SUPERIOR COURT OF CALIFORNIA, ORANGE COUNTY—No. 30-2013-00663429-CU-FR-CJC:
Former Windermere agent sues Windermere owners James and Andrea Marquez for Fraud, Conversion, and Negligence, seeking unpaid commissions owed of $22,938.75, in Complaint alleging: “Defendants instructed Plaintiff to commit perjury when he testified," and "...alleges that Defendants falsified a document signed by Seller..."
DOWNLOAD A PDF COPY OF THE COMPLAINT HERE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE - CENTRAL JUSTICE CENTER
DAVID OTT, an individual,
Plaintiff
vs.
JAMES MARQUEZ, an individual; ANDREA MARQUEZ, an individual; and DOES 1 through 100, inclusive,
Defendants.
Case No. 30·2013·00663429·CU·FR·CJC
VERIFIED COMPLAINT FOR:
1) FRAUD;
2) CONVERSION;
3) NEGLIGENCE
Judge Derek W. Hunt
PARTIES, JURISDICTION AND VENUE
1. At all times mentioned herein, Plaintiff DAVID OTT ("Plaintiff') was and is an individual residing in California.
2. Plaintiff is informed and believes that at all times mentioned herein, defendant JAMES MARQUEZ (“Mr. Marquez”) was and is an individual residing in the County of Orange. Plaintiff is further informed and believes that at all times mentioned herein, Mr. Marquez was and is an owner or principal of Windermere Real Estate Socal, Inc. (“Windermere”), as well as an owner or principal of A & L Partners, Inc. (“A & L Partners.”)
3. Plaintiff is informed and believes that at all times mentioned herein, defendant ANDREA MARQUEZ (“Mrs. Marquez”) was and is an individual residing in the County of Orange. Plaintiff is further informed and believes that at all times mentioned herein, Mrs. Marquez was and is an owner or principal of Windermere, as well as an owner or principal of A & L Partners.
4. Mr. Marquez and Mrs. Marquez shall be collectively referred to herein as “Defendants.”
5. The true names and capacities, whether individual, corporate, associate or otherwise, of defendants named herein as DOES 1 through 100, inclusive, are currently unknown to Plaintiff, who therefore sues said defendants by such fictitious names. Plaintiff is informed and believes that each of these fictitiously named defendants is in some manner responsible for the events and damages alleged herein and will seek leave of court to amend this Complaint to show the true names and capacities when the same have been ascertained. Each reference in this complaint to “defendant,” “defendants,” or a specifically named defendant refers also to all defendants sued under fictitious names.
6. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein, each of the defendants, as well as DOES 1 through 1 00, was the principal, agent, representative, partner, joint venturer, co-conspirator, alter ego or employee of each of the other defendants, as well as DOES 1 through 100, and in doing the things alleged herein was acting within the course and scope of such relationship with the full knowledge, consent, authority and/or ratification of each of the other defendants and DOES 1 through 100.
7. Jurisdiction in the State of California is proper because Plaintiff is informed and believes that Defendants reside there.
8. Venue in Orange County is proper as the conduct giving rise to this action substantially occurred there.
BACKGROUND FACTS
9. Plaintiff is a real estate agent duly licensed under the laws of the State of California. At all times relevant herein up until on or about October 21, 2011, Plaintiff was a successful real estate agent and independent contractor for Windermere.
10. On August 18, 2011, through no fault of Plaintiff, the buyer of one of the properties for which Plaintiff was the listing agent and Windermere was the broker (the “Flower Street Property”) filed legal proceedings in Orange County Superior Court, case number 30-2011-00501187-SC-SC-CJC, arising out of that sale and naming, among others, Plaintiff, Defendants, and A & L Partners as defendants (the “Flower Street Property Litigation.”)
11. Plaintiff is informed and believes and thereon alleges that Defendants resent Plaintiff for referring the Flower Street Property listing to them and, unfairly and without justification, blame him for causing them to enter into a transaction in which they, separately and independently of Plaintiff, ultimately acted unlawfully.
