Hon. Ernest H. Goldsmith (Ret.)

Profile

Hon. Ernest H. Goldsmith (Ret.) has served as a neutral mediator and arbitrator at ADR Services, Inc. since April 2016. He has successfully mediated employment, real estate, toxic torts, personal injury, malpractice, probate, large consumer class action cases, multi-party construction defect cases, and insurance claims and bad faith. Judge Goldsmith also served as settlement judge in several hundred cases while on the bench.

Judicial Background

Judge, San Francisco Superior Court  1996 – 2016

Judge Goldsmith served as a Judge of the San Francisco Superior Court for 20 years, with all but two of those years spent in civil assignments. He most recently sat in the civil Law and Motion Department, where he handled a busy motions calendar and decided many high-profile pre-trial motions, injunction requests and writs. He presided over a wide range of civil trials, including business and commercial, real estate, insurance coverage and bad faith, torts, employment and employment class actions, malpractice, consumer class actions, and probate matters, among others.

Judge Goldsmith served as the court’s CEQA judge, where he decided challenges to the California Clean Air Act of 2006 and the implementation of cap and trade. He decided some of the most significant environmental cases in California, including the Coastal Commission Malibu Lagoon Revision Project, the Department of Fish and Game Klamath River fishery environment case, the San Francisco Hunters Point development case, along with many other local development cases, and was trial judge in a significant one-year water pollution case.

Legal Experience

  • Sole Practitioner, Law Offices of Ernest Goldsmith   1976 – 1996
    Prior to his appointment to the bench, Judge Goldsmith was in civil private practice for 20 years. He specialized in commercial litigation and non-profit organization law, representing nonprofit corporations, foundations, hospital and healthcare organizations, and Asian mutual benefit nonprofits. During this time, he served as Chair of the State Bar Nonprofit Organizations Committee and chaired the committee which drafted legislation and revisions to Corporations Code nonprofit statutes.
  • Partner, Riordan & Goldsmith   1974 – 1976
    Practiced commercial litigation and litigated employment class actions cases.
  • Assistant District Attorney, San Francisco District Attorney’s Office   1968 – 1973
    As an Assistant District Attorney and Senior Trial Attorney with the San Francisco District Attorney’s office, Judge Goldsmith tried more than 45 felonies to verdict, including numerous homicides.

Education

  • Stanford University School of Law, LL.B.
  • University of California, Berkeley, M.A. in Political Science
  • University of California, Berkeley, B.A. in Political Science

Professional Affiliations and Awards

  • Judicial Advisor to the State Bar Litigation Section Executive Committee
  • Trial Judge of the Year (2005), San Francisco Trial Lawyers Association

Speaking Presentations

Judge Goldsmith is a frequent presenter at continuing legal education seminars for attorneys and judges in California and nationally for the following groups:

 

  • Continuing Education of the Bar (CEB)
  • California Judges Education and Research (CJER)
  • Brookings Institution
  • American Enterprise Institute
  • Thomson West
  • Marcus Evans
  • Harris-Martin Seminars
  • National Business Institute
  • Bar Association of San Francisco
  • State Bar of California

He has lectured on a variety of topics, including trial practice, jury selection, developments in California law, discovery, electronic discovery, asbestos and toxic tort litigation, law and motion practice, expert witnesses, CEQA, environmental law, and expert evidence law.

Areas of Specialization

  • Business and Commercial
  • Environmental, including CEQA and Pollution
  • Employment
  • Real Estate
  • Probate, Estates & Trusts
  • Healthcare
  • Wage & Hour
  • Insurance
  • Construction
  • Class Actions
  • Personal Injury
  • Medical Malpractice

