The private investigator discovered the following: the arbitrator and the head of Nemecek s appellate department, Mark Schaeffer, were both members of the Los Angeles County Bar Association s Appellate Executive Committee Section the arbitrator and Edith Matthai, Nemecek s expert witness in the arbitration, appeared together as panelists for various seminars and were both members of the board of governors of the Association of Business Trial Lawyers the arbitrator was employed as an attorney at the firm of Brown, White & Newhouse, which represents lawyers in malpractice actions and Nemecek attorneys appeared before the arbitrator when he was a district court judge in 2006. Shocked by the arbitrator s order, Horn decided to hire to private investigator to determine whether there existed any undisclosed relationships between the arbitrator and Nemecek, its counsel or its witnesses. The arbitrator denied any offset claimed by Horn, finding that Nemecek was the prevailing party since they were granted virtually all the relief they sought on Horn s claim. The arbitrator found Nemecek was entitled to $289,028.85 in attorney fees, explaining that this was a complex case requiring a great deal of work. Both parties submitted claims for attorney fees. The arbitrator ordered the parties to take nothing on their respective claims but allowed either party to claim attorney fees if they wished to do so. In an extensive opinion, the arbitrator noted that issues of credibility were very important and found Horn s credibility lacking. The evidentiary hearing lasted five days, with each party submitting testimony and briefing. The arbitrator presented his disclosure statement to the parties and Horn requested additional disclosure of all matters in which Nemecek appeared before the Arbitrator. District Judge George Schiavelli as the arbitrator. Nemecek filed a counter-claim against Horn for unpaid attorney fees and costs. He demanded Nemecek submit to arbitration with the 2 Judicial Arbitration and Mediation Service (JAMS) as specified in their retainer agreement. Horn believed Nemecek s negligence was the cause of the disastrous results in his claim against the Hoffmans. While that order was on appeal, Horn settled with the Hoffmans for $250,000. On remand, the trial court ordered Horn to pay approximately $380,000 in attorney fees to the Hoffmans. The matter was remanded to the trial court to retry the issue of damages and attorney fees and costs. This division considered the Hoffmans appeal and determined that they were entitled to attorney fees since they were the prevailing defendants on the complaint. When the motion for new trial and attorney fees was denied, the Hoffmans filed a motion for judgment notwithstanding the verdict. The Hoffmans moved for a new trial solely on the issue of insufficiency of the damages award and filed a motion for attorney fees. Because the award amounts offset each other, a judgment was entered awarding both parties zero. After trial, the jury returned a verdict of $42,282.56 to Horn on his fee claim against the Hoffmans and an identical amount to the Hoffmans on their fraud action against Horn. Horn retained Frank Nemecek and Nemecek & Cole (collectively Nemecek) to represent him in the matter against the Hoffmans. Horn subsequently sued the Hoffmans for unpaid fees and the Hoffmans counter-claimed for fraud, alleging that Horn materially misrepresented his experience in real estate matters, improperly billed the Hoffmans and failed to timely tender a cross-complaint to their homeowners insurance. After a bench trial, an adverse judgment was entered against the Hoffmans and they appealed the decision, retaining different counsel to represent them on appeal. FACTS Horn was retained by Henry and Janelle Hoffman (the Hoffmans) to represent them in a lot line dispute with their neighbors. Horn primarily contends the arbitrator failed to disclose necessary information which would cause a reasonable person to doubt the arbitrator s neutrality. _ Steven Horn appeals from the judgment, contending the trial court erred in confirming an arbitration award and awarding attorney fees. Nemecek and Mark Schaeffer for Plaintiff and Respondent. Murphy Pearson Bradley & Feeney, James A. APPEAL from a judgment of the Superior Court of Los Angeles County. order 8/15/12 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT NEMECEK & COLE et al., Plaintiffs and Respondents, B233274 (Los Angeles County Super.
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