Hon. Paul Burdick (Ret.)

• Plaintiff, 67 year-old homeowner, entered into a Home Improvement Contract with a national chain for substantial hardscape work with paver installation. Plaintiff contended that defendant engaged in false advertising and made intentional misrepresentations to induce the contract, failed to obtain required permits for the work, negligently performed the work and delayed completion of the work. As a result, the project was red-tagged, astro-turf was installed in areas where pavers were promised, and the finished project failed to "meet the customer's satisfaction" - thus plaintiff claimed contractual entitlement to a full refund of the purchase price paid. In addition to claims for breach of contract and breach of the implied warranty that the work would be done in good and workmanlike manner, Plaintiff asserted claims under Business and Professions Code sections 17200, 17500 and Civil Code section 1750 (CLRA). Defendant contended the homeowner was required to obtain the necessary permits, when it was discovered that the necessary permit had not been issued, Defendant promptly secured it. It further asserted the work was performed pursuant to the contractual terms and industry standards, that Plaintiff's complaints related to trivial details that did not detract from the function or aesthetics of the project, that Plaintiff's varying and conflicting demands were unreasonable, that Plaintiff failed to satisfy conditions precedent to invoke the "customer satisfaction" provisions of the contract; that if any damages were suffered they were minimal, and that if Plaintiff were to obtain a full refund of the purchase price he would receive an unreasonable windfall by maintaining the substantial benefit of the fully completed project at no cost The dispute was subject to contractual binding arbitration. The case settled at mediation with arbitration pending
• A series of lawsuits were filed related to a multimillion-dollar international business dispute involving a California manufacturer of computer hard disk drives, a Singapore distributor, and the distributor’s US affiliates. The manufacturer’s Complaint alleged breach of contract and numerous business torts. Cross-complaints asserted the disc drives were defective. A settlement was reached resulting in a stipulated judgment whereby the Singapore distributor defendant executed a promissory note in the amount of $15 million to be paid over 5 years. The stipulated judgment required the US affiliate to pay $86.9 million in the event the Singapore defendant defaulted on the promissory note. The Singapore defendant ultimately defaulted. When the plaintiff was unable to collect on the $86.9 million judgment against the US defendant, an unopposed motion under CCP §187 was granted by another court to amend the judgement to add the US defendant’s former president, a resident of India, as a personal, alter ego judgment debtor. Five years later the individual specially appeared and moved to set aside the judgement against him as void pursuant to CCP 473(d). The motion was granted on the basis that the previous court had no jurisdiction to issue the order adding him as a judgment debtor, due to plaintiff’s failure to effect valid service of process on him in India and because of lack of compliance with the requirements of the Hague Service Convention. The ruling was affirmed on appeal.
• One of the largest berry farming operators in Pajaro Valley sued one of its contractual growers to recover an alleged debt of millions of dollars. Plaintiff alleged that it had a handshake agreement with the grower, performed for a period exceeding twenty years, to make advances to the grower to conduct his substantial berry growing operations, to package and transport the berries, and for payment of commissions earned on the national and international marketing and sales of the grower’s berries. Plaintiff maintained the books of account recording the advances made, expenses incurred, and sales revenue collected. Typical sales of the grower’s berries, generated and collected by the plaintiff, were in the range $25 to $30 million annually. The alleged debt for advances was secured by deeds of trust on the grower’s ranch and personal residence. The Complaint alleged causes of action on an open book account, claim and delivery, declaratory relief, and judicial foreclosure on the deeds. The grower asserted that plaintiff had failed to properly account for millions of dollars of his share of the annual sales of his raspberries, that the claimed advances were inflated, and years of accounting errors permeated the books of account. The grower cross-complained asserting causes of action for fraud, bad faith breach of contract, unjust enrichment, cancellation of the security instruments and quiet title. He asserted 32 affirmative defenses, including statute of limitations and laches. The equitable causes of action were bifurcated and tried to the Court over several weeks.

