Hon. Michael D. Marcus (Ret.)

Profile

Judge Michael D. Marcus (Ret.) has a well-deserved reputation throughout California as a skilled, personable and forceful mediator and a fair and impartial arbitrator, having been honored by the Daily Journal as a “Top Neutral” for six years and as a “Southern California Super Lawyer” for 2008-2018. He has mediated over 3,000 matters and arbitrated more than 100 cases.

Judge Marcus brings an extremely broad legal background to his ADR practice. He was a judge, a successful trial lawyer, and a former law firm partner. Judge Marcus has taught evidence and trial tactics at law schools and is a legal author and bar leader as well as an efficient and effective mediator and arbitrator.

Mediation and Arbitration Experience

Since 2002, Judge Marcus has successfully mediated the following types of cases: employment (including discrimination, harassment, sexual harassment, whistleblowing, retaliation, wrongful termination, wage and hour, PAGA and class action), commercial/business (including partnership disputes), legal malpractice, personal injury, wrongful death, real property, premises liability, product liability, construction defect, intellectual property, medical malpractice, eminent domain, police misconduct and civil rights.

Judge Marcus has arbitrated the following types of cases: employment, commercial, real property, partnership, medical malpractice, legal malpractice, personal injury and fee disputes.

Discovery Referee

Judge Marcus has been appointed by Judges of the Los Angeles and Orange County Superior Courts to resolve discovery disputes.

Mediation Honors

Daily Journal “Top 50 Neutral in California”, 2007, 2009, 2010, 2011, 2012, 2013
Southern California “Super Lawyer” (Neutral), 2008 – 2018

Judicial Experience

  • 1995 – 2001 Judge of the California State Bar Court
  • 2000 – 2001 Supervising Judge of the State Bar Court Hearing Department
  • 1996 – 2000 Assistant Supervising Judge of the State Bar Court Hearing Department

In his 6 years on the State Bar Court, Judge Marcus presided over approximately 160 trials involving such issues as breach of fiduciary duty, fraud, conflicts of interest, failure to perform competently, misappropriation, and client abandonment; wrote lengthy decisions containing findings of fact and conclusions of law for each trial; and was involved in over 400 settlement conferences with a settlement rate of about 95%.

Litigation Experience

  • 1987 – 1995 Partner, Coleman & Marcus, Los Angeles
  • 1985 – 1987 Of Counsel, Sanger Grayson Givner & Booke, Encino
  • 1968 – 1985 Deputy District Attorney, Office of the District Attorney, Los Angeles

Education

  • 1964 – 1967 JD, UCLA School of Law, Los Angeles, California
  • 1962 – 1964 BA in Political Science, University of California, Berkeley
  • 1960 – 1962 Oberlin College, Oberlin, Ohio

Publications

Judge Marcus is a prolific writer who has written about mediation tactics, mediation ethics, arbitration ethics, trial preparation, legal ethics, prosecution discovery and the destruction of evidence for such organizations as the State Bar of California, the California Continuing Education of the Bar (CEB), the California District Attorneys Association, the San Fernando Valley Bar Association and the California Attorneys for Criminal Justice. He is also the author of Trial Preparation for Prosecutors (3rd Edit.), Lexis Law Publishing 2010, and is presently writing California Courtroom Conduct: The Do’s and Don’ts of Litigation. Judge Marcus is also the author of a popular series of monthly articles on “Mediation Messages” and “Arbitration Insights.”

Teaching and Lecturing

Judge Marcus has lectured on mediation and legal ethics for the Consumer Attorneys Association of Los Angeles, the Association of Southern California Defense Counsel, at the California State Bar’s annual meeting, to the California Judges’ Association, for the CEB and at many prominent law firms.

Judge Marcus taught evidence at the USC Law Center and has also been a member of the faculties at Southwestern University School of Law and the National College of District Attorneys in Columbia, South Carolina. He was a clinical instructor at the UCLA School of Law as well as an adjunct professor on trial skills at Pepperdine University School of Law.

Bar Activities

  • Member, Board of Governors, State Bar of California, 2007-2010
  • Trustee, Los Angeles County Bar Association (LACBA), 1979-1980
  • Chair, Professional Responsibility and Ethics Committee (LACBA), 2005-2006; Member, 1997-Present
  • Chair, Criminal Justice Section (LACBA), 1977-1978
  • Member, State Bar of California Conference of Delegates, 1968-1993

Formal Alternative Dispute Resolution Training

  • “Mediating the Litigated Case,” a 42-hour program offered by the Straus Institute for Dispute Resolution at Pepperdine University School of Law
  • “Mediating Complex Construction Disputes,” an 18-hour program offered by the Straus  Institute for Dispute Resolution at Pepperdine University School of Law

Representative Cases

Civil Rights

  • Settled mediation involving claims of ADA violations at a hotel.
  • Handled a dispute involving a student at a junior college who alleged ADA discrimination by the college.

