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4156261331'" ", ... ' First Legal
SUM-100 SUMMONS
(CITACION JUDICIAL) FOR COURT USE ONt Y
{SOLO PARA USO DE LA CORTE}
NOTICE TO DEFENDANT: (AVISO AL DEMANDADO):
LITHIUM TECHNOLOGIES, INC. and DOES 1 through 100
YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTf'.):
MINOR VENTURES LLC
In v!i/S;V(k@J
NOT/CEI You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to. file a written response at this court and have a copy served on the plaintiff. A letter or phone call wUl not protect you. Your wrltten response must be in proper /egal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these- court forms and more information at the California Courts Online Center (www.cDurtlnfo.ca.gov/selfhelp). your county law library, orthe courthouse nearest you. If you cannot pay the filIng fes, ask the court clerk for a fee wa[ver form. tfyou do not file yoUt response on.lIme, you may lose- the case by defaUlt, and your wages, I'mmey, and property may be taken without further Warning from the court,
There are other legal requirements. You may want to call an attorney right away, If yot! do not know an attorney, you may want to call an aUomey referral selVjce, If you cannot afford an attorney, you mw be elJglble for free legal services from a: nonprofit legal services program, You can locate these nonprofit groups at the California Legal Services Web site (www.lawheJpCefifomia.or(/}. the California Courts Online Center {www.couriinfo.ca.govlselfhelp). or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waNed fees and costs on any settlement or arbitration award of $10,000 or more in a eMI case, The court's lien must be paid before the court wlir dismiss the case. lAVISOI La han ciem-andado. SI no responde dentro de 30 dlas, fa colts- puede decid/r en su contra sfn escuchar su version. Lea la informacion a continuaci6n. .
Tfene 30 nlAS DiE CALENDAR-fO despues de qr,Je Ie esta citac:J6n y papeJes legales para presenfar una re.spue$fa pOr' escrito en asta corte y hacer' que Se entrague Una copla sJ demandante. Una Carta 0 una J(amada teif!:!/6niC8 no fo protegen. Su respuesta por escrito ilene que estar en fonnato /ega' oorrecto sl desea que proce-sen su caso en Is corte. Es posible que haya un fonnulario que usted pueda usar para su resiJUesia.. Puede enconirar esros formularlos de la corle y mas informacIon en el Centro de Ayuda de las cortes de Cafif()rnia (ww'-N.$ueorte.ca.gov), en /a blblfoteca de /eyes de su (:ondado 0 en la corle que Ie quada mas cerca, Si no puede pagar la euota de presentaciem, pida al secretarfo de la corte que Ie de un formulario de exenai6n de pago de cuotas. SI no presenta 8"U respuesfa a tiempo. puede perdere/ por incumpllmiento y fa corle Ie podro qllitar su sue/do, dinero y blenes sin mas adverfencJa
Hay otros req/J/sltos legalas. Es £ecomendable que Ilame a un B.bogado inmadlatamenre-. Si no canace a un abogado, (wede flamar a un servicjo de remisi6n a abogadO$, Sf no puede pagar a un abogado, $8 pos/ble que cumpJa con los requisitos para obtener seN/cios legales gratuflos de un programa de servfcios legates sin flnes de luera. Puede encontrar esros gropos sin fines de IUCfO en el siilo web de CalifornIa Legal SeNices, (\rVWWJawhelpca!ffomia.org), en el Centro de Ayuda de las Cortes de Cal!1omja, (WW'W.sucorte.ca.gov) 0 panlendose en contacto con la COfte 0 el coleglo de abogados !acales. AVISO: Por ley, la corte ffene derBcho a mclamar las Cllotas y los costas exentos por imponar un gravamen sabre cua/quler recl,lper:ac16n de $10,000 6 mas de valor ree/blda meci1ante un acuerda 0 una conces;6n de arbittaja en un caso de derecho civil, Tiene que pa.gar el gravamen de fa corte antes de que fa corte pueda de-BOOhar el caso.
CASE NUMBER: The name and address of the court is: (EI nombre y direeei6n de la corte es): Superior Court of the State of California, for the County of San Francisco· Civic Center
.400 McAllister Street C 0 - 5 0 2 9 5 7
San Francisco, CA 94102 The name, address, and telephone number of plaintifrs attorney, or plaintiff without an attorney, Is: (EI nombre, la direcci6n y el numero df1 fe/Mono de' abogado del demandante, 0 del demandante que no tiene abogado, es): Michael M. Amir DOLL AMIR & ELEY LLP, 1888 Century Park East, Suite 1106, Los Angeles, CA 90067; Tel: (310)
DATE: G 2, 4, Clerk, by (Fecha) (Secretario) (For proof of selViee of this summons, use Proof of Service of Summons (form POS-01 0).) (Pare prueba de entrega de esla cilati6n use el formulario Proof of Service of Summons, (POS-otO)).
NOTICE TO THE PERSON SERVED: You are served 1. 0 as an Individual defendant. [SEAL!
