Profile

John M. Drath, Esq. brings over 40 years of legal expertise to his ADR practice and has developed a reputation as a skilled and efficient mediator with an exceptional ability to isolate the key factors in a case and bring the parties together to reach resolution.

As an accomplished trial lawyer, John has tried cases in virtually every area of the law, and his success in the courtroom allows him to bring a unique insight to each dispute before him. Having mediated over 1,000 cases, John has the creativity, tenacity and analytical abilities to get the case settled.

John’s clients have commended him for his work ethic, preparedness, and persistence in following up if a case does not settle at the hearing. He has been described by many as a fair and personable mediator who can develop rapport with all parties of a dispute while getting to the heart of the issues.

Areas of Expertise

  • Business / Commercial
  • Elder Abuse
  • Environmental / Toxic Tort
  • Insurance / Bad Faith
  • Legal Malpractice
  • Medical Malpractice
  • Personal Injury / Catastrophic
  • Products Liability
  • Professional Liability
  • Real Property

Legal Experience

  • 2000 – Present Mediatior and Arbitrator
  • 2010 – 2014 Shareholder, Bishop Barry Drath
  • 1994 – 2010 Partner, Drath, Clifford, Murphy & Hagen
  • 1983 – 1994 Partner, Hyde & Drath
  • 1980 – 1983 Attorney at Law, Law Offices of John M. Drath
  • 1973 – 1979 Associate, Low, Ball & Lynch
  • 1971 – 1973 Associate, Cooksey, Coleman & Howard

Education

  • 1969 Juris Doctorate, University of San Francisco School of Law
  • 1965 Bachelor of Arts, University of Washington

Professional Affiliations

  • Member, American Board of Trial Advocates (ABOTA)
  • Fellow, American College of Trial Lawyers
  • Past President, Association of Defense Counsel, Northern California

Honors

  • California Super Lawyer, Professional Liability
  • California Lawyer, Listed Among Prominent Legal Malpractice Attorneys
  • Certified Specialist in Legal Malpractice, California State Bar, 2011-2015

Representative Cases

Business

  • Plaintiff sold an auto collision repair shop to the defendant along with the building in which the business was located. The two transactions were to close simultaneously but due to financing complications and an error on the part of the title company (also a defendant), only the building sale closed and now the defendant claims an inability to complete the sale of the business due to the COVID-19 shutdown.
  • Defendant contracted to provide security at plaintiff's distribution facility in Mississippi. During a holiday weekend, thieves driving big rigs broke through a perimeter fence and hooked up trailers loaded with the plaintiff's merchandise. Three trailers were removed and one was recovered with its load intact. The stolen merchandise was valued at $1.75 Mil. Plaintiff accused the guards of failing to watch the monitors or make rounds, so the theft was not discovered in progress.

Employment

  • Action by 11 former employees who were not rehired following corporate reorganization – claimed age and disability discrimination based in part on disparate impact evidence.
  • Action by attorney against former employee for breach of employment agreement, dispute over fees.
  • Action for sexual harassment by female employee against her male supervisor during business trips.
  • Action by attorney against former non-equity partner regarding fees owed, responsibility for completing firm business, slander.

Insurance

  • Bad faith action based on refusal to defend, resulting verdict in excess of 2.0 million. Assault and battery exclusion at issue.
  • Insurance agent failed to properly describe property on liability policy resulting in no coverage for a claim arising from the use of that property. Following a multi-million-dollar settlement, agent sued for professional liability.
  • Bad faith action based on insured’s claimed failure to pay an uninsured motorist claim in a timely fashion.
  • First party bad faith claim based on claimed mishandling of insured’s fire loss.
  • Bad faith claim based on failure to defend and resulting seven figure judgment. Personal injury and advertising liability coverage was in issue.
  • First party bad faith claim based on insurer’s disagreement over the damage to high value artwork.
  • Action against health benefits claims administrator for approving and paying out of the insured’s account 350K plus in claims not covered by the employer’s group health policy, thus preventing the insured from getting reimbursed by the insurer.
  • Action and cross-action regarding the effectiveness of the cancelation of a worker’s compensation policy, and resolution of the worker’s compensation case that arose after the alleged cancelation.
  • Action against insurance company and two producing agents over the interpretation of additional insured endorsement and its application to a suit against a retailer sued for products liability.