12. On August 5, 2011, Plaintiff entered into a written exclusive right to sell listing agreement (the “Listing Agreement”) for 21436 Chirping Sparrow Road in Diamond Bar, California 91765 (the “Property”) with the owner of the Property, Mark Palmer (the “Seller”), at a list price of $499,999. A true and correct copy of the Listing Agreement is attached hereto as Exhibit “A.”
13. Pursuant to the terms of the Listing Agreement, Windermere was the broker for the sale of the Property and Plaintiff, as the listing agent, was entitled to a commission of 3.5% of the sale price of the Property (the “Commission.”)
14. On September 26, 2011, Plaintiff entered into a written referral agreement (the “Referral Agreement”) which entitled Plaintiff to an additional 25% of the Maritza Jimenez's, the selling agent's, commission if Plaintiff procured the ultimate buyer for the Property (the “Referral Fee.”) A true and correct copy of the Referral Agreement is attached hereto as Exhibit “B.”
15. Plaintiff did in fact procure the buyer for the Property, and as such is entitled to the Referral Fee.
16. The sales transaction for the Property was submitted to escrow on August 30, 2011 at a sales price of $543,000. The sale of the Property was ready to be closed on or about October 15, 2011. However, Plaintiff is informed and believes that Defendants intentionally delayed the close of escrow on the Property until December 28,2011, because they wanted to wait until the Flower Street Litigation was concluded and use that litigation as an excuse to deprive Plaintiff of his Commission and Referral Fee.
17. On or about September 2, 2011, A & L Partners submitted instructions to Seller to pay a commission of $19,005.00 to Plaintiff at Windermere, and a commission of $13,575.00 to Maritza Jimenez, the selling agent for the Property at Windermere.
18. On or about October 21, 2011, Plaintiff was scheduled to testify in the Flower Street Litigation. However, in advance of that testimony, Defendants instructed Plaintiff to commit perjury when he testified. Rather than doing as Defendants requested, Plaintiff refused to testify and on that very same day, Plaintiff resigned from Windermere and became an agent and independent contractor for a new real estate company, Keller Williams Pacific Estates (“Keller Williams.”)
19. As part of Plaintiff’s resignation, Defendants agreed that the listing for the Property, among other properties, would be transferred to Keller Williams for continued service by Plaintiff, and Plaintiff would still be entitled to the Commission and Referral Fee. Defendants later tried, unsuccessfully, to renegotiate the terms of the Commission to be less favorable to Plaintiff.
20. This transfer was in the best interest of all parties involved, including Defendants, because if the Property remained listed with Windermere, the sale of the Property would be in violation of the arms-length transaction requirement for short sales, since Seller was an agent for Windermere at the time of the listing. Prior to Plaintiff's resignation, Plaintiff vocalized his concerns to Defendants regarding the propriety of the short sale of the Property with Windermere as the broker.
21. Nonetheless, on October 28, 2011, Plaintiff is informed and believes and thereon alleges that Defendants falsified a document signed by Seller in order to revoke Plaintiff's authorization to discuss the sale of the Property with Bank of America, the financial institution associated with the short sale of the Property.
22. Thereafter, Defendants refused to transfer the listing for the Property to Keller Williams or allow Plaintiff to communicate with Bank of America or any other parties related to the sale of the Property.
23. Plaintiff is entitled to a Commission of $19,005 and a Referral Fee of$3,393.75, equal to 25 percent of Maritza Jimenez’s commission, but Defendants have refused to pay Plaintiff this Commission and Referral Fee.
FIRST CAUSE OF ACTION
FRAUD
(Against All Defendants)
24. Plaintiff refers to each of the foregoing paragraphs in their entirety, and hereby incorporates them by reference as though fully set forth herein.
