MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 105 THE FIFTH ANNUAL YEAR-END REVIEW Once again, I’m summarizing the subjects I wrote about in the previous eleven months. This year’s Mediation Messages focused essentially on substantive and procedural subjects that impact a case or settlement, rather than mediation, itself, because the courts and legislature did very little in 2014 to effect how mediations are or should be conducted. Refer to the Mediation Messages identified below on my…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 104 DETERMINING THE PREVAILING PARTY IN CCP SECTION 1717 AND 1032 MOTIONS Karton v. Dougherty (2014) 231 Cal.App.4th 600 demonstrates that determining the prevailing party in a Code of Civil Procedure section 1717 attorney’s fee motion is not always easy. In that matter, Karton represented Dougherty in a marital dissolution action. The retainer agreement contained an attorney’s fee provision providing, in substance, that the prevailing party in the collection…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 103 CIVILITY PART 1– TREAT EACH OTHER WITH RESPECT In 2003, when I started writing Mediation Messages and Arbitration Insights, I commented only on subjects directly related to mediations and arbitrations. I broadened the base in 2011 by discussing case law that impacted litigation practice and, more particularly, admissible evidence at trial. Now, three years later, I’m going to devote some of these monthly messages to the lack of…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 102 C.C.P. SECTION 128.5 IS REVIVED Because of AB 2494, effective January 1, 2015, attorneys once again, pursuant to Code of Civil Procedure section 128.5, will be able to move for monetary sanctions as a result of opposition bad faith tactics. Previously, for sanctions to be issued for misconduct, that section required that a litigant’s tactics had to be both subjectively in bad faith and objectively unmeritorious. This difficult…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 101 ADMISSIBILITY OF MEDIATION SETTLEMENT AGREEMENTS In re Marriage of Daly and Oyster (2014) 228 Cal.App.4th 505 is a reminder that settlement agreements at mediation, if they contain the appropriate language, can be admissible in subsequent proceedings, notwithstanding Evidence Code section 1119, subd. (b), which states, in substance, that no writing prepared for, in the course of or pursuant to a mediation is admissible or subject to discovery. Daly…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 100 ANTI-SLAPP MOTION IS “YELPED” Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294 is an interesting read because it applies the anti-SLAPP commercial speech exemption to Yelp litigation. Yelp, a website that has fundamentally changed the way buyers and sellers meet and interact in the marketplace, is a phenomenon: as of September 2012, users had posted approximately 33 million reviews to its website and it had 84 million monthly…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 99 FEE APPLICATIONS AND MULTIPLIERS The very recent opinion of Chodos v. Borman (Second Appellate District, Division Five, June 18, 2014) 2014 Cal.App. LEXIS 529; B252446 has an interesting discussion on the application of multipliers in fee applications by prevailing attorneys. Hillel Chodos (Attorney) represented the wife, without a written fee agreement, in two divorce cases and a related Marvin action. He originally told the client he would charge her…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 98 ATTORNEY’S FEES AND THE TORT OF ANOTHER According to the American rule, “except as provided by statute or agreement, the parties to litigation must pay their own attorney fees.” (21st Century Insurance Co. v. Superior Court (2009) 47 Cal.4th 511, 531.) An established exception to the rule is the “tort of another” or “third party tort” which allows parties their attorney’s fees if required to employ counsel to…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 97 ACCEPTANCE LANGUAGE IN A SECTION 998 OFFER TO COMPROMISE Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.App.4th 280 clarified the required wording for acceptance of a Code of Civil Procedure section 998 offer to compromise. In Rouland, defendant Pacific Specialty offered to pay the two plaintiffs $5,000 and $30,000 in exchange for general releases and dismissals with prejudice and then stated, “If you accept this offer, please…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 96 EVERYTHING YOU NEED TO KNOW ABOUT C.C.P. SECTION 664.6 Mediation Message no. 95 looked at the mechanics of enforcing settlements, pursuant to C.C.P. section 664.6. This Mediation Message supplements that analysis. Parties must personally approve an oral or written settlement. As discussed in last month’s Mediation Message, Levy v. Superior Court (1995) 10 Cal.4th 578 holds that parties must personally execute settlement agreements because that process affects substantial…