• City and County joined as petitioners seeking preliminary and permanent injunctions against the State of California to halt ongoing aerial spraying of the light brown apple moth over Santa Cruz County. The Department of Agriculture contended that targeted spraying, in multiple selected counties, was emergently required to combat the threat of statewide infestation and destruction of commercial farming operations of fruit trees, berry crops and grapes. Numerous high powered private agricultural entities and the U.S. Department of Agriculture supported the state’s position with amicus filings. The State’s asserted emergency right to aerial spray was challenged by the local government petitioners under CEQA. Judge Burdick granted the petition and ordered an immediate halt to all aerial spraying in Santa Cruz County. Following release of Judge Burdick’s decision, Governor Schwarzenegger ordered the Department to discontinue aerial spraying throughout the entire state. The U.S. Department of Agriculture then abandoned its threatened intention to pursue the spraying project on a federal level.
• Alleging CEQA violations, the City of Santa Cruz and a private citizens group sued the UC Regents, to halt the pending construction of a multi-million-dollar biomedical research facility and other long term development projects on the UCSC campus. Judge Burdick granted the petition for writ of mandate, ordered the Regents to rescind its certification of the environmental impact report, its approval of the long-range development plan, and prohibited the Regents from proceeding with construction of the biomedical facility. After release of Judge Burdick’s decision, the parties stipulated to stay appellate deadlines and consented to an order compelling mediation. After months of intensive mediation, the dispute was resolved without appeal. The mediation concluded with a historic comprehensive settlement agreement between the City, the private citizens group and the Regents concerning all aspects of the University’s long-term growth, including restrictions on campus housing buildouts, student populations, water usage and monetary contributions for traffic impacts. The settlement was consummated by Judgment pursuant to the parties’ stipulation.
• A private association of airport users challenged the adequacy of the City’s environmental analysis of its 2030 General Plan. The Plan authorized development of land adjacent to the Watsonville Municipal Airport and contemplated the construction of over 2,500 new dwelling units in the area. The California Department of Transportation- Division of Aeronautics was granted leave to intervene in the litigation because of potential impacts on state aviation. The State argued that the 2030 General Plan violated various provisions of the State Aeronautics Act. Following de novo review, the Sixth District Court of Appeal, in a published opinion (H034164), affirmed Judge Burdick’s judgment granting the petition for writ of mandate which required the City to set aside its approval of the development project.
• Plaintiff environmental association filed a writ petition against the City of Santa Cruz to halt the City’s planned construction of a paved bicycle corridor through a designated open space adjacent to natural wetlands populated by environmentally sensitive plant species. After the petition was denied, the association appealed. Judge Burdick’s decision, authorizing the City to proceed with construction, was affirmed by the Sixth District Court of Appeal in an oft-cited published opinion (H032502).
• The Seaside Company, owner of Santa Cruz Beach Boardwalk, sued the City of Santa Cruz and the State Lands Commission seeking declaratory relief that the City’s order to demolish a previously constructed parking lot on riverfront property extending into state tidelands was invalid, and establishing validity of the owner’s deed to the property by way of an 1867 grant from the federal government to its predecessor in interest, made under the authority of the 1848 Treaty of Guadalupe Hidalgo. Following a court trial, Judge Burdick granted the relief requested, and confirmed title to the property in the Seaside Company which conveyed rights that preceded, and took precedence over, rights of the public to the tidelands in question created by the later enacted public trust doctrine.

• Successfully mediated a case brought by Successor Trustee on behalf of a family trust relating to the sale of two adjoining commercial properties owned by the trust against their Real Estate Broker/CPA and attorney. The suit alleged causes of action for professional negligence, breach of fiduciary duty, financial elder abuse, fraud and concealment. Plaintiffs alleged that the Trust (through its 72-year-old infirm, widowed Trustee, who died months after the real estate purchase agreement was executed) entered into a listing agreement with the defendants for the sale of the property based on the defendants’ representations that they could assist in dealing with the myriad liens on the properties while marketing and selling them for future development. Plaintiffs alleged that defendants’ tortious conduct caused them to enter into a binding contract for a sales price of $9 million dollars when the actual market value was over $14 million dollars, that defendants demanded a six-figure commission despite having failed to obtain the statutorily required Agency Disclosure, and that when plaintiffs discovered that the sales price was below market value, they refused to perform and were then sued by the buyers for specific performance. Plaintiffs claimed damages for the difference between the sales price and the alleged market value, recission of the commission obligation, statutory treble damages for elder abuse, and punitive damages. Defendants were uninsured. The mediated settlement agreement was reached five days prior to trial.