Commercial/Business

  • A business matter involving three different but related lawsuits. Suit one: a card club sued a second card club for RICO violations. Suit two: Investors sued competitor for legal malpractice. Suit three: Partner in second card club sued for legal malpractice.
  • Plaintiffs (Several limited partnerships) sued General Partner for breach of fiduciary duty, accounting, and dissolution of partnership.
  • Plaintiff claimed they were owed money as an investor, director, and employee of company. Claims faced major legal hurdles because of statute of limitation issues.
  • Buyer of marijuana dispensary claimed owner of dispensary diverted funds. Owner claimed buyer defaulted on payments.
  • Employer sued former employee for theft of trade secrets. Employee cross-complained for unpaid wages.
  • Lessee sued sub-lessee for breach of lease. The sub-lessee sued the lessee for fraud.
  • Settled fee dispute between seller of business and client, who terminated the arrangement.
  • Mediated partnership dispute involving breach of the partnership agreement without good cause.
  • Settled restaurant partnership dispute regarding claims of deceit and negligence.
  • Mediated breach of contract dispute regarding financial management services.
  • Handled a motion to enforce an arbitration agreement regarding public housing.
  • Mediated a dispute involving claims of breach of contract and intentional interference with prospective business advantage.
  • Mediated claims for misappropriation of trade secrets.
  • Mediated a matter involving allegations of a breach of oral and written contract and fraud, as well as a cross-complaint for a breach of fiduciary duty.
  • Settled a dispute involving the sale of a franchise back to the franchiser.

