Judge: Michael D. Washington, Case: 37-2023-00019465-CU-PO-NC, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 16, 2024

05/17/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00019465-CU-PO-NC KEE JR. VS. KOLB [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 02/28/2024

The Motion to Compel Mediation brought by plaintiff Thomas Kee Jr. (Plaintiff) is DENIED.

The parties appeared before this Court for a Case Management Conference on March 22, 2024. (ROA 71.) At that time, trial of this matter was set to take place on September 6, 2024. (ROA 71.) The Court's Minutes from that hearing reflect the following: This matter is referred for Mediation forthwith per stipulation of the parties. Some form of ADR to be completed within 140 days. Mediator will be paid by parties. (ROA 71.) Unfortunately, the precise details of how the parties were to pay for mediation was never made clear by the parties in open court. As such, though the parties stipulated to mediate, there does not appear to be an enforceable agreement about how the parties would pay for that mediation. As such, the stipulation to mediate cannot be enforced if neither party is willing to pay for a mediator and, without a stipulation, the Court is without power to order private mediation. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) § 13:11, citing Jeld-Wen, Inc. v. Sup.Ct. (Marlborough Develop. Corp. (2007) 146 Cal.App.4th 536, 541 ('The court has no power, however, to order parties to attend and pay for private mediation over their objection.') (emphasis in original).) It would appear that defendants Frederic Kolb M.D. (Doctor Kolb) and The Regents of the University of California (the University) (collectively, Defendants) are now objecting.

However, private mediation (which is generally done with a private mediator) is different from a judicial settlement conference (which is generally done by a judge). The latter typically requires the parties to pay for the services of a mediator, but the latter is a free service provided by the courts. Because a settlement conference can be done without requiring payment by either party, courts have the power to order a mandatory settlement conference. (California Rules of Court, rule 3.1380.) At the Case Management Conference on this case on March 22, 2024, this Court ordered that 'some form of [alternative dispute resolution] ...be completed within 140 days.' As such, while the Court will not grant the present motion because it only requests an order compelling private mediation, the parties nonetheless remain under the effects of the prior order that they must complete some form of alternative dispute resolution, which may be a free settlement conference before a judicial officer. As such, the denial of the instant motion should not be construed as a statement that the parties are not required to engage in some form of alternative dispute resolution – just that if they cannot workout who will pay for a private mediator they will have to utilize the free court-provided settlement conference procedure.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, Calendar No.: Event ID:  TENTATIVE RULINGS

3096151 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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3096151