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A & L Partners, Andrea Marquez, Joseph R. Deville, Bennion & Deville Fine Homes, Bob Bennion, *KRG Realty Group, *Richard Michael King, Sued for Trademark Infringement, Unfair Competition, False Advertising, Common Law Trademark Infringement; A & L Partners/Marquez Sued for Breach of Contract; Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion, *KGR and King, Sued Intentional Interference with Contractual Relations.
Left: Bob Deville, Principal, Broker, Owner, and President of Windermere Services Southern California; Bennion & Deville Fine Homes, Inc., Coachella Valley, California. Right: Bob Bennion, Principal and Owner of Windermere Services Southern California; Bennion & Deville Fine Homes, Inc., Coachella Valley, California.
CASE UPDATE 01/09/2012: "The parties having agreed to the terms set forth in the Stipulation for Dismissal..."
*Notice of Dismissal Without Prejudice as to Defendants KRG Realty and Richard Michael King, filed 02/01/11.
DOWNLOAD A COPY OF THE COMPLAINT HERE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
F.M. TARBELL CO. DBA TARBELL, REALTORS, a California corporation,
Plaintiff,
v.
A & L PARTNERS, INC. a California corporation; ANDREA MARQUEZ, an individual, JOSEPH R. DEVILLE, an individual; BENNION & DEVILLE FINE HOMES, INC., a California corporation, BOB BENNION, an individual; KRG REALTY GROUP, INC., a California corporation, RICHARD MICHAEL KING, an individual,
Defendants.
Case No. SACV10-01589 JVS (Ex)
COMPLAINT FOR:
1. TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION UNDER 15 U.S.C. § 1125(A);
2. UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17500, ET SEQ.;
3. FALSE ADVERTISING UNDER CAL. BUS. & PROF. CODE § 17500, ET SEQ.;
4. COMMON LAW TRADEMARK INFRINGEMENT;
5. BREACH OF CONTRACT
6. INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS
DEMAND FOR JURY TRIAL
COMPLAINT
Plaintiff F.M. Tarbell Co. dba Tarbell, Realtors ("Tarbell"), by its attorneys, for its Complaint against Defendants A & L PARTNERS, INC. a California corporation; ANDREA MARQUEZ, an individual, JOSEPH R. DEVILLE, an individual, BENNION & DEVILLE FINE HOMES, INC., a California corporation, BOB BENNION, an individual, KRG REALTY GROUP, INC., a California corporation, RICHARD MICHAEL KING, an individual (collectively "Defendants"), alleges as follows:
NATURE OF THIS ACTION
1. This is an action for trademark infringement and unfair competition pursuant to 15 U.S.C. § 1125(a) of the Trademark Act of 1946 (the "Lanham Act"), California Business and Professions Code §§ 17200, et seq. & 17500, et seq., and common law, and breach of contract (settlement agreement) and intentional interference with contractual relations for conduct occurring after the resolution of USDC Case No. 2:1 0-cv-04048-PSG-E, Plaintiff Tarbell is the largest family-owned real estate agency in Southern California, a community that it has proudly served for the last eighty years. Founded in 1926 by Frank Tarbell, Tarbell, Realtors has dedicated more than 80 years of service to America's dream of home ownership. Through years of tremendous growth and expansion, Tarbell, Realtors has positioned itself as a leader in real estate today.
2. For more than a decade, Tarbell has devoted special resources and attention to buyers and sellers of upper scale homes in the Southern California area through its Preferred PropertiesSM division. Tarbell's Preferred PropertiesSM services focus upon assisting members of the Southern California community locate or sell some of the most elite housing available in the area. Moreover, during this period, Tarbell has expended significant resources to establish and promote the Preferred PropertiesSM services. Through extensive marketing and sales, Tarbell has developed substantial goodwill in and consumer recognition of the Preferred Properties mark such that residents of the Southern California community readily recognize and identify Tarbell as the source of Preferred PropertiesSM services.
3. When Tarbell first discovered the Defendants' unauthorized and unlawful use of Tarbell's Preferred Properties mark in connection with Defendants' recruiting of real estate agents and marketing of residential real estate for sales and purchases by members of the Southern California community through the incorporation of Tarbell's mark into the trade name "Windermere Real Estate/Preferred Properties and using "Windermerepreferred.com" in web addresses and email addresses for the new Brea office, Tarbell immediately commenced legal action against the parties it could identify as associated with that conduct (Marquez, King and later adding A & L Partners, Inc.). That action was filed on May 28, 2010 and was assigned Case No. CV 10-4048 PSG (Ex) (the "First Action"). Immediately upon filing of the lawsuit, Tarbell was contacted by counsel for Marquez, former Sales Manager Jim Crotwell, and A & L Partners, Inc. dba Windermere Preferred Properties,
4. Despite certain defendants appearing to resolve that dispute, including the signing of a settlement agreement covenanting not to use Tarbell's service mark, Defendants have continued to engage in blatant misappropriation of Tarbell's valuable intellectual property rights in Tarbell's Preferred Properties mark. Defendants' use of a confusingly similar mark is likely to deceive the purchasing public into believing that Defendants' services are affiliated with, related to, sponsored by or connected with Tarbell and/or Tarbell's Preferred PropertiesSM services. Defendants' conduct has caused, and its intended conduct will cause, substantial damage to Tarbell's goodwill and reputation in the marketplace. Accordingly, Tarbell seeks corrective advertising and/or marketing, compensatory damages, statutory damages, treble damages for willful infringement, and attorneys' fees and costs.
THE PARTIES
5. Plaintiff F.M. Tarbell Co, dba Tarbell, Realtors is a California corporation with its principal place of business in Santa Ana, California.
6. A & L Partners, Inc. is a California corporation that operates an entity referred to as Windermere Preferred Properties and Windermere Preferred Living on realtor listings and advertisements relating to the Windermere franchise located at 135 S. State College Blvd. #110, Brea CA 92821 ("Windermere Brea").
7. At the time of the First Action, Defendant Andrea Marquez ("Marquez") previously held herself out as the Chief Financial Officer and Managing Partner of Defendant Windermere Real Estate/Preferred Properties' location at 135 S. State College Blvd, Suite 110, Brea CA. Marquez has since revealed herself to be the Owner of Windermere Brea. Based upon Defendant Marquez's identification of herself as working at the Windermere Brea address, Tarbell is informed and believes that Marquez is a resident of the District.
8. Joseph R. Deville ("Deville") is the licensed broker of record for Windermere Brea. Mr. Deville became the licensed broker of record after the filing of the First Action, at which time Richard Michael King was the licensed broker of record. Mr. Deville is also the licensed broker of record and co-owner of codefendant Bennion & Deville Fine Homes, Inc., which does business as Windermere Real Estate of Coachella Valley ("Windermere Coachella Valley"). Based upon Deville's identification of his mailing and work addresses with the California Department of Real Estate ("DRE") as being in Rancho Mirage, California Tarbell is informed and believes that Deville is a resident of this District.
9. Bennion & Deville Fine Homes, Inc. is a California corporation that operates an entity referred to as Windermere Real Estate Coachella Valley relating to the Windermere franchise located at 71-691 Highway 111, Rancho Mirage, CA ("Windermere Coachella Valley").
10. Bob Bennion ("Bennion") is also a co-owner of co-defendant Bennion & Deville Fine Homes, Inc., which does business as Windermere Real Estate of Coachella Valley ("Windermere Coachella Valley"). Tarbell is informed and believes that Mr. Bennion is not a DRE licensee. Based upon Bennion's co-ownership of Windermere Coachella Valley in Rancho Mirage, California Tarbell is informed and believes that Deville is a resident of this District.
11. KRG Realty Group, Inc. ("KRG) is a California corporation that operates an entity referred to as Windermere Real Estate King Realty Group relating to the Windermere franchise located at 2130 Grand Avenue, #A, Chino Hills, CA 91709 ("Windermere Chino Hills").
12. Defendant Richard Michael King ("King") is a licensed real estate broker with the DRE. At the time of the filing of the First Action, King's DRE-assigned Broker Number of 00815016 is listed as the Broker Number in documentation relating Defendant Windermere Real Estate/Preferred Properties' location at 135 S. State College Blvd, Suite 110, Brea CA. However, Defendant King's current status with the DRE is that he is operating under the fictitious name of "Windermere Real Estate King Realty Group. Based on King's contact information listed with the DRE, Tarbell is informed and believes that King is a resident of the County of San Bernardino, State of California,
13. Tarbell is informed and believes that each of the defendants is the agent, employee, successor or assign of each other defendant and each of them, as well as the agents of all Defendants, and at all times herein mentioned, were acting within the course and scope of said agency, employment, succession of interest or assignment.
JURISDICTION AND VENUE
14. This action arises under the Trademark Act of July 5, 1946, as amended, commonly known as the Lanham Act, 15 U.S.C. § 1051, et seq.; Cal. Bus. & Prof. Code §§ 17200, et seq. & 17500, et seq.; and common law.
15. This Court has subject matter jurisdiction over the claims in this Complaint pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338. This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
16. Venue in this Court is proper pursuant to 28 U. S.C. § 1391(b). In addition, the acts constituting the state law violations alleged herein occurred within this judicial district.
17. This Court has personal jurisdiction over Defendants because, on information and belief, (a) each of the corporate defendants has established its sale business address in this district and is actively recruiting agents in order to offer services in this judicial district; and (b) each of the individual defendants reside in this district and their conduct as outlined in this complaint occurred in this judicial district.
TARBELL AND ITS PREFERRED PROPERTIESSM SERVICES
18. For over eighty years, Tarbell has been engaged in the business of assisting existing and prospective homeowners in the Southern California communities in the Counties of Orange, Riverside, San Bernardino, Los Angeles and San Diego. For at least the last five years, Tarbell's specialized Preferred PropertiesSM division has been widely recognized as the premiere resource for sellers of upscale residences in the counties served by Tarbell. Only the higher echelon agents are permitted to be associated with Tarbell's Preferred PropeitiesSM division. Clients serviced by the Preferred PropertiesSM division are ensured that their properties are appropriately marketed because "Special Homes Deserve Special Attention."
19. Tarbell has devoted substantial resources to the development and maintenance of its Preferred Propertiessm division and high quality services. Clients of this division are expecting the following service amenities from Tarbell:
Preferred Properties offers the special attention that a distinctive home requires. That attention includes the following:
Individual Pictorial Brochures, complete with color photo to present your home at its best.
Property News Releases placed in major and local newspapers.
Professional Photography that insures consistent quality.
Full Page Color Advertising that reaches a large number of prospective buyers.
World Wide Exposure - All Preferred Properties' listings can be seen on the internet, exposing them to buyers from all over the world.
Distinctive Personalized Signs, with your agents name and direct voice mail phone numbers.
A Network of Skilled Professionals - When a home is entered into the Preferred Properties Division, full color brochures are distributed to Tarbell's network of offices, putting your home at the fingertips of hundreds of real estate professionals with prospective buyers
20. In order to provide these specialized services, Tarbell has engaged specialized support services to develop and cultivate the smaller market of upscale homes in the Southern California area. Tarbell also set aside specific web-based resources, including the maintenance of http://tarbell.com/preferred.html and associated links to market the Preferred PropertiesSM services to prospective consumers.
21. At least as early as the beginning of 2005, Tarbell began using the Preferred Properties mark in connection with its marketing to potential sellers and purchasers of upscale residences in Southern California.