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Employment

  • Plaintiff alleged harassment, age discrimination, gender discrimination, and wrongful termination. Employer argued that there was no discrimination or retaliation, and that plaintiff was terminated for forging documents. Additionally, there was strong evidence that plaintiff had falsified her employment application.
  • Plaintiff claimed that her supervisor verbally, physically, and sexually harassed her and that she quit because of the intolerable circumstances. The employer denied the harassment, contending that Plaintiff worked for two and a half years before complaining, and that the alleged emotional distress was the result of Plaintiff’s relationship with her boyfriend and mother.
  • An individual Plaintiff with PAGA claims alleged that he was harassed and then assaulted by his supervisor. The employer terminated both the employee and the supervisor. The employee claimed harassment, retaliation, and wrongful termination. The employer said that it had a zero-violence policy.
  • Car salesman brought individual and PAGA claims against a new car dealer for wage and hour claims plus wrongful termination. The dealer claimed it terminated the Plaintiff for underperforming.
  • Plaintiff claimed that she told her employer that she was suffering from anxiety and panic attacks and was terminated three days after. The employer denied Plaintiff ever complained about any ailments and was part of a layoff caused by declining business.
  • Class action matter involving off the clock, overtime, meal break, rest break, wage statement, and waiting time violation claims against a hospital. There were 2,800 former and current class members, many of which were nurses.
  • Pregnancy disability claim, specifically post-partum depression. Defendant claimed that the employee’s job was eliminated, and that she was offered a new job at the same rate of pay, which she refused and then resigned.
  • Plaintiff quit his job after 27 years because employer, a non-profit, allegedly retaliated against him for complaining about the non-profit’s security practices. The employer denied retaliation and claimed that the plaintiff’s version of facts was not credible and he would be impeached by written documents.
  • Plaintiff alleged he, a dishwasher, was sexually harassed by the cook and was terminated for complaining. Defendant denied the harassment and claimed that Plaintiff quit as part of a worker’s compensation settlement.
  • Plaintiff (an African American) sued employer for racial discrimination, armed forces discrimination, and wrongful termination. Employer claimed it terminated the employee because of several threats of violence.
  • Three separate former employees of a hotel claimed failure to pay overtime, meal breaks, rest breaks, and wages upon termination.
  • Former employee claimed that her male supervisor put her in a headlock, brushed her breasts with his arm, and made threatening comments to her. The employer (defendant the supervisor) denied the battery and threats.
  • A 13-year employee claimed he was terminated because he was on disability leave for five months. The employer said that it fired the plaintiff because two months of his leave was unapproved.
  • Initially a PAGA claim that alleged meal and rest break violations that was converted at mediation to a class action/PAGA settlement. Defendant was a technology company.
  • Class action/PAGA matter in which the Defendant was a restaurant. Claims of violations involved meal breaks, rest breaks, inaccurate wage statements, failure to pay all wages earned, over time, and waiting time, among other claims.
  • 81-year-old female Caucasian claimed that she was terminated because she had complained about favoritism to her African American employer by her African American supervisors. The employer denied the complaint and claimed that it terminated the Plaintiff because of her attitude.
  • Plaintiff, a 20-year employee of defendant, claimed that he was terminated by the hotel defendant because he was gay, had complained about his supervisors’ harassment, and because of his cancer, which was in remission. The hotel claimed that plaintiff conceded that the issues raised in his performance improvement plan were justified, that it didn’t know that he was gay, and didn’t know about his lymphoma. It argued in its MST (which was calendared after the mediation) that it terminated the plaintiff because of time card fraud.
  • A 23-year-old employee claimed that a male employee called her “bitch” repeatedly and smacked her rear. She quit because the employer failed to investigate her complaint. The employer claimed that the plaintiff flirted with the employee, that it investigated her complaint and, in any event, she suffered no monetary damages because she got a better paying job right away.
  • Plaintiff, a teacher at a for-profit college, claimed that he was terminated because of his age and a complaint he made of discrimination. The school said that it terminated the plaintiff because of the inferior nature of his teaching.
  • Plaintiff alleged that she was retaliated against (i.e. terminated for her multiple doctor-ordered absences for depression). Defendant contended that Plaintiff had a history of unexcused absences unrelated to any disability throughout her 2-year employment, for which she was terminated.
  • Claimants, former fast food employees, claimed misclassification and failure to pay overtime and meal and rest breaks.
  • Plaintiff claimed he was harassed, retaliated against, and discriminated against because of his age and disability, and that he was wrongfully terminated. Employer said the employee is still employed at the company and only admitted that it didn’t engage in the interactive process.
  • Plaintiff, director of human resources, complained she was constructively terminated after she was retaliated against and discriminated against because of her disability. Employer said it was going to terminate Plaintiff before she ever asked for accommodation.
  • Plaintiff, a truck driver, claimed that his former employer did not accommodate his back injury and then fired him because of that disability. The employer claimed it terminated the plaintiff because he had threatened a supervisor with violence.
  • Plaintiff sexually harassed by a supposed supervisor. The issue therein was whether the harassment was time barred. Thereafter, Plaintiff filed an unrelated worker’s compensation claim and was terminated allegedly for performance reasons three weeks later.
  • Plaintiff was choked and touched on her “bottom” by a supervisor to whom Plaintiff did not report. She quit her job after she found the company owners to be unsympathetic and unsupportive.
  • Plaintiff, employed for three months, claimed he was terminated in retaliation for whistleblowing and being disabled. Employer said it terminated Plaintiff at the end of his probation because he was an unsatisfactory employee.
  • Employee claimed she was retaliated against after having complained about harassment by another employee and then constructively quit because of the retaliation. Employer denied the retaliation and claimed that the employee was still on leave at the company and had never quit.
  • Quality control employee claimed he was retaliated against for raising contamination issues in the manufacturing of the company’s product and then was forced to quit because of the retaliation. The employer denied the retaliation and claims of discrimination.
  • Claims involving disability and FMLA/CFRA discrimination, and wrongful termination. The defense claimed the employee resigned.
  • Plaintiff, a foreign national, came to the USA on a “green card” per a 2-year agreement. He claimed he was terminated in violation of both the agreement and his native country’s laws for whistleblowing. The employer contended the contract had been cancelled/was no longer in effect, he was at will, his complaints did not constitute whistleblowing, and was terminated for insubordination.
  • Plaintiff claimed that he was misclassified, resulting in wage and hour violations, was retaliated against, and was terminated because he had complained about safety violations. Employer argued that plaintiff was an exempt manager, never whistleblew, and quit the job.
  • Two plaintiffs claimed breach of contract, fraud, harassment, hostile work place, failure to pay commissions, retaliation, and wrongful termination. Employer replied that plaintiffs never complained about anything, were paid all commissions owed, and were terminated because the division they ran had lost money for three consecutive years.
  • Disability discrimination and sexual harassment claims. Plaintiff had MS and claimed defendant did not accommodate that disability, which led to her termination. She also claimed that her supervisor harassed her.
  • Pregnancy discrimination matter. Plaintiff claimed she was terminated after taking a one-week doctor’s ordered leave. Employer claimed Plaintiff abandoned the job. Plaintiff miscarried two weeks after the alleged termination.
  • Settled case involving claims of whistleblowing, violation of Labor Code section 1102.5 (retaliation), and wrongful termination.
  • A Vice President of Sales who was terminated sued for breach of contract, retaliation, failure to pay wages timely, and wrongful termination. The defense was that the plaintiff’s department was closed because of poor sales.
  • Employee, a server with defendant restaurant, sued for denial of meal breaks and rest breaks, failure to distribute tips, and retaliation. As part of the settlement, plaintiff employee resigned from her job.
  • Prefiling mediation: allegations of sexual harassment, hostile work place environment, retaliation per Labor Code section 1102.5, and wrongful termination.
  • Multiple truck drivers claimed they had been misclassed as independent contractors and sued as individuals for reimbursement of expenses, minimum wages, meal and rest breaks, wage statement violations, and wait time penalties.
  • Settled alleged misclassification of supervisor for manufacturing company; plaintiff was claiming overtime and compensation for meal breaks, rest breaks, and waiting time penalties.
  • Settled at mediation an employment claim for disability discrimination and wrongful termination.
  • Settled sexual harassment and retaliation case.
  • Settled wrongful termination case with retaliation, CFRA/FMLA aspects.
  • Mediated fraudulent inducement, breach of oral contract, negligent misrepresentation, and intentional infliction of emotional distress allegations where defendant company fired the plaintiff 11 days after hiring him.
  • Handled matter involving sexual harassment allegedly notified by employer plus alleged sexual harassment by supervisor and constructive termination.
  • Mediated class action matter involving PAGA claims/violations: meal breaks, rest breaks, reporting time, overtime, and wage statements.
  • Settled matter involving claims of country of origin and religious discrimination, as well as wrongful termination.
  • Mediated several PAGA claims regarding overtime and meal and rest break violations.
  • Settled dispute regarding CFRA/FMLA discrimination and wrongful termination.
  • Settled class action case regarding overtime, meal and rest break, wage statement, and waiting time claims.
  • Settled a matter involving claims of country of origin harassment and discrimination, retaliation, and wrongful termination.
  • Settled numerous matters involving harassment, retaliation, wrongful termination, and disability discrimination.
  • Settled matter involving PAGA claims for meal and rest breaks, overtime, and wage statements at a car dealership.
  • Handled several class action matters involving wage and hour, meal and rest breaks, overtime, and PAGA claims.
  • Settled dispute involving claims of violation of the Equal Pay Act, retaliation for CFRA leave, and wrongful termination.
  • Mediated a matter in which the plaintiff alleged retaliation and wrongful termination, and the defendant made a cross-complaint for theft of trade secrets.
  • Settled a case in which resident managers sued for overtime, meal and rest breaks, and wrongful termination.
  • Settled a matter involving claims of pregnancy discrimination and wrongful termination.
  • Settled a matter involving claims of breach of contract, fraud, slander, and wrongful termination.
  • Settled a case involving claims of pregnancy discrimination, wrongful termination, and retaliation.
  • Settled a case involving claims of whistleblowing (Labor Code §1102.5), retaliation, and wrongful termination.
  • Handled several employment cases involving claims of disability discrimination, age discrimination, racial discrimination, retaliation, failure to accommodate, and wrongful termination.
  • Mediated the case of two former employees making claims of disability discrimination, retaliation, and wrongful termination.
  • Mediated a case involving allegations of sexual harassment, quid pro quo, retaliation, intentional infliction of emotional abuse, and wrongful termination.

