Stipulated “Mediation Stay” Does Not Toll the Five-Year Mandatory Dismissal Period

Stipulated Mediation Stay Does Not Toll Five Year Mandatory Dismissal Period

California litigators know that cases must be brought to trial within five years or face mandatory dismissal. (C.C.P. Section 583.310). Time periods when “prosecution or trial of the action was stayed” or when bringing the action to trial was “impossible, impracticable, or futile” are excluded from the five-year calculation under C.C.P. Section 583.340.

In another decision throwing parties’ efforts to mediate under the wheels of the five-year rule, the California Supreme Court decided that a trial court order striking a trial date and staying the action following the plaintiff’s agreement to the defendants’ request to engage in mediation and complete outstanding discovery did not operate to toll the running of the five-year period. According to the majority, the “mediation stay” did not amount to a sufficiently complete stay or render the prosecution of the case impossible, impracticable, or futile to effect tolling. Gaines v. Fidelity National Title Insurance Company, et al., S215990 (filed 2/25/16)

Continue reading

Power Play in Mediation and Negotiation – Expect the Unexpected

Power Play in Mediation and Negotiation

The ICC International Commercial Mediation Competition in Paris showcased many different approaches to business mediation and negotiation even within the predetermined format and criteria for performance. Even when cultural differences were insignificant, the mediations often turned in unpredictable directions depending on different personalities and negotiation techniques. This was an excellent demonstration of the many permutations of power play.

The ICC Competition Final at the Maison du Barreau was the perfect example of power play at work. The auditorium was huge, the stage bathed in spotlight. Hundreds of spectators anxiously awaited the final match between the University of New South Wales (Australia) and the University of Auckland (New Zealand). There were no significant cultural differences between the teams.

All of the spectators had access to the details of the conflict – a dispute between a celebrity baker and party planner-to-the-stars over a wedding cake disaster that occurred when the industry-changing icing jointly developed by the two slid off of the cake at the party planner’s daughter’s wedding. Both parties’ reputations, businesses, and cash flow were in trouble. Each sought money damages from the other.

Continue reading

Paris Report No. 2 (the 2016 ICC Commercial Mediation Competition) – A World of Mediation Attitudes and Processes

Differing Attitudes and Processes in Mediation around the World PDF

Many of us often get caught up in our own way of doing things. In Southern California mediation practice, while there are often differences in process determined by counsel, party, or mediator preferences, most participants follow a pretty regular road to mediation in the first place. That’s because the prevailing experience at home is that either courts or a contract “force” everyone into mediation, with the effect of allowing all of the players to remain stalwart in their positions, at least at the outset.

Continue reading

Report from the 2016 ICC International Commercial Mediation Competition in Paris – How Can There Be A “Competition” in Mediation?

Report from the 2016 ICC International Commercial Mediation Competition in Paris – How Can There Be A “Competition” in Mediation?

Mediation is supposed to be a “win-win” proposition, right? You never think of there being a winner or a loser in the process. In fact, avoiding a “win-lose” outcome is fundamental to the procedure. So how in the world can there be a construct such as an international commercial mediation “competition,” such as the extraordinary event I am currently attending in Paris?

Continue reading

Danger Zone in California Civil Trial Courts – Private Mediation Does Not Toll the Five-Year Period for Bringing a Case to Trial

Danger Zone in California Civil Trial Courts – Private Mediation Does Not Toll the Five-Year Period for Bringing a Case to Trial PDF

It’s back. That risky zone in which a case can sneak past you and be subject to mandatory dismissal for the plaintiff’s failure to bring it to trial within five years. California Code of Civil Procedure § 583.310. Most of us never thought we would see the return of that pesky problem after the Los Angeles County Superior Court instituted the one-judge-one-case approach that created tremendous efficiencies in case management and got most parties through trial in under two years.

Continue reading

Federal Case Dismissed for Failing to Comply with Contractual Pre-Filing ADR Requirement

Federal Case Dismissed for Failing to Comply with Contractual Pre-Filing ADR Requirement PDF

In a case involving an insurer’s dispute of coverage to pay the settlement of a data breach class action, Columbia Casualty Co. v. Cottage Health System, cv 15-03432 DDP (AGRx) (C.D. Cal. 2015), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California granted a Rule 12(b)(6) motion to dismiss for the plaintiff insurer’s failure to comply with the insurance policy’s pre-filing ADR requirement.