22. Tarbell is the exclusive user of the Preferred Properties mark in connection with real estate services in the Southern California communities Tarbell services. Tarbell's Preferred Properties mark is an extremely valuable asset to Tarbell.
WINDERMERE AND ITS WRONGFUL ACTS
23. On or around April 2010, Tarbell became aware that defendants A & L Partners, Marquez and King were planning to open an office in Brea, California and had applied for a city business license with the City of Brea using the name "Windermere Preferred Properties" and/or "Windermere Real Estate/Preferred Properties" in connection with real estate services in the County of Orange, City of Brea and surrounding communities. These are same communities served by Tarbell and its Preferred PropertiesSM division, operating through offices located throughout Orange County and the Inland Empire, including those offices closest to Brea in Anaheim, East Anaheim, Anaheim Hills and Yorba Linda. Defendants A & L Partners, Marquez and Deville opened the Windermere Brea office on May 3, 2010 and was operating as "Windermere Preferred Properties" and "Windermere Real Estate/Preferred Properties".
24. Additionally, as of May 3, 2010, Defendants A & L Partners, Marquez and Deville started using the Tarbell's Preferred Properties mark in listing its businesses with the Brea Chamber of Commerce and real estate-related websites.
25. After securing Tarbell's agreement to dismiss the First Action by, among other things, covenanting to no longer use the Preferred Properties mark, Defendants, and each of them, caused advertising to appear in the October 16, 2010 edition of the Desert Sun that continued to refer to the Windermere Brea office as "Windermere Preferred Properties" even though each of the defendants were fully aware of the settlement with Tarbell, and knew that the Windermere Brea defendants (A & L Partners and Marquez) had covenanted to not use that name in the future and that the proper name of the Windermere Brea office under the DRE approval process was now "Windermere Preferred Living."
26. Additionally, Defendants A & L Partners and Marquez, who were signatories to the agreement with Tarbell that also covenanted that they would ensure that their agents did not use "Windermere Preferred Properties" in their marketing or advertising, failed to do so. Defendant Deville, who is the broker of record and thus the person charged with ensuring that real estates salespersons working for Windermere Preferred Living accurately identify the brokerage with whom they are associated, knows or should know that "Windermere Preferred Properties" is being used by its agents for active listings.
27. It is in the Defendants' collective interest for the public to continue to associate the name "Preferred Properties" with the Defendants, despite the settlement agreement and covenant with A & L Partners/Marquez because of the cache and client recognition of that term, synonymous with luxury homes and exceptional client service.
28. Tarbell is informed and believes that Defendants devised a plan whereby Deville, as the broker of record for Windermere Brea and the owner/broker of Windermere Coachella Valley, would continue to propagate the Windermere Preferred Properties name in conjunction with all of the Defendants by engaging in advertising that continued to identified Windermere Brea as "Windermere Preferred Properties" in advertising paid for by Windermere Real Estate Coachella Valley that included references to all three of the defendant Windermere franchises for their mutual benefit and enjoyment, and to the detriment of Tarbell and interfering with Tarbell's contract with A & L Partners/Marquez. Tarbell is further informed and believes that such advertising was executed with the express approval, ratification and authorization of A & L Partners/Marquez.
29. Defendants' continued prominent use of Tarbell's Preferred Properties mark in its name, and in combination with the services in residential real estate, is likely to mislead or deceive real estate professionals and the consuming public into believing that Defendants or their services are sponsored by or associated with Tarbell. Defendants' use of Tarbell's Preferred Properties mark is without authorization from Tarbell. In addition, Defendants' use of Tarbell's Preferred Properties mark will result in lost sales opportunities for Tarbell.
30. Defendants' conduct is continuing and will continue unless restrained by the Court. Defendants' conduct Defendants use of Tarbell's Preferred Properties mark in the marketing of their job opportunities and services to the same communities served by Tarbell actively promotes confusion among real estate professionals and consumers such that Tarbell had no choice but to file the instant complaint to stop the continuing irreparable injury to Tarbell and the Tarbell's Preferred PropertiesSM division. Unless Defendants are enjoined from engaging in the wrongful conduct described above, Tarbell will suffer irreparable injury and further harm.
FIRST CLAIM FOR RELIEF
Trademark Infringement, Unfair Competition
and False Designation of Origin 15 U.S.C. § 1125(a)
Against All Defendants
31. Tarbell repeats and realleges the allegations set forth in paragraphs I through 30 above, as though fully set forth herein,
32. Tarbell has built up valuable goodwill in its Preferred Properties mark within Southern California. Defendants' wrongful acts have permitted or will permit Defendants to make substantial sales and profits on the strength of Tarbell's substantial advertising, sales, consumer recognition, and goodwill.
33. With knowledge of the value of breadth and depth of recognition of Tarbell's Preferred Properties mark within the Southern California real estate industry and local communities, and without Tarbell's authorization and consent, Defendants have traded and continue to trade on the goodwill associated with Tarbell's Preferred Properties mark and mislead the public into assuming a connection between Defendants' services and those of Tarbell.
34. As a direct and proximate result of Defendants' wrongful conduct, Tarbell has been and will be deprived of the value of the Preferred Properties mark as a commercial asset. Defendants' prominent use of Tarbell's Preferred Properties mark in connection with recruiting real estate sales persons and the offering of services in relation to the purchase and sale of upscale homes, and advertising of its related services without consent of Tarbell, is likely to cause and is causing confusion and deception among real estate professionals and the general consuming public as to the origin of Defendants' services. Defendants' actions are likely to deceive the public into believing that the employment opportunities and services being offered by Defendants originated from, are sponsored by, or are associated with, or otherwise authorized by Tarbell.
35. Defendants' activities have caused, and will continue to cause Tarbell to suffer substantial injury. Tarbell has no adequate remedy at law and, if Defendants' activities in the use of "Preferred Properties" are not enjoined, Tarbell will continue to suffer irreparable harm and injury to its goodwill and reputation.
SECOND CLAIM FOR RELIEF
Unfair Competition Under Cal. Bus. & Prof. Code § 17200, et seq.
Against All Defendants
36. Tarbell repeats and realleges the allegations contained in the foregoing paragraphs 1 through 35, as if fully set forth herein.
37. The above-described acts and practices by Defendants are likely to mislead the general public and therefore constitute unfair and fraudulent business practices and unfair, deceptive, untrue, and misleading advertising in violation of California Business and Professions Code § 17200, et seq.
38. Tarbell has built valuable goodwill in its Preferred Properties mark. Defendants' use of Tarbell's Preferred Properties mark in advertising and marketing is likely to confuse and deceive real estate professionals and the public such that they will believe there is a connection or affiliation between Tarbell and Defendants, This conduct results in damage to Tarbell's goodwill and reputation and unjust enrichment of Defendants.
39. Defendants have also unfairly competed with Tarbell by violating California Code of Regulations regarding the identification of the provider of services, opening for business while failing to register this operation with the Department of Real Estate, and failing to identify new real estate affiliations with the DRE and thus shielding itself from accountability with the Department of Real Estate.
40. The unfair and fraudulent business practices and deceptive and untrue advertising of Defendants described above presents a continuing threat to members of the public in that Defendants intend to promote and advertise their services by wrongfully trading on the name and goodwill of Tarbell and the Tarbell Preferred Properties mark.
41. Defendants' conduct has injured Tarbell and, unless enjoined, will continue to cause great, immediate, and irreparable injury to Tarbell. Tarbell is entitled to injunctive relief and an order for restitutionary disgorgement of all of Defendants' ill-gotten gains.
THIRD CLAIM FOR RELIEF
Deceptive, False and Misleading Advertising
under Under Cal. Bus. & Prof. Code § 17500, et seq.
Against All Defendants
42. Tarbell repeats and realleges the allegations set forth in paragraphs 1 through 41 above, as though fully set forth herein.
43. The above-described acts of Defendants constitute untrue and misleading advertising as defined by California Business & Professions Code § 17500, et seq.
44. The acts of untrue and misleading advertising by Defendants described above present a continuing threat to members of the public in that Defendants' will misrepresent the source of their services.
45. Defendants' false and misleading advertising will permit them to make substantial sales and profits on the strength of Tarbell's success, goodwill, and consumer recognition.
46. As a direct and proximate result of Defendants' wrongful conduct, Tarbell will be injured by Defendants' wrongful acts, and such harm will continue unless the Court enjoins Defendants' acts. Tarbell has no adequate remedy at law for Defendants' continuing violations of Tarbell's rights.
FOURTH CLAIM FOR RELIEF
Trademark Infringement under Common Law
Against All Defendants
47. Tarbell repeats and realleges the allegations set forth in paragraphs 1 through 46 above, as though fully set forth herein.
48. Tarbell has valid and existing common law rights with respect to the Preferred Properties mark.
49. The above acts by Defendants constitute trademark infringement of the Preferred Properties mark, in violation of Tarbell's common law rights.
50. Defendants' wrongful acts will permit them to make substantial sales and profits on the strength of Tarbell's success, goodwill, and consumer recognition.
51. As a direct and proximate result of Defendants' wrongful conduct, Tarbell, among other things, will be deprived of the value of its Preferred Properties mark as a commercial asset.
52. As a direct and proximate result of Defendants' wrongful conduct, Tarbell will be injured by Defendants' wrongful acts, and such harm will continue unless the Court enjoins Defendants' acts. Tarbell has no adequate remedy at law for Defendants' continuing violations of Tarbell's rights.
FIFTH CLAIM FOR RELIEF
Breach of Contract against
A & L Partners/Marquez
53. Tarbell repeats and realleges the allegations set forth in paragraphs 1 through 52 above, as though fully set forth herein.
54. Tarbell entered into a valid and existing contract in the form of a settlement agreement with defendants A & L Partners, Marquez and former Sales Manager Jim Crotwell.
55. Tarbell fully performed under the contract by, among another things, allowing the First Action to be dismissed.
56. Defendants A & L Partners and Marquez breached the contract by failing to ensure that "Windermere Preferred Properties" was no longer used in advertising for Windermere Brea, and by not ensuring that their agents used "Windermere Preferred Living" rather than "Windermere Preferred Properties".
57. Tarbell has been damaged by the breach in an amount to be proven at trial.
58. Because the settlement agreement included covenants regarding the conduct of A & L Partners and Marquez with which A & L Partners and Marquez have failed to comply, Tarbell is entitled to injunctive relief to enforce the terms of settlement that governs the conduct of the defendants in the settlement.
SIXTH CLAIM FOR RELIEF
Intentional Interference with Contractual Relations against
Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion
KGR and King
59. Tarbell repeats and realleges the allegations set forth in paragraphs 1 through 58 above, as though fully set forth herein.
60. Defendants Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion, KGR and King, and each of them, by virtue of their relationship with the owner and broker of Windermere Brea and their collective interests in promoting Windermere in Southern California, had knowledge of the terms of the settlement and that Tarbell had secured a covenant from A & L Partners and Marquez that the name "Windermere Preferred Properties" would no longer be used by the Windermere Brea office.
61. With the deliberate intent of depriving Tarbell of the benefit of its contract with A & L Partners and Marquez and the covenants therein, Defendants Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion, KGR and King determined that as nonsignatories to the settlement agreement, they would engage in conduct prohibited by the settlement agreement for their own benefit and to the detriment of Tarbell by continuing to propagate "Windermere Preferred Properties" as a trade name for the Windermere Brea franchise in advertising that would benefit the nonsignatory defendants, and further cause the public in Southern California to associate the level of service provided by the Tarbell Preferred Propertiessm division.