25. Plaintiff is informed and believes that as a result of the Flower Street Property Litigation, Defendants sought to injure Plaintiff personally and professionally because they blamed Plaintiff for the ensuing litigation and for refusing to perjure himself in that litigation at the request of Defendants. Plaintiff is further informed and believes Defendants did so because Plaintiff vocalized his concerns regarding the arms-length transaction requirement for the short sale of the Property, and Defendants' imminent violation thereof.
26. On or about October 20, 2011, Defendants represented to Plaintiff that he would receive a “short sale negotiation fee” for the Property, even after his resignation from Windermere. Mr. Marquez confirmed this representation in writing in an email dated October 21, 2011.
27. On or about October 21, 2011, Defendants represented to Plaintiff that the listing for the Property would be transferred to Keller Williams and that he was allowed to continue to service the Property. Christine Haynes, a sales manager for Windermere, confirmed this representation in writing in an email dated October 27,2011.
28. However, Plaintiff is informed and believes that at the time Defendants made these representations, they knew that they were false, and that they would not transfer the listing for the Property to Keller Williams, that they would not allow Plaintiff to continue to service the Property, and that they would not pay Plaintiff his Commission or Referral fee. Plaintiff is informed and believes that Defendants never had any intention of following through on their promises and contractual obligations because they resented Plaintiff for bringing them the Flower Property, a transaction which ultimately resulted in litigation, and for vocalizing his concerns regarding Defendants’ unethical and unprofessional conduct.
29. Plaintiff is informed and believes that Defendants made these representations to deceive Plaintiff, because they intended to delay the close of escrow on the Property until after the Flower Street Property Litigation concluded and use that litigation as an excuse to deprive Plaintiff of his Commission and Referral Fee.
30. Plaintiff justifiably relied on these misrepresentations by completing his transition from Windermere to Keller Williams without first waiting for escrow to close on the Property and receiving his Commission and Referral Fee. Defendants’ misrepresentations lulled Plaintiff into a false sense of security that he would be able to resign from Windermere, work at Keller Williams, continue to service the Property, and receive his Commission and Referral Fee without any problems.
31. On October 28,2011, Seller signed a form authorizing Maribel Cabrera at the Bank of America HELOC Short Sale Department to discuss his account with his realtor. Plaintiff is informed and believes that, in furtherance of his deceit, Mr. Marquez altered this document after Seller signed the authorization and without Seller's knowledge to include a typewritten "Special Note" that stated “Please be advised that DAVID OTT with Windermere Preferred Living is NO LONGER AUTHORIZED to negotiate this short sale on my behalf. Any further contact with him on my behalf is strictly prohibited. Please contact my new negotiator as listed above.”
32. Plaintiff is informed and believes that Mr. Marquez made this alteration in order to cause injury to Plaintiff professionally, again because of his resentment of Plaintiff for the Flower Property Litigation and for Plaintiff’s vocalization of his concerns regarding Defendant's unethical and unprofessional conduct. Plaintiff is further informed and believes that Mr. Marquez did so in order to purposely delay the close of escrow on the Property until after the Flower Street Litigation had been concluded so that he could use that litigation as an excuse to deprive Plaintiff of his Commission and Referral Fee.
33. Each of the Defendants engaged in the aforementioned conduct for his or her own personal benefit and advantage, rather than solely on behalf of and at the direction of Windermere. Plaintiff is informed and believes that each of the Defendants attempted to gain personally from defrauding Plaintiff in at least the following ways:
a. Defendants engaged in the aforementioned conduct in order to induce Plaintiff to leave Windermere so they could more easily abscond with his Commission and Referral Fee, and with the hope that Plaintiff would no longer call attention to their personal unprofessional and unethical actions;
b. Defendants engaged in the aforementioned conduct in order to personally receive the Commission and Referral Fee owed to Plaintiff. By not having to pay Plaintiff his Commission, Mr. Marquez was able to receive a higher commission as the broker for the sale of the Property. As such, Defendants put their own personal financial interests ahead of Plaintiff’s interests; and
c. Defendants knew that causing Plaintiff to leave Windermere would make it harder for Plaintiff to witness their continued unethical conduct and therefore better protect them personally from liability for that conduct.