Representative Cases

Business & Commercial

  • Debt Collection. Debt collection abuse case resulting in published opinion affirming Judge Goldsmith’s rulings on first impression issues. Collection agency sued under Robbins-Rosenthal Fair Debt Collection Act in mistaken identity harassment case. Judge Goldsmith ruled on first impression issues: whether conduct violating the Act is shielded by the litigation privilege; whether the continuing violation doctrine permits recovery under the Act for events that occurred beyond the statute of limitations; and whether a multiplier can be used in calculating attorney fees awarded under the Act. Case is frequently cited for application of the continuing violation doctrine in a wide variety of commercial and other cases. First District no. A12316, A12241.
  • Accounting Malpractice. Judge for all purposes in designated complex action by European bank against consortium of international accounting firms alleging accounting malpractice, negligent misrepresentation, breach of contract and damages of $120,000,000 arising from large loans to international food processing conglomerate. Alleged reliance on false financial reports and unqualified opinions. Heavily litigated with demurrer, discovery and dispositive motions heard. Settled with guidance from Court.
  • Contract. Trial judge in multi-party jury trial contract case arising from the sale of a restaurant located in large San Francisco financial district office complex. Parties included buyer, seller, business broker, title company and lessor. Issues involved fraud, breach of contract, Bus. Prof. Code Sec. 17200, and breach of fiduciary duty.
  • Contract. Single assignment trial judge in international transaction contract case involving failure of delivery of shipping containers by Chinese manufacturer to domestic purchases. Issues included dispute over escrowed funds held by bank where extent of partial performance in dispute and conflict of laws were at issue. Court mediated settlement.
  • Real Estate Quiet Title Action. Bench trial in quiet title action brought by investment company co-owned by deceased physician and his heirs, the individual plaintiffs. Company purchased a large rental property from Defendant, who married decedent shortly before his death. Defendant claimed the company, with decedent acting on its behalf, had borrowed large sum before his death. Defendant claimed the loan went into default and decedent conveyed company’s interest to her. Company owned by decedent’s heirs claimed ownership of the property and that any loan transaction was unauthorized and that the loan and foreclosure documentation was fraudulent and void. Following a ten day bench trial, the Court found the loan was fraudulently contrived by Defendant and void. Quiet title and damages awarded to plaintiffs.
  • Commercial Anti-Trust. Judge for all purposes in Cartwright Act anti-trust action designated complex. Claim was brought by a hospital against another hospital and healthcare company alleging defendant’s contract with doctors’ organization was illegal exclusive dealing arrangement requiring doctors to admit patients to defendant hospital to exclusion of plaintiff and other hospitals. Decided pre-trial motions including summary judgment based on Cartwright Act and B&P 17200. Case settled prior to trial based on buyout of plaintiff.
  • Maritime. Decided three week court trial brought by oceangoing tugboat company claiming large fuel charges while providing towage for Defendant’s oceangoing barges carrying crude oil up and down the Atlantic seaboard. Defendant barge company contracted to pay for fuel consumed, amounting to thousands of gallons per day plus daily fee. Parties disagreed on amounts of fuel consumed in many tows, where calculation involved numerous transfers of fuel from ship to ship. Court heard ten days of testimony pertaining to documentation, towing distances repair and layover time. Required analysis of hundreds of records, captain’s testimony, and customs and practices in the maritime industry.
  • Trade Secrets. Single assignment judge in major trade secret case involving 23 employees of highly profitable business services department of amajor national bank. Employees resigned and joined competing bank with detailed customer records and contacts. Alleged misappropriation of trade secrets, breach of fiduciary duty, conspiracy, injunctive relief and related causes of action against defendant
    bank. Extensive discovery and preliminary injunction hearings. Settled after preliminary injunction issued.

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Class Action

  • Class Action. Judge for all purposes in class action bench trial action for damages to four hundred class member tenants of apartment complex arising from extensive exterior renovation, alleging noise pollution, damage to units, negligence, interference with quiet enjoyment. Pre-trial certification, discovery and dispositive motions. The parties settled during trial based on a proposal by the Court.
  • Consumer Class Action. Judge for all purposes in heavily litigated consumer class action alleging home loan company had illegal discount arrangement with title company requiring home purchasers to use designated title company, and that title company had fee arrangements with developer and Freddy Mac, in violation of Real Estate Settlement Procedures Act (RESPA) and B&P Sec. 17200, et seq. Issues included res judicata arising from sister Federal action, Proposition 64 regarding actual damages, class certification and motions for summary adjudication and e- discovery disputes. Parties settled after extensive motion practice.
  • Consumer Class Action. Judge for all purposes in consumer class action designated complex alleging overcharging late fees on automobile loans and leases. Judge Goldsmith certified a national class of 830,000 members in 46 states and decided certification, decertification, discovery, summary judgement motions and adjudication of complex conflict of laws issues. Case settled for $105,000,000.

Construction

  • Bench trial in construction action by subcontractor against general and bonding company and cross-complaint. Litigated issues of concrete construction performance in large retrofit in Hastings Law School, and recovery on performance bond, recovery on stop notice, claim on release bond, and breach of contract.
  • Subcontractor performed large steel fabrication job on six story parking garage construction job. General contractor claimed construction defects in work by subcontractor and refused payment. Subcontractor sued for payment and damages. Extensive expert witness testimony regarding design and metal fabrication in large structures. Jury verdict.