• Mediated employment disability discrimination claims brought against a public entity in case involving long and complex history of repeated on-the-job injuries, surgeries, and temporary disability claims, alleged failure to accomodate disabilities during periods back at work, and instead giving lesser assignments on modified duty that would have resulted in loss of higher pay rate, and wrongful insistence on periods of unpaid leave, leading to constructive termination. The public entity strongly opposed each claim. Neverthless, following extended and well-timed mediation, achieved settlement of all claims.
• Successfully mediated an employment disability discrimination case brought against a public entity water district. During his ten years of employment, Plaintiff suffered a series of work-related injuries to his forearms, elbows, shoulders, knees, hips and back. Surgery was required to repair both elbows and the right knee. He had multiple periods of being temporarily totally disabled for which he received workers compensation benefits. Plaintiff alleged that on each occasion when he was released to work, with physician-imposed restrictions, defendant failed to properly engage in the statutorily required interactive process, failed to accommodate his restrictions, and retaliated against him by placing him on an unpaid leave of absence after he refused to work on modified duty that would have resulted in loss of his supervisor pay rate. Plaintiff alleged constructive termination because the accumulated time on unpaid leave made it impossible for him to continue his employment and he was forced to seek new employment. He asserted causes of action arising under the Fair Employment and Housing Act (FEHA) and Cal. Labor Code. Defendant asserted that it was Plaintiff who failed to reasonably engage in the interactive process, that he refused reasonable modified duty plans, that whenever he returned to work he re-injured himself performing routine tasks, that he was unable to perform at least one of the essential duties of his job even with reasonable accommodations, and that he was not subjected to any adverse employment action, rather he voluntarily resigned to pursue a better opportunity in the private sector.

• Successfully mediated a bad faith breach of a homeowners insurance contract case. Plaintiff homeowner purchased a tract home and obtained insurance for it through Defendant/Insurer. A few years after purchasing the home, a significant water leak manifested in a ceiling. Plaintiff immediately reported the leak to her insurer and requested assistance in stopping and repairing it. It was determined the leak emanated from a defective PEX water line, installed by the original mass developer/builder of the home. Defendant sent a series of its regular vendors to determine the extent and cause of the loss and determine the scope and amount of the covered cost of repairs together with Defendant's adjuster. Plaintiff then hired a separate contractor to assess the loss, who concluded that the actual scope of damage and cost to make the necessary repairs was substantially higher. Plaintiff claimed that Defendant unreasonably and tortiously low-balled its repair estimate with its "captive vendors" and then wrongfully asserted exclusions in the policy to try to avoid paying for necessary repairs; and unreasonably failed to advance and approve the full extent of her necessary temporary living expense benefits while the home was uninhabitable because the water main had to be turned off for over four months. Plaintiff also claimed that she suffered emotional distress from being forced to live in the home during that time with no running water due to Defendant's falure to pay for alternative lodging. The case settled at the initial mediation session after Plaintiff filed suit but before the parties engaged in any discovery.
• Following failed settlement negotiations arising from a solo automobile accident, injured passenger sued the insured driver. Driver’s insurer then sued the third-party claimant passenger for breach of their alleged settlement agreement. Granted summary judgement in favor of insurer against third-party liability claimant, on their respective cross-motions for summary judgement on the issue of whether a binding contract was created by insurer’s alleged acceptance of claimant’s time-limited $100,000 policy limit demand. Insurer contended that the claimant was contractually obligated to sign the bargained for “Release of All Claims” when it timely tendered the bodily injury policy limits of $100,000. Claimant contended that there was no acceptance of the offer to settle because insurer introduced a new term in the release, requiring a release of “all” claims. Claimant asserted that his offer to settle his bodily injury claim did not include an offer to settle any additional claims he might assert for property damage. The grant of summary judgment in favor of the insurer enforcing the settlement agreement was affirmed in a published decision by the Sixth District Court of Appeal. (H046475).
