Profile

AREAS OF EXPERTISE

  • Personal & Catastrophic Injury, Wrongful Death
  • Complex Litigation
  • Insurance Coverage & Bad Faith
  • Land Use, CEQA, and Real Estate
  • Business & Contract Disputes
  • Consumer Cases
  • Professional Liability
  • Civil Rights
  • Family Law
  • Probate, Estates & Trusts

 

JUDICIAL EXPERIENCE

Superior Court of California, County of Santa Clara     1984-2009

Judge Nichols served as a Judge of the Superior Court for 25 years, handling settlement conferences, and pre-trial, trial, and post-trial matters involving civil law, family law, juvenile delinquency and dependency, probate and mental health, and criminal law.

Over the course of his judicial career, Judge Nichols has presided over court and jury proceedings in complex litigation and CEQA; served in family court for four years, including a term as Presiding Judge of the Family Court Division; served as Presiding Judge of the Juvenile Court for two years, and later as Presiding Judge of the Appellate Department; sat on assignment by the Chief Justice of the California Supreme Court; spent two years in civil law and motion; was Supervising Judge of the family resources division; and spent one year in criminal law and motion.

Judge Nichols served as Assistant Presiding Judge of the Santa Clara County Superior Court, followed by two elected terms as Presiding Judge from 1997 and 1998. As Presiding Judge, he oversaw the unification of the Superior and Municipal trial courts in Santa Clara County.

Following his retirement from the bench in 2009, Judge Nichols served in the Assigned Judges Program until joining ADR Services, Inc. in 2019 as a full-time mediator, arbitrator, and referee.

 

PROFESSIONAL EXPERIENCE

Trial and Appellate Attorney     1967-1984

Judge Nichols spent the first two years of his legal career as a Staff Attorney with the San Mateo County Legal Aid Society. Thereafter, he transitioned to private practice, maintaining a general trial and appellate practice in the law partnership of Nichols & Ambler. His work focused primarily on civil, family, and criminal matters heard in State courts, with a lesser portion of his cases heard in Federal courts. He tried over forty cases to verdict or judgment, in addition to handling countless pre- and post-trial matters along with a smaller number of administrative hearings and arbitrations.

 

PUBLIC SERVICE

Council Member, Vice-Mayor and Mayor, City of Mountain View     1977-1984

Judge Nichols served as a member of the Mountain View City Council from 1977 until his appointment to the bench in 1984. His service began in 1977 by council appointment, after a public review process, to fill a vacancy. He was reelected in contested elections in 1978 and 1982.

 

EDUCATION

University of California, Hastings College of the Law, LL.B.     1966

Stanford University, B.A.     1963

 

HONORS AND AWARDS

Stanford Associates, elected to membership in recognition of exceptional and sustained volunteer service to the university     2018

Alumni of the Year, Burlingame High School Alumni Association     2015

Lifetime Achievement Award, Santa Clara County Trial Lawyers Association     2010

Awarded the Degree of Honorary Doctor of Laws, Lincoln Law School     2009

Trial Judge of the Year, Santa Clara County Trial Lawyers Association     2002

Martindale-Hubbell, A.V. Rating     1984

 

DISPUTE RESOLUTION TRAINING

Arbitrator Certificate Training by Ron Kelly, Bar Association of San Francisco (20 hours)

“Negotiating Mastery”, “Critical Communication Skills in Negotiation”, “Effective Non-Verbal Communication”, Stanford University (18 hours)

“Mediating the Litigated Case”, Straus Institute for Dispute Resolution (45 hours)

“Introduction to Mediation in the Business Setting”, Harvard Law School (20 hours)

“Mediation: A Skills Based Program”, CJER (40 hours)

 

BAR ADMISSIONS

Judge Nichols is admitted to practice in the Supreme Court of the United States of America, 1973; United States Court of Appeals for the Ninth Circuit, 1967; United States District Court for the Northern District of California, 1967; and Supreme Court of the State of California, 1967.