Employment

  • Employment Class Action. Trial judge in single assignment employment class action brought by large class of security guards alleging meal and rest break violations under FEHA. Decided class certification, extensive discovery and summary adjudication motions. Settled.
  • Wrongful Termination. Trial judge in action by timeshare salesman for wrongful termination, disability discrimination, retaliation, California Medical Leave Act violation, and harassment. Court drafted jury instructions on several causes of action. Affirmed on appeal.
  • Discrimination. Jury trial brought under FEHA for discrimination, harassment, associational discrimination, and under CFRA for disability and retaliation for taking leave. Court decided associational discrimination, associational harassment and retaliation claims motions. Affirmed, No. A122517, A123449.
  • FEHA. Taxi driver alleged hostile work environment under FEHA. After two day bench trial, the Court found that plaintiff was an independent contractor and did not have standing under FEHA because he rented defendant’s taxi on a daily basis.
  • Labor. Three month bench trial labor case brought by Labor Commissioner and fifty sewing factory workers for claims of unpaid wages, overtime, vacation pay, waiting time penalties and under B&P Sec. 17200. State claimed personal liability of principals of bankrupt corporations for wages and penalties under Labor Code and IWC wage order pertaining to garment industry. Court found defendants not personally liable for corporate debts based on California alter ego law which Court applied to labor violations. A first impression decision affirmed in frequently cited published opinion. A113760, A114106
  • Wage & Hour Class Action. Judge for all purposes in wage & hour class action filed against large men’s clothing store chain on behalf of class of store managers, assistant managers, and sales associates alleging failure to pay overtime wages, provide required meal and rest breaks, and failure to meet labor code requirements for recordkeeping. Key issues involved classification of managers as exempt employees. The court heard motions to certify class, decertification, discovery and summary judgement. Court assisted in successful settlement negotiations.
  • Sexual Harassment. Settlement judge in sexual harassment, wrongful termination, and hostile work environment action brought by female against large law firm. Defense claimed termination for economic reasons. Settled in mid six-figure range.
  • Racial Discrimination. Settlement judge in FEHA discrimination action brought by African-American female employed by department store, who was terminated when she was unable to perform job duties. Plaintiff alleged employer refused to employ her in a less demanding position and refused to engage in iterative process. Court mediated settlement based on voluntary retirement and monetary award.
  • Disability Discrimination. Trial judge in action by African-American former policeman injured on job, who resigned to recuperate. Plaintiff sought reinstatement pursuant to Department’s rehire rules and was denied. Alleged medical discrimination and reasonable accommodation retaliation violations under FEHA and FCMLA violation. Jury verdict.
  • Wrongful Termination. As settlement judge, mediated employment action where plaintiff hired as long-term temp claimed damages for early termination without cause. Reached confidential settlement.

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Environmental

  • Environmental Cap and Trade. Environmental group challenge to the State’s plan for implementation or scoping plan for implementing AB 32, Global Warming Solutions Act of 2006 for reduction of greenhouse gases (GHG). Analyzed entire statutory scheme in the act in relation to each provision of the scoping plan. Petition also challenged California Air Resources Board’s (CARB) decision to proceed with a cap and trade program to implement the Act. Court ruled that CARB violated CEQA by not considering alternatives to cap and trade and ordered CARB to cease planning a cap and trade program for reduction of GHG until it had considered and held hearings on alternative reduction methods. State complied with a comprehensive analysis of alternatives and held public hearings. Affirmed in frequently cited published opinion. No. 132165
  • Environmental Cap and Trade. Decided foundational issue in operation of California cap and trade program by determining the criteria by which voluntary reductions in greenhouse gas (GHG) emissions, or offset credits termed “additionality” are determined. Ruling that additionality can be determined on an industry-wide basis rather than case by case, decision is a major factor in nationwide GHG allocations market. On appeal.
  • CEQA. CEQA action alleging noise pollution, challenging granting of permit to expand sports bar restaurant with open air area in mixed commercial-residential district. At issue was City’s finding that project was categorically exempt from CEQA. Judge Goldsmith decided the petition applying the substantial evidence standard to determine validity of the categorical exemption and shifting of the burden to Petitioner to prove by substantial evidence the threshold of significance under CEQA which Petitioner was unable to do.
  • CEQA. Decided CEQA action seeking to vacate the City’s approval of a 700 acre 10,000 unit Hunters Point Shipyard-Candlestick Point development plan. Action was based on challenge to the environmental impact report and effect on Bayview Hunters Point neighborhood by failing to adequately describe alternatives, and future impact of transfer of the polluted shipyard from the United States to San Francisco and demolition of Candlestick Park Stadium. Court severed polluted shipyard from the project until remediated under CERCLA and approved remainder of project as compliant under CEQA. Resulted in what is projected to be the largest development project in San Francisco’s history.
  • CEQA. Decided CEQA petition by commercial fisherman’s association and Native American tribes to preserve spawning habitat for endangered Coho Salmon. Petitioners challenged Department of Fish and Wildlife (DFG) permitting program to take water from spawning habitat in the Klamath watershed for agricultural use alleging degraded spawning streambeds and large fish kills. The Court applied CEQA substantial evidence and evidence as a whole standards, finding DFG failed to accurately describe the environmental setting and effects of the program, thus violating legislative intent to preserve endangered species. Writ issued.
  • Water Pollution. Water pollution product liability case against seven manufacturers and distributors of perchlorethylene used for dry cleaning. Municipality entities alleged groundwater pollution of city wells. Judge Goldsmith presided over six month jury trial which concluded with the Court’s finding action was barred by statute of limitations following jury mistrial on that issue. Decided two bench trials involving alleged pollution in redevelopment districts. Court heard testimony from experts in geology, hydrology, chemistry and engineering. Found causation and product identification not proven. Cases on appeal.
  • Proposition 65. Judge for all purposes in heavily litigated Proposition 65 case alleging violation by diesel particulates in school buses owned by nationwide school bus company. Court decided motion for preliminary injunction involving several dozen experts and scientific studies from sources worldwide. Also decided motions regarding complex procedures for testing particulate concentrations. Case settled following motion decisions with stipulated judgment under Court supervision.
  • CEQA. CEQA action brought by citizens’ group against State and technology company to stop storage and seepage of chemical waste threatening groundwater. Extensive discovery and motion practice regarding toxic substances, after which case settled based on cleanup.