• Property owner suffered an adverse judgement following a trial, which resulted in the imposition of an easement across his property. His Title Insurer had previously rejected his tender of defense against the easement claim. Following trial of the underlying easement action, he sued the Title Insurer for bad faith breach of the title insurance contract. The parties waived a jury and the coverage issue was tried to the Court. In that action it was determined as a matter of law that the insurer breached the duty to defend, that its denial of coverage was wrongful, that it was therefore bound by the judgment in the underlying action, and that it was liable for all costs and attorneys’ fees incurred by the insured in defending the action, plus pre-judgement interest thereon and consequential damages for emotional distress and diminution in value of the property resulting from the easement.

• Presided over a jury trial brought by patient against his dentist in which plaintiff alleged that over a five-year period, defendant installed crowns on 19 of his teeth, eight of which had dental implants. The crowns on three teeth subsequently fractured and one tooth fractured at the gum line resulting in the fracture of a bridge. Plaintiff had paid defendant tens of thousands of dollars for the dental work. Upon failure of the crowns, he demanded a refund. Defendant suggested that plaintiff submit the matter to the peer review process administered by the California Dental Association to resolve his refund claim. A local component of the CDA administered the “peer review” and concluded that the patient’s claim was “valid”, he was entitled to a refund, but that no further harm was caused by the dentist’s treatment. Plaintiff rejected the peer review award and sued for professional negligence seeking over $100,000 in past and future treatment and $250,000 in general damages. Plaintiff sought to introduce the findings of the Peer Review Committee, arguing that Evidence Code section 1157 prohibits only “discovery” of peer review records, not their use at trial after they have been voluntarily disclosed to the patient. The motion to admit the records and findings of the peer review committee, which presented a legal issue of first impression, was denied. A defense verdict was rendered. Plaintiff appealed. The Sixth District Court of Appeal affirmed the ruling and judgment.
• Conducted scores of successful judicial mediations of every manner of medical malpractice case including negligent delivery of a newborn resulting in permanent brain damage, failure to timely diagnose cancer resulting in death, and elder abuse claims in the hospital setting.

• Successfully mediated this government tort claim alleging dangerous condition of public roadway arising from a solo bicycle accident. Plaintiff, age 70 and recently retired, was an experienced recreational road cyclist. At mid-day he was riding on a rural, mountainous, narrow, two-lane paved asphalt roadway on a downhill curve at a speed estimated at 22-25 mph, when he suddenly encountered a bulge or deformation of the road traversing his lane of travel. The deformation, resulting from a redwood tree root, described as the size of a speed bump, was obscured by shade. He was thrown over the handlebars and, despite being helmeted, was rendered unconscious and found prone in the roadway, bleeding profusely from the head, by a motorist who happened on the scene. The motorist summoned aid from a nearby homeowner who called 911. The homeowner reported to the investigating CHP officer that five years earlier another bicyclist suffered severe head injuries in an identical fashion on the same roadway deformation. The homeowner claimed that he reported the earlier accident to the County public works department and requested that the road be repaired. Plaintiff, suffered subarachnoid and subdural hemorrhages requiring brain surgery and severe fractures of the sinus and orbital bones. He was comatose for three weeks and required life supporting ventilation and a feeding tube. Plaintiff contended that despite notice of the dangerous condition the defendant failed to repair the road defect. Defendant County contended that despite the homeowner's claim of an oral report shortly after the first incident, it had no record of any call or report and no notice of any other kind from a citizen, or otherwise, of the alleged defect. It further contended that there was no proof of causation as plaintiff had no recall of the accident and no proof that his fall was caused by the deformation; that the deformation was open and obvious; that the bulge/deformation did not constitute a dangerous condition. The case settled at mediation four weeks prior to trial.