 

TEACHING

Judge Nichols taught law at Lincoln Law School of San Jose from 1971 to 1976 and was named Outstanding Instructor of the Year during his tenure. He also teaches for the California Center for Judicial Education and Research (CJER) and for the Continuing Education of the Bar (CEB).

Judge Nichols regularly judges moot court competitions at various Bay Area law schools, in addition to presiding over high school mock trials in programs sponsored by the California Department of Education, the State Bar of California, and the Santa Clara County Bar Association.

 

Representative Cases

ACCOUNTING & TAXATION

  • Property taxpayers filed claim for property tax refund, claiming that city erroneously collected taxes for lot which did not exist on parcel maps. Court decision stated that city assessor recorder’s office created lot pursuant to its statutory authority rather than by mistake, and taxes assessed on the lot were valid. Affirmed.
  • Hotel operators petitioned for writ of mandate and filed complaint against city for declaratory and injunctive relief on constitutionality of city’s transient tax on hotel guests. Trial court judgment in favor of city and determination that tax was not facially void for vagueness under the due process clause of the Constitution, affirmed on appeal.

BUSINESS & CONTRACT DISPUTES

  • Decorative ironwork company brought action against homeowner for breach of a contract to build and install decorative ironwork at home.
  • Savings and loan sued payors for nonpayment of promissory note. Payors petitioned for arbitration. Court ordered parties to arbitration, and following award against savings and loans association, confirmed award and also awarded attorney’s fees and costs. Affirmed.
  • After entry of judgment approving settlement agreement between Phillippine government-owned entity created to guarantee loans and United States corporations, entity moved to set aside stipulated judgment. Order denying motion reviewed by writ, motion for production of additional evidence, or for writ of error coram nobis. Trial court judgment affirmed.
  • State brought unfair business practices action against mobile home park owners, alleging that they violated city ordinance by requiring tenants to accept long-term leases in order to avoid rent control. Following bench trial, judgment for state requiring restitution and disgorgement of unauthorized rents and to restore that money to affected tenants, and payment of penalties, affirmed.
  • DVD association brought action against home entertainment system manufacturer for breach of contract and breach of covenant of good faith and fair dealing, alleging that system did not comply with encryption specifications in licensing agreement between the parties.
  • Prior to filing for dissolution, a law firm with secured debt obligations assigned various client accounts to a newly-formed entity and simultaneously entered into an agreement allocating fees between the two firms. The secured creditor sued the new law firm for, among other things, conversion, common count, and breach of contract under a third party beneficiary theory.
  • Plaintiff and several other investors bought over $6 million of stock in a video compression technology company. As the main investor, plaintiff became CEO of the company. Over the next few years, the company’s stock did not perform as well as the investors hoped. Claiming economic damages, plaintiff, on behalf of the other investors, sued the company’s principal for negligent misrepresentation, breach of fiduciary duty, breach of contract and fraud. Plaintiff claimed that the company did not disclose all of the company's financial needs before the $6 million investment, and that those problems caused the stocks to perform poorly.

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COMPLEX LITIGATION

  • Water district and assignors of pre-1914 appropriative water rights to district petitioned for writ of mandate challenging State Water Resources Control Board’s cease and desist order substantially restricting district’s diversion of water under the appropriative water right. Writ of mandate affirmed.
  • County employees brought action against county’s employee retirement association for breach of fiduciary duty and a violation of the County Employees Retirement Law (CERL) provision governing the computation of the normal contribution rate, and sought an injunction.
  • Department of Forestry and Fire Protection, insurer, and landowners filed consolidated actions against owners of property on which wildfire started, property manager, purchaser of property’s standing timber, timber operator with which purchaser contracted to cut the timber, and two of operator’s employees for recovery of fire suppression and investigation costs and for monetary damages stemming from wildfire that burned approximately 65,000 acres over the course of multiple weeks and allegedly began when bulldozer employee was operating struck rocks, which eventually caused surrounding plant matter to ignite. Ongoing multi-party case (21 parties, 6 consolidated cases). Interpretation of statutory provisions concerning state’s right to recover wildfire suppression costs.
  • Action by aircraft company against insurers seeking coverage under commercial general liability policies for pollution-related liability totaling hundreds of millions of dollars. Trial court judgment for insurers affirmed.
  • Condominium homeowners’ association brought action against condominium developers, vendors, and contractor for construction defects. Trial court denial of defendant’s motion for judgment on the pleadings reviewed on appeal by petition for writ of mandate.