62. This conduct deprived Tarbell of its contractual benefits under its contract with A & L Partners and Marquez, for which it had bargained and for which it had forbeared on pursuing full enforcements of its rights in the First Action.
63. Tarbell has been damaged as a result of the conduct of Defendants Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion, KGR and King in an amount to be proven at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Tarbell demands judgment as follows:
A. Preliminarily and permanently restraining and enjoining Defendants, their officers, agents, servants and employees, and all persons in acting in concert and participation with them, from their unauthorized use of Preferred Properties trademark, including, without limitation, any confusingly similar variation, or colorable imitation thereof, in connection with the providing of real estate services in the Southern California communities in the Counties of Orange, Los Angeles, Riverside and San Bernardino by Defendants.
B. Permanently restraining and enjoining Defendants, their officers, agents, servants and employees, and all persons in active concert and participation with them, from any further conduct suggesting or tending to suggest that any services Defendants offer are directly or indirectly sponsored by, approved by, or affiliated with Tarbell.
C. Awarding Tarbell damages, costs, attorneys' fees, and investigator's fees, and an accounting of Defendants' profits attributable to Defendants' unauthorized use of Tarbell's trademarks.
D. Awarding Tarbell treble damages, pursuant to 15 U.S.C. § 1117(b), as a result of Defendants' wanton, deliberate, malicious, and willful conduct.
E. Entering an order, pursuant to 15 U.S.C. § 1118 and other applicable law, directing Defendants to deliver for impoundment and destruction all manuals, packaging, images, and promotional materials bearing any unauthorized use of Tarbell's Preferred Properties trademark or any simulation, reproduction, counterfeit, copy, confusingly similar variation, or colorable imitation thereof.
F. Ordering Defendants A & L Partners, Inc. and Marquez to pay damages arising from their breach of contract.
G. Ordering Defendants Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion, KGR and King to pay damages arising from their intentional interference of Tarbell's contract with Defendants A & L Partners, Inc. and Marquez.
H. Directing that Defendants pay to Tarbell the costs of this action, including their reasonable attorneys' fees incurred herein.
1. Awarding Tarbell punitive damages in an amount sufficient to punish Defendants.
J. Awarding Tarbell pre-judgment and post-judgment interest on any monetary awards,
K. Ordering Defendants to disgorge all of their ill-gotten gains pursuant to California Business & Professions Code § 17203.
L. Granting Tarbell any other and further relief as the Court may deem just and proper.
Jury Demand
Plaintiff Tarbell demands a trial by jury on all issues so triable.
Respectfully submitted,
Dated: October 19, 2010 By _________________________________
David L. Aronoff (State Bar No. 152606)
daronoff@winston.com
Gayle I. Jenkins (State Bar No. 168962)
gjenkins@winston.com
Saul S. Rostamian (State Bar No. 235292)
srostamian@winston.com
WINSTON & STRAWN LLP
333 S. Grand Avenue, 38th Floor
Los Angeles, CA 90071-1543
(213) 615-1700; Facsimile: (213) 615-1750
Attorneys for Plaintiff F.M. Tarbell Co. dba
Tarbell, Realtors
________________________________
Defendants Joseph R. Deville, Bennion & Deville Fine Homes, Inc. and Bob Bennion's First Amended Answer to Plaintiff's Complaint, Counterclaims & Jury Demand
DOWNLOAD A COPY OF THE ANSWER HERE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
F.M. TARBELL CO. DBA TARBELL REALTORS, a California corporation,
Plaintiffs,
vs.
A&L PARNTERS, Inc., a California corporation; ANDREA MARQUEZ, an individual; JOSEPH R. DEVILLE, an individual; BENNION & DEVILLE FINE HOMES,INC., a California corporation; BOB BENNION, an individual; KRG REALTY GROUP, INC., a California corporation; RICHARD MICHAEL KING, an individual,
Defendants.
A&L PARTNERS, INC., a California corporation; ANDRE A MARQUEZ, an individual,
Counterclaimants,
vs.
F.M. TARBELL CO. DBA TARBELL, REALTORS, a California corporation; ROES 1 through 10,
Counterdefendants.
JOSEPH R. DEVILLE, an individual; BENNION & DEVILLE FINE HOMES, INC., a California corporation, and BOB BENNION, an individual
Counterclaimants,
vs.
F.M. TARBELL CO. DBA TARBELL, REALTORS, a California corporation; A&L PARNTERS, INC., a California corporation; ANDREA MARQUEZ, an individual,
Counterdefendants.
CASE NO.: CV-10-01589 PSG (Ex)
DEFENDANTS JOSEPH R. DEVILLE, BENNION & DEVILLE FINE HOMES, INC. and BOB BENNIONS' FIRST AMENDED ANSWER TO PLAINTIFF'S COMPLAINT, COUNTERCLAIMS & JURY DEMAND
JUDGE: Hon. Philip S. Gutierrez
MAGIS.: Hon. Charles Eick
DEPT.: 880 - Roybal
Complaint Filed: October 19, 2010
Trial Date: Not Yet Assigned
COMES NOW Defendants, JOSEPH R. DEVILLE, BENNION & DEVILLE FINE HOMES, INC. and BOB BENNION (hereinafter referred to as these "Answering Defendants") and in answer to the Complaint filed by Plaintiff F.M. TARBELL CO. DBA TARBELL REALTORS ("Plaintiff'), alleges as follows:
NATURE OF THIS ACTION
1. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 1, and on that basis deny generally and specifically all such allegations.
2. These Answering Defendants deny that they are without sufficient information to admit or deny the allegations set forth in Paragraph 2, and on that basis deny generally and specifically all such allegations.
3. These Answering Defendants generally and specifically deny that they engaged in any unauthorized and/or unlawful conduct concerning the name "Windermere Real Estate/Preferred Properties and Windermerepreffered.com" but are without sufficient information to admit or deny the remaining allegations set forth in Paragraph 3, and on that basis deny generally and specifically all such allegations.
4. These Answering Defendants generally and specifically deny that they engaged in any misappropriation of Tarbell's valuable intellectual property rights and that Tarbell has suffered any substantial damage to its goodwill and reputation in the marketplace as a result of any actions by these Answering Defendants, but are without sufficient information to admit or deny the remaining allegations set forth in Paragraph 4, and on that basis deny generally and specifically all such allegations.
THE PARTIES
5. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 5, and on that basis deny generally and specifically all such allegations.
6. These Answering Defendants generally and specifically deny that A & L Partners, Inc. currently operates an entity referred to as Windermere Preferred Properties, but are without sufficient information to admit or deny the remaining allegations set forth in Paragraph 6, and on that basis deny generally and specifically all such allegations.
7. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 7, and on that basis deny generally and specifically all such allegations.
8. These Answering Defendants generally and specifically deny that Joseph R. Deville is the licensed broker of record for Windermere Brea. These Answering Defendants admit that Joseph R. Deville is the licensed broker of record and co-owner of Bennion & Deville Fine Homes, Inc., dba Windermere Real Estate Coachella Valley but are without sufficient information to admit or deny the remaining allegations set forth in Paragraph 8, and on that basis deny generally and specifically all such allegations.
9. These Answering Defendants admit that Bennion & Deville Fine Homes, Inc. is a California corporation doing business as Windermere Real Estate Coachella Valley but is without sufficient information to admit or deny the remaining allegations as worded in Paragraph 9, and on that basis deny generally and specifically all such allegations.
10. These Answering Defendants admit that Bob Bennion is a co-owner of Bennion & Deville Fine Homes, Inc. which is doing business as Windermere Real Estate Coachella Valley, but is without sufficient information to admit or deny-the remaining allegations set forth in Paragraph 10 and on that basis deny generally and specifically all such allegations.
11. These Answering Defendants admit that KRG Realty Group, Inc. is a California corporation doing business as Windermere Real Estate King Realty Group at 2130 Grand Avenue, #A, Chino Hills, California 91709, but is without sufficient information to admit or deny the remaining allegations as worded in Paragraph 11, and on that basis deny generally and specifically all such allegations.
12. These Answering Defendants are intended third party beneficiaries to the "Settlement Agreement" alleged in Plaintiffs Complaint, Paragraphs Twenty-Five and Twenty-Six, between Tarbell and other signatories, not including these Answering Defendants. Unaware of the alleged settlement agreement at the time of and after its execution until the present action was filed, these Answering Defendants are not bound by the provisions thereof.
13. These Answering Defendants admit that Richard Michael King is a licensed real estate broker, license ID number 00815016, but is without sufficient information to admit or deny the remaining allegations set forth in Paragraph 12, and on that basis deny generally and specifically all such allegations.
14. These Answering Defendants are without sufficient information to admit or deny the vague and ambiguous allegations set forth in Paragraph 13, and on that basis deny generally and specifically all such allegations.
JURISDICTION AND VENUE
15. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 14, and on that basis deny generally and specifically all such allegations.
16. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 15, and on that basis deny generally and specifically all such allegations.
17. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 16, and on that basis deny generally and specifically all such allegations.
18. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 17, and on that basis deny generally and specifically all such allegations.
TARBELL AND PREFERRED PROPERTIES
19. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 18, and on that basis deny generally and specifically all such allegations.
20. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 19, and on that basis deny generally and specifically all such allegations.
21. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 20, and on that basis deny generally and specifically all such allegations.
22. These Answering Defendant are without sufficient information to admit or deny the allegations set forth in Paragraph 21, and on that basis deny generally and specifically all such allegations.
23. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 22, and on that basis deny generally and specifically all such allegations.
WINDERMERE AND ITS WRONGFUL ACTS
24. These Answering Defendants admit that on or about May 2010, a Windermere office existed in Brea, California, but are without sufficient information to admit or deny the remaining allegations as worded in Paragraph 23, and on that basis deny generally and specifically all such allegations.
25. These Answering Defendants deny generally and specifically the allegations set forth in Paragraph 24.
26. These Answering Defendants deny generally and specifically the allegations set forth in Paragraph 25.
27. These Answering Defendants are without sufficient information to admit or deny the allegations as worded in Paragraph 26, and on that basis deny generally and specifically all such allegations.
28. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 27, and on that basis deny generally and specifically all such allegations.
29. These Answering Defendants deny generally and specifically that Joseph R. Deville engaged in any advertising to the detriment of Plaintiff, but are without sufficient information to admit or deny the allegations as worded in Paragraph 28, and on that basis deny generally and specifically all such allegations.
30. These Answering Defendants deny generally and specifically that they continue to use Tarbell's mark, but are without sufficient information to admit or deny the allegations as worded in Paragraph. 29, and on that basis deny generally and specifically all such allegations.
31. These Answering Defendants deny generally and specifically that they continue to use Tarbell's mark, but are without sufficient information to admit or deny the allegations as worded in Paragraph 30, and on that basis deny generally and specifically all such allegations.
FIRST CLAIM FOR RELIEF
32. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 31, and on that basis deny generally and specifically all such allegations.
33. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 32, and on that basis deny generally and specifically all such allegations.
34. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 33, and on that basis deny generally and specifically all such allegations.
35. These Answering Defendants are without sufficient information to admit or deny the allegations as worded in Paragraph 34, and on that basis deny generally and specifically all such allegations.
36. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 35.
SECOND CLAIM FOR RELIEF
37. These Answering Defendants are without sufficient information to admit or deny the allegations set forth in Paragraph 36, and on that basis deny generally and specifically all such allegations.