• Successfully mediated an inter-family sexual assault case. Plaintiff was 13 years old when she was sexually assaulted by her paternal uncle on a single occasion while staying overnight at the uncle's house while her mother was away on a business trip. Plaintiff informed her older sister on the night of the assault and her mother via phone the next day. They jointly confronted the uncle days later upon the mother's return from her business trip. He denied the assault. The family waited for two years before reporting the assault to law enforcement. Defendant was arrested and prosecuted for felony sexual assault of a minor. Defendant at all times denied committing the assault. He ultimately pled no contest to a lesser charge of felony assault with force likely to cause great bodily injury. He claimed he did so only to avoid putting the family through the ordeal of a trial and to avoid the risk of a conviction that could result in a mandatory prison sentence in a "she said/he said case". Thereafter, the family attempted resolution without success via mediation with a respected family elder. Plaintiff retained counsel and filed suit. Defendant tendered defense to his homeowner's insurance carrier. The insurer provided a defense under a reservation of rights. The insurer filed a declaratory relief action. The case settled at mediation prior to the parties engaging in discovery. Defendant agreed to promptly sell his family's home to generate the amount necessary to settle the case. Defendant's insurer contributed a substantial sum towards the settlement approximating its estimated cost of defending the liability claim.
• Presided over a lengthy, expert witness intensive, jury trial brought by the widow and two adult daughters for wrongful death of their 58-year-old husband and father, arising from his suicide by hanging while residing in residential drug rehabilitation facility. Plaintiffs contended that the defendants failed to provide medical detoxification management while decedent was withdrawing from benzodiazepine addiction and inadequately supervised their at-risk client. Defendants asserted that Plaintiffs were aware that its facility was a counseling only facility and did not use medications to manage withdrawals, and that any conduct on their part was not a legal cause of decedent’s death.
• Presided over a lengthy, expert witness intensive, jury trial brought by the adult daughter for wrongful death of her 71-year-old father, arising from a motorcycle accident, allegedly resulting from the defective design and manufacture of the motorcycle. Plaintiff was test driving the subject “pre-production” electronic motorcycle, negotiating a left banked curve on a rural roadway when the left foot peg broke causing decedent to lose control of the motorcycle and collide head-on with a motorist traveling in the opposite lane of travel. Defendant contended the claim was barred by decedent’s signed express assumption of the risk agreement relating to the test drive program and that the left foot peg did not fail pre-impact - it was broken off during impact.
• Presided over lengthy, expert witness intensive, jury trial involving traumatic brain injury suffered by plaintiff, 49-year-old male (helmeted) bicyclist. He asserted he was required to move out of the bicycle lane when suddenly confronted by a two inch below grade utility manhole cover and in so doing was hit by a motorist in the adjacent travel portion of the roadway. He claimed negligence against the utility provider and maintenance of a dangerous condition against the County. The defendants argued that the condition was open and obvious, not a dangerous condition and plaintiff was 100% responsible for the accident.

• Presided over a lengthy, expert witness intensive, jury trial brought by the widow and seven adult children for wrongful death of their 65-year-old husband and father arising from an auto v. bicycle accident. Decedent, and each of the surviving plaintiffs were residents and citizens of Mexico. Decedent was an itinerant farm worker. At dawn, while crossing a rural highway on his bicycle without a helmet, he was struck from behind by an uninsured motorist. Decedent was thrown into the opposing lane of travel. While laying disabled in the roadway for a period of minutes, he was run over by defendant’s vehicle in the opposite lane. Plaintiffs contended that decedent survived the first impact and was killed by the negligence of defendant, the second motorist. Defendant contended that decedent was not visible on the roadway, that the injuries he suffered in the first impact were fatal, and that decedent was 100% at fault.
• Presided over a jury trial involving a motorcycle v. U-Haul truck collision resulting in traumatic brain injury to the 50-year-old motorcyclist. Plaintiff contended that he was in the process of passing on the left a slow-moving U-Haul box truck when suddenly, without signaling, the truck driver turned left, collided with the motorcycle and plaintiff was propelled to the ground landing on his head. Plaintiff suffered permanently disabling injuries. Defendant U-Haul was the employer of the driver of the truck who was in the process of moving the truck from the street into the U-Haul lot. Defendant contended that the left turn signal was activated prior to the turn and that plaintiff was engaged in an illegal passing movement.
• Presided over a jury trial involving an intersectional collision between plaintiff’s SUV and a Yellow Taxi cab. Defendant admitted liability. Plaintiff, a 61-year-old housewife, claimed she suffered disc bulges in the cervical spine which required a two-level discectomy which had not yet been performed. Defendant contended that the mechanics of the forces applied during the collision were insufficient to produce the claimed disc bulges, that plaintiff’s neck issues pre-existed the accident, and that plaintiff’s pain was primarily psychosomatic.
