Monday, December 4, 2017
Court of Appeal:
Agreed-Upon Ex-Judge As Mediator Can’t Be Replaced
Presiding Justice Epstein Says That Where Named Mediator Is Unavailable and There Is No Provision In a Settlement Agreement for a Stand-In to Act, Alternate Dispute Resolution Can’t Be Ordered
By a MetNews Staff Writer
The Court of Appeal for this district has held, in essence, that private judges are not fungible, declaring that where parties, in settling a lawsuit, have agreed to submit any further dispute to a particular mediator, who later ceases to provide alternate dispute resolution services, mediation cannot be compelled.
The opinion by Presiding Justice Norman Epstein of Div. Four was filed Wednesday and publicly released on Thursday.
The parties to litigation, launched in 2006 by Lakshman R. Koka against his mother, brother, and brother-in-law, involving ownership of commercial property in Artesia, entered into a settlement agreement in 2009 under which Koka received $2 million.
In the agreement, Koka released “any and all claims...of whatever kind and nature” which he “now has or ever will have” against the defendants, “including without limitation any and all such matters arising out of or in any way related to the facts, circumstances, transactions and/or claims set forth” in the 2006 complaint.
The agreement specified that the dismissal of the action “shall be subject to the court’s retention of jurisdiction to enforce the terms of this Agreement pursuant to Code of Civil Procedure section 664.6” and that “any disagreement or dispute over the meaning or effect of any term or provision of this Agreement...shall be submitted to the Hon. William Sheffield.”
Sheffield served as a judge of the Orange Superior Court from Jan. 2, 1983 until late 1984 when he resigned to become a student at Yale Divinity School. His stint as a private judge for Judicate West began in 1990 and ended in July 2014.
The agreement contains a severability clause.
There has been other litigation in connection with the real property, going back to 2002, centering on a co-owner allegedly pilfering rent payments.
A settlement was reached in 2004; agreed-upon payments were not made; Koka’s brother brought a suit in 2013 asserting that the debtor had made a fraudulent conveyance of his property to avoid the debt; the debtor and his company brought a cross complaint which included Koka as a cross defendant; Koka brought his own cross complaint, asserting he was still owed a share of the 2004 settlement.
The brother sought an order enforcing the 2009 settlement under which Koka disclaimed entitlement to anything more, also calling for a striking of his cross complaint. Los Angeles Superior Court Judge Lori Ann Fournier granted the relief sought.
Koka appealed, arguing that Fournier was precluding from ruling based on the 2009 proviso that any further disputes, initially, would be mediated.
Noting that Sheffield is no longer acting as a private judge, Epstein said:
“Here, the parties bargained for mediation, naming a specific mediator, but did not indicate how an alternate mediator would be selected in the event of Judge Sheffield’s unavailability. When Judge Sheffield retired [as a mediator], it became impracticable for respondent to mediate disputes under the 2009 agreement. It is not reasonable to require respondent to retain the mediation services of a person who was no longer providing that service….
“Therefore, the mediation provision fails due to impracticability. Because the 2009 agreement contains a severability provision, the rest of the agreement is unaffected by the failure of the mediation provision. This leaves only the language allowing court enforcement under section 664.6. This language, vesting the trial court with authority to enforce the 2009 agreement, necessarily encompasses the authority to resolve conflicts regarding contractual interpretation.”
The opinion affirms Fournier’s actions, saying that “only basis upon which” Koka was owed money under the 2004 agreement was “that he has some interest in the property,” yet he had, in the 2009 agreement, renounced any such interest.
Fournier appropriately struck the cross complaint, Epstein said, based on Code of Civil Procedure §436 which provides that “[t]he court may...at any time in its discretion...strike out any...improper matter inserted in any pleading.”
The case is Koka v. Koka, B277116.
Michael G. Kerbs of Reid & Hellyer represented Koka and Joseph D. Curd of Curd, Galindo & Smith was the attorney for Koka’s brother.
Sheffield’s reason for leaving Judicate West was that he and his wife undertook a mission in the United Kingdom on behalf of the Mormon Church (the Church of Jesus Christ of Latter-day Saints) for which he had earlier served as a legal counsel.
The former judge told the MetNews Thursday night:
“We have recently returned from our Church mission in England. It was a great experience!”
He related, in response to an inquiry:
“I’m working on an autobiography currently and mention people whose paths have crossed mine, from Steven Spielberg to Rose Bird and Mathew O. Tobriner to Frank Sinatra and many others. I’m enjoying writing it.”
He had worked with Spielberg, a former classmate at Cal State-Long Beach, on a film project, shortly after both had graduated.
A May 20, 2016 article in the British online newspaper, The Independent, recites:
“As a law student at UC-Berkeley, Sheffield successfully sued Pope Paul VI over a St. Bernard puppy that was never delivered to him from a monastery in Switzerland. At one point he even served as legal counsel for embattled Indian Prime Minister Indira Gandhi. But none of this would compare to an invention he created in hopes of truly changing the world: the banana slicer.”
Sheffield gained a patent on such a device.
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