MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 125 RFAs – IMPORTANT PROCEDURAL REQUIREMENTS Having discussed in Mediation Message no. 123 (June 2016) the monetary consequence of failing to admit certain facts prior to trial despite their obvious truth, it’s timely to look at some of the other significant procedural requirements concerning requests for admission (RFAs). The policy behind RFAs. Unlike the other types of discovery, which are designed to prepare for trial, an RFA, in contrast,…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 124 EXPERT TESTIMONY AND THE HEARSAY RULE: GENERALIZED BACKGROUND INFORMATION VERSUS CASE-SPECIFIC FACTS In People v. Sanchez (2016) 63 Cal.4th 665, a unanimous Supreme Court clarified what information and facts experts rely upon are and are not subject to a hearsay objection. Sanchez holds the hearsay rule applies to case-specific out-of-court statements considered by experts as true and accurate and relied upon to support their opinions, because such statements…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 123 DENIALS OF RFAs AND THEIR CONSEQUENCES Denial of a request for admission (RFA) can lead to an award of costs and attorney’s fees incurred by the propounding party in proving those facts if that party proves the truth of the facts at trial. (C.C.P. sec 2033.420, subd. (a).) The court is required to award those costs and fees unless it finds the party who denied the requests “had…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 122 BINDING MEDIATION Binding mediation is a procedure in which a mediator, if the mediation is not successful, can become an arbitrator. It can occur in two ways: the parties select the neutral beforehand to mediate the dispute and, if the dispute is not resolved, agree that the neutral can render a final and binding award. Alternatively, the parties may choose, after the mediation process has broken down, to…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 121 AN UNUSUAL VARIATION ON THE JOINT CAUCUS In January 2013, I looked at the evolution of the joint caucus from when I started as a mediator to the present. (Mediation Message no. 83.) Little has changed since then; if anything, a joint caucus with all of the parties and attorneys present at the beginning of a mediation is now even more anachronistic. The one exception to not having…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 120 THE “EMPTY CHAIR” AND SETTLING DEFENDANTS INVOLVEMENT IN A SUBSEQUENT TRIAL Diamond v. Reshko (2015) 239 Cal.App.4th 828 advises how a trial shall be conducted where a defendant settles with the plaintiff before trial and then agrees to participate in the trial involving a co-defendant. In Diamond, Christine Diamond was injured while riding as a passenger in a taxi that was involved in a collision with a second…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 119 AVOIDING DISMISSAL UNDER THE FIVE-YEAR RULE The five-year rule, tolling, stay orders, stipulations and certainty/uncertainty are the core subjects of Gaines v. Fidelity National Title Insurance Co. (February 25, 2016; Cal. Supreme Ct.) S215990; 2016 DJDAR 1909. Contrary to the legal headlines, mediation plays only a small part in the discussion. Essentially, Gaines is a primer on the necessary steps to prevent the running of the five-year trial…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 118 EXPEDITED JURY TRIALS ARE MANDATORY FOR CASES UNDER $25,000 The voluntary Expedited Jury Trial Act (Code of Civil Procedure §§ 630.01 – 630.10), in effect for the last five years, is now permanent, as of January 1, 2016. More importantly, the Act is mandatory as of July 1, 2016 (until January 1, 2019, unless otherwise extended by the legislature) where the amount in controversy does not exceed $25,000,…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 117 THE SIXTH ANNUAL YEAR-END REVIEW This year’s Mediation Messages combined observations about mediation, procedural case law that impacts litigation or settlement, ethical mandates for attorney behavior and one case about tactics. Refer to the Mediation Messages identified below on my website (www.marcusmediation.com) if the following summaries are not sufficient. Mediations Amis v. Greenberg Traurig LLP (2015) 235 Cal.App.4th 331 (discussed in Mediation Message no. 108) reminded that Cassel…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 116 DEMURRERS AND JUDICIAL NOTICE Richtek United States v. Upi Semiconductor Corp. (Ct. of Appeal, Nov. 24, 2015) case no. H035519, 2015 DJDAR 12667, 2015 Cal. App. LEXIS 1057 presents an object lesson on the use of judicial notice in ruling on demurrers to complaints. In 2007, in Taiwan, Richtek, a Taiwanese corporation that designs, markets and sells power management integrated circuit products, sued Upi, a Taiwanese company, and…