott’s response:

She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].

 

Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.

 

Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks ... a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position.... I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.

 

When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's" immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.

 

Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.'" When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.

 

Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims.

 

Little appealed dismissal of her claims, and the appeals court reversed in part, and ruled:

 

In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career."

 

Incredibly, Windermere asked for a rehearing, but "...the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

 

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WINDERMERE: AMERICA'S PREDATORY REAL ESTATE ENTERPRISE

Consumer advocates, legal experts and elected lawmakers all agree that the American real estate industry demands greater regulation to protect consumers from the human disaster of real estate fraud perpetrated by unethical realtors employed at companies like Windermere Real Estate. Windermere manipulates our clogged, inundated courts and the justice system to stall, wear down and financially exhaust victimized consumers, many of whom are wiped-out by the cost of pursuing civil justice in a process where innocent victims must CHASE perpetrators of real estate fraud through the courts AFTER a fraudulent offense has been committed. Acts of fraud are so common and widespread throughout the Windermere real estate network, that the defense of real estate fraud has become has become just another bottomline expense on the Windermere balance sheet. And the litigation nightmare of real estate fraud can happen to anyone who deals with Windermere Real Estate. It could happen to you. Windermere is by far the most unethical, deceitful, and culturally toxic real estate company operating in the United States. Windermere knowingly, deliberately, and unabashedly profits on corrupt franchise owners, brokers and agents with proven histories of fraud and ethical misconduct, many of whom are profiled in the pages of WindermereWatch.com. Despite Windermere's well-documented assault on victim speech rights, more and more unconscionable cases of Windermere fraud continue emerging.

Windermere is headquartered in Seattle, at franchiser Windermere Services Company. It was founded by John W. Jacobi, and he has kept the company a private, family-owned enterprise, eluding the transparency and ethical accountability required by stockholders. For decades, Windermere has harnessed the art of positive PR, affixing itself—however superficially—to community art events, the homeless, and even an annual college rowing competition which opens Seattle's boating season—the Windermere Cup—irresponsibly promoted by, and in conjunction with, the University of Washington. But those are the disingenuous and cynical sideshows created by an adept market manipulator, shown only briefly to the public, to obscure and obfuscate Windermere's true predatory nature.

FRANCHISER WINDERMERE SERVICES' MANAGEMENT TEAM AND DESIGNATED GOVERNING PEOPLE: EXPERTS IN MARKETING FRAUD, ABUSE OF THE LEGAL PROCESS, AND AT COERCING DAMAGED WINDERMERE CLIENTS INTO SILENCE BY SUPPRESSING THEIR SPEECH RIGHTS

The shameless greed and repugnant ethics of Seattle's Jacobi family, deliberately profiting on the loss and suffering of Windermere victims through commissions on the fraudulent home deals and unlawful misconduct of dishonest Windermere agents, brokers and franchise owners. Forget human decency, commercial reputation or social responsibility—it's all about the money.

Before turning the business over to his children and son-in-law, Windermere founder John W. Jacobi (left) simply ignored any complaints of fraud from Windermere victims, sending them straight to the lawyers. Yet despite claims of retirement, Jacobi is still indeed quite active at franchiser Windermere Services Company:

In Complaint 10-2-36192-8 SEA, filed in King County Superior Court on October 12, 2010, Windermere Services Company has sued former Windermere Puyallup Canyon Road owner Joe Maxwell for default on an “Unconditional Guaranty of Payment” promissory note. The Maxwell Answer and Counterclaims state that the “Plaintiff's [Windermere Services Company] claims are barred by Plaintiff’s fraud, duress, and unclean hands,” and alleges $4,000,000 in damages and violation of Washington's Franchise Investment Protection Act; and also that "The alleged Note and Guarantee are unconscionable and unenforceable." Maxwell's Counterclaims state "6. The WPCR Operating Agreement contains a provision granting Jacobi a special veto power which among other things, states that the company shall conduct its business and manage its affairs in accordance with the directions of Jacobi and all management decisions are subject to Jacobi’s review," and "13. In early 2006, WSC and Jacobi decided to open another WSC office in the territory in which WPCR was operating, despite the objections of Maxwell. As a result of the opening of this new WSC office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new office in Graham, Washington," and "14. As a direct result of these actions taken by WSC and Jacobi, WPCR was left with a large debt burden and overhead, and WPCR’s revenue was significantly reduced... 22. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received and email from WSC notifying him WPCR’s franchise had been terminated. This notice was sent to WPCR’s real estate agents before Maxwell learned of the termination of WPCR’s franchise." Read the complete report on this case here.

