MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 95 ENFORCING SETTLEMENTS PURSUANT TO C.C.P. SECTION 664.6 When drafting a settlement agreement, parties have the opportunity to stipulate that the trial court “may enter judgment pursuant to the terms of the settlement.” (Code of Civil Procedure section 664.6.) If this condition is not agreed to and the case is voluntarily dismissed with prejudice, the court has lost jurisdiction over the matter. (Basinger v. Rogers & Wells (1990) 220…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 94 THE 14-HOUR DEPOSITION TIME LIMITATION IN COMPLEX CASES Code of Civil Procedure section 2025.290, subd. (a), which became law on January 1, 2013, holds, except as provided by court order or case management order, that a deposition of a witness by all counsel, other than the witness’s counsel of record, shall be limited to seven hours of total testimony. Additional time shall be allowed by the court “if…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 93 THE FOURTH ANNUAL YEAR-END REVIEW Once again, I’m summarizing the mediation and arbitration topics I wrote about in the previous eleven months. Before discussing them, thank you for your support in helping me to be honored by the Daily Journal as a Top 50 California Neutral for the sixth time in the last seven years. This year’s Mediation Messages started with an analysis of two true mediation topics…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 92 EARLY SETTLEMENT DEMANDS AND AN INSURER’S DUTY TO SETTLE Reid v. Mercury Ins. Co. (2013) 220 Cal.App.4th 262 provides that an insurer has no duty to settle with a third party, and thus no liability to its insured for the bad faith failure to settle, until there has been a settlement demand or “any other manifestation the injured party is interested in settlement.” (Id. at p. 266.) Absent…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 91 WHAT WAS SHE THINKING? Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853 is about human frailties, including greed, bad judgment and overreaching. Lori Sklar (Sklar), a member of the California and Minnesota Bars, and a Texas law firm (TLF) filed a class action against Toshiba on behalf of Toshiba laptop customers who had problems with their laptop covers. The case settled, with each class member…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 90 OTHER CONDUCT EVIDENCE Since Pantoja v. Anton (2011) 198 Cal.App.4th 87 held that an employer’s sexual harassment of employees other than the plaintiff was relevant, pursuant to Evid. Code sec. 1101, subd. (b), to prove both gender bias and to rebut defense assertions that the employer had a policy of not tolerating harassment (id. at p. 116), it has become popular to refer to such testimony as “me…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 89 STIPULATIONS FOR JUDGMENT Since some mediation settlements include stipulations for judgment, it is appropriate to discuss Greentree Financial Group, Inc. v. Executive Sports, Inc. (2008) 163 Cal.App.4th 495, which holds that such stipulations cannot include unenforceable penalties. The plaintiff in Greentree sued ESI for $45,000 for breach of contract. Before trial, the parties agreed in a stipulation for judgment that ESI would pay Greentree $20,000, in two installments….
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 88 MULTIPLE SECTION 998 SETTLEMENT OFFERS In recently decided Martinez v. Brownco Construction Co. (June 10, 2013) 56 Cal.4th 1014, the California Supreme Court held that when a plaintiff makes two successive Code of Civil Procedure section 998 offers, the defendant does not accept either offer and fails to obtain a judgment more favorable than either offer, allowing recovery of expert fees incurred from the date of the first…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 87 COURT CONGESTION, MEDIATIONS AND THE THREE-YEAR AND FIVE-YEAR RULES In the halcyon days of adequate court-funding, little attention was given to Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, which holds that the five-year deadline to try a case is tolled when the action is submitted to mediation during the last six months of the five-year period. But since the three-year and five-year rules have again…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 86 JUDICIAL ADMISSIONS, PART II Mediation Message no. 67 reviewed Dang v. Smith (2010) 190 Cal.App.4th 646 which advised that “statements in a pleading are always admissible against the pleader to prove the matter asserted—as is any other statement by a party.” The recent case of Barsegian v. Kessler & Kessler (April 2013 Court of Appeal, Second Appellate District, Division One) 2013 Cal. App. LEXIS 287, 2013 WL 1680181…