In an article by Sanford Gage, who is a very good mediator, 9,000 California settlement decisions were analyzed over 41 years comparing rejected pretrial settlement offers and actual trial results. Sixty-one percent of the time, the plaintiffs obtained an award that was the same or worse than the result the plaintiff would have achieved by accepting the defendant’s pretrial settlement offer. The defendant decision error was only 24 percent, and where there was insurance, the error rate was only 21 percent.

However, defendants are NOT perfect.  While the average cost of the “decision error” by plaintiffs were $43,100,  defendants suffered an average adverse outcome in the amount of $1.14 million! Thus the expected cost of error is more than 20 times greater for the defendant than the plaintiff.

Gage_Making-the-right-decision-at-mediation_Plaintiff-magazine

 

 

In law school you are taught “if you are a defendant remove the case to the Federal Court”.  University of Connecticut law professors Alexandra Lahav and Peter Siegelman studied 30 years of data from the Administrative Office of the U.S. Courts supporting that directive. According to the law profs, the winning rate for plaintiffs in civil litigation in federal courts declined drastically and steadily between 1985 and 1995, from about 70 percent to 30 percent.SSRN-id2993423

P.S.  Federal Court Buildings are also so much nicer (for the most part) and the lawyers dress better!

Lahav, Alexandra D. and Siegelman, Peter, The Curious Incident of the Falling Win Rate (July 7, 2017). Available at SSRN: https://ssrn.com/abstract=2993423 or http://dx.doi.org/10.2139/ssrn.2993423

In Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 the California Supreme Court answered a legal question sent to it from the Federal Court asking if the relevant wage order and statutes.  The Court held that California does not adopt the federal FLSA permitting application of the (federal) de minimis rule when the employer required the employee to work “off the clock” several minutes per shift.  The Court held that the state wage and hour rules do not permit the de minimis “Defense”.  Read more … Continue Reading Starbucks Must Pay for All Employee’s Work, even if just a drip of time! (Troester v. Starbucks Corp. (2018) 5 Cal.5th 829)

International law systems, justice, human rights and global business education concept with world map on a school globe and a gavel on a desk on blue background.

The new CCP §1297.185 essentially over rules the 1998 California Supreme Court case known as Birbower holding that lawyers from foreign nations could not appear in international arbitration matters in California.  California Governor Jerry Brown signed into law SB 766 effective January 1, 2019.  Arbitration and mediation are huge businesses for lawyers and this will create more opportunities for California based attorney’s and ADR companies 😊

Code of Civil Procedure § 1297.185, et seq. is very broad, essentially the requirements are:

  1. The non-California admitted attorney must be admitted in good standing to all jurisdictions in which he/she is a lawyer. must be based outside of California.
  2. The subject matter is supposed to be “internationally related” but Code of Civil Procedure § 1297.186(a) is broad enough to cover almost any mediation or arbitration proceeding.

Phone company records are difficult to obtain.  I say difficult, not impossible.  Even with a validly issued civil subpoena, the phone company will not comply without a notarized written consent from the consumer who “owns” the phone number.  You need a signed and notarized form such as this: Sprint Consent to Release Information

Pub. Util. Code, § 2891 provides:

(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber’s consent, in writing, any of the following information:

Code Civ. Proc., § 1985.3

(f) A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.

In an unpublished opinion, Milder v. Holley, B267974 (2/5 1/31/17) the Court of Appeal on a gateway issue, found that a judge decides if there was fraud in the inducement to enter into an arbitration agreement in California.  ( Citing Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1095.)  This is separate from fraudulent inducement to enter into the contract which happens to contain an arbitration clause.  The latter is to be decided by the arbitrator. (Citing Ericksen, Arbuthnot, McCarthy, Kearney & Walsh Inc. v. 100 Oak Street, (1983) 35 Cal.3d 312, 323.)  Read more … Continue Reading Enforcement of an Arbitration Clause is for the Court not Arbitrator to Determine

In Pulte Home Corporation v. American Safety Indemnity Co. (2017) 14 CA5th 1086 a homeowner sued for latent construction defects.  The General Contractor sought a defense under its sub’s general liability policy as an additional insured.  The insurer denied coverage because the subcontractor’s work was completed work as opposed to “ongoing work”.  The GC sued for bad faith and won.  The Appellate Court held coverage is “when the property physically damaged”,  not when the homeowner was “financially damaged by the purchase of the home”.  In other words, if it is possible that the property was damaged during construction, then there is coverage.   (This is also similar to McMillin Management Services v. Financial Pacific Ins. (2017) 17 Cal.App.5th 187

In Burd v. Barkley Court Reporters (2017) 17 Cal.App.5th 1037, the court stated the fees allowed for an official transcript in Government Code sections 69950 and 69954 are the max a private reporter can charge of a proceeding in front of a judge.  I love this ruling  because I use private reporters for almost all of my hearings!

Arave v. Merrill Lynch (2018) 19 Cal.App.5th 525 reinforces that in labor law employees have nothing to lose from suing.  Plaintiff sued his employer under FEHA and lost.  The defendant employer previously served a CCP 998 offer to settle of $100,000 which was rejected.  The employee lost his case and the trial court awarded $83,000 in costs to the employer.  This was reversed holding only the “frivolous claim”  statute Labor Code 218.5(a) could shift costs/fees to a losing employee.

Note: there is now a split in authority on this 998 issue so wait for the Supreme Court to resolve this.