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Fee Dispute

  • Settled a dispute between a client and the client’s former law firm for the return of unearned fees.

Landlord/Tenant

  • Tenant lessees wanted their security deposit of $20,000 back, claiming they cleaned up the premises upon vacating and all of the lessor’s repair costs were pre-existing, were ordinary wear and tear or not supported. Lessor claimed that it had to pay $70,000 to repair the premises.

Personal Injury

  • Plaintiff was sexually assaulted by a rideshare company driver. Defendant, the rideshare company, defended that the driver was not an employee, the assault was not in the course and scope of the driver’s employment (even if he was an employee, and that the Plaintiff was not credible.
  • Bus driver closed a door on exiting passenger, who fell and hurt knee. The bus company admitted liability.
  • Mediated personal injury matter where plaintiff was hit by a flying bounce house.
  • Mediated a personal injury matter involving an accident between a motorcycle and a car.
  • Settled a case involving a two-car accident in which soft tissue injuries, as well as bicep and shoulder tears were sustained.
  • Settled a case regarding a passenger on a bus who fell and injured himself.

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Real Estate

  • Buyer of residential property sued her broker for giving her erroneous information about whether a detached building on the property was permitted.
  • Mediated real property matter involving an HOA suing a non-conforming property owner.

Real Property

  • Lessor sued for breach of lease, lost rent, and associated costs (taxes, etc.). Lessee claimed lessor did not disclose latent defects, which were numerous, causing him to vacate and stop payment because his costs to make improvements had become excessive. Lessee’s contractor then filed a mechanic’s lien against the lessor.
  • Handled matter in which a commercial lessor sued lessee for property taxes not paid as part of a settlement. Lessee cross-complained for breach of lease and fraud.
  • Mediated a dispute regarding the terms of a commercial lease, including the option period to extend the lease.
  • Mediated a matter involving claims of failure to disclose material defects in the sale of a residential property.
  • Mediated a commercial real property matter involving claims of specific performance and breach of contract.