2. 0 as the person sued under the flolilious name of (spacify):
3, 0 on behalf of (specify):
, Depuly (Ad junto)
0 CCP416.10(cmporation) 0 CCP 416.60 (minor) o CCP 416,20 (defunclcorporatlon) 0 CCP 416.70 (conservalee)
Form Adopted for Mandatwy Use Judtcial Council of California
[Rev. July 1. 2009)
o CCP 416.40 (association or partnership) 0 CCP 416.90 (authorized person) o other (specify):
4. 0 by personal delivery on (date):
SUMMONS Page 1 011
Coda of CIvil ProcWllI'e§§ 412..20, 465
Amerlt:a11 LegalNeI, ITlC. I
8/24/10 First Legal
ATTORNEY OR PARTY WITHOUT ATTORNEY (N(!.m6', B<1rnumbgr., endacidr6'ss): Michael M. Amir (SBN 204491) DOLL AMIR & ELEY LLP 1888 Century Park East, Suite 1106 Los Angeles, CA 90067
TElEPI-lONENO.: (310) 557-9100 FAXN"O.: (310) 557-9101 ATroRNEYFOR Plaintiff Minor Ventures LL
SUPERIOR COURT OF CALIFORNIA., COUNTY or SAN FRANCISCO srRl:.ET ADDRESS: 400 McAllister Street MAllINGAODRESS: 400 McAllister Street
crr'r' AND ZlP OODE: San Francisco, CA 94102 BRANCH NAME: Civic Center Courthouse
CASE NAME: MINOR VENTURES LLC v. LITHIUM TECHNOLOGIES. INC. and DOES 1 through 100
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BY --___ ._ .. r:f:I.'Cif'l'!U.JJ:}}J··c _o,,_ .--l '-\"
CASE NUM8ER:
1 CIVIL CASE COVER SHEET· Complex Case Designation W Unlimited D Limited D . D . t:!. G C
{Amount {Amount Counter JOInUr ::1 JUDGE:
demanded demanded Is Filed with first appearanoe by defendant I exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) OEPT:
Items 1-6 below must be completed (see InstrucUons on page 2) 1. Check one box below for the case type that best describes this case:
Auto- Tort D Auto(22) o Uninsured motorist (46) Other PfIp·DIWD Injury/Property DamagelWrongful Da:ath) Tort D Asbestos (04) D Product liability (24) D Medical malprocl1ce (45) D . Other PIIPDIWO (23) Non-PIIPDIWD (Other) Tort D Business tort/unfair business practice (07) D Civil rights (08) D Defamaion (13) W Fraud (16) D Intellectual property (19) o ProfessIonal negligence (25) D Othe, non·PUPDiWD tort (35) Employment D Wrongful terminallon (36) D Other employment (15)
Contract o Breach of contracVwarranty (06) D Rule 3.740 coUecUons (09) D OIMr collections (09) D D
Insuranoo c.overage (18) Other contract {37)
Real Property D Eminent domain/Inverse
condemnation (14) D Wtongful eviction (33) D Other real property (26) Unlawful DetaIner. D Commercial (31) D Residential (32) D Drugs(38) Judicial Review D Asset fo!feitu,e (05) D D D
PeUfiCln re: arbitration award (11) Writ of rrnmdale (02) Qjher JudIcial review (39)
Provisionally Complsx CiVil Litigation (Cal. Rule. of Court, rules 3.400-M03)
D D D
AntitrustJTrade regulation (03) Construction defect (10) Mass tort (40)
D Securities ntigafion {28) D Environmental/Toxic tort (30) D Insurance- coverage claims arising from the
above Hsted provisionally complex case types (41)
Enforcement of Judgment D Enforcement of ludgment (20) Miscellaneous CIvil Complaint D RICO(27) . D Other oomplaint (not specified above) (42) Miscellaneous eMl Petition D Partnership and corporate govemance (21) o Other petition (not specJlied above) (43)
2. This case LJ Is LxJ is not complex under rule 3.400 of the California Rules of Court, If the case is complex, mark the factors requaring exceptional judicial management a.D b.D
large number of separately represented parties Extensive motion practice raising difficult aT novel issues that wilf be- ttme-consuming to resolve
c, D Substantial amount of documentary evidence
d.D Large number of witnesses e. D Coordination with related actions pending in one or more courts
In other counties, states, or countries, or in a federal court f. D Substantial judicial supeTVision
3. Remedies sought (check .11 tMt apply); a.W monetary b. D nonmonetary; declaratory or injunctive relief . c. Wpunitive 4. Number of causes of action (speoify): 5. This case D is W is not a class action suit. 6. If there" are any known related cases, file and serve a notice of related case, (You ma
Date: August 24, 2010
Michael M Amir (TYPE OR PRINT NAM
NOTICE • PlaIntiff must fire this cover sheet with the first paper filed in the action or proceeding {except small claims cases or: cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court. rule 3.220.) Failure to file may ,esult in sanctions.