38. These Answering Defendants are without sufficient information to admit or deny the allegations as worded in Paragraph 37, and on that basis deny generally and specifically all such allegations.
39. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 38, and on that basis deny generally and specifically all such allegations.
40. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 39.
41. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 40.
42. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 41.
THIRD CLAIM FOR RELIEF
43. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 42, and on that basis deny generally and specifically all such allegations.
44. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 43.
45. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 44.
46. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 45.
47. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 46.
FOURTH CLAIM FOR RELIEF
48. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 47, and on that basis deny generally and specifically all such allegations.
49. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 48, and on that basis deny generally and specifically all such allegations.
50. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 49.
51. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 50.
52. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 5 1.
53. These Answering Defendants deny generally and specifically the allegations as set forth in Paragraph 52.
FIFTH CLAIM FOR RELIEF
54. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 53, and on that basis deny generally and specifically all such allegations.
55. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 54, and on that basis deny generally and specifically all such allegations.
56. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 55, and on that basis deny generally and specifically all such allegations.
57. These Answering Defendants generally and specifically deny the allegations as worded in Paragraph 56.
58. These Answering Defendants generally and specifically deny the allegations as set forth in Paragraph 57.
59. These Answering Defendants are without sufficient information to admit or deny the allegations as worded in Paragraph 58, and on that basis deny generally and specifically all such allegations.
SIXTH CLAIM FOR RELIEF
60. These Answering Defendants are without sufficient information to admit or deny the allegations as phrased in Paragraph 59, and on that basis deny generally and specifically all such allegations.
61. These Answering Defendants generally and specifically deny the allegations as worded in Paragraph 60.
62. These Answering Defendants generally and specifically deny the allegations as worded in Paragraph 61.
63. These Answering Defendants are without sufficient information to admit or deny the allegations as set forth in Paragraph 62, and on that basis deny generally and specifically all such allegations.
64. These Answering Defendants generally and specifically deny the allegations as worded in Paragraph 63.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
65. These Answering Defendants are informed and believe and thereon allege that each and every allegation contained in Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action against these Answering Defendants.
SECOND AFFIRMATIVE DEFENSE
(Comparative Negligence)
66. These Answering Defendants are informed and believe and thereon allege that Plaintiff is barred from any recovery or relief on the basis that its own negligence was the sole and proximate cause of any damages it may have sustained or will sustain. In the event that a determination is made that these Answering Defendants were negligent and/or otherwise responsible to Plaintiff, and such negligence and/or responsibility proximately contributed to Plaintiff’s damages, the amount of recovery, if any, shall be reduced on the basis of Plaintiff’s own comparative negligence which contributed to the damages sought by Plaintiff against these Answering Defendants.
THIRD AFFIRMATIVE DEFENSE
(Laches)
67. These Answering Defendants are informed and believe and thereon allege that each and every allegation and cause of action alleged in Plaintiff’s Complaint against these Answering Defendants is barred under the equitable doctrine of laches.
FOURTH AFFIRMATIVE DEFENSE
(Unclean Hands)
68. These Answering Defendants are informed and believe and thereon allege that each and every cause of action alleged in Plaintiff’s Complaint against these Answering Defendants is barred by the doctrine of unclean hands in that Plaintiff, by its own conduct, has acted in such a manner as to preclude any recovery against these Answering Defendant.
FIFTH AFFIRMATIVE DEFENSE
(Superseding Acts of Third Parties)
69. These Answering Defendants are informed and believe and thereon allege that the damages alleged in Plaintiffs Complaint were exclusively caused or contributed to by the negligence or other acts or omissions of other defendants, persons, or entities, whether parties to this action or not. Said negligence or other acts or omissions were an intervening and superseding cause of injuries and damages, if any, and that such superseding forces are unforeseeable, independent, intervening actions breaking the chain of causation and barring recovery by Plaintiff against these Answering Defendants.
SIXTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
70. These Answering Defendants are informed and believe and thereon allege that Plaintiff failed to take reasonable steps toward mitigating the losses alleged in its Complaint; therefore, Plaintiff’s right to recover damages against these Answering Defendants must be barred or diminished accordingly.
SEVENTH AFFIRMATIVE DEFENSE
(Estoppel)
71. These Answering Defendants are informed and believe and thereon allege that Plaintiff is estopped from seeking relief requested in the Complaint against these Answering Defendants due to Plaintiff’s own acts or omissions with reference to the subject matter of the Complaint.
EIGHTH AFFIRMATIVE DEFENSE
(Fault of Others)
72. These Answering Defendants are informed and believe and thereon allege that at all times and places set forth in the Complaint, certain parties defendant(s)/Co-Defendant(s), other than these Answering Defendants, named or unnamed herein, whether served or unserved, failed to exercise ordinary care, caution or circumspection on their behalf, which negligence and carelessness was a proximate cause of some portion, up to and including the whole thereof, of the injuries and damages complained of by Plaintiff in this action. The fault, if any, of these Answering Defendants should be compared with the fault or contributory negligence of other defendant(s), and damages, if any, should be apportioned among the same in direct relation to each such defendant(s)' comparative fault. These Answering Defendants should be obligated to pay only such damages, if any, which are directly attributable to their percentage of comparative fault. To require these Answering Defendants to pay any more than their percentage of comparative fault violates the Equal Protection and Due Process Clauses of the Constitution of the United States and the Constitution of the State of California.
NINTH AFFIRMATIVE DEFENSE
(Waiver)
73. These Answering Defendants are informed and believe and thereon allege that Plaintiff has engaged in conduct and activities sufficient to constitute a waiver of any alleged breach of contract claim, negligence, or any other conduct, if any, as set forth in the Complaint.
TENTH AFFIRMATIVE DEFENSE
(Several Liability)
74. These Answering Defendants are informed and believe and thereon allege that their liability, if any, for non-economic general damages is several only and not joint pursuant to California Civil Code §1431.2.
ELEVENTH AFFIRMATIVE DEFENSE
(Improper Prosecution of Action)
75. These Answering Defendants are informed and believe and thereon allege that Plaintiff is prosecuting this litigation in bad faith and for an improper purpose. The claims of Plaintiff are frivolous, and therefore, entitle these Answering Defendants to an award of reasonable expenses and attorneys' fees.
AFFIRMATIVE DEFENSE
(Absence of Probable Cause/Presence of Malicious Intent)
76. These Answering Defendants are informed and believe and thereon allege that Plaintiff is prosecuting this litigation without probable cause against these Answering Defendants and with malicious intent.
THIRTEENTH AFFIRMATIVE DEFENSE
(Absence of Actual/Proximate Causation)
77. These Answering Defendants are informed and believe and thereon allege that any and all damages or injuries alleged by Plaintiff were not, and are not, the result of acts or omissions by these Answering Defendants.
FOURTEENTH AFFIRMATIVE DEFENSE
(Apportionment of Fault)
78. These Answering Defendants are informed and believe and thereon allege that all of the acts and/or omissions alleged in the Complaint were solely, entirely, and fully those of defendant(s) and/or parties named or unnamed therein, other than these Answering Defendants and, therefore, such parties are fully and solely liable to Plaintiff. As a result, these Answering Defendants are entitled to total indemnification from said parties including, but not limited to, any and all damages, costs, and attorneys' fees that these Answering Defendants may sustain as a result of Plaintiffs claims. In the alternative, if it should be found that these Answering Defendants are in some manner legally responsible for injuries or damages sustained by Plaintiff, if any, and it should be found that Plaintiff’s injuries or damages were proximately caused or contributed to by other defendant(s) in this case, whether served or unserved, and/or other persons or entities not parties to this action, then these Answering Defendants are entitled to a finding that the negligence and fault of each of the aforesaid person and/or parties, whether parties to this action or not, shall be determined, apportioned and prorated, and that any judgment rendered against these Answering Defendants shall be reduced not only by the degree of comparative negligence of the Plaintiff, but also shall be reduced by the percentage of negligence and/or fault and/or unreasonable conduct attributed to the aforesaid other defendant(s) and/or third persons or entities, whether parties to this action or not. Plaintiff’s contributory negligence and/or fault shall reduce any and all damages sustained by Plaintiff.
FIFTEENTH AFFIRMATIVE DEFENSE
(Ratification)
79. These Answering Defendants are informed and believe and thereon allege that Plaintiff is barred from asserting each and all of its causes of action by reason of its ratification of the conduct of these Answering Defendants.
SIXTEENTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
80. These Answering Defendants are informed and believe and thereon allege that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred by applicable statutes of limitation.
SEVENTEENTH AFFIRMATIVE DEFENSE
(No Basis for Punitive Damages)
81. These Answering Defendants at all times acted in a proper, lawful, and legally permitted fashion without malice or oppression. These Answering Defendants exercised and possessed that degree of skill, care, and knowledge required of a real estate licensee and, therefore, there is no basis for an award of punitive or exemplary damages against these Answering Defendants.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Contract is Void/Voidable)
82. These Answering Defendants are informed and believe and thereon allege that the contract(s) referenced in Plaintiff’s Complaint, are void or voidable and therefore unenforceable.
NINETEENTH AFFIRMATIVE DEFENSE
(Lack of Privity)
83. These Answering Defendants are informed and believe and thereon allege that contrary to the allegations set forth in Plaintiffs Complaint, these Answering Defendants were not parties to any written contract with Plaintiff, and therefore, cannot be held liable for breach of contract.
TWENTIETH AFFIRMATIVE DEFENSE
(Unasserted Defenses)
84. These Answering Defendants are informed and believe and thereon allege that they may have additional, as yet unasserted, defenses to Plaintiff’s Complaint or the purported causes of action contained therein. These Answering Defendants specifically reserve the right to assert additional affirmative defenses as deemed appropriate at a later time.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Unjust Enrichment)
85. These Answering Defendants are informed and believe and thereon allege that if Plaintiff were to recover on the claims in its Complaint, it would be unjustly enriched in that Plaintiff will have accepted the benefits and proceeds of the agreement referenced within Plaintiff’s Complaint while not honoring the terms of the same.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Negligence)
86. These Answering Defendants are informed and believe and thereon allege that Plaintiffs claims are barred by its own negligence.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Detrimental Reliance)
87. These Answering Defendants are informed and believe and thereon allege that Plaintiffs claims are barred by reason of making statements and representations to the defendants on which defendants reasonably relied to their detriment and prejudice.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Loss Caused by Plaintiffs or Others)
88. These Answering Defendants are informed and believe and thereon allege that if Plaintiff suffered or sustained any loss, damage or injury as alleged in the Complaint, the loss, damage or injury was proximately caused or contributed to by the actions and omissions of Plaintiff or others so as to bar Plaintiffs right to recovery in whole or in part.
TWENTY- FIFTH AFFIRMATIVE DEFENSE
(Failure to do Equity)
89. These Answering Defendants are informed and believe and thereon allege that no relief may be obtained under the Plaintiffs Complaint by reason of Plaintiff's failure to do equity in the matters alleged in the Complaint.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
90. These Answering Defendants are informed and believe and thereon allege that Plaintiff s claims are barred by the parties having reached an accord and satisfaction with regard to the matters in Plaintiff’s Complaint.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Contributory Negligence)
91. These Answering Defendants are informed and believe and thereon allege that Plaintiff was negligent and its negligence was a substantial factor in causing its harm, if any, such that its recovery should be barred completely or reduced in proportion to its own fault and negligence.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Negligent Misrepresentation)
92. These Answering Defendants are informed and believe and thereon allege that Plaintiff’s claims are barred by reason of making representations to the defendants that were not true, or that Plaintiff had no reasonable grounds for believing to be true when it made them, Plaintiff intended that defendants would rely on Plaintiffs representations, and defendants did reasonably rely upon those representations to their detriment.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Abandonment of Claim)
93. These Answering Defendants are informed and believe and thereon allege that by conduct, representation and omissions, Plaintiff has waived, relinquished and abandoned. any claim for relief against defendants.