Jacobi's Washington Loan Company is also currently being sued for Intentional Misrepresentation—read that report here. And the Windermere affiliated service company, Commonwealth Land Title Company of Puget Sound, has recently been found negligent by a jury who awarded the third-party plaintiffs $1,190,000. Read the Commonwealth report here.

 

Current Governing Person and Windermere Services Company CEO Geoffrey P. Wood (left) is married to John W. Jacobi's daughter, Jill Jacobi-Wood. Wood is the chief architect of Windermere marketing fraud, inducing business volume through—among other fraudulent promotion—an express warranty of "The highest ethical standards. Uncompromising honesty and integrity." When called upon to honor his company's warranty, Wood instructs Demco lawyers—led by Matthew F. Davis–to sue vocal victims for libel and defamation. Wood is also a Governing Person of Windermere Relocation, the subject enterprise of Windermere's employee rape case. He was briefly a real estate sales person in 1994, but that license was CANCELLED in 1995, and Wood currently has no real estate license of any kind that WindermereWatch can find.

 

Governing Person Jill Jacobi-Wood (left), Windermere Services President, is a licensed real estate broker in Washington State, and as such is subject to the statutory condition of RCW 18.86.030 "(d) To deal honestly and in good faith." For her part in Windermere's marketing fraud and malfeasance, Jacobi-Wood's RE license should be cancelled by the Washington State DOL's real estate division. By promoting honesty and integrity—while in reality—she is suing and coercing Windermere victims to shutup about their Windermere experience, Jacobi-Wood is hardly dealing honestly and in good faith.

 

 

Governing Person John O'Brien "OB"Jacobi (left) is General Manager of franchiser Windermere Services Company and also has many Windermere realty brokerage offices. He's a licensed real estate broker who is also called upon by statutory law to "Deal honestly and in good faith." But John "OB" Jacobi instead promotes fraudulent claims of honesty and integrity, and falsely sues victims of Windermere misconduct for libel and defamation to intimidate them and coerce their silence. Then this junior Jacobi runs away and voluntarily dismisses his own mendacious lawsuit when a victim refuses to sign Windermere's dark clause settlement agreement that has cost the victimized party so much distress and money and to defend.

 

 

Windermere Services Governing Person and attorney—WSBA# 26636—Paul Drayna (left) has even more stringent ethical requirements placed upon him through his collateral professions of Lawyer and Notary Public; and Drayna is also bound by the Model Rules of Professional Conduct. But Mr. Drayna is not just practicing marketing fraud at Windermere. As Windermere in-house counsel, Drayna oversees Windermere's legal strategy of abusing process by falsely suing victims for libel and defamation, and then attempting to intimidate and coerce those victims out of their speech rights and into Windermere's Dark Clause silence agreement. When victims WON'T sign the Windermere Dark Clause, Drayna runs away too, and voluntarily dismisses his own company's lawsuit under Civil Rule 41—but only after first costing the victim thousands to defend the phony lawsuit. Drayna is even copied on the mendacious, Demco-authored settlement documents meant to quash speech rights and be signed by Windermere victims.

 

WINDERMERE'S DEMCO LAW FIRM: ESCHEWING ETHICS and DOING WHAT OTHER LAWYERS JUST WON'T DO

 

Attorney and multi-office Windermere broker John Demco (left) is the ethically-elastic Windermere kingpin lawyer who operates Demco Law, Windermere’s in-house legal firm, whose primary job is to stall and outspend small fry consumers damaged by dishonest Windermere brokers, agents and franchise owners. When an innocent real estate consumer has the misfortune to suffer one of Windermere’s many bad apples, Demco Law Firm will refuse to settle the matter forthrightly, no matter what conspicuously unlawful or offensive conduct the agent or broker has committed. Demco and Windermere will force the aggrieved party to sue or swallow their damage and go away—standard Windermere operating procedure.

 

WindermereWatch has compiled voluminous evidence that Windermere-Demco attorney Matthew F. Davis (left), WSBA# 20939, is the kind of lawyer about which jokes are coined. Davis is franchiser Windermere Services' frontline bully—the guy in the legal trenches actually wrecking lives, making threats, and suing victims who speak out. When Shakespeare was recommending "The first thing we do, let's kill all the lawyers," in Henry the Sixth, Part 2, he was talking about egomaniacal lawyers like Matt Davis.