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Intellectual Property

  • Settled a case in which the plaintiff was the assignee of the rights of fourteen models whose images were improperly used by the defendant in advertisements for a business.
  • Models sued two night clubs for using their photos for club promotion without permission.

Legal Malpractice

  • Lawyer #1 committed malpractice by representing two parties with conflicting interests without providing a written disclosure as required by the rules of professional conduct. Lawyer #2 sued lawyer #1 but he missed the statute of limitations. Lawyer #3 then sued lawyer #2 for missing the deadline for suing lawyer #1. A negotiated settlement fell through because a defendant attorney refused to dismiss a separate action for unpaid fees in unrelated litigation.
  • Law firm sued client for fees owed, client cross-complained for legal malpractice based on poor result in litigation. Law firm represented itself in a contentious and protracted mediation, resulting in settlement.
  • Pre-litigation claim was made against attorney whose client lost a business dispute and was assessed punitive damages. An appeal was filed, and the mediation resolved both the legal malpractice claim and the underlying appeal.
  • Attorney sued after failing to file a timely wrongful termination suit.
  • Attorney, after successfully defending his client in an intellectual property case, recommended bringing a malicious prosecution action against both the plaintiff and its attorney. The attorney/defendant filed an anti-SLAPP motion and was awarded significant attorney’s fees. Client then made a legal malpractice claim against his attorney for the erroneous advice to bring a malicious prosecution action.
  • Attorney sued by judgment debtor for abuse of process and conversion for seizing and liquidating debtor’s assets without following the requirements of the EJL.

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Medical Malpractice

  • Defendant physicians declined to impose spinal precautions for accident victim, and paraplegia developed while hospitalized.
  • Severe birth defects resulting from claimed negligence during labor and delivery. Action against two physicians, independent nursing staff, and hospital. Settled piecemeal over two mediation sessions.
  • Defendant physician allegedly left placental fragments following birth and ignored the plaintiff’s subsequent complaints of pain. The failure to treat resulted in a hysterectomy, bowel resection and colostomy.
  • Wrongful death claimed to be caused by negligently failing to prescribe medications to lower blood pressure and reduce cholesterol levels.
  • Pharmacy erroneously refilled a prescription with the wrong medication, leading to a severe albeit temporary reaction in a mentally challenged minor.
  • Asthmatic woman given a beta blocker despite contraindications, resulting in cardiac arrest and permanent brain damage.
  • Claimed medical malpractice, elder abuse and statutory violations against a skilled nursing facility resulting in pressure sore.
  • Claimed medical practice and elder abuse against two skilled nursing facilities for wrongful death and enhanced remedies.

