Thursday, June 20, 2019

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C.A. Affirms Judgment in Favor of JAMS, Ex-Justice Sonenshine

Says Substantial EvIdence Supports Finding That Capital Investor Who Agreed to Have Private Judge Adjudicate His Divorce Case Did Not Materially Rely on Website’s Alleged Exaggeration of Ex-Jurist’s Business Experience

By a MetNews Staff Writer

Div. One of the Fourth District Court of Appeal has affirmed a defense judgment in favor of JAMS, a dispute resolution outfit, and mediator/arbitrator Sheila Prell Sonenshine in an action in which the plaintiff wanted his money back after being disappointed by one of Sonenshine’s rulings, asserting that her background in business was exaggerated on the company’s website.

Presiding Justice Judith McConnell wrote the opinion, which was filed Tuesday and was not certified for publication. It rejects contentions by San Diego venture capitalist Kevin J. Kinsella, who had agreed that Sonenshine—a justice of Div. Three of the Fourth District Court of Appeal from 1982-99—would adjudicate the marital dissolution action his wife brought in December 2012.

He soured on her after she set temporary spousal support for his wife. After various bellicose actions on his part, Sonenshine eventually recused herself in the interests of justice and he then sued, insisting he would not have paid more than $80,000 for her services if he had known that her online resume was padded.

Equity Fund

Kinsell pointed, in particular, to the statement that Sonenshine had founded the Escher Fund, described as “an equity fund that focused on growth-state, women-owned, and women-led businesses.” He said this representation persuaded him that she would grasp the complex financial matters which the litigation involved.

The fund did invest in three women-owned or women-led businesses between 2005 and 2008, but the businesses—which Sonenshine attributed to the economy—and the moneys invested all came from Sonenshine Enterprises, belonging to her and her husband.

A jury was the decider of facts as to a cause of action for violation of the Consumer Legal Remedies Act. It was deadlocked 8–4, in favor of the defendants, as to whether there was a misrepresentation concerning Sonenshine’s background in business.

However, it found by vote of 11-1 that there was a lack of reliance by Kinsella on the online claim. Taking his cue from the jury, San Diego Superior Court Judge John Meyer found in favor of the defendants in the causes of action under the Unfair Competition Law and the False Advertising Law.

Explains Affirmance

McConnell wrote:

“We conclude there was substantial evidence to support both the jury’s and the court’s findings that Kinsella did not prove any reliance on the representations was a substantial factor in causing him harm. Because these findings are dispositive, we need not reach the issue of misrepresentation. We do not consider the issue of judicial bias, which was the subject of a prior petition for writ of mandate and was summarily denied.”

Kinsella argued that the defendants produced no evidence that he would have stipulated to Sonenshine arbitrating the matters in the divorce case, and spent more than $80,000, if he had known that her credentials were exaggerated. McConnell responded:

“Kinsella’s argument attempts to turn the burden of proof on its head. Although there was no dispute about the amount of money Kinsella paid to JAMS for Justice Sonenshine’s services, Kinsella did not meet his burden of establishing he would not have incurred the fees for a private judge, either Justice Sonenshine or another private judge, if it were not for the alleged misrepresentations. He did not establish he would not have incurred the same or similar amount of costs either to JAMS or to another private judging service.”

Upset Over Ruling

She went on to say:

“The evidence…supported an inference Kinsella became interested in Justice Sonenshine’s resume only when he became displeased with her rulings, felt she was biased against men, and decided he wanted her off the case. Kinsella knew one had to have reasons to remove a judge. Kinsella attempted to remove Sonenshine first by arguing he could not afford a private judge, then by purporting to represent himself in propria persona, and then by hiring a team of individuals to investigate Justice Sonenshine’s resume and to dig up ‘dirt’ on her family.”

The case is Kinsella v. JAMS, Inc., D073159.

Previous Decision

In a July 27, 2016 opinion, also by McConnell, the Court of Appeal rebuffed a challenge, by writ a petition, to Meyer’s order denying the defendants’ anti-SLAPP motion in which they asserted that the biographies of Sonenshine on the JAMS website are protected speech.

“[W]e agree the commercial speech exemption applies and precludes the use of the anti-SLAPP procedure in this case,” McConnell said in JAMS, Inc. v. Superior Court. She explained:

“JAMS and Sonenshine are engaged in the business of selling ADR services. Kinsella’s causes of action arise from statements posted on the JAMS Web site about both Sonenshine’s background and experience and about JAMS’s operations. It is apparent all of the statements about which Kinsella complains were placed on the JAMS Web site to be viewed by actual or potential ADR buyers or customers, or attorneys representing actual or potential buyers or customers of ADR services. According to the complaint, Kinsella reviewed the JAMS Web site and agreed to use Sonenshine as a privately compensated temporary judge based on the statements….Therefore, the statements or conduct from which Kinsella’s causes of action arise is more ‘commercial speech’ than anything else.”

Kinsella in 2016 brought an action against McConnell in the U.S. District Court for the Central District of California, but dismissed it as few days later.