Kirk Yake, Esq.

Profile

Kirk D. Yake, Esq. is a San Diego-based mediator and arbitrator with over twenty years of litigation and trial practice, and over ten years of training and experience mediating disputes. He has substantial experience in the areas of construction defect litigation involving both homeowners’ associations and individuals; environmental nuisance and contamination; real estate disputes; mobile-home park conversions; personal injury; employment; construction contracts; and community association law. In addition to facilitating the parties’ discussion in mediation, Kirk relies on his subject matter expertise to help the parties assess, evaluate, and explore legal positions and contentions in order to generate practical settlement options. Above all, Mr. Yake’s objectives are pragmatic, to resolve disputes quickly, efficiently, and affordably.

In 2005, while practicing as a successful trial lawyer of construction defect and environmental litigation, Mr. Yake saw the value of alternative dispute resolution to resolve difficult claims. He began pursuing mediation training and became a founding member of the Community Associations Institute’s mediation programs, where he mediated various types of HOA claims in Southern California. He earned a mediation credential from the National Conflict Resolution Center in 2008 and has since engaged in over 50 hours of ongoing additional training, including the American Bar Association’s “Advanced Mediation and Advocacy Skills Institute” and the Straus Institute for Dispute Resolution’s “Mediating the Litigated Case” program.

In addition to his private mediation practice, Mr. Yake has resolved numerous disputes as a panelist for the San Diego Superior Court civil mediation program; convened and mediated over a dozen employment discrimination cases as a mediator for the Equal Opportunity Employment Commission (EEOC); and arbitrated several attorney-client fee disputes for the San Diego County Bar Association.  He also serves as an arbitrator of consumer construction disputes for the State Contractor’s Licensing Board.

Since 2011, Mr. Yake has held elected positions for the ADR Section of the San Diego County Bar Association, which he chaired from 2012-2016. He takes an active role in developing educational programming on topics regarding mediation and arbitration, as well as on legislative and legal decisions affecting the practice of mediation.

AREAS OF EXPERTISE

  • Construction:
    • Soils issues: landslides, subsidence, inadequate compaction, consolidation, and differential settlement.
    • Mold damage and exposure: testing, remediation, and personal injury claims
    • Water intrusion: numerous building envelope breach claims, including roofs, windows, balconies, decks, and stucco.
    • SB 800 Performance Standard violations.
  • Homeowners Association: CC&R’s enforcement, architectural violations, damage, construction disputes
  • Real Estate: landlord-tenant, non-disclosure
  • Employment: discrimination, failure to hire, wrongful termination, negligent supervision
  • Business & Consumer: contract disputes, corporate dissolution, buy-out, debt
  • Professional Liability: fee disputes and liability
  • Auto Lemon Law
  • Personal Injury

MEDIATION EXPERIENCE

  • Mediator, San Diego Superior Court Panel (2016-Current)
  • Mediator, Equal Opportunity Employment Commission (EEOC) (2015-Current)
  • Mediator, West Coast Resolution Group / NCRC (2008-Current)
  • Mediator, Community Associations Institute (CAI), Orange County Mediation Committee (2005-2009)

LEGAL EXPERIENCE

  • Law Office of Kirk D. Yake (2013-Present)
  • Ward & Hagen LLP, Of Counsel (2008-2013)
  • Naumann Levine & Silldorf LLP, Associate (2005-2008)
  • Burdman & Benson LLP / Burdman Law Group, Associate, Partner (1998-2005)
  • Silldorf Burdman Duignan & Eisenburg, Associate (1994-1998)

EDUCATION

  • University of San Diego Law School, J.D. (1993)
  • University of California, San Diego, B.A., Political Science, Latin American emphasis (1987)
  • Straus Institute at Pepperdine University, “Mediating the Litigated Case” (2012)
  • American Bar Association, “Advanced Mediation and Advocacy Skills Institute” (2011)
  • National Conflict Resolution Center, Mediation Credentialing Program (2008)

PROFESSIONAL AFFILIATIONS

  • State Bar of California
  • S. District Court, Southern District
  • California Real Estate Broker
  • San Diego County Bar Association
    • ADR Executive Committee (Current)
    • ADR Section Vice-Chair (2017)
    • ADR Section Chair (2012-2016)
  • Community Associations Institute

Representative Cases

CONSTRUCTION

  • Consolidated multiple homeowner construction defect claims against builder regarding alleged failure to properly construct slopes; damaged rear yard improvements and slab deflection due to slope movement/creep
  • Claim by dentist against contractor for failure to complete and properly construct dental office improvements per contract and the standard of industry
  • Consolidated homeowner construction defect claims against luxury homebuilder and subcontractors regarding alleged construction defects causing water intrusion, mold growth, inadequate repairs by builder and fraudulent concealment
  • Condominium development construction defect action by HOA; alleged construction defects included improperly constructed stairs, stringers, walkways, landings, and balconies, water intrusion, fungal growth and wood decay
  • Condominium development construction defect action by HOA against builder, general contractor, and subcontractors; allegations included negligently selected and planted landscaping causing damage to sidewalks and mold contamination in rear-garage storage areas
  • Dispute between mobile home owner and plumbing contractor, plumbing contractor allegedly caused a fire during a plumbing repair with extensive smoke and water damage to the mobile home interior and contents
  • Mobile home condominium HOA construction defect action against municipal agency converter; defects included failure to properly upgrade, budget and/or disclose defective and derelict sewer, electrical, and site drainage components
  • Construction dispute by homeowner/architect against former business partner for failure to construction home addition according to plans and standard of care
  • Construction defect case by hilltop residential planned unit development HOA against homebuilder and subcontractors regarding failure to identify and stabilize ancient landslide reactivated by hilltop irrigation; resolution included joint monitoring and re-grading, and tie-back slope repairs

