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JAMS, Inc. v. Superior Court (Kevin J. Kinsella)

California Court of Appeals, Fourth District, First Division

July 27, 2016

JAMS, INC., et al., Petitioners,

          ORIGINAL PROCEEDINGS in mandate. Superior Court of San Diego County, No. 37-2015-00026133-CU FR-CTL, John Meyer, Judge.

          Petition denied; stay vacated.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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         Long & Levit, Joseph P. McMonigle, Jessica R. MacGregor, Jonathan Rizzardi; Reed Smith, Paul D. Fogel and Dennis P. Maio for Petitioners.

         No appearance for Respondent.

         Bravo Law Group, Gregory L. Cartwright; Goode Hemme & Peterson, Jerry D. Hemme; Jenkins and Erik C. Jenkins for Real Party in Interest.

         Opinion by McConnell, P. J., with Huffman and Haller, JJ., concurring.


          [205 Cal.Rptr.3d 309] McCONNELL, P. J.


         This action arises from representations made on the JAMS, Inc. (JAMS), Web site regarding the background of the Honorable Sheila Prell Sonenshine (Retired), and JAMS's operations in offering alternative dispute resolution (ADR) services. Kevin J. Kinsella alleges he relied upon certain representations made on the Web site when he agreed to stipulate to hire Sonenshine as a privately compensated judge to resolve issues related to his marital dissolution case and later discovered the representations were either untrue or misleading.

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         JAMS and Sonenshine filed an anti-SLAPP (Code Civ. Proc., § 425.16)[1] motion to strike Kinsella's complaint. The court found the action exempt from the anti-SLAPP procedure under the commercial speech exemption of section 425.17, subdivision (c). JAMS and Sonenshine filed a petition for writ of mandate or other relief. We stayed the proceedings and issued an order to show cause why relief should not be granted to allow us the opportunity to consider the issues raised in the petition related to the scope of the commercial speech exemption of section 425.17, subdivision (c). (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273 [258 Cal.Rptr. 66] [writ review appropriate to decide issues of widespread interest].) Having now considered the matter, we agree the commercial speech exemption applies and precludes the use of the anti-SLAPP procedure in this case. The petition is denied.



         JAMS provides private ADR services by promoting, arranging and handling the hiring of neutral individuals, such as retired judges, to assist with resolution of disputes. Kinsella alleges: " JAMS acts as the 'promoter' and as the 'booking' agent for its neutrals, procuring engagements for them through the use of advertising and marketing. The neutrals are independent contractors, with JAMS collecting a fee from the neutrals for the services it provides in connection with the advertising, marketing, promotion, and 'booking' services. JAMS, in fact, collects the fees from the consumers who pay for the services of the neutrals and JAMS in turn pays the neutrals."

          [205 Cal.Rptr.3d 310] JAMS allegedly " directs and controls the publication of the JAMS [Web site] and the statements made on that site." JAMS provides biographies of its neutrals on its Web site and represents its family law neutrals are " 'trusted' experts." According to the complaint, the JAMS Web site stated " '[JAMS ensures] the highest ethical standards' and '[e]verything we do and say will reflect the highest ethical and moral standards. We are dedicated to neutrality, integrity, honesty, accountability, and mutual respect in all our interactions.'"

         Sonenshine is on JAMS's panel of neutrals. According to the complaint, she is a " former California Superior Court judge and a retired California

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[Fourth] District Court of Appeal[] justice. She is held out by JAMS as a neutral available for selection as a mediator, arbitrator, referee, and [privately compensated temporary judge]."


         Kinsella agreed to hire Sonenshine through JAMS to adjudicate his pending marital dissolution action, involving assets he states were " valued somewhere north of eight figures." These included assets from venture capital partnerships founded and managed by Kinsella. At the suggestion of his wife's attorney, Kinsella reviewed the JAMS Web site and Sonenshine's credentials. He alleged he did so carefully because he understood " the importance of selecting someone he could respect and trust to rule on the life-changing decisions" in his marital dissolution case and he wanted to " assure himself he was selecting someone who satisfied his need to have confidence in the jurist and, specifically, a person who would understand principles of business ventures and private equity funding."

         He alleged, based on the JAMS representations, he expected he could rely on the " honesty and integrity" of Sonenshine's biography, which he stated " was impressive." Kinsella alleged Sonenshine " was claiming experience that evidenced sufficient business acumen to understand his separate property holdings and private venture capital funds."

         The stipulation and order appointing Sonenshine as the privately compensated temporary judge for Kinsella's marital dissolution case gave Sonenshine authority " to make all orders necessary and proper to bring [the] case to judgment." After Sonenshine began conducting hearings, Kinsella alleged he " became alarmed by what he saw and doubted that she possessed the business accomplishments her resume led him to believe she possessed." He began to look into her background " to determine whether her [biography] accurately reflected her career achievements, especially as they ...

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