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

Non-Judge, Too, Does The Trick, But VSCs – Different From MSCs – Meet The Criteria Also.

            Lateef v. Dutt, Case No. A150824 et al. (1^st Dist., Div. 2 December 31, 2019) (unpublished) involved a trial court denial of attorney’s fees to a landlord under a lease clause requiring that the parties attempt mediation before suing for damages in court.  The record showed that the parties attended various voluntary settlement conferences before judge intermediaries, but they could not resolve the matter.  A bench trial largely resulted in a “win” for landlord, to the tune of $211,795.80 in various damages or other relief.  Landlord moved for $225,000 in fees, including unlawful detainer expenses, a request denied in entirety by the lower court.  The 1/2 DCA reversed because it found that attending VSCs did satisfy the mediation requirement, even though a mandatory settlement conference would not.  In reaching this conclusion, it found that dictionary definitions showed a mediation could be done via a VSC or by a mediation before a non-judge.  However, it found that $42,920 in requested fees were not proper, because they were reached in a UD action which was voluntarily dismissed (Santisas precluding fees) and which in any event was filed too late after the apt 60-day deadline.