Attorney Matt Davis of Windermere's Demco Law Firm is so unethical, so deceitful and intimidating, that he's famous in law circles. As Windermere-Demco's lead attorney, Matthew F. Davis is renown for his dishonesty, dubious legal tactics, lack of decency and disrespect for the rules of professional conduct. He will do absolutely anything to win—without regard for truth or justice. He will lie to courts and opposing parties. He will file fallacious and erroneous documents with the court. He will email opposing parties telling them not to hire a lawyer when he has just served them a lawsuit. He will call a judge's chambers and request more time without informing the opposing party. He will file orders for a bench trial when he knows a jury trial has been demanded and paid for. He will trick, stall, coerce, menace and threaten. He will invent and extend mendacious Windermere litigation and abuse the legal process for no other reason than to exhaust an opponent’s pocketbook. If he can, he will get YOUR attorney to quit—a favorite tactic.

Windermere, Davis and Demco Law will push a $5 cat poop case all the way to the state supreme court just to avoid paying damages—because it’s all in the Windermere operating budget. And in the end, Windermere and Davis will try to coerce silence about your Windermere experience by trying to make you sign a "settlement" agreement that terminates your speech rights, so you can't ever inform the public about your Windermere debacle. What if you DON'T sign that you'll shut up, and then SPEAK UP instead? Windermere-Demco's Matt Davis will sue you for libel and defamation, then run away and dismiss his own lawsuit on the eve of trial—because after all—you're telling the truth.

Windermere's Clear and Overt Marketing Fraud:

"THE HIGHEST ETHICAL STANDARDS. UNCOMPROMISING HONESTY AND INTEGRITY."

—The Windermere Real Estate Mission Statement

Windermere widely promotes its deceptive express warranty in sales documents and on the internet which states "We are committed to... The highest ethical standards. Uncompromising honesty and integrity." In other Windermere promotion, like the Puget Sound Business Journal, Windermere CEO Geoff Wood is quoted as saying "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." The article goes on to say, "Geoff oversees marketing, legal, financial and internet development services throughout the Windermere network..." Mr. Wood claims absolute dominion over both Windermere legal and internet strategy, making him chief architect of Windermere marketing fraud.

Effective reportage can be harsh in recounting facts, but it must be said in consideration of all the Windermere victims profiled here who truly sought Windermere's vaunted honesty and integrity, that Windermere Services CEO Geoffrey P. Wood is simply lying when he states his company's utterly false and fraudulent commitment to honesty and integrity. He both lies and deceives again when he says that "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." Wood clearly doesn't do what he says he's going to do—be committed to uncompromising honesty and integrity. Wood himself is indeed IN the real estate business and his word is absolutely no good at all. He sues victims of Windermere misconduct for trade libel and defamation to shut them up, and then he tries to use the legal system to suppress victims' speech rights when they ask him to actually perform on the warranty he promotes. As this website proves, Mr. Wood does anything BUT what he says he's gonna do. Far from providing victimized Windermere customers a commitment to high ethical standards, honesty and integrity, Wood and Windermere run away and hide behind their lawyers when innocent consumers are ruined by their Windermere experience.

John W. Jacobi, Geoff Wood, his wife Jill Jacobi-Wood, and governing cohorts John O'brien "OB" Jacobi and attorney Paul Drayna have gone to the absolute ends of the earth in stonewalling, ignoring, denying and fleeing any and all responsibility for Windermere wrongdoing and misconduct. When called upon by victimized Windermere consumers to make good on its warranty of honesty and integrity, Windermere even states in legal pleadings that Windermere agents are NOT agents of Windermere at all—but independent contractors. As the legally-designated Governing People and top managers of the Windermere empire who drive policy, ethics and market promotion, it demands repeating that John W, Jacobi, Geoff Wood, Jill Jacobi-Wood, John OB Jacobi and attorney Paul Drayna are all clearly lying when they promise high ethical standards and uncompromising honesty to the public and consumers of real estate services.

Protect your life, home, family and future by cancelling or not renewing your Windermere listing. Don't risk doing business with Windermere Real Estate, the brand built on lies, fraud and ruined lives. Refuse to fund public predator Windermere Real Estate with commission from the sale of your home.

