Mediation Message No. 117

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 v. Superior Court (2011) 51 Cal.4th 113 is still the law regarding the impact of mediation confidentiality. Cassel holds that mediation confidentiality includes all communications at or in preparation for mediation between clients and their attorneys and, as a consequence, clients cannot sue their counsel for alleged acts of malpractice committed during mediation.

Mediation Message no. 111 looked at the principles behind successful mediations: clients are prepared; timely and interesting briefs have been submitted; briefs have been shared with opposing counsel; essential parties are at the mediation; cases have been properly evaluated and  necessary files and documents are at the mediation.

In Mediation Message no. 114, I provided irreverent interpretations of frequent comments by attorneys at mediation, such as, “They’re not here in good faith;” “We expect significant movement from (the opposing party);” “We don’t want to send the wrong signal” and “I’m not bidding against myself.”

Procedural Case Law

Two California Supreme Court and two appellate court cases provided important interpretations regarding negative responses to requests for admissions, the interrelationship between motions for relief from default and motions for reconsideration, the statute of limitations for conversion in legal malpractice and the use of judicial notice in demurrers.

Mediation Message no. 106 discussed Gonsalves v. Li (2015) 232 Cal.App.4th 1406 which held that parties cannot be examined about their denials to requests for admission. Instead, the remedy, when a party denies an RFA, is to prove the truth of the matter, pursuant to C.C.P. sec. 2033.420, and then “move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”

As discussed in Mediation Message no. 112, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 holds that when a second motion to vacate a default under C.C.P. section 473(b) is necessary because the first such motion has been denied, the second motion must comply with C.C.P. section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, including that the party shall submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and to also show diligence with a satisfactory explanation for not earlier having presented the new or different information.

Lee v. Hanley (2015) 61 Cal.4th 1225 was analyzed in Mediation Message no. 113. This case holds that an attorney’s refusal to return a former client’s money upon demand does not come within the one-year statute of limitations in C.C.P. sec. 340.6, subd. (a) if the refusal can be construed as a conversion and, therefore, was not part of the attorney’s professional services.

Mediation Message no. 116 discussed Richtek United States v. Upi Semiconductor Corp. (Ct. of Appeal, Nov. 24, 2015) case no. H039519, 2015 DJDAR 12667, 2015 Cal. App. LEXIS 1057, which holds that judicial notice of documents in a demurrer is dispositive only when  the facts in the documents are not in dispute with the allegations in the complaint, which must be accepted as true. If they are in dispute, the demurrer must be denied.

Attorney behavior

While Mediation Message no. 109 noted that there is no specific ethical rule requiring attorneys to honor agreements with each other, it can be extrapolated from Bryant v. State Bar (1942) 21 Cal.2d 285 and Grove v. State Bar (1965) 63 Cal.2d 312 that the obligation exists in certain situations. Mediation Message no. 110 noted that both Business and Professions Code 6068, subd. (d) and Rule of Professional Conduct 5-200(B) prohibit attorneys from making misrepresentations to a judicial officer. These standards reflect the policy that “Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.” Lastly, Mediation Message no. 115 reminded trial lawyers that a simple objection to misconduct, even if sustained, will not be sufficient to protect the record. In addition to making a timely objection, counsel must also request that the jury be admonished to ignore the misconduct. Otherwise, the appellate court will most probably disregard the misconduct.

Tactics

As noted in Mediation Message no. 107 and People v. Carter (2014) 227 Cal.App.4th 322, a trial judge’s remarks that “reflect a misapprehension of the law upon which that ruling is based” may be the grounds for reversing the judge’s ruling. Carter, thus, teaches two lessons – don’t be afraid to ask questions of the trial court because the judge’s comments can both guide you and be the basis for reversal if they are legally incorrect. Also, those comments will be forever lost if a court reporter is not present.

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 2015

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