• File this GOver sheet in addition to any cover sheet required by local court rule. o If this case is complex under rule 3.400 et seq. olthe California Rules of Court, you must serve a copy of this cover sheet on ali
other parties to the action or proceeding. • Unless this is a collections case under rUle 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
Pafle 1 of2 Fol1tl AdOptad for Mandalory
Jucflclrd COllnell of CsHfomia CM-010 [Rev, July 1, 2007]
CIVIL CASE COVER SHEET Cal. Rules of Court, rules2.30, 3.740: Cal. Standards of JudiC:iid Adlnllll!1ra!ion. sli1. 3.10
WI\II\',cotutinlO.ca,gaV
8/24110 First Legal
111 DOLL AMIR & ELEY LLP MICHAEL M. AMIR (SBN 204491)
2111888 Century Park East Suite 1106
3 II Los California 90067 Telephone: 310) 557-9100
4 FacsImile: 310) 557-9101
5 Attorneys for Plaintiff 6" MINOR VENTURES LLC
4156261,331
o CLHiK
BY ""_,,,,re':,!:ll,'
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO - CIVIC CENTER 10
11 II MINOR VENTURES LLC,
12
13
14 v.
Plaintiff,
15" LITHIUM TECHNOLOGIES, INC. and 1611DOES 1 through 100, Inclusive,
17 Defendants. 18 1+-1 -------------"
19
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23
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25
26
27
28
- 1 0 - 5 0 2 95 "f
COMPLAINT FOR FRAUD
DEMAND FOR JURY TRIAL
COMPLAINT
8/24/10 First Legal 4156261331
1 1. Plaintiff Minor Ventures, LLC ("Minor Ventures" or "Plaintiff'), by
2 II its undersigned attorneys, alleges on Imowledge as to itself and its conduct, and
3 II upon information and belief as to all other matters, as follows:
411 INTRODUCTION
5 2. Plaintiff Minor Ventures is a venture capital firm that launches
611 technology and media enterprises, and provides capital and strategic guidance to
711 early stage companies. Once such company that Minor Ventures invested in was
811 Scout Labs, a private company primarily engaged in measuring and managing
9 social media.
10 3. In early March 2010, Defendant Lithium Technologies, Inc.
1111 ("Lithium") - which provides customer tracking information to online and in-store
12 II merchants in the attempt to create a social customer network - approached the
13 II shareholders of Scout Labs, including Minor Ventures, with a bid to purchase all
1411 of their shares for approximately $20 million. Lithium touted itself as a cash-rich
15 II company that could purchase Scout Labs in an all cash deal. There was one
16 II problem. Unbelmownst to Minor Ventures, Lithium did not have nearly enough
1711 cash to purchase Scout Labs. Lithium, therefore, subsequently changed the terms
1811 of the deal. It offered to purchase Minor Ventures' shares for roughly $9 million
1911 in cash plus Lithium Series C-l preferred stock. It represented the stock to be
20 II worth more than $10 million. In that regard, Lithium fraudulently inflated the
2111 value of its stock, which it represented as highly in demand and oversubscribed.
2211 To prevent Minor Ventures from discovering the true value of its stock (which
23 II was about half of what Lithium represented) and the fact that there was no market
2411 for Lithium stock - much less the "healthy secondary market" which it represented
25 11- Lithium told Minor Ventures that any contact with investors or potential
2611 investors would interfere with Lithium's ability to complete its Series C round.
2711 4. Following the transaction and Lithium's completion of its Series C
28 II round, Minor Ventures asked Lithium to identify the "potential investors." The
-1-COMPLAINT
8/24/10 First Legal 4156261331
111 "potential investors" Lithium identified were merely Lithium insiders who had no
211 interest in buying Lithium shares at "full" value. Instead, each and every one
3 II offered to purchase the stock at half its originally-represented value.
4 5. In sum, the evidence in this case will establish that Lithium could not
511 afford to buy what it wanted-it did not have the cash. So Lithium took
611 something it did have-its own stock-and lied about its value, to take what it
711 wanted anyway. This is, sadly, a familiar story. It is also a classic case of fraud.
811 Tellingly, Lithium's CFO resigned shortly after the transaction at issue in this
911 case.
10 11 6.
PARTIES Plaintiff Minor Ventures, LLC is a limited liability company located
1211 at 199 Freemont Street, San Francisco, California 94105.
13 7. Defendant Lithium Technologies, Inc. is a corporation with its
1411 corporate headquarters located at 6121 Hollis Street, Suite 4, Emeryville, CA
151194608.
16 8. The true names and capacities, whether individual, corporate,
1711 associate or otherwise, of defendants DOES 1 through 10, inclusive, are unknown
1811 to Plaintiff, and Plaintiff therefore sues said defendants by such fictitious names.