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Personal Injury

  • Decedent with mental health issues ran out of a car and was struck and killed by a passing truck while being transported to the emergency room by caretakers of his residential care facility.
  • Plaintiff riding a motorcycle struck a left-turning vehicle. Both drivers contended that their view was obstructed by foliage in the county-owned median. Severe brain damage resulted in permanent cognitive impairment and partial paralysis.
  • • Plaintiff riding a motorcycle struck a left-turning vehicle. Both drivers contended that their view was obstructed by foliage in the county-owned median. Severe brain damage resulted in permanent cognitive impairment and partial paralysis.
  • Plaintiff, 61-year-old window washer, fell from the roof of a 12-story building and landed on the roof of a passing car. He survived, but with multiple serious and permanent injuries. The case was complicated by a dispute between insurers and a contractual indemnity claim.
  • Male neighbor assaulted a female neighbor whose dog had defecated outside his house. Plaintiff claimed the defendant was choking her, which defendant denied but did admit to grabbing her.
  • Off-duty police officer riding a motorcycle hit another vehicle and caused the driver to be thrown to the pavement, sustaining traumatic brain injuries.
  • Plaintiff was a grandmother driving with her two small grandchildren when an unlicensed driver hit her. There were injuries caused.
  • Settled a high-end, six-figure matter where the plaintiff was injured by a vending machine falling on her foot.
  • Settled a case in which the plaintiff was operating a dirt bike on a public street and struck the defendant's vehicle, which had pulled out from a stop sign and was turning left. The plaintiff sustained multiple fractures and a brain bleed.
  • Plaintiff was an employee of Amtrak. The train she was on struck the defendant's trailer at 70 MPH. She claimed aggravation of pre-existing back problems leading to surgery.
  • Plaintiff, severely intoxicated, got into a dispute with a security guard at a complex. The guard shot the plaintiff twice, once after he was on the ground.
  • Construction accident involving father and son. Multiple fractures and related injuries.
  • Plaintiff motorcyclist struck a u-turning vehicle operated by defendant. Impact occurred at highway speed. Plaintiff sustained leg and shoulder injuries from which he has still not fully recovered. Case not yet in litigation.
  • • Plaintiff injured himself on apartment stairs thus giving him anxiety-induced panic attacks, which resulted in death from not making it to the hospital fast enough due to having a heart attack that he thought was a panic attack.
  • Plaintiff struck in the head by the overhead gate in a service elevator. Gate was lowered by an employee of another contractor. Other defendants included building owner and elevator maintenance co. Plaintiff claimed permanent injuries influencing his ability to work.
  • Plaintiff was struck while walking his dog. Defendant driver was towing a trailer which became disconnected and struck the plaintiff, causing extensive injuries. Plaintiff alleges that the driver, who had no insurance, was in the course and scope of his employment by the defendant, for whom he was building a fence. The defendant denied that he had any control over the driver/defendant’s work and therefore was not liable for injuries to third parties such as the plaintiff.
  • Defendant truck driver crossed partly into shoulder on a freeway and struck a motorist who pulled over to check a problem with his vehicle. He was standing on the driver's side when he was struck. The truck also sideswiped the parked vehicle.
  • 64-year-old male was killed crossing the street, and mother and heir died of a broken heart five days later. Siblings brought their mother's wrongful death claim, which survives. An additional issue was whether the mother survived more than 120 hours. If not, then the siblings could bring their own wrongful death claim for their brother's death.
  • Alleged defective road design and maintenance: double death resulted from driver losing control and crossing into oncoming traffic.
  • Bus vs. auto - claimed traumatic brain injury, inability to return to employment.
  • Bus vs pedestrian - wrist fracture, claimed traumatic brain injury, impairment of earning capacity.
  • Bus vs pedestrian - extensive fractures, traumatic brain injury, chronic pain syndrome, no longer able to work, outside care needed.
  • Pedestrian injured in trip and fall on sidewalk - alleged dangerous condition.
  • Bus vs property owner. Driver and property owner got into a dispute about where the bus was stopping. Driver pulled away when the individual still had his foot stuck in the door. Extensive foot injury.
  • Bus vs auto resulting in back surgery.
  • Auto vs street sweeper - wrongful death - alleged slow moving street sweeper pulled onto roadway when it could not safely clear the intersection and avoid an impact with decedent's vehicle.
  • Action for wrongful death brought by the parents of a boy killed when he rode his skateboard under a moving garbage truck. A second boy, also on the skateboard, brought suit for severe personal injuries.
  • Action for severe chemical burn injuries sustained when the plaintiff, driving a truck filled with pool chemicals, struck the trailer of a truck, causing the chemicals to crash into the cab of the plaintiff’s vehicle.
  • Action for extensive personal injuries sustained by the driver of a vehicle hung up on railroad tracks, which was struck by an oncoming train before the plaintiff could extricate himself from the vehicle.
  • Action for wrongful death by the two sets of parents of a newly married couple killed by a driver who fell asleep and struck the couple’s car head on. Significant emotional and personality conflicts between the two sets of parents.
  • T-Bone collision resulting in neck and back injuries. Carrier rejected $100,000 policy limits demand despite clear liability and surgical prognosis. Case settled for substantially above policy limits.
  • Action for wrongful death by two minors arising out of the death of their father when he was crushed by a runaway trailer. The two minors also sustained injuries and had Dillon v Legg claims. A female passenger claimed multiple injuries and a closed head injury.
  • Action for wrongful death for motorcycle rider killed when he struck a left turning vehicle.
  • Action for wrongful death by elderly woman survived by eight children. The woman was quite short and was below the truck driver’s vision when the light turned green and the driver started up, running over the woman in the crosswalk.
  • Action for injuries for mother and daughter struck from behind by a motorist while they were bicycling home.
  • Multiple claimants making claim to a 1.3-million-dollar liability policy which was being tendered. Injuries included death, closed head injuries, multiple fractures.
  • Action for personal injuries – crushed hand – sustained when operator of a forklift pinned a truck driver’s hand against the truck during the loading process.
  • Postal worker attacked by dogs and fell, sustaining traumatic brain injury.
  • Action for severe personal injuries sustained when a vehicle crushed the plaintiff against the side of a building while seated at a bench. Claim against building owner based on dangerous position of bench.
  • Burn injuries sustained by restaurant patron when hot liquid spilled on her.
  • Homeowner tripped over utility conduit, aggravating a pre-existing back condition.
  • Wrongful death of a child resulting from the ingestion of over-the-counter medication. Summary judgment for the manufacturer granted, settled on appeal.
  • Claimed tire defect caused single car accident resulting in paraplegia.
  • Claimed improper design of trailer, resulting in separation from tractor and
    wrongful death of occupant of stopped vehicle.
  • Claimed defect in design of ladder resulted in collapse, personal injuries.
  • Neighbor versus neighbor – long standing animosity – knee damaged in altercation over location of garbage cans.
  • Personal injuries sustained by bar patron in altercation with security guard.
  • Personal injuries (scarring) sustained by female bar patron when fight broke out between two groups of patrons.
  • Wrongful death of a woman at the hands of her boyfriend, who had a modest liability policy. Boyfriend was charged with murder and the insurance company filed a declaratory relief action. The case settled after a protracted mediation and just hours before the jury returned a guilty verdict in the murder case.
  • Breach of privacy against electronics company and its employee by female whose pictures were lifted from her cell phone and transmitted to the employee’s phone.
  • Neighbor versus neighbor – brain damage resulting from physical altercation