• Conducted hundreds of successful judicial mediations involving every manner of personal injury and wrongful death case arising from auto v. auto, auto v. motorcycle, auto v. bicycle and auto v. pedestrian collisions; trucking accidents; slip/fall; dangerous conditions of public property; defective products; asbestos/chemical exposures; sexual assaults; negligent transmission of sexual diseases; child molestations; convalescent/nursing home negligence; unsafe workplace conditions; failure to supervise in school settings; sporting event accidents; negligent maintenance of private property; social host liability; amusement park accidents; prescription mislabeling and others - ranging in severity from soft tissue injury cases, to quadriplegia, amputations, traumatic brain injury, blindness, and death cases.

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• Successfully mediated a case brought by Successor Trustee on behalf of a family trust relating to the sale of two adjoining commercial properties owned by the trust against their Real Estate Broker/CPA and attorney. The suit alleged causes of action for professional negligence, breach of fiduciary duty, financial elder abuse, fraud and concealment. Plaintiffs alleged that the Trust (through its 72-year-old infirm, widowed Trustee, who died months after the real estate purchase agreement was executed) entered into a listing agreement with the defendants for the sale of the property based on the defendants’ representations that they could assist in dealing with the myriad liens on the properties while marketing and selling them for future development. Plaintiffs alleged that defendants’ tortious conduct caused them to enter into a binding contract for a sales price of $9 million dollars when the actual market value was over $14 million dollars, that defendants demanded a six-figure commission despite having failed to obtain the statutorily required Agency Disclosure, and that when plaintiffs discovered that the sales price was below market value, they refused to perform and were then sued by the buyers for specific performance. Plaintiffs claimed damages for the difference between the sales price and the alleged market value, recission of the commission obligation, statutory treble damages for elder abuse, and punitive damages. Defendants were uninsured. The mediated settlement agreement was reached five days prior to trial.
• Presided over court trial involving cross claims brought by adjoining rural property owners for quiet title and declaratory relief, concerning the claimed existence of an access road easement over plaintiff homeowner’s parcel for the benefit of the defendant/cross-complainant, adjoining homeowner’s parcel, arising from a deed given in 1971 which created a subdivision of nine separate parcels. Plaintiff contended that the claimed easement was not described or contained in the deed by which he subsequently took title, an alternate access road was available to defendant, and the defendant was overburdening the claimed easement by using it for substantial illegal marijuana cultivation activity. Multiple deeds, parcel maps, records of survey, and subdivision maps relating to the properties in issue required expert explanation and interpretation. Evidence of historical use dating to the early 1900s was required to provide meaning to the subject deeds. Judgment was granted in favor of the defendant/cross-complaint confirming the existence of the easement but limiting its use to normal household passenger automobile use.
• Presided over a lengthy court trial involving cross-claims for quiet title, declaratory relief and constructive trust involving title to farmland property which included farm labor barracks and 14 residential units. Defendant/Cross-Complainant alleged she obtained full legal title in 1993 by way of a combination of a quit claim deed from the father of her children (the mortgagor and Defendant’s predecessor in interest) and a grant deed from the mortgage lender who had obtained title via a nonjudicial foreclosure sale. Defaulting father died in 2015 without a will, survived by 17 adult children from three different women, including the Defendant and the Plaintiff. Plaintiff claimed she was the surviving wife of the defaulting father by lawful marriage in Nevada in 1970, that she had a community property interest in the property, that she resided in a house on the property for 42 years without paying rent, that Defendant’s purported 1993 deed was a sham transaction and a nullity, that Defendant executed a grant deed in her favor in 1995 and that full title should be confirmed in her. The unrecorded 1995 grant deed containing Defendant’s signature was produced for the first time during trial - Plaintiff claiming recent discovery in an old lock box in one of the buildings formerly occupied by the defaulting father. Defendant claimed the deed was a forgery. Competing handwriting experts testified to the authenticity of the signature. Judgment was rendered in favor of Defendant with full title confirmed to her, subject to an equitable right granted to Plaintiff to continue to reside in the house she had occupied for the remainder of her life without any obligation to pay rent. Plaintiff appealed. The Sixth District affirmed in full.