Continue reading

Managing Business Disputes

Managing Business Disputes

The phone rang, and the caller said: “My partner and I have been in business for four years, and I am pouring my heart and soul into making it a success, almost 24 hours a day. She, on the other hand, doesn’t work nearly as hard, can’t supervise any employees without making them either angry or tearful, spends too much money, and then announces she wants more money. I’m going out of my mind. What do I do?”

Continue reading

“No-Employment” Provision Might Void a Settlement Agreement in California

“No-Employment” Provision Might Void a Settlement Agreement in California PDF

A new Ninth Circuit case holds that a settlement agreement with a non-compete provision that amounts to a substantial restraint on engaging in a profession may be void. In Golden v. California Emergency Physicians Medical Group, et al., (No. 12-16514, April 8, 2015), a physician’s settlement agreement with his former employer included a provision that the physician waive his rights to employment with the defendant or at any facility that the defendant may own or with which it may contract in the future.

Continue reading

Credit card companies are keeping us out of court. That’s a good thing, right?

Credit card companies are keeping us out of court. That’s a good thing, right? PDF

We all have them. Seems we can’t do without. Truth is, we have a love hate relationship with credit card
companies. They can help us soar with fantastic, well-deserved purchases, even help start small companies
for the entrepreneur in many of us. The credit card companies love us when we don’t pay the monthly
balance in full – that’s how they make their money.

Continue reading

Are You Blogging or Advertising? Have You Crossed the Line?

Are You Blogging or Advertising? Have You Crossed the Line? PDF

Rande S. Sotomayor, Esq.

Lawyers are learning that despite the traditions of dignity and distinction that many believe characterize their profession, they must maintain an “online presence” that provides valuable information to present and potential clients. These days that effort includes the concept of “blogging.”

Continue reading

Beware of Filing Simultaneous Claims in Arbitration and Court

Beware of Filing Simultaneous Claims in Arbitration and Court PDF

From the Los Angeles County Bar Association’s December 24, 2014 Daily eBriefs:

“Where plaintiff simultaneously sought damages in arbitration, and declaratory and injunctive relief in court, based on the same claims, and lost the arbitration, defendant became the prevailing party for purposes of an attorney fee award in the litigation under Civil Code Sec. 1717. Once the hearing on the merits of the parties’ dispute commenced at the arbitration, it was too late for plaintiffs to dismiss the civil action without prejudice and thereby avoid an attempt by defendants to recover attorney fees as the prevailing party in the action.

Continue reading

Business Trend – Mediation Is the Future

Business Trend – Mediation Is the Future PDF

Anyone who has ever been involved in litigation knows that the process of resolving disputes in the courts consumes resources – most notably money and time. Litigation counsel try hard to deliver value, but we know that budgets for the business clients we represent in court show outside counsel fees and litigation costs as red ink, no matter what. That’s not even considering the risk of actually losing in court.

Continue reading

Court of Appeal Helps Reduce Conflict over Paying Cell Phone Bills

The California Court of Appeal, in Colin Cochran v. Schwan’s Home Service, Inc., No. B247160, August 12, 2014, has held that employees who are required to use their personal cell phones for work are entitled to reimbursement by the employer of a reasonable percentage of the employee’s cell phone bill. It doesn’t matter if the bill is paid by a third person, and the details of the employee’s cell phone plan are not to be considered in the analysis of liability. Continue reading

Should Arbitration Be Used to Decide the Terms of a Business Deal?

Should Arbitration Be Used to Decide the Terms of a Business Deal? PDF

According to a number of California Congressmen, and the Chairman of the Federal Communications Commission, arbitration would be a good way to resolve the dispute between Time Warner Cable and television providers regarding the cost and manner of getting TV coverage of Dodger baseball games out to the public.

Apparently in the interest of the Dodgers TV-viewing public, these Congressmen and the FCC Chairman sent letters to DirecTV and Time Warner Cable Chief Executives urging the disputing entities to commit to “binding arbitration” in which the arbitrator would determine the price and the terms under which cable television subscribers could watch the Dodgers’ network, SportsNet LA. Continue reading

Anger and Hostility in Mediation

“In one of our concert grand pianos, 243 taut strings exert a pull of 40,000 pounds on an iron frame. It is proof that out of great tension may come great harmony.”
-Theodore E. Steinway

Let’s face it – parties and attorneys find themselves in mediation because they are in the midst of a fight. Many fights can be ugly, whether it’s a business, family, or consumer dispute. People feel that they’ve been treated unfairly, that they’ve done their best to resolve the conflict, and now it’s time to take the fight to the next level – with attorneys and courts. Continue reading