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EMPLOYMENT

  • Dispute between medical device salesperson and her employer, alleging sexual harassment, disparate treatment from male counterparts in sales territory and commission earnings, and hostile work environment
  • Female security guard claims against employer for sexual harassment, hostile workplace, failure of supervisor to investigate claims, and punitive response by supervisor following reported harassment by co-workers
  • Age discrimination claim following plaintiff’s termination as a dishwasher at a pub; employer claims termination was due to plaintiff’s sexual harassment of female customers
  • Age discrimination claims by factory supervisor against employer; following EEOC and safety complaints, plaintiff alleged retaliation, harassment, and subsequent lay-off based on false pretenses
  • Race discrimination claims brought by African-American male against employer religious charitable organization; claims of racist jokes, epithets by co-workers, and hostile workplace
  • Same-sex sexual harassment alleged by female plaintiff against direct superior at employer casino; hostile environment, retaliation, demotion, and loss of tips after reporting multiple incidents, claimed stress-related disability and loss of income
  • Plaintiff, a white male, alleged discrimination based on sex in claim against school district in alleged failure to hire/promote to administrative positions predominately filled by women
  • Discrimination claim by nurse suffering from anxiety and recent diagnosis of bipolar disorder against employer psychiatric hospital; claiming reasonable accommodation of disability was denied
  • Claimed discrimination based on race and association with disabled person (plaintiff is caretaker to her profoundly disabled son) against employer school district, including failure to accommodate and letters of reprimand when plaintiff requested time off for care-giving duties
  • Plaintiff claims hostile work environment caused by failure of department store employer to take disciplinary action against co-workers alleged to have made sexually explicit remarks and non-consensual touching of plaintiff, comprising same-sex sexual harassment

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HOA

  • Dispute over HOA demand that historical use by unit owners of common areas adjacent to their units be cleared of appurtenant household items and appliances per the governing documents
  • Dispute between homeowners and recently elected board members over non-enforcement of short-term rental restrictions and use of reserves to create enhancements for short-term rental marketing
  • Dispute between HOAs regarding respective contributions for irrigation of common area landscaping for both communities from a joint water meter
  • Dispute between homeowner and HOA regarding water intrusion into unit allegedly caused by recent exterior unit modifications by HOA
  • Dispute regarding payment of allegedly excessive and improperly levied fines arising from online short-term rental marketing and rental
  • Claims by and between homeowners and board members regarding failure of HOA to timely pursue collection procedures against unit owners for delinquent assessments
  • HOA claims for damages arising from unauthorized construction by unit owner, including demolition of common area components, failure to properly contain asbestos-containing materials during demolition, and criminal APCD complaints arising from the release friable asbestos during unauthorized construction
  • Dispute between homeowner and his HOA, including allegations of racial discrimination in failing to adequately respond to homeowner’s requests for documents and failure to follow law in adopting rental restriction
  • Homeowner – HOA dispute regarding damage due to water intrusion incident resulting in tenant vacancy and alleged breach of prior IDR and ADR agreements
  • Dispute between homeowner and HOA in planned unit development over alleged homeowner failure to comply with architectural application procedures and requirements regarding rear yard improvements
  • Dispute between homeowner and HOA in planned unit development alleging HOA’s failure to maintain slopes, trees and shrubbery to preserve views and address digging pests

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REAL ESTATE

  • Dispute regarding special assessment payment obligations following local purchase of Hawaiian timeshare, alleging non-disclosure and fraud
  • Non-disclosure and fraudulent concealment alleged against seller and real estate agent following purchase of home with courtyard to lower-level water intrusion, water stains and mold growth
  • Non-disclosure claims by purchaser of family starter home following rains and significant roof leaks, countered by seller’s claims of home affordability and full disclosure of older roof
  • Dispute between long-term tenant and successor owner of parcel used for auto salvage yard regarding site improvements and fees following termination of lease.
  • Dispute regarding water intrusion into retail space, damaging goods and resulting in early termination of lease and including insurance procurement and liability dispute
  • Claim against contractor by homeowner following inability to obtain increased appraisal value for home due to alleged contractor’s failure to obtain permits prior to converting historic garage to granny flat, with contractor claims for non-payment
  • Claims against apartment-condo converter by prior apartment tenants seeking to enforce earnest money deposits accompanied by promises to sell converted units at below-market prices
  • Residential lease dispute arising from early termination of lease allegedly due to disabled occupant’s emotional distress and discomfort following entrapment in elevator, elevator stalling and shaking
  • Payment dispute under business purchase agreement secured by residential second deed of trust, including claims of inability to pay based on reduced business profits
  • Neighbor dispute including trespass, and nuisance; alleged discharged water from swimming pool onto neighbor’s property causing erosion, damage to landscape and bleaching of decorative stone; trees and roots encroaching and damaging boundary fencing

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