EMINENT DOMAIN

  • Eminent domain case involving an acquisition of an 8,000 square foot strip of frontage from a 160,000 square foot larger parcel. Plaintiff was a public agency taking land for extension of a light rail system. Six months before plaintiff filed its condemnation complaint, property owner defendants started construction on an office complex on the property. When plaintiff filed its eminent domain action, the building structure was approximately 90 percent complete. Defendant property owners claimed compensation for the value of the taking, temporary delay damages which resulted in a claimed temporary loss of 19 months of rent and severance damages to remaining property. Plaintiff contended that it had offered fair market value for the property and that there were no severance damages to the remainder.

EMPLOYMENT

  • Former county counsel filed government tort claim against county, members of the Board of Supervisors, and County Administrator, alleging breach of purported employment agreement and constructive discharge, stemming from personnel investigation that led to counsel’s eventual resignation. Defendants filed anti-SLAPP motion to strike counsel’s complaint.
  • Former employee brought action against her former employee alleging wrongful termination. Summary judgment in favor of defendant upheld. No cause of action for fraud or breach of implied covenant of good faith and fair dealing; no cause of action for privacy based on misappropriation of name. Affirmed on appeal.
  • Computer software company brought action against former employee and customer for alleged misappropriation of trade secret and sought temporary restraining order and preliminary injunction. Court denied application for preliminary injunction and awarded attorney’s fees after documents submitted by software company were shown to be forgeries. Affirmed on appeal.
  • Software developer brought action against former employee and former employee’s businesses, alleging that former employee breached contract to convey computer code and a contract not to compete, misappropriated trade secrets, and committed fraud. Bench trial judgment for defendants affirmed.
  • Plaintiff was fired from employment with a department store for alleged petty theft and embezzlement. When plaintiff appeared on surveillance footage apparently withdrawing money from her register and not returning it, and also not charging a customer for a pair of shoes, the store manager called police, who subsequently cited her. Plaintiff sued for malicious prosecution, intentional infliction of emotional distress, and false imprisonment, claiming that the store did not have probable cause to arrest and fire her.
  • Online social gaming company brought suit against its former General Manager for misappropriation of trade secrets and breach of contract. Defendant signed a confidentiality agreement with plaintiff pursuant to his employment, which obligated him to protect plaintiff’s confidential, proprietary, and trade secret information. Defendant resigned and went to work for plaintiff’s competitor. On the day of his departure, defendant allegedly transferred confidential files to his personal Dropbox account without consent, which he intended to provide to his new employer. During his exit interview, he refused to sign a Termination Certification that he had complied with his prior contractual obligations.

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FAMILY LAW

  • Father petitioned for a writ of mandate to prohibit district attorney from attempting to collect child support on behalf of his 18-year-old son who was still in high school. Court found that the father, who had been ordered in marriage dissolution to pay child support until child reached the age of majority or until further court, was not entitled to a hearing before his child support obligation was extended by subsequently enacted statute imposing parental duty to support unmarried, 18-year-old high school student. Trial court judgment affirmed.
  • Dissolution of marriage proceeding involving parties who had already been separated for almost seven years at the time petitioner filed for dissolution. During the time the parties lived together, the wife suffered a stroke that resulted in expensive and complicated brain surgery. She was willing to waive any claim of spousal support in order to avoid trial due to her health, but her ex-husband refused to settle. At issue was whether a home which had been purchased near the time of separation was to be considered community property.
  • Dissolution of marriage proceeding involving a marital estate with a net value of approximately one million dollars.
  • Complicated child custody case where the court had to make a determination as to whether California or Lebanon had child custody jurisdiction.
  • Case of first impression where it was determined that the trial court had jurisdiction to extend the father’s child support obligation without the need for a separate hearing. Affirmed on appeal.

