Prevailing Party Did Try To Mediate Within The Deadline, But Nonprevailing Party Didn’t Comply.
Seller prevailed in a lawsuit against Buyer which was subject to a contractual attorney’s fees clause. The contract between the two sides had a mediation clause requiring good faith efforts to mediate within a 45-day period. Seller provided six options for mediation, but they were rebuffed by Buyer based on multiple reasons. Seller recovered $119,261 in attorney’s fees. Buyer, in His Passion, Inc. v. Adhvaryu, Case Nos. G059483 et al. (4th Dist., Div. 3 Jan. 12, 2022) (unpublished), argued that the lower court erred in concluding that Seller fulfilled in good faith the mediation obligation by sticking to the 45-day deadline (even though two dates were offered even after the deadline).
The 4/3 DCA, in an opinion authored by Justice Goethals, affirmed. Good faith, for purposes of the mediation clause, was a factual question. The record demonstrated that Seller tried to schedule the mediation, with there being no problem that he essentially enforced the contractual deadline agreed to by both parties. Instead, based on some of the Buyers filing a Los Angeles lawsuit without mediation, the inference from this course of conduct was that the Buyer never was interested in participating in the mediation process.