1911 Plaintiff will amend the Complaint to show the true names and capacities when
20 II they have been ascertained.
21 9. Plaintiff is informed and believes, and on that basis alleges, that each
2211 of the defendants named herein as a "DOE" is in some way responsible for the acts
23 II and events alleged herein.
2411 10. Plaintiff is informed and believes, and on that basis alleges, that at all
25 II times mentioned herein, Defendants, including DOE defendants, and each of them,
2611 were the agents, servants, employees, representatives, partners, subsidiaries,
2711 affiliates, joint ventures or alter-egos of each other, and in doing the things herein
28 II alleged, were acting within the full course and scope of such relationship, and with
-2-COMPLAINT
8/24/10 First Legal 4156261331
1 II the full knowledge, authorization, consent and ratification, either express or
211 implied, of each of the other defendants.
311 VENUE 411 10. Venue is proper under Section 395 of the California Code of Civil
5 II Procedure because this action is based on conduct which took place within the
6 II County of San Francisco.
711 GENERAL ALLEGATIONS
8 9. In February 2010, Lithium, through its agents, approached Minor
911 Ventures to ask whether it could purchase Minor Ventures' interest in Scout Labs.
10 10. Minor Ventures founded Scout Labs in 2006, and since that time,
11 Scout Labs had grown into an extremely profitable enterprise.
1211 11. On March 11,2010, Lithium's CEO, Lyle Fong, approached Scout
1311 Labs' board with an initial all-cash bid. A shareholder meeting took place at
1411Minor Ventures' headquarters, at 199 Freemont Street, San Francisco, CA 94608.
1511 Ron Palmeri, a corporate director of Minor Ventures, was present, along with
16 II other shareholders. Lyle Fong stated that Lithium was a "healthy company" and
1711 could make an all cash bid of nearly $20 million.
18 II 12. F ong knew that this statement was false. Lithium did not have the
19 cash reserves to make a $20 million all-cash offer. Nor could Lithium offer stock
20 to shore the difference between its actual cash reserves and $20 million. In other
21 words, Lithium was not a "healthy company."
22 II 13. Based on the rosy picture F ong represented, Minor Ventures
23 II considered Fong's offer to be attractive, and pursued negotiations. At a
2411 subsequent meeting between Fong and Palmeri at Roys, a restaurant located at 575
25 II Mission Street, San Francisco, CA 94105, Fong made additional
2611 misrepresentations to Palmeri. In particular, Fong stated that Lithium would need
2711 the deal to include some Lithium stock as well as cash. Fong stated that the
2811 Lithium Series C stock was "oversubscribed," meaning that there was an
-3-COMPLAINT
8124110 First Legal 4156261331
1 II extremely high level of interest in it, and that there were many individuals who
2 II would be interested in purchasing the stock at $3.1947 a share. Fong stated that,
3 II following the transaction, he would provide Minor Ventures with the identities of
411 the potential investors. Fong knew that these statements were false when he made
5 II them. In truth, the Series C stock was worth, at most, half its stated price.
611 Additionally, there was little to no interest in it on the market.
711 16. Based on Fong's representations, Minor Ventures ultimately
811 approved the deal. On May 6, 2010, Minor Ventures sold its shares in Scout Labs
9 II to Lithium in a part cash, part stock deal.
10 II 17. Soon thereafter, Minor Ventures learned that Fong's statements had
llilbeen false. None of the individuals Fong identified as eager investors wanted to
1211 purchase the stock at the $3.1947 share price. Instead, each and every "investor"
13 II has offered 50 cents on the dollar. Accordingly, Minor Ventures has been left
1411 with devalued stock in Lithium that it does not want and cannot sell. 15 FIRST CAUSE OF ACTION
1611 (Intentional Misrepresentation -- Fraud) 17 II 18. Plaintiff hereby incorporates by reference and realleges each and
1811 every allegation contained above, as though fully set forth herein.
1911 19. On March 11,2010, at Minor Ventures' headquarters, located at 199
20 II Freemont Street, San Francisco CA, 94608, Fong, acting in his capacity as CEO of
2111 Lithium, stated that Lithium had the financial resources to make an all-cash bid for
2211 Scout Labs. Fong made these statements to Palmeri and other agents of Minor
23 Ventures.
24 20. Fong lmew, at the time, that his statements were false. Lithium did
25 II not have the ability to raise the cash necessary to make the purchase, and Lithium
26 II did not have the resources to cover the price through other means. F ong' s
2711 statements were performed maliciously, willfully and wrongfully, and with a
2811 conscious disregard for Minor Ventures' rights.
-4-COMPLAINT
8/24110 First Legal 4156261331
1 II 21. On June 18, 2010, at Roys Restaurant, located at 575 Mission Street,
211 San Francisco, CA 94105, Fong, acting in his capacity as CEO of Lithium, told
3 II Palmeri that Lithium would prefer a deal in which Lithium Series C stock was
4 II included. F ong stated that the stock was oversubscribed, and that there would be
5 II many willing buyers for the stock at $3.1947 a share. F ong stated that he would
611 provide Palmeri with a list of those prospective buyers.
711 22. Fong knew, at the time, that his statements were false. The Lithium
8 II Series C stock was worth, at most, half the price that he had named. The
911 individuals on Fong's list were actually Lithium insiders who were interested in
10 lithe success ofthe deal. Fong's statements were performed maliciously, willfully
1111 and wrongfully, and with a conscious disregard for Minor Ventures' rights.