INSURANCE

  • Toy company’s insurer brought action for declaratory judgment as to its duty under commercial general liability insurance policy to defend company in underlying intellectual property action by inventor’s estate arising out of company’s misappropriation of inventor’s name.
  • Appointed receiver for fire damaged property brought action against insurer for breach of contract, bad faith refusal to pay benefits, negligence, fraudulent misrepresentation, and negligent misrepresentation. Judgment for plaintiff, including punitive damages and court ordered attorney’s fees affirmed on appeal. Post remittitur attorney fees ordered.
  • Organization authorized by member airlines to issue blank airline ticket forms to travel agents and to collect money owed to airlines for tickets sold filed action against surety that issued bond covering default of principal-travel agency, claiming that bond covered theft of blank ticket forms which were subsequently used. After bench trial, judgment in favor of surety affirmed on appeal.
  • Action by aircraft company against insurers seeking coverage under commercial general liability policies for pollution-related liability totaling hundreds of millions of dollars. Trial court judgment for insurers affirmed.

INTELLECTUAL PROPERTY

  • Manufacturer of ultrasonic imaging equipment brough action against competitor for misappropriation of alleged trade secrets.
  • Computer software company brought action against former employee and customer for alleged misappropriation of trade secret and sought temporary restraining order and preliminary injunction. Court denied application for preliminary injunction and awarded attorney’s fees after documents submitted by software company were shown to be forgeries. Affirmed on appeal.
  • Software developer brought action against former employee and former employee’s businesses, alleging that former employee breached contract to convey computer code and a contract not to compete, misappropriated trade secrets, and committed fraud. Bench trial judgment for defendants affirmed.
  • Online social gaming company brought suit against its former General Manager for misappropriation of trade secrets and breach of contract. Defendant signed a confidentiality agreement with plaintiff pursuant to his employment, which obligated him to protect plaintiff’s confidential, proprietary, and trade secret information. Defendant resigned and went to work for plaintiff’s competitor. On the day of his departure, defendant allegedly transferred confidential files to his personal Dropbox account without consent, which he intended to provide to his new employer. During his exit interview, he refused to sign a Termination Certification that he had complied with his prior contractual obligations.

LAND USE / CEQA

  • Neighborhood association filed petition seeking writ of mandamus directing city to set aside approval of permit of landowners to demolish historic house and to consider any application for new permit under requirements of CEQA.
  • CEQA case wherein opponents to amendment to city’s general plan filed petition for writ of mandate and complaint for injunctive relief. Trial court judgment in favor of city affirmed on appeal.
  • Preservation Council filed a writ petition against the city challenging the city’s decision to certify an environmental impact report (EIR) and approve a home improvement warehouse project on sites occupied by an unused historic building, alleging that the city violated CEQA by failing to analyze a reasonable range of alternatives. Trial court granted the writ, affirmed on appeal.
  • Environmental nonprofit corporation brought petition for writ of mandamus to enforce CEQA against county, which had approved agreement with university regarding trail easements. Trial court determination that the action was barred by 30-day statute of limitations was reversed by Court of Appeal. The California Supreme Court granted review and unanimously reversed the decision of the Court of Appeal.
  • Citizens group and individuals who opposed construction of a retail superstore in a shopping center filed a petition for writ of mandate to set aside city’s certification of an environmental impact report (EIR) and approval of project. Trial court denial of petition was affirmed on appeal.
  • Water company and activist group petitioned for writ, injunction, and declaratory relief to challenge decision to approve extension of existing water recycling program. Trial court judgment for City affirmed.
  • Complicated environmental and land use planning lawsuit involving an HOA which filed a petition for writ of mandate and other relief to set aside a land use decision of the city council permitting a high density housing development contiguous to a single family residential area.