THIRTIETH AFFIRMATIVE DEFENSE
(Failure to Plead Registration of Trademark)
94. These Answering Defendants are informed and believe and thereon allege by conduct of Plaintiff, and each of them, that said Plaintiff failed to plead in the Complaint that they had registered a trademark or any trademark.
THIRTY-FIRST AFFIRMATIVE DEFENSE
(Abandonment of Trademark)
95. These Answering Defendants are informed and believe that Plaintiff herein abandoned the Trademark on or about March 7th, 2006, and that therefore all of Plaintiff’s claims are barred.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(No Claim to Use of Term "Properties")
96. These Answering Defendants are informed and believe and thereon allege that Plaintiff herein has no right, legal or equitable, to the use of the term "PROPERTIES" and "PREFERRED PROPERTIES."
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Invalid Service Mark)
97. Plaintiffs alleged service mark is invalid because it is merely functional, generic, or at most descriptive without secondary meaning.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Invalid Service Mark)
98. To the extent Plaintiffs service mark is valid, it is not famous, distinct (or inherently distinct), nor has it acquired secondary meaning, in that the Service Mark alleged in the Complaint, upon information and belief of these Answering Defendants, bears little to no resemblance to the abandoned service mark filed for registration as a Service Mark by Plaintiffs on or about February 4, 2005.
THIRTY-FIFTH AFFIRMATIVE DFENSE
(No Claim to Exclusive Use)
99. To the extent Plaintiffs abandoned service mark is valid, Plaintiff cannot claim priority in its use, in that the word "properties" is, to these Answering Defendants' information and belief, specifically excluded from said abandoned service mark and that the word "Preferred" carries no special, unique, or valuable meaning.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Claims Barred Due to Concurrent Use)
100. These Answering Defendants are informed and believe that Plaintiffs claims herein are barred and fail under the doctrine of concurrent use by "PREFERRED PROPERTY FINDER,' 'PINN CLE PREFERRED PROPERTIES," "PREFERRED PROPERTY PROGRAM," and "AT&T PREFERRED PROPERTY.”
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(Fair Use)
101. These Answering Defendants' use, if any, of the abandoned and dissimilar service mark constitutes classic fair use and/or nominative fair use.
THIRTY-EIGTH AFFIRMATIVE DEFENSE
(Good Faith by Defendants)
102. At all relevant times, these Answering Defendants acted in complete good faith, thereby prohibiting a finding of intentional or willful conduct, and prohibiting the imposition of treble and/or punitive damages.
THIRTY-NINTH AFFIRMATIVE DEFENSE
(Preemption)
103. The claims in the Complaint are preempted.
FORTIETH AFFIRMATIVE DEFENSE
(Lack of Consideration)
104. Plaintiff’s contract claim must fail for lack of consideration.
FORTY-FIRST AFFIRMATIVE DFENSE
(Failure of Consideration)
105. Plaintiff's contract claim must fail for failure of consideration.
FORTY-SECOND AFFIRMATIVE DEFENSE
(Reservation of Right to Amend Answer)
106. These Answering Defendants have insufficient knowledge or information upon which to form a basis as to whether they may have additional defenses available based upon legal theories that may or will be divulged through discovery or further investigation. These Answering Defendants reserve the right to timely supplement their responses and defenses accordingly.
FORTY-THIRD AFFIRMATIVE DEFENSE
(Invalid and Void Contract Due to Illegality of the Subject Matter Trademark)
107. Plaintiff's contract claim must fail for illegality of subject matter, to wit, and upon information and belief, the purported trademark referred to as "PREFERRED PROPERTIES" and/or ‘TARBELL PREFERRED PROPERTIES", depending upon which document is referenced as produced by Plaintiff.
FORTY-FOURTH AFFIRMATIVE DEFENSE
(Failure and Voidability of Contract Due to the Inducement to
Execute Said Contract by Fraudulent Misrepresentations)
108. Plaintiffs contract claim of breach by defendants herein must fail due to the negligent and intentional fraudulent misrepresentation of the validity of the subject matter which constitutes the central consideration of the subject contract.
COUNTERCLAIMS
Counterclaimants JOSEPH R. DEVILLE, an individual; BENNION & DEVILLE FINE HOMES, INC., a California corporation; BOB BENNION, an individual (hereafter collectively referred to as "Counterclaimants"); allege the following:
1. Counterdefendant F.M. TARBELL CO. DBA TARBELL REALTORS ("Tarbell") alleges that it is a California corporation with its principal place of business in Santa Ana, California.
2. An actual controversy exists as evidenced by the allegations contained in the Complaint.
3. Tarbell has submitted itself to the jurisdiction of this Court.
4. Counterclaimant A&L PARTNERS, Inc. ("A&L") is a California corporation with its principal place of business in Brea, California.
5. Counterclaimant ANDREA MARQUEZ ("Marquez") is an individual who resides in Brea, California.
6. Counterclaimant JOSEPH R. DEVILLE ("Deville") is an individual who resides in Mountain Center, California.
7. Counterclaimant BENNION & DEVILLE FINE HOMES, INC. dba Windermere Real Estate Coachella Valley ("Bennion & Deville" and/or "Windermere"), is a California corporation, which these Answering Defendants are informed and believe has its principal place of business in Rancho Mirage, California.
8. Counterclaimant BOB BENNION ("Bennion") is an individual who resides in Seattle, Washington.
9. Counterclaimant KRG REALTY GROUP, INC. ("KRG") is a California corporation with its principal place of business in Chino Hills, California.
10. Counterclaimant RICHARD MICHAEL KING ("King") is an individual who resides in a place unknown to these defendants.
11. On information and belief, third party defendant DONALD M. TARBELL ("Donald") is the owner of Tarbell and an individual who resides in Los Gatos, California.
12. On information and belief, third party defendant VALENTINA JIMOV-RED ("Jimov-Red") is an officer and broker for Tarbell and an individual who resides in Santa Ana, California.
13. On information and belief, third party defendant HAMID REZA KHARRAT ("Kharrat") is a broker for Tarbell and an individual who resides in Anaheim, California.
JURISDICTION
14. Jurisdiction of these counterclaims arise under the Lanham Act, 15 U.S.C. § 1051 et seq. and under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. Subject matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1338(a), 15 U.S.C. § 11211, and under the principles of supplemental jurisdiction, 28 U.S.C. § 1367(a), with respect to the common law and state counterclaims. Jurisdiction of the third party claims is also proper under 28 U.S.C. § 1367(a).
15. Venue, if proper in this Court, is conferred under 28 U.S.C. §§ 1391(b), 1391(c), and/or 1400(a).
COUNTER-DEFENDANT TARBELL'S WRONGFUL ACTS
16. The Complaint is a sham, completely unprotected by the litigation privilege, unsupported by the United States Code concerning Trademark or any other Intellectual Property, or any Constitutional concern. These Answering Defendants and Counterclaimants have no inclination to believe, and they do not believe (nor should they believe), that this is a case possessing any merit whatsoever; rather, the Complaint is a vehicle through which Tarbell, through acts subsequent to the filing of the Complaint herein, intend to further their ulterior motives aimed squarely and solely at putting Deville, an individual; Bennion & Deville, a California corporation; and Bennion, an individual, out of business through protracted and frivolous litigation. These entities (these particular Tarbell and Windermere broker owners) have a long history of competitive disputes, of which this case is a continuation and extension. The misrepresentations contained in Plaintiff’s complaint deprive this Court and the judicial process of any legitimacy and any jurisdiction or venue with respect to this litigation. Tarbell is not engaging in protected activities; the evidence that Deville, Bennion & Deville, and Bennion, will put forth will support these assertions and, therefore, Tarbell cannot hide behind feigned "privileges" to avoid these counterclaims and third party claims.
17. Since at least 2005, Windermere and Tarbell have engaged in an ongoing business competition in the Southern California real estate market for agents, listings, commissions, and other real estate transactions and representations. On information and belief, Tarbell and Windermere have an ongoing adverse personal and business relationship due to the presence of both in the similar geographic area (the inland, desert region). This, on information and belief, includes a prior Department of Real Estate claim made by Co-Defendants against Tarbell for improperly soliciting Windermere sellers, and may include harassing personal conduct such as personal threats and property damages. On information and belief, Tarbell undertook these actions due to the large market share Windermere was gaining in recent years in the local business region. On further information and belief, Tarbell felt threatened by the significant strides Windermere was making, into the Southern California real estate market, and would engage in whatever action was needed to slow this expansion, including instituting these current litigations without any reasonable expectation of success. The instant action is nothing more than a continuation of this prior hostility, and an ill-gotten, wrongful attempt, and non-evidentiary premised attempt to slow Windermere's growth in the local business region.
18. Tarbell attempts to disguise the illegitimacy of its most recent filing as a "trademark infringement" action. It is not and never has been. Among other things, Tarbell lacks any objective or subjective basis on which to bring their infringement claims given the lack of any protectable rights in the "PREFERRED PROPERTIES" terin (which Tarbell has expressly disclaimed through an abandoned federal trademark application) through its failure to complete the application process and demonstrate proper, lawful and ethical ownership of the proposed trade mark, which is actually a service mark. Furthermore, Tarbell has not and cannot allege that Tarbell owns the alleged mark in any form. Tarbell is fully and unequivocally aware that Deville, Bennion & Deville, and Bennion, do not use - and have not used - an even remotely confusing term in commerce at any point relevant to these claims (e.g. A&L's business is called. "Windermere Preferred LivingTM"). Again, at no time has Tarbell believed in the merits of its own litigation but instead filed the litigation solely to harm Deville, Bennion & Deville, and Bennion and benefit Tarbell through the litigation process itself rather than the outcome of the process.
19. On or around February 4, 2005, Tarbell applied for a design mark containing the term "PREFERRED PROPERTIES" with the United States Patent and Trademark Office ("USPTO"), under Application Serial No. 78/560,923 ("USPTO Application").
20. On or around September 2, 2005, in response to the USPTO Application, the Trademark Examiner issued an Office Action requiring Tarbell to disclaim the phrase, "PREFERRED PROPERTIES," because the phrase was and remains merely descriptive. Tarbell, acquiescing to the determination, abandoned the USPTO Application and thereby waived any and all claims thereto.
21. Before, during and after the USPTO Application was rejected, various individuals and entities have used in commerce the phrase "PREFERRED PROPERTIES" in connection with goods and services including real estate services of the kind and type described in Plaintiff’s complaint. Said use by others has continued through the present day and has existed not only in Southern California specifically, but throughout the state of California and the United States. For example, the California Department of Real Estate lists fifty-five (55) different Realtors@ operating or that have operated throughout California (including Southern California) under the "Preferred Properties" term. Additionally, there are forty-one (41) business entities listed by the California Secretary of State as using "Preferred Properties" in their entity name. Marquez and A&L are not using the phrase in any event (they use "Windermere Preferred LivingTM").
22. On information and belief, at no time prior to the initiation of this or the prior identical lawsuit filed by Tarbell has Tarbell protected its alleged but nonexistent trademark rights as to any other pertinent individual or entity in the real estate sector.