1211 23. Fong made these false, fraudulent, and misleading statements to
13 II induce Minor Ventures to sell its shares in Scout Labs to Lithium. F ong
1411 misrepresented Lithium's ability to raise the cash necessary for the purchase and
15 II the price of the Series C stock so that Lithium could buy Scout Labs for less than
16 it was worth.
17 24. Minor Ventures relied on these false, fraudulent and misleading
18 II statements in choosing to sell Scout Labs to Lithium.
19 25. Minor Venture's reliance was reasonable. It was reasonable to
20 believe that Fong would not misrepresent his company's financial state or the
21\\ worth of its stock. 22 26. In relying on these false, fraudulent and misleading statements, Minor
23 II Ventures incurred significant damage. Minor Ventures accepted shares of Lithium
2411 Series C stock in place of the cash that, according to Fong, Minor Ventures could
25 II raise from its sale. Minor Ventures cannot currently find a buyer at anywhere near
2611 Fong's stated price.
27 II 27. Minor Ventures' reliance on Fong's false, fraudulent and misleading
28 II statements was a substantial factor in the harm that Minor Ventures incurred.
-5-COMPLAINT
8/24/10 First Legal 4156261331
111 First, Minor Ventures would not have even considered a deal with Lithium if it
211 knew that Lithium could not actually pay the price that Fong initially quoted.
3 II Second, Minor Ventures would not have agreed to a deal including Lithium Series
4 II C stock if it had known that the Series C stock was worth half the price F ong had
5 II assigned it, and if it had known that there were few willing buyers for the stock.
611 SECOND CAUSE OF ACTION
711 (Fraudulent Concealment)
811 28. Plaintiff re-alleges each and every allegation set forth in paragraphs 1
911 through 17, above, and incorporates them herein by this reference.
10 II 29. As more fully explained above, and incorporated herein, Defendants
11 II deliberately failed to disclose and actively concealed material facts that would
1211 have shown that the true value of Lithium stock, the lack of investors who were
1311 willing to purchase Lithium shares at the stated stock price, the lack of interest in
1411 the company, and Lithium's inability to purchase Scout Labs in an all cash deal.
1511 30. Defendants also knew that the truth about such subjects would
1611 undermine the chance that Plaintiff would agree to accept Lithium stock as
1711 consideration for Minor Ventures' shares. Therefore, Defendants concealed or
1811 suppressed materials facts regarding Lithium's finances and interest in the
19 II company with the intent to deceive Plaintiff and an intent to induce Plaintiff into
20 II accepting Lithium stock as compensation for its shares. Plaintiff was unaware of
21 lithe concealed or suppressed facts and would not have accepted the Lithium stock
22 if Plaintiff had known the facts.
23 31. Plaintiff reasonably and justifiably relied on Defendants'
2411 misrepresentations. Plaintiff had no reason to believe that Defendants were not
25 II telling the truth.
2611 32. As a result of Plaintiffs actual and justifiable reliance on Defendants'
2711 conduct, Plaintiff has been damaged in the amount to be proven at trial but which
2811 substantially exceeds the jurisdictional minimum.
-6-COMPLAINT
8/24/10 First Legal 4156261331
111 33. In committing the foregoing acts, Defendants, and each ofthem, acted
211 with fraud, oppression and malice. Plaintiff is therefore entitled to an award of
311 punitive damages against each of them, jointly and severally, pursuant to
4 California Civil Code section 3294.
5 PRAYER FOR RELIEF 611 WHEREFORE, Plaintiff prays for judgment and relief as follows:
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l. 2.
3.
4.
For damages in an amount to be determined at trial;
For interest on all such amounts at the highest legal rate from
the date such damages were incurred;
For punitive damages;
For such other and further relief as may be just and proper.
13 DATED: August 24, 2010 DOLL AMIR & ELEY LLP
14
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16 , , M. Arrilr 17 r Plaintiff Minor Ventures, LLC
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-7-COMPLAINT
CASE NUMBER: CGC-10-502957 MINOR VENTURES LLC VS. LITHIUM TECHNOLOGIES, IN
NOTICE TO PLAINTIFF
A Case Management Conference is set for:
DATE:
TIME: 9:00AM
PLACE: Department 212 400 McAllister Street San Francisco, CA 94102-3680
All parties must appear and comply with Local Rule 3.
CRC 3.725 requires the filing and service of a case management statement form CM-11 0 no later than 15 days before the case management conference.
However, it would facilitate the is&.uanceof a case management order without an appearance at the case management conference if the case management statement is filed, served and lodged in Department 212 twenty-five (25) days before the case management
Plaintiff must serve a copy of this 'notice upon each party to this action with the summons and complaint. Proof of service subsequently filed with this court shall so state.
