Mediation Message No. 105

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 website (www.marcusmediation.com) if the following summaries do not suffice.

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Certainteed Corporation v. Superior Court (2014) 222 Cal.App.4th 1053, as discussed in Mediation Message no. 94 (January 2014), held that the power of the court as provided in Code of Civil Procedure section 2025.290 to allow additional time for a seven-hour deposition if needed to fairly examine the deponent or if the deponent or another person has impeded or delayed the examination applies, as well, for an extension of the 14-hour limitation in complex cases where a doctor has declared that the deponent may not live beyond six months.

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Mediation Messages nos. 95 and 96 (February and March 2014) reviewed the case law regarding enforcement of settlements, pursuant to Code of Civil Procedure section 664.6. Number 95 focused on the importance of not allowing the trial court to lose jurisdiction to enforce a settlement. Number 96 examined the subtleties of enforcing a settlement under section 664.6.

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Mediation Message No. 97 (April 2014) looked at Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.App.4th 280 which held that that the language of accepting a Code of Civil Procedure section 998 offer to compromise need not strictly follow the language of the statute.

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Attorney’s fees and the tort of another were addressed in Mediation Message no. 98 (May 2014). The “tort of another,” which allows parties their attorney’s fees if required to employ counsel to prosecute or defend an action against a third party because of a defendant’s tort, is an established exception to the American rule that, except as provided by statute or agreement, parties to litigation must pay their own attorney’s fees. (Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620.) Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318 reminds that the existence of an underlying tort by a defendant is a basic requirement for applying the tort of another.

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Mediation Message no. 99 (June 2014) looked at Chodos v. Borman (2014) 227 Cal.App.4th 76 which discourages multipliers in fee applications by prevailing attorneys when an attorney’s payment of fees is not contingent upon the success of the case and the underlying case is unremarkable. The opinion also appears to frown upon multipliers when the lodestar, itself, is already substantial.

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The application of the anti-SLAPP commercial speech exemption to litigation involving Yelp, the online public rating business, was the focus of Mediation Message no. 100 (July 2014). Demetriades v. Yelp (2014) 228 Cal.App.4th 294 held that Code of Civil Procedure section 425.15 did not apply where Demetriades, the owner of three restaurants, sued Yelp for unfair competition and false advertising because its claims about the abilities of its filtering system were untrue and misleading, including the allegations that Yelp did not use its filter software to give consumers the most trusted reviews, did not accurately separate the most trustworthy reviews from unreliable reviews and did not post reviews only from trusted sources.

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In re Marriage of Daly and Oyster (2014) 228 Cal.App.4th 505 was the only California decision this year that focused on mediations. As analyzed in Mediation Message no. 101 (August 2014), Daly and Oyster reminded 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.

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Mediation Message no. 102 (September 2014) noted that, effective January 1, 2015, attorneys will be able to once again move for monetary sanctions as a result of opposition bad faith tactics, pursuant to Code of Civil Procedure section 128.5.

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Mediation Message no. 103 (October 2014) provided a new twist to the old hoary topic of civility. Because little has been done to correct the problem, despite a lot of rhetoric to the contrary, and rather than repeat aspirational but otherwise unenforceable bromides which don’t help at all, I referenced Kirsch v. Duryea (1978) 21 Cal.3d 303 and Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299 which hold that lawyers should respect one another. Kirsch states, “In addition to competing strategies, an attorney is often confronted with clashing obligations imposed by our system of justice. An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” (Id. at p. 309; accord, In re Marriage of Flaherty (1982) 31 Cal.3d 637, 647.) Tenderloin emphasizes the above rule and then notes that it “makes it obvious that even if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.” (Id. at p. 306.)

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Determining the prevailing party in a Code of Civil Procedure section 1717 motion is not always easy. The essential lesson of Karton v. Dougherty (2014) 231 Cal.App.4th 600, which is discussed in Mediation Message no. 104 (November 2014), is that, when moving to collect fees and costs under section 1717, pursuant to a contract claim, make certain that the trier of fact has found that you prevailed on the contract claim.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, December 2014

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