23. Further, at least two (2) other separate and distinct real estate related entities have been required by the USPTO to disclaim the phrase, "PREFERRED PROPERTIES," because the phrase was and remains merely descriptive. These trademarks are "PINNACLE PREFERRED PROPERTIES" and "PATERSON'S PREFERRED PROPERTIES." The USPTO's repeated refusal to recognize the term "PREFERRED PROPERTIES" as a protectable mark provide further objective evidence of the lack of any reasonable basis on Tarbell's part to believe they possessed a valid and enforceable mark in "PREFERRED PROPERTIES."
24. On or around May 28, 2010, just months prior to the filing of the instant lawsuit, Tarbell filed a prior frivolous lawsuit against all certain defendants, stating the exact same claims as here for purported and falsely premised trademark infringement notwithstanding the fact Tarbell knew that it had no valid rights to the claimed mark. Due only to the fact that the company known as "Windermere Preferred Properties" had only recently opened for business, and because they did not have the funds to defend the case, in exchange for a full general and specific release of all claims (known and unknown), A&L and Marquez voluntarily agreed to change their company name to "Windermere Preferred LivingTM," and they have not for a single moment deviated from their agreement. At all times relevant hereto, "Windermere Preferred LivingTM" was and remains a fictitious business name assigned to A&L Partners, Inc. Marquez is simply an officer of the company. Tarbell knows this and has known this since being made aware of the changes in written correspondence and through their own discovery efforts.
25. These two pieces of litigation, the other prior disputes with other Co-Defendants, and on information and belief actions initiated by Tarbell against other real estate sales professionals and entities in the local Southern California region, evidence a policy and practice on behalf of Tarbell of initiating, maintaining, and/or continuing legal proceedings without regards to the merits of those proceedings, and for the purpose of injuring or gaining an competitive advantage on Defendants and other local Southern California real estate sales professionals and entities. On information and belief, Tarbell has brought this current action pursuant to and in furtherance of this policy and practice.
26. Tarbell has made specific, unprotected misrepresentations in its pleadings and therefore in the judicial process. Tarbell falsely alleges (notwithstanding knowledge to the contrary of which it is obligated to know through the statutory process of mark registration and through its attorney in said application, Philip A. Kraft, Claremont, California) that the purported advertisement at issue in this case was "executed with the express approval, ratification and authorization of A & L Partners/Marquez." (See Complaint ¶ 28, pp. 10, 11. 4-6.) Tarbell was placed on notice that a reasonable inquiry was required prior to filing this case and that its factual assertion did not have objective evidentiary support. Disregarding notice to the contrary concerning its alleged ownership of a mark that is not owned by Tarbell, Tarbell filed a second complaint in this Honorable Court without reasonable inquiry as required under, inter alia, Rule 11. This statement also represents gross misrepresentation to the Court and in the judicial process and deprives the Court and the judicial process of any legitimacy and jurisdiction with respect to the allegations contained in Plaintiff’s complaint.
27. In addition, Tarbell alleges Deville, Bennion & Deville, and Bennion "continued to engage in blatant misappropriation of Tarbell's" alleged trademarks after the signing of the settlement agreement. (See Complaint ¶ 4, pp. 3, 11. 19.) For the same reasons, this statement constitutes gross misrepresentation and untrue statements in the judicial process and to this Court, and again deprives the litigation of its legitimacy and jurisdiction and venue.
28. Both this litigation and the prior settled litigation are objectively baseless to the point that they lack probable cause because no reasonable litigant could have realistically expected to secure favorable relief under them. The lack of federal registration following the Trademark Examiner's finding of the claimed phrase "PREFERRED PROPERTIES" merely descriptive, and the failure to prosecute or attempt to prosecute the many other uses of "PREFERRED PROPERTIES" in Southern California, the state of California, and the United States of America evidence that Tarbell does not possess a trademark in "PREFERRED PROPERTIES" and evidence the lack of any objective probable cause to bring suit. Moreover, this objective lack of probable cause and any reasonable basis in both suits is further evidenced by the descriptive nature and plain-on-its-face descriptive meaning of the "PREFERRED PROPERTIES" term in the real estate sales context. Finally, the widespread use of the "PREFERRED PROPERTIES" mark in the real estate business in Southern California, the state of California, and across the United States, and the clear on-its-face, non-confusingly similar nature of "WINDEREMERE PREFERRED PROPERTIES" and "TARBELL PREFERRED PROPERTIES" in the real estate sales industry, given the two well-known franchise designations at the beginning of the mark, evidence that no reasonable litigant could have realistically expected to secure favorable relief
29. The current litigation is objectively baseless given the ill-gotten history between Tarbell and Windermere (involving other Co-Defendants) provide objective evidence that the action was initiated for wholly illegitimate means against Co-Defendants express denial of any knowledge of or involvement with the advertisement, and the proof of mark cancelation provides further evidence of the objectively baseless nature of this current suit against all Co-Defendants. Furthermore, the litigation is subjectively baseless. At no point during or relevant to either the first or second lawsuit did Tarbell or its conspirators actually intend or desire to obtain affirmative relief by way of the complaints. Both of the lawsuits were and are intended to cause harm to Co-Defendants through the use of the process as opposed to the outcome of the process. The true ulterior motive behind both lawsuits was and remains an intention to put Co-Defendants out of business and to harm their legitimate business interests and income and to use Tarbell's substantially superior financial leverage to force Co-Defendants to wastefully expend income and cash flow to fund the defense of these meritless lawsuits.
30. At no point relevant to the pendency of these two actions has Tarbell or its conspirators actually believed in the merit of their claims, nor has Tarbell or its conspirators actually believed they could or would prevail on their claims. Rather, on information and belief, following the issuance of process in the first lawsuit, Tarbell contacted prospective and actual clientele of Co-Defendants, providing them with false and/or malicious, defamatory (slanderous and libelous) information about Co-Defendants and/or their officers, agents, or employees. Tarbell used the issuance of process in the first lawsuit to bolster their false post-process actions to entities or individuals that had no reason to believe otherwise, to wit, said potential clientele were fraudulently led to opine that since Tarbell filed a lawsuit, the Defendants must have done something wrong and they must be untrustworthy, have non-credible reputations in the business community and must have, in the least, improperly and unethically misled clientele to believe Co-Defendants had some grievous wrong and therefore should not receive business from them in any form. The litigation privilege does not protect Tarbell. These actions occurred during and following settlement (and the illegal settlement agreement contained a non-admission of liability clause). This is abuse, and is further evidence of a subjective bad faith attempt to interfere with the business relationships of Co-Defendants. On information and belief, Tarbell and third party defendants have engaged through agreement and in furtherance of this agreement to conspire to engage in this abuse and interfere with the business relationships of Co-Defendants.
31. Tarbell intends to maintain its ulterior motive of seeking to put these defendants out of business and to further and continue to libel and slander them following the issuance of process in the second lawsuit by improperly using civil discovery techniques to destroy all Defendants' business and reputation irreparably in the community. Among other things, Tarbell has improperly used process to notice community agents, brokers, realtors, prospective and actual clientele, and interested third persons of the (meritless) lawsuit. Proper in many other instances not relevant here, the actions by Tarbell and its conspirators involving this lawsuit were and will all be done with a malicious and knowing intent to injure Co-Defendants' business and reputation. They were all done post-process (at no point herein do Co-Defendants allege the filing of a lawsuit amounts to abuse of process). These post-process actions amount to abuse, defamation and intentional injury and evidence of a subjective bad faith intent to harm Co-Defendants and interfere with their business relations. They evidence an attempt to abuse the discovery process and evidence the objectively baseless nature of the discovery.
32. Tarbell is also attempting to use the discovery process itself, and not the outcome of the process, to gain an advantage and to harm Co-Defendants; this constitutes an abuse of the intended purposes of litigation and legal process and further constitutes a gross waste of judicial time and resources. Through their post-process actions, Tarbell is attempting to utilize their financial resources and length of existence improperly through their abuse of the judicial system to diminish the value of Co-Defendants' business relations, with the hope of halting their expansion in the local real estate sales business, and ultimately putting them out of business.
33. Further, Tarbell intends to use the civil. discovery process to improperly discover or attempt to discover valuable business techniques and practices that otherwise would not be discoverable to Tarbell had that process been issued. Windermere has been able to quickly secure a strong presence in the local real estate sales business and continues to expand its business as fast as the defamatory abuses of Tarbell allows, thus theoretically threatening Tarbell's market share. On information and belief, Tarbell intends to use this lawsuit to gain improper insight into the valuable business techniques and practices that have allowed Windermere to expand quickly and threaten Tarbell and thereby appropriate said business practices to its own uses and benefit.
34. These actions and abuses in the discovery process itself (outside of the litigation and the initiation of the litigation) further evidence the objectively baseless nature of the discovery. And, the evidence that the subjective intent of the discovery was and is solely to harm Co-Defendants and benefit Tarbell. This is abuse.
35. On information and belief, Tarbell and its conspirators have also used the second lawsuit to falsely convey to current and prospective customers that Windermere had breached the settlement agreement and have falsely implied to these third persons that Co-Defendants had admitted that Tarbell owned a valid mark in "PREFERRED PROPERTIES" and that these defendants are not trustworthy, when in fact the settlement agreement expressly contradicts these false claims. Tarbell undertook these improper actions to intentionally and negligently interfere with Co-Defendants' business relations.
36. On information and belief, Tarbell and third party defendants acted in agreement and in furtherance of an agreement to conspire to convey this false information to Co-Defendants' customers and other third parties and to interfere with Co-Defendants' business relations.
COUNTERCLAIM FOR A DECLARATION OF INVALIDITY
(DESCRIPTIVENESS) OF TARBELL'S ALLEGED
"PREFERRED PROPERTIES"SM COMMON LAW MARK
(Against Counterdefendant)
37. Counterclaimants repeat and re-allege each and every allegation set forth above.
38. This is a counterclaim under the trademark laws of the United States (15 U.S.C. § 1051 et seq.) for a declaration that Tarbell's alleged common law mark, PREFERRED PROPERTIESSM, is invalid.
39. Tarbell asserts that Counterclaimants and other defendants, by virtue of acts alleged in the Complaint in this action, have infringed and continue to infringe the alleged common law mark- PREFERRED PROPERTIES. Counterclaimants have denied such infringement and assert that the alleged common law mark PREFERRED PROPERTIES is invalid.
40. An actual controversy exists between Counterclaimants and Tarbell in that Tarbell, although maliciously and frivolously (for the myriad of reasons stated hereinabove), alleges validity of the alleged common law mark PREFERRED PROPERTIES, while Counterclaimants maintain Tarbell does not possess an objective bases to claim validity of the alleged common law PREFERRED PROPERTIES mark.
41. The alleged common law mark PREFERRED PROPERTIES is invalid by virtue of the mark being merely descriptive, as it is understood by prospective customers to directly describe the realty services provided by Tarbell, modified by a merely laudatory (and therefore descriptive) term, and does not require the imagination of the prospective customer to reach a conclusion as to the nature of the services. The alleged mark has not acquired secondary meaning.