ALTERNATIVE DISPUTE RESOLUTION POLICY REQUIREMENTS
IT IS THE POLICY OF THE SUPERIOR COURT THAT EVERY CIVIL CASE PARTICIPATE IN EITHER MEDIATION, JUDICIAL OR NON-JUDICIAL ARBITRATION, THE EARLY SETTLEMENT PROGRAM OR SOME SUITABLE FORM OF ALTERNATIVE DISPUTE RESOLUTION PRIOR TO A MANDATORY SETTLEMENT CONFERENCE OR TRIAL. (SEE LOCAL RULE 4)
Plaintiff must serve a copy of the Alternative Dispute Resolution Information Package on each defendant along with the complaint.' All counsel must discuss ADR with clients and opposing counsel and provide clients with a);:opy of the Alternative Dispute Resolution Information Package prior to filing the Case Management Statement.
[DEFENDANTS: Attending the Case Management Conference does not take the place of filing a written to the complaint. You must file a written response with the court within the time limit required by law. See Summons.]
Superior Court Alternative Dispute Resolution. Coordinator 400 McAllister Street, Room '103 , San Francisco, CA 94102 (415) 551-3876 See Local Rules 3.6, 6.0 C and 10 D re stipulation to commissioners acting as temporary judges
Alternative Dispute Resolution (ADR) Program Information Package
Alternatives to Trial
There are other ways to resolve a civil dispute.
The plaintiff must serve a copy of the ADR information package on each defendant along with the complaint. (CRC 3.221(C))
ADR-l 09/08 Gal
Superior Court of California County of San Francisco
Page 1
Introduction
Did you know that most civil lawsuits settle without a trial?
And did you know that there are a number of ways to resolve civil disputes without having to sue somebody?
These alternatives to a lawsuit are known as alternative dispute resolutions (ADR). The most common forms of ADR are mediation, arbitration and case evaluation. There are a number of other kinds of ADR as well.
In ADR, trained, impartial persons decide disputes or help parties decide disputes themselves. These persons are called neutrals. For example, in mediation, the neutral is the mediator. Neutrals normally are chosen by the disputing parties or by the court. Neutrals can help parties resolve disputes without having to go to court.
ADR is not new. ADR is available in many communities through dispute resolution programs and private neutrals.
Advantages of ADR
ADR can have a number of advantages over a lawsuit.
• ADR can save time. A dispute often can be resolved in a matter of months, even weeks, through ADR, while a lawsuit can take years.
• ADR can save money. Court costs, attorneys fees, and expert fees can be saved.
• ADR can be cooperative. This means that the parties having a dispute may work together with the neutral to resolve the dispute and agree to a remedy that makes sense to them, rather than work against each other.
• ADR can reduce stress. There are fewer, if any, court appearances. And because ADR can be speedier, and save money, and because the parties are normally cooperative, ADR is eaSier on the nerves. The parties don't have a lawsuit hanging over their heads for years.
• ADR encourages participation. The parties may have more chances to tell their side of the story than in court and may have more control over the outcome.
• ADR is flexible. The parties can choose the ADR process that is best for them. For example, in mediation the parties may decide how to resolve their dispute.
• ADR can be more satisfying. For all the above reasons, many people have reported a high degree of satisfaction with ADR.
ADR-l 09/08 Gal Page 2
ALTERNATIVE DISPUTE RESOLUTION PROGRAMS onne San Francisco Superior Court
"It is the policy of the Superior Court that every noncriminal, nonjuvenile case participate either in an early settlement conference, mediation, arbitration, early neutral evaluation or some other alternative dispute resolution process prior to a mandatory settlement conference or trial." (Superior Court Local Rule 4)
This guide is designed to assist attorneys, their clients and self-represented litigants in complying with San Francisco Superior Court's alternative dispute resolution ("ADR") policy. Attorneys are encouraged to share this guide with clients. By making informed choices about dispute resolution alternatives, attorneys, their clients and self-represented litigants may achieve a more satisfying resolution of civil disputes.
The San Francisco Superior Court currently offers three ADR programs for general civil matters; each program is described below:
1) Judicial Arbitration 2) Mediation 3) The Early Settlement Program (ESP) in conjunction with the
San Francisco Bar Association.
JUDICIAL ARBITRATION
Description
In arbitration, a neutral "arbitrator" presides at a hearing where the parties present evidence through exhibits and testimony. The arbitrator applies the law to the facts of the case and makes an award based upon the merits of the case. When the Court orders a case to arbitration it is called judicial arbitration. The goal of arbitration is to provide parties with an adjudication that is earlier, faster, less formal, and usually less expensive than a trial. Upon stipulation of all parties, other civil matters may be submitted to judicial arbitration.
Although not currently a part of the Court's ADR program, civil disputes may also be resolved through private arbitration. Here, the parties
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A mediator does not propose a judgment or provide an evaluation of the merits and value of the case. Many attorneys and titigants find that mediation's emphasis on cooperative dispute resolution produces more satisfactory and enduring resolutions. Mediation's non-adversarial approach is particularly effective in disputes in which the parties have a continuing relationship, where there are multiple parties, where equitable relief is sought, or where strong personal feelings exist.