34. As a result of Defendants' fraud, Plaintiff has suffered damages including, but not limited to, the amounts of the Commission and the Referral Fee.
35. Plaintiff is informed and believes that the aforementioned conduct of Defendants, and each of them, was carried out as part of a deliberate scheme to fraudulently induce Plaintiff into resigning from Windermere Property with the conscious goal of maximizing Defendants’ profitability. Such conduct was oppressive, fraudulent, and malicious, and subjected Plaintiff to cruel and unjust hardship in a willful and conscious disregard of his rights, warranting exemplary and punitive damages pursuant to Civil Code section 3294, for the reasons set forth herein and for at least the following reasons:
a. It was done with the purposeful and intentional design of putting Defendants’ own business and pecuniary interests ahead of Plaintiff's rights and interests;
b. It was done with the purpose and intent of deceiving and fraudulently inducing Plaintiff into believing he was going to receive the Commission and Referral Fee to which he was entitled for his diligent work in selling the Property and ultimately saving Seller from foreclosure, while Defendants knowingly concealed and failed to disclose their true intentions of never paying Plaintiff the Commission and Referral Fee; and
c. It was done with the purpose and intent of maximizing Defendants’ profit on the sale of the Property, without any regard to their obligations to not intentionally delay the close of escrow of the Property or to honor their contractual obligations to Plaintiff.
SECOND CAUSE OF ACTION
CONVERSION
(Against All Defendants)
36. Plaintiff refers to each of the foregoing paragraphs in their entirety, and hereby incorporates them by reference as though fully set forth herein.
37. Since the close of escrow on the Property on or about December 28, 2011, and pursuant to the written Listing Agreement and written Referral Agreement, Plaintiff was, and still is, entitled to the $19,005 Commission and the $3,393.75 Referral Fee.
38. On or about December 28, 2011, Defendants converted the Commission and the Referral Fee by keeping the monies for themselves and not paying them to Plaintiff.
39. As a result of Defendants’ conversion, Plaintiff has suffered damages, including, but not limited to, the amounts of the Commission and Referral Fee, and the interest Plaintiff would have otherwise received thereon from December 28,2011 to present.
40. Each of the Defendants engaged in the aforementioned conversion for his or her own personal benefit and advantage, rather than solely on behalf of and at the direction of Windermere. Plaintiff is informed and believes that each of the Defendants attempted to gain personally from converting the Commission and Referral Fee in at least the following way:
a. Defendants engaged in the aforementioned conduct in order to personally receive the Commission and Referral Fee owed to Plaintiff. By not having to pay Plaintiff his Commission, Mr. Marquez was able to receive a higher commission as the broker for the sale of the Property. As such, Defendants put their own personal financial interests ahead of Plaintiff's interests.
41. Plaintiff is informed and believes that the aforementioned conduct of Defendants, and each of them, was carried out as part of a deliberate scheme to maximize Defendants' profitability. Such conduct was oppressive, fraudulent, and malicious, and subjected Plaintiff to cruel and unjust hardship in a willful and conscious disregard of his rights, warranting exemplary and punitive damages pursuant to Civil Code section 3294, for the reasons set forth herein and for at least the following reasons:
a. It was done with the purposeful and intentional design of putting Defendants' own business and pecuniary interests ahead of Plaintiff’s rights and interests; and
b. It was done with the purpose and intent of maximizing Defendants' profit on the sale of the Property, without any regard to their obligations to not intentionally delay the close of escrow of the Property or to honor their contractual obligations to Plaintiff.
THIRD CAUSE OF ACTION
NEGLIGENCE
(Against All Defendants)
42. Plaintiff refers to each of the foregoing paragraphs in their entirety, and hereby incorporates them by reference as though fully set forth herein.