42. Unless enjoined by this Court, the acts of Tarbell have caused and will continue to cause irreparable damage, loss, and injury to Counterclaimants for which Counterclaimants have no adequate remedy at law and from which Counterclaimants are entitled to declaratory and injunctive relief
COUNTERCLAIM FOR A DECLARATION OF NON-INFRINGEMENT
(against Counterdefendant)
43. Counterclaimants repeat and re-allege each and every allegation set forth above.
44. This is a counterclaim under the trademark laws of the United States (15 U.S.C. § 1051 et seq.) for a declaration that, should Tarbell's common law service mark PREFERRED PROPERTIES be found valid and enforceable, Counterclaimants' business activities and sales do not infringe upon said trademark rights of Tarbell.
45. An actual controversy exists between Counterclaimant and Tarbell in that Tarbell is attempting to enforce its "DEAD" service mark, although maliciously and frivolously (for the myriad of reasons stated hereinabove), without an objective basis on which to assert rights in said mark.
46. Unless enjoined by this Court, the acts of Tarbell has caused and will continue to cause irreparable damage, loss, and injury to Counterclaimants for which Counterclaimants have no adequate remedy at law and from which Counterclaimants are entitled to declaratory and injunctive relief.
COUNTERCLAIM FOR UNFAIR COMPETITION
UNDER 15 U.S.C. § 1125(a)
(Against Counterdefendant)
47. Counterclaimants repeat and reallege each and every allegation set forth above.
48. Counterclaimants have developed their real estate business at a substance expense and effort.
49. Tarbell's conduct as alleged herein demonstrates an attempt to commit, directly or indirectly, acts of unfair competition in violation of U.S.C. § 1125(a) by purposefully attempting to enforce an invalid and unenforceable trademark, by attempting to improperly obtain Counterclaimants' valuable business information through the process involved in enforcing their invalid and unenforceable trademark, by attempting to harm Counterclaimants through enforcement of an invalid and unenforceable trademark, by using the alleged enforcement of their invalid and unenforceable mark as an improper means through which to interfere with Counterclaimants' contractual and business relations, and as further alleged herein.
50. As a direct and proximate result of Tarbell's wrongful conduct, Counterclaimants have been and will continue to be injured.
51. Counterclaimants have no adequate remedy at law and such harm will continue unless the Court enjoins Tarbell's acts
COUNTERCLAIM FOR UNFAIR COMPETITION UNDER
CAL. BUS. & PROF. CODE § 17200, et. seq.
(Against Counterdefendant)
52. Counterclaimants repeat and reallege each and every allegation set forth above.
53. Counterclaimants have developed their real estate business at a substance expense and effort.
54. Tarbell's conduct demonstrates an attempt to commit, directly or indirectly, acts of unfair competition in violation of California Business and Professions Code section 1.7200, et seq. including using attempts to improperly obtain Counterclaimants' valuable business information, use their superior financial position to harm Counterclaimants through the litigation and discovery process, interfere with Counterclaimants' contractual and business relations, misuse and abuse of the judicial and litigation process, and as further set-forth herein, all to the benefit of Tarbell, and to Counterclaimants' detriment.
55. As a direct and proximate result of Tarbell's conduct, Counterclaimants have suffered damages and injury to its business reputation and goodwill.
56. Unless ceased or restrained by court order, Tarbell's wrongful conduct will cause further great and irreparable injury to Counterclaimants because it will continue to cause injury to Counterclaimants' business reputation and goodwill and will cause Counterclaimants' clients to discontinue, cancel and breach their contractual relations with Counterclaimants.
57. As a direct and proximate result of Tarbell's breach of the Business and Professions Code, Counterclaimants seek restitution, disgorgement and attorneys' fees.
PRAYER
WHEREFORE, These Answering Defendants pray for judgment in its favor and against Plaintiffs as follows:
1. That Plaintiff take nothing by way of its Complaint and the Court denies its prayer for equitable relief;
2. That Plaintiff be enjoined temporarily and permanently from (a) alleging to any person or entity, at any time and for any purpose, in any manner, including verbal, written or other manner of publication, that it owns a mark, whether it be called trade mark, service mark, or word mark, which comprises the words "preferred," "properties," "property," and the use of the indications of ownership of a registered mark, including but not limited to, TM, SM, or WM. related to said words;
3. That the "settlement agreement" be rescinded in its entirety;
4. That Plaintiff be enjoined temporarily and permanently from any and all forms of defamation of Answering Defendants, whether said defamation may occur orally, in written form, or any combination thereof, including publication through the Internet;
5. That Plaintiff be enjoined temporarily and permanently from interfering in any way, whether it be orally or in writing, with the potential clientele, business relations, and potential business transactions of these Answering Defendants;
6. That Plaintiff compensate these Answering Defendants for damages resulting from their fraudulent inducement to become an intended third party beneficiary to the "settlement agreement," from breach of said contract, from their defamation of these Answering Defendants, for Plaintiff’s interference with the economic advantages of these Answering Defendants, and for malicious prosecution and abuse of the processes of this Court, in an amount to be decided at trial;
7. For all. costs of suit herein;
8. For reasonable attorneys' fees; and
9. For such other and further relief as the Court may deem just and proper.
DATED: April 12,2011 SUNDERLAND McCUTCHAN, LLP
By: /s/ Robert J. Sunderland
Robert J. Sunderland, SBN 189214
E-Mail: Rsunderland@sunmclaw.com
Cheryl D. Davidson SBN 149938
E-Mail: Cdavidson@sunmclaw.com
Attorneys for Defendants/
Counterclaimants, JOSEPH R.
DEVILLE, BENNION & DEVILLE
FINE HOMES, INC. and BOB
BENNION
DEMAND FOR JURY TRIAL
Pursuant to FRCP Rule 38, defendants/Counterclaimants hereby demand a jury trial on all issues appropriate for a trial by jury.
DATED: March 14, 2011 SUNDERLAND McCUTCHAN, LLP
By: /s/ Robert J. Sunderland
Robert J. Sunderland, SBN 189214
E-Mail: Rsunderland@sunmclaw.com
Cheryl D. Davidson SBN 149938
E-Mail: Cdavidson@sunmclaw.com
Attorneys for Defendants/
Counterclaimants, JOSEPH R.
DEVILLE, BENNION & DEVILLE
FINE HOMES, INC. and BOB
BENNION
DOWNLOAD DEFENDANTS JOSEPH R. DEVILLE, BENNION AND DEVILLE FINE HOMES INC., BOB BENNIONS' FIRST AMENDED COUNTERCLAIMS & JURY DEMAND HERE
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Court Dismisses Defendants and Counterclaimants A & L Partners, Inc., et al; Windermere Preferred and Andrea Marquez's Third, Fourth, Fifth, Eighth and Ninth Counterclaims
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#25
CIVIL MINUTES - GENERAL
Case No. CV 10-1589 PSG (Ex)
Date March 23, 2011
Title F.M. Tarbell Co., d/b/a Tarbell Realtors v. A & L Partners, Inc., et al
Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy K. Hernandez, Deputy Clerk
Court Reporter, Not Present
Tape No. n/a
Attorneys Present for Plaintiff(s): Not Present
Attorneys Present for Defendant(s): Not Present
Proceedings: (In Chambers) Order GRANTING Plaintiff/Counterdefendant's motion to [dis]miss Defendants/Counterclaimants' Third, Fourth, Fifth, Eighth, and Ninth Amended Counterclaims
Before this Court is Plaintiff and Counterdefendant F.M. Tarbell Co., d/b/a Tarbell Realtors's ("Tarbell") motion to dismiss certain counterclaims filed by Defendants and Counterclaimants A & L Partners, Inc. and Andrea Marquez. The Court finds the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving and opposing papers, the Court hereby GRANTS the motion.
I. Background
The motion presently before the Court is part of a long-running dispute between two real estate agencies that compete for business in the Southern California inland-desert region real estate market. Plaintiff and Counterdefendant F.M. Tarbell Co. d/b/a Tarbell Realtors ("Tarbell") is a real estate agency that sells "upper-scale homes" in Southern California through its "Preferred Properties" division. Compl. ¶¶ 1, 2. Defendants A & L Partners, Inc., Andrea Marquez, Joseph R. Deville, Bennion & Deville Fine Homes, Inc., Bob Bennion, KRG Realty Group, Inc. and Richard Michael King (collectively, "Defendants" or "Windermere") do business as, are employed by, or are in some way related to Windermere Real Estate/Preferred Properties real estate agency ("Windermere").1 Compl. ¶¶ 6-12. On October 19, 2010, Tarbell filed suit against Defendants, asserting six causes of action: one Lanham Act claim for trademark infringement and unfair competition, and five state law claims for false advertising, unfair competition, common law trademark infringement, breach of contract, and intentional interference with contractual relations. Tarbell's trademark infringement and unfair competition claims are based on allegations that Windermere unlawfully used Tarbell's "Preferred Properties" mark in connection with Windermere's recruiting and marketing efforts. Compl. ¶ 3. Tarbell's contract-based claims arise from allegations that Defendants' unauthorized use of Tarbell's mark violates the parties' settlement agreement in an earlier case, CV 10-4048 PSG (Ex) ("First Action"), in which Tarbell similarly claimed that Windermere violated its Preferred Properties trademark. See No. CV 10-4048, Dkt. #1 (May 28, 2010).
On January 21, 2011, A & L Partners, Inc. and Andrea Marquez (together, "Counterclaimants" or "Windermere") filed an amended Counterclaim against Tarbell, alleging the following counterclaims: (1) declaration of invalidity of Tarbell's alleged common law mark; (2) declaration of non-infringement; (3) breach of implied covenant of good faith and fair dealing; (4) tortious interference with contracts; (5) intentional interference with prospective economic advantage; (6) unfair competition under 15 U.S.C. § 1125(a); (7) unfair competition under Cal. Bus. Code § 17200 et seq.; (8) abuse of process; and (9) negligent interference with prospective economic advantage. See Dkt. #17 (Jan. 21, 2011) (amended Counterclaim). In essence, Counterclaimants allege that Tarbell improperly solicited Windermere sellers, harassed Counterclaimants, damaged property belonging to Windermere, and filed this lawsuit (as well as the First Action) in an "ill-gotten, wrongful attempt to stifle Windermere's growth in [the] real estate market." CC ¶¶15, 18-21, 25-37.
On February 10, 2011, Tarbell moved to dismiss five of Windermere's nine counterclaims: the Third Counterclaim for breach of implied covenant of good faith and fair dealing; the Fourth Counterclaim for tortious interference with contracts; the Fifth Counterclaim for intentional interference with prospective economic advantage; the Eighth Counterclaim for
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1 Counterclaimant A & L Partners, Inc. allegedly does business as Windermere Real Estate/Preferred Properties and Windermere Preferred LivingTM. See Amended Counterclaims ("CC”) ¶ (Dkt. #17 (Jan. 21, 2011)). Counterclaimant Andrea Marquez is an officer of A & L. id. ¶ 5.
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abuse of process; and the Ninth Counterclaim for negligent interference with prospective economic advantage.2
II. Legal Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a cause of action if the plaintiff fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). In evaluating the sufficiency of a complaint under Rule 12(b)(6), courts should be mindful that the Federal Rules of Civil Procedure generally require only that the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required to survive a Rule 12(b)(6) motion to dismiss, a complaint that "offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.”’ Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)). Rather, the complaint must allege sufficient facts to support a plausible claim to relief. See id.
