Author - Zachary P. Marks

1
Pokémon Go: Green Light for Future Litigation
2
Execution Of An Undisclosed Settlement Agreement Is An Invalid California Code of Civil Procedure § 998 Term
3
Private Mediations Do Not Toll The Five-Year Prosecution Statute

Pokémon Go: Green Light for Future Litigation

By: Zachary P. Marks
September 30, 2016

Though it debuted to the public just two months ago, Pokémon Go, the latest gaming craze to sweep the nation, broke mobile app download records within one week of its release and achieved more daily active users than any other game on the market.  The game allows users to see animated creatures, known as Pokémon, on their cell phones while the user traverses the real world, with the goal being to “catch” as many Pokémon as possible.  The viral phenomena has already led to numerous claims and violations across the nation, with some bizarre examples to include the following:

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Execution Of An Undisclosed Settlement Agreement Is An Invalid California Code of Civil Procedure § 998 Term

By: Zachary P. Marks
May 10, 2016

A statutory offer to compromise can be a very effective tool in settling a case or devising a litigation strategy in preparation for trial. Codified at California Code of Civil Procedure (“C.C.P.”) § 998, the primary purpose of the statute is to encourage the settlement of disputes prior to trial or arbitration. The statute operates by enabling either party to propose a settlement offer, in writing, no less than ten (10) days before trial. If the offeree rejects the offer, and subsequently fails to obtain a judgment at trial that is more favorable than the offer amount, then the offeror is entitled to recover its post-offer costs, including filing fees, attorney’s fees, and in some cases, expert witness fees. Such fees could potentially amount to hundreds of thousands of dollars, thereby incentivizing the offeree to thoroughly evaluate the offer. This dramatic cost-shifting provision is the driving force behind a § 998 offer.

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Private Mediations Do Not Toll The Five-Year Prosecution Statute

By: Zachary P. Marks
April 24, 2016

If you thought private mediation could toll the five-year period for case prosecution – think again. In a recent decision handed down by the Second District Court of Appeal, the court unequivocally held that voluntary, private mediations do not toll the five-year period before dismissal for failure to bring an action to trial.

California Code of Civil Procedure section 583.310 sets forth the applicable rule: “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” Section 1775.7(b) clarifies this rule, stating that the five-year period can be tolled if it is “submitted to mediation” within the final six months of the five-year period. However, the Code is silent with respect to the effect of tolling on public versus private mediations.

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