Cases: Mediation

Mediation: Nonprevailing Party’s Failure To Abide By Contractual Mediation Deadline Rightfully Allowed Prevailing Party To Obtain Fees Under Contractual Fee Clause

Cases: Mediation

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 […]

Homeowner Associations, Mediation: $318,426 Fee Award To HOA Prevailing On Encroachment Issue Was No Abuse Of Discretion

Cases: Homeowner Associations, Cases: Mediation

Parties’ Inability To Mediate Was A Discretionary Factor To Weigh In The Fee Calculus.             HOA, in Country Glen Oak Park Homeowners Assn. v. Garrett, Case No. B303220 (2d Dist., Div. 6 July 6, 2021) (unpublished), won a case to require removal of a pool equipment encroachment by homeowners as well as $820 in compensatory

Mediation: Voluntary Settlement Discussions Before Judge Intermediary Qualify As A Mediation For Purposes Of Satisfying Contractual Fees Clause Condition Precedent Requirement

Cases: Mediation

Non-Judge, Too, Does The Trick, But VSCs – Different From MSCs – Meet The Criteria Also.             Lateef v. Dutt, Case No. A150824 et al. (1st Dist., Div. 2 December 31, 2019) (unpublished) involved a trial court denial of attorney’s fees to a landlord under a lease clause requiring that the parties attempt mediation before

Mediation: Less Than Compulsory Mediation Clause Was Satisfied Even Though Cross-Complaint Filed Without Additional Mediation By Prevailing Party Actually Participating In Mediation On The Complaint

Cases: Mediation

Fee Award Of $375,813 In Capital Call Dispute Affirmed In Favor Of Prevailing Party.             Ocean Tomo, LLc v. PatentRatings, LLC, Case Nos. G055429/G056063/G056829 (4th Dist., Div. 3 June 13, 2019) (unpublished) shows how the wording of a mediation condition precedent clause can be determinative with respect to fee qualification.             A prevailing party in

Costs, Mediation: Co-Contributor Marc’s Article On Cost-Shifting In Mediation Is In The January 29, 2019 Daily Journal

Cases: Costs, Cases: Mediation

Mike & Marc Have Previously Posted About Berkeley Cement v. Regents Of The University of California.     Co-contributor Marc's article entitled "Cost-shifting in mediation after Berkeley Cement ruling" appears today, in the January 29, 2019 Daily Journal. If you subscribe to the Daily Journal, then you can access the article on-line. Or you can read a

Fee Clause Interpretation, Mediation: $331,385 Contractual Fee Award Affirmed Because Absence Of Parol Evidence Did Not Show Fees Clause In One Contract Had A Mediation Condition Precedent

Cases: Fee Clause Interpretation, Cases: Mediation

Absence Of Parol Evidence/Reporter’s Transcript Sealed The Result.             If you are going to argue that a fees clause in one contract also governs another contract between different parties, you better introduce parol evidence to prove it. The loser in a fee battle did not do that in Morales v. Thee Aguila, Inc., Case No.

Costs, Mediation: Fifth District Indicates, Quite Strongly, That Private Mediator Fees Are A Prime Candidate For Routine Costs Recovery In A Voluntary Mediation Situation

Cases: Costs, Cases: Mediation

Court-Ordered Mediation Alone Should Not Determine If Costs Recoverable; However, Expert Witness Expenses Not Ordered By Lower Court Were Not Recoverable.             The Fifth District, in Berkeley Cement, Inc. v. Regents of the University of California, Case Nos. F073455/F073586 (5th Dist. Jan. 7, 2019) (partially published; expert fee costs discussion not published; mediation costs discussion

Homeowner Associations, Mediation, Reasonableness Of Fees: $225,000 Fee Recovery In Favor Of HOA And Against Losing Condo Owner Affirmed On Appeal

Cases: Homeowner Associations, Cases: Mediation, Cases: Reasonableness of Fees

Mediation Requirement Did Not Apply To HOA-Owner Dispute, Owner Failed To Specifically Identify Objections Fees, And Lower Court Did Award Substantially Reduced Fees From The HOA’s Requests.             We have done many posts showing how HOAs or owners can be subject to substantial fee exposure for losing HOA-owner disputes. Seahaus La Jolla Owners Assn. v.

Mediation: Buyer’s Refusal To Engage In Mediation Under CAR Residential Real Estate Contract Did Not Support Adverse Attorney’s Fees Award Against Buyer—Buyer Did Not Refuse To Mediate!

Cases: Mediation

Appellate Court Did Note Differences In CAR Mediation Provisions Leading To A Different Result In Earlier Iterations Of CAR Contract.             In Dilonell v. Chandler, Case No. B282634 (2d Dist., Div. 2 Oct. 24, 2018) (unpublished), plaintiff/prospective buyer was dinged with an attorney’s fees award of $26,400—a reduced amount—after a lower court denied buyer’s petition

Mediation: Trial Judge’s Conclusion Party Did Not Receive Letter Offering Mediation, Coupled With Other Circumstances, Means That Prevailing Party In R.E. Water Damage Dispute Satisfied Mediation Condition Precedent Because He Never Refused Mediation

Cases: Mediation

Factual Conclusion Below Was Dispositive.             In Cohen v. Lavi, Case No. B279597 (2d Dist., Div. 3 Oct. 18, 2018) (unpublished), the parties entered into a real estate sale/purchase agreement with a mediation condition precedent clause, namely, fee recovery was not allowable unless a party attempted to resolve the matter through mediation or if a

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