Operation
San Francisco Superior Court Local Court Rule 4 provides three different voluntary mediation programs for civil disputes. An appropriate program is available for all civil cases, regardless of the type of action or type of relief sought.
To help litigants and attorneys identify qualified mediators, the Superior Court maintains a list of mediation providers whose training and experience have been reviewed and approved by the Court. The list of court approved mediation providers can be found at www.sfgov.org/courts. Litigants are not limited to mediators on the court list and may select any mediator agreed upon by all parties. A mediation provider need not be an attorney.
Local Rule 4.2 D allows for mediation in lieu of judicial arbitration, so long as the parties file a stipulation to mediate within 240 days from the date the complaint is filed. If settlement is not reached through mediation, a case proceeds to trial as scheduled.
Private Mediation
The Private Mediation program accommodates cases that wish to participate in private mediation to fulfill the court's alternative dispute resolution requirement. The parties select a mediator, panel of mediators or mediation program of their choice to conduct the mediation. The cost of mediation is borne by the parties equally unless the parties agree otherwise.
Parties in civil cases that have not been ordered to arbitration may consent to private mediation at any point before trial. Parties willing to submit a matter to private mediation should indicate this preference on the Stipulation to Alternative Dispute Resolution form or the Case Management Statement (CM-110). Both forms are attached to this packet.
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Cost
Generally, the cost of Private Mediation ranges from $100 per hour to $800 per hour and is shared equally by the parties. Many mediators are willing to adjust their fees depending upon the income and resources of the parties. Any party who meets certain eligibility requirements may ask the court to appoint a mediator to serve at no cost to the parties.
The Mediation Services of the Bar Association of San Francisco provides three hours of mediation time at no cost with a $250 per party administrative fee.
There is no charge for participation in the Judicial Mediation program.
EARLY SETTLEMENT PROGRAM
Description
The Bar Association of San Francisco, in cooperation with the Court, offers an Early Settlement Program ("ESP") as part of the Court's settlement conference calendar. The goal of early settlement is to provide participants an opportunity to reach a mutually acceptable settlement that resolves all or part of the dispute. The two-member volunteer attorney panel reflects a balance between plaintiff and defense attorneys with at least 10 years of trial experience.
As in mediation, there is no set format for the settlement conference. A conference typically begins with a brief meeting with all parties and counsel, in which each is given an opportunity to make an initial statement. The panelists then assist the parties in understanding and candidly discussing the strengths and weaknesses of the case. The Early Settlement Conference is considered a "quasi-judicial" proceeding and, therefore, is not entitled to the statutory confidentiality protections afforded to mediation. .
Operation
Civil cases enter the ESP either voluntarily or through assignment by the Court. Parties who wish to choose the early settlement process should indicate this preference on the status and setting conference statement.
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v.
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO
400 McAllister Street, San Francisco, CA 94102-4514
Plaintiff
Defendant
Case No. ___________ _
STIPULATION TO ALTERNATIVE DISPUTE RESOLUTION
DEPARTMENT 212
The parties hereby stipulate that this action shall be submitted to the following alternative dispute resolution process:
Private Mediation D Binding arbitration Non-binding judicial arbitration BASF Early Settlement Program
Mediation Services of BASF D' Judicial Mediation Judge _______ _ Judge _______ _
D D D D D Other ADR process (describe) _________________________ _
Plaintiff(s) and Defendant(s) further agree as follows:
Name of Party Stipulating Name of Party or Attorney Executing Stipulation Signature of Party or Attorney
o Plaintiff o Defendant o Cross-defendant Dated: ____ . ______ _
Name of Party Stipulating Name of Party or Attorney Executing Strpulation Signature of Party or Attorney
o Plaintiff o Defendant o Cross-defendant Dated: __________ _
Name of Party Stipulating Name of Party or Attorney Executing Stipulatfon Signature of Party or Attorney
o Plaintiff o Defendant o Cross-defendant Dated; ___________ _
D Additional signature(s) attached
ADR-2 05/10 STIPULATION TO ALTERNATIVE DISPUTE RESOLUTION
CM-110 ATTORNEY OR PARTY WITHOUT AITORNEY (Name. State Bar number. and address)'. FOR COURT USE ONL Y
I-
TELEPHONE NO.: FAX NO. (Optional)
E-MAIL ADDRESS (Optional)'
ATTORNEY FOR (Name):
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS:
MAILING ADDRESS:
CITY AND ZIP CODE:
BRANCH NAME:
PLAINTIFFIPETITIONER:
DEFENDANT/RESPONDENT:
CASE MANAGEMENT STATEMENT CASE NUMBER:
(Check one): D UNLIMITED CASE D LIMITED CASE (Amount demanded (Amount demanded is $25,000 exceeds $25,000) or less)
I A CASE MANAGEMENT CONFERENCE is scheduled as follows:
Date: Time: Dept.: Div.: Room: Address of court (if different from the address above):
D Notice of Intent to Appear by Telephone, by (name):
INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided.