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Real Property

  • 2.5 million-dollar claim for damage to computer equipment due to release of sprinkler system during remodeling of computer company facility.
  • Downhill homeowner sued uphill homeowner for damage due to landslide.
  • Lessee of high end home sued owner for damage to personal property destroyed when the home burned, allegedly due to defective maintenance by the owner.
  • Subrogation claim for extensive water damage to home resulting from defective plumbing coupling. Plumber and coupling manufacturer sued.
  • Subrogation claim for destruction of barn by fire allegedly caused by operator of equipment in vicinity of structure.
  • Subrogation claim against a landscaper who damaged a gas line, allowing water into the line and destroying the HVAC unit in the home.
  • Pre-litigation mediation of dispute among members of an LLC and a contractor regarding disputed profits, breach of contract.
  • Landlord/tenant dispute involving automobile dealership, right to purchase, amounts owed on commercial lease.
  • Breach of contract claim by security firm against commercial property owner. Dispute over amounts owed, alleged fraudulent billing practices.
  • Breach of contract arising out of the sale of medical practice, question as to whether certain additional obligations were triggered.
  • Action by investor against bank whose employees were operating an independent business brokering second mortgages. Claimed vicarious responsibility for fraudulent activity.
  • Breach of contract involving an exclusive supply agreement by a paint manufacturer. Customer claimed he met the minimum required by the contract and had no further obligation, cross-complained based on supplier’s removal of stock and equipment.
  • Action to quiet title and for injunctive relief by railroad against property owner claiming adverse possession/prescriptive easement of land occupied by nearly 90 years.
  • Action for trade name infringement by one restaurant owner against another for misleading advertising.
  • Action and cross-action between orthodontist operating multiple offices and a dental management company over interpretation of agreement. Each side claimed breach and resulting damage from the other.

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Toxic Torts

  • Groundwater contamination in Montana. Two separate actions filed two years apart involving over 50 plaintiffs residing in the contaminated area. Gross settlement was in excess of 7 million dollars.
  • Appeal of multi-million dollar verdict in asbestos case.