Tort Of Another Fees Are Consequential Damages, Not Recoverable As A Cost Item. The December 2018 issue of Orange County Lawyer includes an article by mediator William J. Caplan, entitled "Backdoor Attorneys' Fees Based on the Tort of Another: A Mediator's Perspective." The article is useful for its clarity, for its brevity, and […]
Policy Of Encouraging Parties To Resolve Disputes Without Resort To Litigation Supports Liberal Construction Of Statutory Language. “This case presents the question of whether the Davis-Stirling Act, and particularly the fee-shifting provision of section 5975, subdivision (c), applies to an action to enforce a settlement agreement arising out of a mediation conducted pursuant to […]
The Parties Had Agreed To Mediate. Efforts to avoid mediation can be costly. For example, in real estate disputes, the standard California Association of Realtors purchase and sale agreement requires mediation before litigation – and participation in mediation becomes a precondition to collecting attorneys fees for a prevailing party. In our next case, a […]
Grossman v. Park Fort Washington Association Is Ordered Published On December 19, 2012, I posted about Grossman v. Park Fort Washington Association, Case No. F063125 (5th Dist. Dec. 19, 2012) (Franson, J.), a case in which the Court of Appeal held that the trial court correctly awarded fees for pre-litigation mediation to homeowners involved […]
Magnitude Of Loss Of Fees Based On Failure To Mediate Eclipses Substantive Win Eclipse Chewing Tobacco. c1871. Library of Congress. Our blog has a sidebar category “Mediation: Condition Precedent” that conveniently summarizes the problem that arose for the plaintiff/respondent/tenant in the next case. The accompanying tobacco label for a solar eclipse provides a graphic […]
Interpretation of Civil Code section 1354(c) Leads to Result In Grossman v. Park Fort Washington Association, Case No. F063125 (5th Dist. Dec. 19, 2012) (Franson, J.) (unpublished), the Court of Appeal held that the trial court correctly awarded fees for pre-litigation mediation to homeowners involved in a tussle with their homeowners association over construction […]
For Fee Recovery, Complaint And Cross-Complaint Are Treated As Separate Actions In Frei v. Davey, 124 Cal.App.4th 1506 (2004), the Court of Appeal made it very clear that parties need to pay attention to those pesky provisions requiring that one request mediation before filing suit, or else risk losing attorney’s fees even if […]
. . . And So Party Suing and Prevailing On the Promissory Note Could Recover Fees Without Initiating Mediation We have a sidebar category, "Mediation: Condition Precedent," reflecting the fact that many contracts, such as real estate purchase and sale agreements, and listing agreements, now require a party to mediate before filing a […]
Plaintiff’s Filing Of Lawsuit Without Requesting Mediation Did Not Negate Duty of Defendant to Participate In Mediation After Plaintiff Did Request Mediation The Cullens bought a vacation home in 2002, and sued the sellers, the Corwins, in 2009, for failing to disclose the defective condition of the roof. The Cullens lost their case […]
Steep Price for Noncompliance With Mediation Condition Precedent. The object lesson of this next case is that attention really must be paid to those mediation clauses that serve as a condition precedent before a party can initiate litigation or arbitration. In a 2004 case, the Fourth District, Division Three, put teeth into […]