1. Party or parties (answer one): a. D This statement is submitted by party (name): b. D This statement is submitted jointly by parties (names):
2. Complaint and cross-complaint (to be answered by plaintiffs and cross-complainants only) a. The complaint was filed on (date): b. D The cross-complaint, if any, was filed on (date):
3. Service (to be answered by plaintiffs and cross-complainants only) a. c:=J All parties named in the complaint and cross-complaint have been served, or have appeared, or have been dismissed. b. D The following parties named in the complaint or cross-complaint
(1) D have not been served (specify names and explain why not):
(2) D have been served but have not appeared and have not been dismissed (specify names):
(3) D have had a default entered against them (specify names):
c. D The following additional parties may be added (specify names, nature of involvement in case, and the date by which they may be served):
4. Description of case a. Type of case in D complaint
Form Adopted for Mandatory Use Judicial Council of California
CM-110 [Rev. January 1. 2009]
D cross-complaint (Describe, including causes of action):
CASE MANAGEMENT STATEMENT Page1of4
Cal. Rules of Court, rules 3.720-3.730
WWlN. courtinfo. ca.gov
I
i
PLAINTIFF/PETITIONER:
10. d. The party or parties are willing to participate in (check al/ that apply): (1) D Mediation
CM-110 CASE NUMBER:
(2) D Nonbinding judicial arbitration under Code of Civil Procedure section 1141.12 (discovery to close 15 days before arbitration under Cal. Rules of Court, rule 3.822)
(3) D Nonbinding judicial arbitration under Code of Civil Procedure section 1141.12 (discovery to remain open until 30 days before trial; order required under Cal. Rules of Court, rule 3.822)
(4) D Binding judicial arbitration (5) D Binding private arbitration (6) D Neutral case evaluation (7) D other (specify):
e. D This matter is subject to mandatory judicial arbitration because the amount in controversy does not exceed the statutory limit.
f. D Plaintiff elects to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code of Civil Procedure section 1141.11.
g. D This case is exempt from judicial arbitration under rule 3.811 of the California Rules of Court (specify exemption):
11. Settlement conference D The party or parties are willing to participate in an early settlement conference (specify when):
12. Insurance a. D Insurance carrier, if any, for party filing this statement (name):
b. Reservation of rights: DYes D No c. D Coverage issues will significantly affect resolution of this case (explain):
13. Jurisdiction Indicate any matters that may affect the court's jurisdiction or processing of this case, and describe the status. D Bankruptcy D Other (specify): Status:
14. Related cases, consolidation, and coordination 8. c=J There are companion, underlying, or related cases.
(1) Name of case: (2) Name of court: (3) Case number: (4) Status:
D Additional cases are described in Attachment 14a.· b. D A motion to D consolidate D coordinate
15. Bifurcation
will be filed by (name party):
c=:J The party or parties intend to file a motion for an order bifurcating, severing, or coordinating the following issues or causes of action (specify moving party, type of motion, and reasons):
16. other motions D The party or parties expect to file the following motions before trial (specify moving party, type of motion, and issues):
CM-110 [Rev. January 1, 2009J CASE MANAGEMENT STATEMENT Page 3 of 4
Superior CourLof California County of San Francisco
HON.JAMESJ. MCBRIDE PRESIDING JUDGE Judicial Mediation Program .ENIFFERB. ALCANTARA
ADR ADMINISTRATOR
The Judicial Mediation program offers mediation in civil litigation with a San Francisco Superior Court judge familiar with the area of the law that is the subject of the controversy. Cases that will be considered for participation in the program include,·but are not limited to personal injury, professional malpractice, construction, employment, insurance coverage disputes, mass torts and complex commercial litigation. Judicial Mediation offers civil litigants the opportunity to engage in early mediation of a case shortly after filing the complaint in an effort to resolve the matter before substantial funds are expended. This program may also be utilized at anytime throughout the litigation process. The panel of judges currently participating in the program includes:
The HonQrable Gail Dekreon The Honorable Ernest H. Goldsmith The Honorable Curtis Karnow The Honorable Charlene P. Kiesselbach The Honorable Tomar Mason The Honorable Anne-Christine Massullo The Honorable Ronald Quidachay
The Honorable A. James Robertson, II The Honorable Jeffrey S. Ross The Honorable John K. Stewart The Honorable Richard Ulmer The Honorable Monica F. Wiley The Honorable Mary E. Wiss
Parties interested in Judicial Mediation should file the StipUlation to Alternative Dispute Resolution form indicating a joint request for inclusion in the program and deliver a courtesy copy to Dept. 212. A preference for a specific judge may be indicated on the form but assignment to a particular judge is not guaranteed. Please allow at least 30 days from the filing of the form to receive the notice of assignment. The court Alternative Dispute Resolution Administrator will facilitate assignment of cases that qualifY for the program.
Note: Space and availability is limited. Submission of a stipulation to Judicial Mediation does not guarantee inclusion in the program. You will receive written notification from the court as to the outcome of your application.
03/2010 (rw)
Alternative Dispute Resolution 400 McAllister Street, Room 103, San Francisco, CA 94102
(415) 551-3876