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Insurance Bad Faith

  • Bench trial involving breach of contract and breach of covenant of good faith and fair dealing action arising from insurer’s refusal of tender to defend insured in an action brought by homeowners’ association. Issue was whether insurer’s duty to defend was triggered by dispute over delineation between common areas and plaintiff’s condominium unit. Court held that coverage only extended to threat to plaintiff’s ownership interest and no claim was made against her unit.
  • Trial judge in insurance bad faith jury trial involving disputed valuation of lost business following closure of business after a fire. Court made rulings on qualifications and foundation for expert testimony, and on unfair business practices, equity issues, damages and attorneys’ fees.
  • Defendant real estate developer tendered defense to insurance carrier which accepted under reservation of rights. Carrier hired law firm for coverage representation. Law firm advised carrier to settle certain causes of action and withdraw representation on others as uncovered. Plaintiff sued carrier for bad faith and law firm for fraud. Court decided motions regarding coverage, duty, negligence, breach of contract and “defense of counsel” defense.

Probate, Estates & Trusts

  • Thirty day bench trial involving complex inter-family trusts and wills dispute. Plaintiff family members alleged highly valued properties to have been purchased by decedent, who amassed huge real estate holdings, with plaintiffs’ funds over thirty year period. Defendant, decedent’s widow, was sole beneficiary. Probate Referee appointed to trace funds and property purchases during thirty year period. Court rejected resulting trust theory finding plaintiffs could not overcome presumption against resulting trusts. Court found plaintiffs were entitled to ownership interests in properties based on a loan relationship arising from decedent’s use of plaintiff’s funds.

Real Estate

  • Commercial Lease Dispute. Trial judge in twelve day bench trial involving complex commercial lease dispute over exercise of right of first refusal. Defendant hotel in prime San Francisco location leased four floors from adjacent commercial building. Lease had potential of running another seventy years and included lessor’s right of first refusal to purchase the leasehold interest or the lessee’s hotel. Hotel received buyout offer from third party. Lessor exercised right with deviation in terms from third party offer raising issue if or to what extent does deviation render the right ineffective. Found that significant deviations from third party offer negated right of first refusal.
  • Contract Dispute. Multi-layer contract dispute over terms and price between plaintiff owners of multi-unit residential building and defendant contractor involving remodeling and rebuilding. Jury decided contract cause of action and court ruling on UCL and B&P 17200 causes were appealed and affirmed. First District No. A114208
  • Commercial Lease Dispute. Bench trial in commercial lease dispute concerning fair market value for lease renewal valuation in ground lease with ninety-five year potential term on prime San Francisco Union Square retail property. Declaratory relief sought Court to interpret lease to determine whether appraisal of property for rent adjustment should include tenant-built improvements. Court considered extrinsic evidence, expert testimony on ground lease economics, customs and practices, and conduct of parties.