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PERSONAL INJURY

  • Police vehicle collided with elderly motorist when making a U-turn and failing to yield the right of way resulting in severe injuries and damages. As plaintiff reportedly drove within the speed limit, a CHP officer was alleged to have improperly made a U-turn directly into plaintiff’s lane of travel. Plaintiff suffered serious injuries and her car was totalled. Plaintiff reportedly continued to suffer from depression and permanent cognitive problems as a result of the accident. Plaintiff filed suit against the State of California and the officer.
  • An adult man whose vehicle was stopped in traffic on the freeway reportedly suffered a cervical disc injury which required fusion surgery when a semi truck driven by defendant, who was in the course and scope of his employment with defendant employer, slammed into the rear of his vehicle. Plaintiff contended that defendant negligently traveled at an unsafe speed for traffic conditions so as to cause the accident and injuries to the plaintiff. Defendants admitted negligence but disputed the nature and extent of the plaintiff's injuries and damages.
  • Plaintiff was driving his motorcycle north when he lost control, crossed over the double yellow striping and stuck a vehicle proceeding south. The collision resulted in multiple, permanently incapacitating injuries to plaintiff. Plaintiff sued the state claiming the public roadway was in a dangerous condition by an alleged tightened curve radius, a defect in the roadway surface, and improper and inadequate signing. Compensatory damages were sought for personal injuries including permanent disability, medical expenses, lost wages and loss of earning capacity. The State argued there were ample warning signs advising motorists to travel at a recommended speed through the curving section of the highway, Plaintiff’s estimated speed was twice the recommended speed, and Plaintiff was solely at fault for the accident by driving inattentively and unsafely.
  • Plaintiff was seriously injured in a late night solo motorcycle accident at the curve on part of a detour route. Plaintiff filed a civil complaint against the County and contractor alleging that the curve was a dangerous condition of public property and that the County was negligent in its design and maintenance of the detour. The complaint alleged that the general contractor was also negligent in the construction of the detour, namely, in the placement of a detour sign which allegedly blocked plaintiff's view of an approaching warning sign for the curve.
  • Personal injury case wherein an elderly woman was struck by a delivery van while crossing the street. Plaintiff claimed that she suffered from a loss of social confidence, intellectual ability, and personality functioning, in addition to the physical injuries that she sustained.
  • Premises liability case wherein plaintiff was in a permanent vegetative state due to falling into apartment swimming pool while intoxicated.
  • Pedestrian struck by automobile suffered profound permanent brain damage.
  • Personal injury case with multi-party government and private party defendants involving worker on the job.
  • Indemnification for catastrophic injury involving determination of active negligence of County barring indemnity. Right of insurance carrier to intervene.
  • Plaintiff, who was incompetent due to serious head injuries, appealed from an order of the Superior Court which granted defendant’s motion to dismiss for failure to timely effect service of process. Court of Appeal affirmed.
  • Claimants filed petition for relief from claim presentation requirements of the Tort Claims Act, in connection with an accident wherein automobile was allegedly rear-ended by school bus.
  • Plaintiff, a mentally ill man, fell into a catatonic state at a local shopping center and was taken to a nearby hospital and placed in restraints as he was deemed a danger to himself. He was later told that he had suffered chemical burns on his hands while working for a former employer and transferred to a surgical unit where surgery was performed on his hands. It was later discovered that, contrary to what he was told, plaintiff was released from restraints and permitted to go into a shower area unsupervised, where he stood under scalding hot water and burned his hands. The county and hospital were sued for negligence.
  • A parent brought action for emotional distress damages stemming from the alleged sexual molestation of her child by a relative.
  • Plaintiff was driving north on the highway when a freight truck allegedly changed lanes into her lane, clipping the rear of her vehicle and propelling it off the highway where it crashed. The truck driver was driving the truck in the course of his employment. Plaintiff allegedly suffered neck, head and back injuries as a result of the collision. Plaintiff claimed that the truck driver’s employers were liable for the accident and their resulting injuries. Damages were sought for personal injury and medical expenses.
  • A 12-year-old male alleged that he suffered severe mental deficiency, incomplete hemiplegia on his left side, herniated discs, pelvic, left leg and jaw fractures and the loss of his quality of life when he was struck by the female defendant's vehicle as he ran from an enclosed schoolyard, through a driveway and into the defendant's travel path on a public roadway. The plaintiff contended that the defendant drove at an excessive rate of speed in a school area, failed to keep a proper lookout, and operated his vehicle in a negligent manner. The defendant denied liability and contended that the plaintiff negligently ran into the roadway, and that she was faced with a sudden emergency and was unable to avoid the incident.