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Is WindermereWatch.com of social benefit to consumers and the public? You decide:

Windermere Real Estate is one of our country’s largest real estate companies and widely promotes a fraudulent express warranty that states “We are committed to... The highest ethical standards. Uncompromising honesty and integrity.” The definition of an express warranty from Black's Law Dictionary is: "A warranty created by the overt words or actions of the seller. • Under the UCC, an express warranty is created by any of the following: (1) an affirmation of fact or promise made by the seller to the buyer relating to the goods that becomes the basis of the bargain."

But when customers are victimized by dishonest Windermere brokers and agents, and complain in writing through legal counsel to franchiser Windermere Services Company, it is absolutely silent in the face of clear and convincing evidence, and forces the customer to sue or go away. In many cases, unsuspecting consumer lives are thrown into complete chaos through costly litigation; and also because the subject homes may actually be uninhabitable or unserviceable for reasons about which Windermere knew and had a legal obligation to disclose—but did not. For some victims, the long and expensive litigation forced upon them even results in bankruptcy and homelessness. Despite their clear evidence, many victims go on to lose in court because they can't afford attorneys or have no legal experience, and Windermere exploits those impediments to endless advantage—lives, homes, and personal finances are ruined forever. And Windermere expects those victims to just go away without their lives and homes, merely for buying a house through Windermere Real Estate, innocently.

Although such irrefutable evidence of Windermere broker/agent misconduct has been presented to franchiser Windermere Services Company, it knowingly continues collecting commissions from dishonest agents and brokers by deliberately passing them on to other unwitting consumers. Just one example is Windermere S.C.A. Redmond's Paul Stickney, who received a $522,200 court judgment for not disclosing a conflict of interest, but is still producing commissions for his Windermere SCA franchise, and Windermere Services Company. Is that the "Highest ethical standards. Uncompromising honesty and integrity?" You may want to search and visit more websites about Windermere's predatory business conduct.

When victims use the media to report their Windermere experiences honestly, Windermere sues them for libel and defamation through false lawsuits to intimidate, silence, and hush bad PR—read one of those lawsuits here. It then tries to coerce victims into signing a “dark clause settlement agreement” that permanently terminates their speech rights—read some of those "settlement" agreements here. Through an expensive and emotionally distressing roller coaster ride with Windermere's nasty Demco lawyers, a victim of Windermere fraud is told they will be taken all the way to trial on trumped-up libel and defamation charges, and if they don't sign the dark clause, their life and future will be ruined. When a victim persists in refusing to sign, Windermere voluntarily dismisses its own lawsuit under Civil Rule 41, just before trial, after costing the victim years and yet thousands more to defend against the false action. This predatory legal tactic is known as abuse of process or malicious prosecution. In one example cited below, franchiser Windermere Services Company served an outspoken victim a lawsuit for libel and defamation, and then immediately sent them an email instructing that they "...need not hire an attorney," and further stating, “…we will try to resolve this directly and outside the legal system.”

Every Windermere office in every state is legally tied to franchiser Windermere Services Company's fraudulent express warranty, false advertising, predatory conduct and policies through privity and its pecuniary franchise agreement. Some legal observers believe that Windermere's conduct has RICO and Civil Rights violation implications. If you have recently purchased a Windermere franchise without having been disclosed Windermere's falling brand value, PR decline, and its adverse website problems, click here for its duty of disclosure under Federal Trade Commission rules. Proof that Windermere Services Company knew about WindermereWatch.com in March of 2007 is in this document.

Windermere Real Estate is a textbook corporate predator who operates franchises in Washington State, Oregon, California, Arizona, Nevada, Utah, Idaho, Montana, Hawaii and British Columbia. Windermere repeatedly makes the false claim that it has offices in Wyoming, but it does not. If you’re buying or selling property through ANY Windermere office, a percentage from your transaction will be used by franchiser Windermere Services Company to silence and financially ruin innocent parties who’ve encountered Windermere fraud. Windermere won't pay legitimate damages or acknowledge wrongdoing, and will stall settlement of cases all the way to state supreme courts, a legal strategy that Windermere routinely employs to bankrupt victims and exhaust their resources.

We believe the information presented here is of profound social benefit to consumers and the community, and we are dedicated to providing it.

THROUGH FEES AND COMMISSIONS PAID TO FRANCHISER WINDERMERE SERVICES COMPANY, EVERY WINDERMERE NETWORK OFFICE IN EVERY STATE IS AN ENTHUSIASTIC PARTNER AND KNOWING ACCESSORY TO WINDERMERE MARKETING FRAUD AND ITS PREDATORY POLICIES

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