43. Defendants owed Plaintiff a duty to act in compliance with the standards of reasonable care imposed upon them, including, but not limited to, paying Plaintiff the Commission and Referral Fee to which he was entitled within a reasonable time after the close of escrow on the Property and not taking affirmative steps to interfere with Plaintiff's service of the Property.
44. Defendants breached their duty of care by engaging in at least the following conduct:
a. Delaying the close of escrow on the Property to December 28,2011, when the closing was otherwise ready to be completed on October 15,2011; and
b. Refusing to pay Plaintiff the Commission and Referral Fee to which he was entitled, and then using the Flower Property Litigation as an excuse for not doing so.
45. As a result of Defendants' breaches, Plaintiff has suffered damages including, but not limited to, the amounts of the Commission and the Referral Fee.
46. Each of the Defendants engaged in the aforementioned negligent acts for his or her own personal benefit and advantage, rather than solely on behalf of and at the direction of Windermere. Plaintiff is informed and believes that each of the Defendants attempted to gain personally in the following way:
a. Defendants engaged in the aforementioned conduct in order to personally receive the Commission and Referral Fee owed to Plaintiff. By not having to pay Plaintiff his Commission, Mr. Marquez was able to receive a higher commission as the broker for the sale of the Property. As such, Defendants put their own personal financial interests ahead of Plaintiff's interests.
PRAYER
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows:
ON THE FIRST AND SECOND CAUSES OF ACTION:
1. For general, special and consequential damages according to proof; and
2. For exemplary and punitive damages in amounts that are yet to be ascertained;
ON THE THIRD CAUSE OF ACTION:
1. For general, special and consequential damages according to proof;
ON ALL CAUSES OF ACTION:
1. For prejudgment interest as allowed by law and according to proof;
2. For recovery of costs and expenses of suit as allowed by law; and
. For such other and further relief as the Court deems just and proper.
Dated: July 18,2013 WILSON HARVEY BROWNDORF LLP
By: ___________________
MARC LAZO
Attorneys for Plaintiff
Windermere Real Estate Opens Rogue River Office
There are now a total of six Windermere offices serving the Southern Oregon region.
Rogue River, OR - Susan Jaeger and Marian Szewc, Principal Brokers/Owners of Windermere Real Estate Southern Oregon proudly announce the grand opening of their new Windermere Real Estate Office in Rogue River, OR. The mother/daughter team began converting their office from River City Realty & Mgt, LLC to Windermere in October of this year and will make it official by hosting a grand opening event in January of 2015. Rogue River is the sixth Windermere office to open in Southern Oregon, joining locations in Medford, Grants Pass, Ashland, Jacksonville, Eagle Point, and Shady Cove.
Jaeger has been a licensed real estate agent and Broker for 40 years, during which time she has owned offices in both Oregon and California, and she will serve as the managing Principal Broker of this new Windermere office. She has a BA from San Jose State University in Marketing, and a Master's Degree in Management from Southern Oregon University. Szewc has a BA from San Jose State University in Advertising. When asked why she and Szewc chose to partner with Windermere Real Estate, she said they felt they would benefit from the Windermere brand and reputation, and that their company would experience growth because of it.
Both Jaeger and Szewc are very active in their community. Szewc has been heavily involved in Grants Pass Rotary, which is known for philanthropic involvement in its community and abroad. Szewc also founded several moms' groups, and worked to bring a children's water feature park to Grants Pass. Jaeger has volunteered with and/or contributed to the local Kiwanis club, SMART reading program for grade school students, the local Community Center, and the Children's Advocacy Center in Medford. In addition, Jaeger and Szewc will now participate in the Windermere Foundation, which raises funds for low-income and homeless families.
For more information about Windermere Real Estate Southern Oregon and their upcoming grand opening, please contact the office at (541) 582-2000.