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PROBATE, ESTATES & TRUSTS

  • Competing petitions were brought by two brothers to adjudicate claims to property of their father’s estate. Brother A appeals from an order denying his petition and granting the petition of his brother. After this order was entered both brothers filed petitions to be appointed as personal representatives of the estate. Successive appeals were filed in response to several orders.

PROFESSIONAL LIABILITY

  • Taxpayer-clients brought accounting malpractice action against accountant and accounting firm, alleging negligent preparation of federal and state income tax returns and negligent representation of clients in IRS audit process. Parties stipulated to bifurcation and to an initial trial of defendant’s motion in limine that the action was time-barred.
  • Legal malpractice action wherein two elderly people who had been injured in an automobile accident retained an attorney to represent them in a personal injury lawsuit. Plaintiffs’ attorney allegedly allowed the case to drag on for years and eventually informed them that their case had been settled, before it was eventually discovered that the settlement never took place and the case had actually been dismissed years before for failure to answer written interrogatories. The attorney defendant was later disbarred by the California Supreme Court.

REAL PROPERTY

  • Plaintiff asked his real estate agent, defendant, to write to the owners of desirable properties and relay unsolicited purchase offers. One property responded, and plaintiff received a firm offer from the seller's agent informing him that they would sell him the property for $5.25 million. Plaintiff disclosed this information to defendant, along with other terms of the deal. Defendant agreed to keep the information confidential so there would be no other competing bids for the property. Defendant then used the information about plaintiff's offer and found another purchaser who was willing to pay a higher amount, allegedly in order to receive a higher commission. Plaintiff claimed that defendant confirmed that he had divulged plaintiff's confidential offer to the new bidder, whom he was also representing. The sellers accepted the competing offer and that sale completed. Plaintiff alleged breach of fiduciary duty, unjust enrichment, constructive trust, constructive fraud, and intentional and negligent interference with prospective economic advantage, and professional negligence.
  • Action to quiet title to strip of land over which adjoining landowner claimed easement for ingress and egress. Final execution of settlement more than five years after commencement of action did not justify dismissal under statute requiring action be brought to trial within five years. Enforcement of agreement affirmed.
  • Homebuyer brought action against husband and wife, as sellers of home, alleging negligent misrepresentation, fraud, and other claims. Buyer raised additional claims against other defendants. Court confirmation of jury verdicts affirmed.
  • Parties who had been defrauded by real estate brokers into issuing note secured by fully encumbered property sought to recover from real estate recovery account.
  • Property owner filed action against city and its redevelopment agency to challenge validity of redevelopment plan for blighted areas under California Community Redevelopment Law (CRL) and for injunctive and declaratory relief. Trial court determination in favor of city was affirmed on appeal.