In evaluating a Rule 12(b)(6) motion, the court must engage in a two-step analysis. See id. at 1950. First, the court must accept as true all non-conclusory, factual allegations made in the complaint. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993). Based upon these allegations, the court must draw all reasonable inferences in favor of the plaintiff. See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 2009). Second, after accepting as true all non-conclusory allegations and drawing all reasonable inferences in favor of the plaintiff, the court must determine whether the compl[ai]nt alleges a plausible claim for relief. See Ashcroft, 129 S. Ct. at 1950. Despite the liberal pleadings standards of Rule 8, conclusory allegations will not save a complaint from dismissal. See id.
Finally, the Court notes that in ruling on a motion to dismiss, it may consider documents outside the pleadings without the proceeding turning into summary judgment. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). In particular, the Court may consider: (a)
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2 Tarbell does not take issue with Windermere's declaratory judgment or unfair competition claims in this motion. Accordingly, Windermere's First, Second, Sixth and Seventh Counterclaims remain unchallenged.
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documents that are "properly submitted as part of the complaint,"; (b) documents on which plaintiff’s complaint necessarily relies and whose authenticity is not contested; and (c) "matters of public record" of which the court may take judicial notice under Rule 201 of the Federal Rules of Evidence. See id. (internal quotations omitted).
Ill. Discussion
In moving to dismiss portions of Windermere's Counterclaim, Tarbell contends that Windermere failed to adequately plead its causes of actions for breach of the implied covenant of good faith and fair dealing, tortious interference with contracts, intentional and negligent interference with prospective economic advantage, and abuse of process. Accordingly, Tarbell argues, Windermere's Third, Fourth, Fifth, Eighth, and Ninth Counterclaims must be dismissed. For the following reasons, the Court agrees.
A. Breach of Implied Covenant of Good Faith and Fair Dealing (Third Counterclaim)
Tarbell first contends that Windermere failed to allege facts sufficient to state a plausible claim for breach of the implied covenant of good faith and fair dealing. Mot. 5:9-8:8. The covenant of good faith and fair dealing aims to "prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made." Guz v. Bechtel Nat., Inc., 24, Cal. 4th 317, 349, 100 Cal. Rptr. 2d. 352 (2000) (emphasis in original). Additionally, it imposes a "duty to do everything that the contract presupposes that he will do to accomplish its purpose." Pasadena Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089, 1093, 8 Cal. Rptr. 3d 233, 236 (2004). Notably, however, the covenant is limited to assuring compliance with the express terms of the contract, id. at 1094; it may not "impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement." Guz, 24 Cal. 4th at 3 50; cf Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal. App. 4th 44, 55, 122 Cal. Rptr. 2d. 267 (2002) (holding that the implied covenant of good faith and fair dealing cannot contradict the express terms of a contract).
Windermere's claim that Tarbell breached the implied covenant of good faith and fair dealing appears to have two discrete bases. First, Windermere alleges that Tarbell misrepresented the parties' prior settlement agreement in communications with Windermere's actual and potential customers, specifically, asserting that the settlement agreement recognized that Tarbell had a valid mark in the term "Preferred Properties" when the agreement did not. CC ¶¶ 50-51. Second, Windermere alleges that Tarbell breached the implied covenant of good faith and fair dealing by filing what it claims is a baseless lawsuit. Id. ¶ 52. Neither allegation, however, suffices to state a claim for breach of the implied covenant of good faith and fair dealing. Given the vagueness and generality of the allegations upon which Windermere's implied covenant claim is based, the Court cannot ascertain whether either the allegedly misleading communications or the filing of this lawsuit constitute a breach of the settlement agreement. See Pasadena Live, 114 Cal. App. 4th at 1094; Guz, 24 Cal. 4th at 349. Thus, because the Counterclaimants fail to plead specific facts showing that Tarbell's conduct actually violated an express term of the settlement agreement, or frustrated Windermere's right to receive the benefits of such, the Court DISMISSES Windermere's Third Counterclaim with leave to amend.
B. Tortious Interference with Contracts (Fourth Counterclaim)
Next, Tarbell contends that Windermere fails to adequately plead all of the elements required to state a claim for tortious interference with contracts. Mot. 8:22-10:18. There are four elements to this cause of action: (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126, 270 Cal. Rptr. 1 (1990).
Here, Windermere asserts that it has "existing, valid, and profitable contracts and relationships with their customers[,]" CC ¶ 58, and that "[a]t all relevant times, Plaintiff and its agents and/or conspirators were aware of counterclaimants' contracts and relationships." CC ¶ 59. Given the absence of specific facts establishing the existence of valid contracts with third parties and Tarbell's awareness of such contracts (let alone the absence of facts showing that Tarbell's conduct induced a breach of the contracts, thereby causing damage to Windermere) the Counterclaim fails to satisfy the standard set forth in Twombly and its progeny.3 Accordingly, the Court DISMISSES the Fourth Counterclaim with leave to amend.
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3 To this end, Windermere's reliance on a pre-Twombly case, Jenson Enters. Inc, v. Oldcastle, Inc., No. C 06-00247 SI, 2006 U.S. Dist. LEXIS 68262, at *28-29 (N.D. Cal. Sept. 6, 2006), is of little avail.
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C. Intentional and Negligent Interference with Prospective Economic Advantage (Fifth and Ninth Counterclaims)
Next, Tarbell argues that Windermere's Fifth and Ninth Counterclaims for Intentional and Negligent Interference with Prospective Economic Advantage fail to state plausible claims upon which relief could be granted. Again, the Court agrees.
1. Intentional Interference with Prospective Economic Advantage
To state a claim for the tort of intentional interference with prospective economic advantage, a plaintiff must sufficiently allege the following: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153, 131 Cal. Rptr. 2d. 29 (2003).
Here, Windermere fails to present the specific, factual allegations necessary to maintain its IIPEA Counterclaim. The Counterclaim merely asserts that Windermere "had and have existing business relationships or prospective business relationships which had probability of future economic benefit and/or advantage[,]" CC ¶ 65, and that "at all relevant times, [Plaintiff], and each of them, were aware of counterclaimants' prospective business advantage." CC ¶ 66. For largely the same reasons explained above, these allegations are insufficient. To survive a motion to dismiss under Rule 12(b)(6), Windermere was required to allege specific facts showing, inter alia, an existing business relationship with a probability of future economic benefit, Tarbell's knowledge of this relationship, actual damage to this relationship that was intentionally caused by Tarbell, and that it suffered economic harm as a result. It failed to do so. Thus, Windermere's Fifth Counterclaim is DISMISSED with leave to amend.
2. Negligent Interference with Prospective Economic Advantage
Relatedly, a plaintiff bringing a claim for negligent interference with prospective economic advantage must sufficiently allege: (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff, (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence cause damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship. N. Am. Chem. Co. v. Super. Ct., 59 Cal. App. 4th 764, 786, 69 Cal. Rptr. 2d 466 (1997).
Once again, Windermere comes up short. It states that it "had and ha[s] existing business relationships or prospective business relationships which had probability of future economic benefit and/or advantage[,]" CC ¶ 88, and cryptically refers to "false, defamatory information" that Tarbell allegedly made to Windermere's prospective customers. CC ¶ 91. As to Tarbell's purported negligence, the Counterclaim merely asserts that "Counterdefendants knew or should have known the interference described herein would cause damage to counterclaimants." CC ¶ 92. As previously explained, these allegations do not suffice under Twombly and its progeny. Accordingly, because Windermere failed to adequately plead a cause of action for negligent interference with prospective economic advantage, the Court DISMISSES the Ninth Counterclaim with leave to amend.
D. Abuse of Process (Eighth Counterclaim)
Lastly, Tarbell contends that Windermere fails to adequately plead a claim for abuse of process. The tort of abuse of process is comprised of two elements: (1) an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510, 520, 37 Cal. Rptr. 3d 38 1, 389 (2005) (citing Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1168, 232 Cal. Rptr. 567 (1986)). Further, as the California Supreme Court explained, while the prosecution of an obviously meritless claim may expose a party to damages for malicious prosecution, "the mere filing or maintenance of a lawsuit - even for an improper purpose - is not a proper basis for an abuse of process action." Oren, 42 Cal. 3d at 1169. Rather, "some definite act or threat" must accompany the improperly motivated judicial process. See Carlock v. RMP Fin., No. 03-CV-0688 W, 2003 WL 24207625, at *2 (S.D. Cal., Aug. 5, 2003) (quoting Silver v. Gold, 211 Cal. App. 3d 17, 24, 259 Cal. Rptr. 185 (1989)).
Here, the Court finds that Windermere's Eighth Counterclaim does not sufficiently state facts showing abuse of process. While Windermere alleges that Tarbell acted with an ulterior purpose, see CC ¶ 85, the predicate "willful act" alleged in the Counterclaim is Tarbell's "maintaining and initiating this objectively baseless action." Id. ¶ 86. Windermere's opposing papers, conceding that the filing of the suit itself is not a proper basis for an abuse of process claim, Opp'n 18:24-25, argue that - notwithstanding the allegation in paragraph eighty-six noted above - its abuse of process claim is not actually based on the filing of this lawsuit. Id. at 18:2728. Rather, according to Windermere, its abuse of process claim arises from Tarbell's alleged “post-filing, 'post-process' actions executed under the guise of litigation" and efforts to "obtain valuable business information" through the discovery process that would "injure [Counterclaimants'] business and reputation", and "interfere with their business [relationships]." CC ¶¶ 31-32, 34, 36, 84.
Even accepting Windermere's position that the Eighth Counterclaim is based on "post-process" discovery actions, the Court does not find the allegations sufficiently state a plausible claim for abuse of process. As previously noted, California law is clear that "maintenance of a lawsuit...is not a proper basis for an abuse of process action." Oren, 42 Cal. 3d at 1168. Discovery is an integral part to maintaining a lawsuit. Here, given that Windermere alleges no specific facts showing any unauthorized or wrongful conduct, the mere conducting of civil discovery in civil litigation cannot provide a basis for bringing a tort claim for abuse of process - even if Windermere alleges that Tarbell is conducting discovery with bad intentions. See Silver, 211 Cal. App. 3d at 24 ("[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.") (internal quotations omitted).
To the extent it believes that "Tarbell improperly used and/or intends to use civil discovery techniques[,]" Windermere may pursue discovery sanctions through properly noticed procedures. CC ¶ 32. But it may not maintain a claim for abuse of process based on conclusory allegations of discovery abuse. Thus, Windermere's Eighth Counterclaim is also DISMISSED with leave to amend.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Tarbell's motion, thereby DISMISSING the following Counterclaims:
• the Third Counterclaim for breach of implied covenant of good faith and fair dealing;
• the Fourth Counterclaim for tortious interference with contracts;
• the Fifth Counterclaim for intentional interference with prospective economic advantage;
• the Eighth Counterclaim for abuse of process; and
• the Ninth Counterclaim for negligent interference with prospective economic advantage.
Counterclaimants are hereby ordered to file a Second Amended Counterclaim by April 13, 2011. Failure to do so will result in dismissal of the Counterclaims with prejudice.
IT IS SO ORDERED.
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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 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. Drayna is also listed on the Board of Directors at Seattle Pro Musica, "a world of choral beauty," as being Pro Musica's Corporate Secretary and Legal Counsel. Pro Musica states as part of its mission "Respect/Integrity—a principle of respect and integrity in all our endeavors." So while Mr. Drayna is ruining lives by prosecuting costly, false and mendacious lawsuits that seek to intimidate Windermere victims and terminate their speech rights, he is also promoting "...a belief in the importance of music as a means of connection to each other and the community." Visitors to WindermereWatch.com and responsible citizens alike are urged to boycott Seattle Pro Musica concerts.
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