Kevin Kinsella, Avalon Ventures
Kevin Kinsella, Avalon Ventures (courtesy photo)

The doo-doo is getting deeper for JAMS in a false advertising dispute with a disgruntled client.

A San Diego Superior Court judge on Friday cleared venture capitalist Kevin Kinsella’s suit against JAMS and neutral Sheila Prell Sonenshine for trial, saying neither judicial immunity nor the state’s litigation privilege bar claims that Sonenshine oversold her credentials to drum up business.

“The jury is going to love this case,” Judge John Meyer said following a spirited hearing at which he confirmed his tentative order denying summary judgment. The trial is expected to begin in late April or early May.

The case could make law on how careful alternative dispute resolution neutrals — or to hear JAMS tell it on Friday, full-fledged judges — have to be when making their biographies available to the public.

Kinsella and his attorney, Bryan Vess, allege that Sonenshine and JAMS falsely represented Sonenshine, a retired appellate justice, as a lawyer and entrepreneur who co-founded an investment bank and founded a private equity fund. There was no private equity fund, they allege, and JAMS failed to disclose that the investment bank paid $41 million to settle a shareholder class action. Kinsella, who is unhappy about Sonenshine’s handling of his marital dissolution, is seeking to recover about $100,000 in neutral fees plus $1.5 million he paid to his family law attorney and other providers.

“This proves that fraud claims can apply to these retired judges as they do to anybody else,” Vess said after the hearing.

JAMS issued a brief statement saying it has the utmost respect for the judicial process. “We look forward to participating in the next phase of the process in order to make the facts of the case clear and to bring an end to the matter,” the statement said.

Long & Levit partner Joseph McMonigle argued that Sonenshine and JAMS should be shielded by California’s judicial immunity law because Sonenshine was acting as a privately compensated temporary judge under a provision in the California Constitution. Under the logic of Kinsella’s claim, he argued, litigants unhappy about courtroom outcomes could sue superior court judges, alleging that they would have brought Rule 170.6 motions to disqualify them but for some alleged puffery supplied in their judicial biographies. “I dare say your honor would rule that that was within the judicial immunity,” McMonigle said.

Meyer seemed to hesitate for just a moment. “It’s an interesting argument you’re making,” he said. But Sonenshine’s online bio on JAMS has no connection to Kinsella’s divorce case, the judge reasoned. And he appeared to suggest that a judge could indeed be sued for claiming summa cum laude status in law school if that were provably false.

Perhaps most ominously for JAMS, Meyer ruled that the Fourth District Court of Appeal has already made law of the case on several points with its previous ruling on JAMS’ anti-SLAPP motion. The appellate court ruled that Sonenshine’s online bio is advertising that contains factual representations, not nonactionable opinion or hyperbole as JAMS had contended. “Law. Of. The. Case,” Vess repeated throughout his argument.

Kinsella is the founder of La Jolla-based Avalon Ventures. He said he agreed to have Sonenshine preside over his marital dissolution after reading her JAMS bio and being impressed with her business background. After appearing before the judge several times, Kinsella began making repeated attempts to recuse her. Sonenshine eventually withdrew after issuing a temporary spousal support order.

JAMS casts Kinsella as an implacable litigant who has waged “an unrelenting campaign” of harassment against any jurist who might rule against him. During the dissolution proceedings, he hired a private investigator to scour Sonenshine’s personal and professional background, including contacting her law school and former bank employees, JAMS says. He also forced the next judge assigned to his dissolution to recuse as well. When JAMS filed an anti-SLAPP motion that was heard by the court of appeal, he tried to disqualify the appellate judges and filed a federal civil rights suit against Fourth District Administrative Presiding Justice Judith McConnell. McConnell ended up writing the favorable opinion that Vess quoted in court Friday.

JAMS and Sonenshine argued they are entitled to judicial immunity because Sonenshine was performing a judicial function. But Meyer ruled Kinsella isn’t challenging any judicial acts. “In making the statements on the website, defendants were not exercising their judicial functions or performing dispute resolution services,” Meyer said in his tentative order.

JAMS and Sonenshine further contend they’re shielded by California’s litigation privilege, which bars lawsuits based on statements made during litigation. JAMS said its website was created “for litigation purposes,” and in any event the privilege extends beyond the courtroom to third parties such as forensic testers.

But Meyer wasn’t having that either. To qualify for the litigation privilege, he wrote, the statements have to be connected to the litigation. The statements in Sonenshine’s bio “were made to sell defendants’ services to litigants at large,” he wrote in his tentative ruling.

Kinsella said he was pleased by Friday’s ruling. “I want my rights respected and I want her false resume taken down,” he said. Conferring immunity on JAMS “would mean that every ADR neutral could bald-face lie on their resume with impunity.”

Contact Scott Graham at sgraham@alm.com. On Twitter: @scottkgraham.

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

The doo-doo is getting deeper for JAMS in a false advertising dispute with a disgruntled client.

A San Diego Superior Court judge on Friday cleared venture capitalist Kevin Kinsella’s suit against JAMS and neutral Sheila Prell Sonenshine for trial, saying neither judicial immunity nor the state’s litigation privilege bar claims that Sonenshine oversold her credentials to drum up business.

“The jury is going to love this case,” Judge John Meyer said following a spirited hearing at which he confirmed his tentative order denying summary judgment. The trial is expected to begin in late April or early May.

The case could make law on how careful alternative dispute resolution neutrals — or to hear JAMS tell it on Friday, full-fledged judges — have to be when making their biographies available to the public.

Kinsella and his attorney, Bryan Vess, allege that Sonenshine and JAMS falsely represented Sonenshine, a retired appellate justice, as a lawyer and entrepreneur who co-founded an investment bank and founded a private equity fund. There was no private equity fund, they allege, and JAMS failed to disclose that the investment bank paid $41 million to settle a shareholder class action. Kinsella, who is unhappy about Sonenshine’s handling of his marital dissolution, is seeking to recover about $100,000 in neutral fees plus $1.5 million he paid to his family law attorney and other providers.

“This proves that fraud claims can apply to these retired judges as they do to anybody else,” Vess said after the hearing.

JAMS issued a brief statement saying it has the utmost respect for the judicial process. “We look forward to participating in the next phase of the process in order to make the facts of the case clear and to bring an end to the matter,” the statement said.

Long & Levit partner Joseph McMonigle argued that Sonenshine and JAMS should be shielded by California’s judicial immunity law because Sonenshine was acting as a privately compensated temporary judge under a provision in the California Constitution. Under the logic of Kinsella’s claim, he argued, litigants unhappy about courtroom outcomes could sue superior court judges, alleging that they would have brought Rule 170.6 motions to disqualify them but for some alleged puffery supplied in their judicial biographies. “I dare say your honor would rule that that was within the judicial immunity,” McMonigle said.

Meyer seemed to hesitate for just a moment. “It’s an interesting argument you’re making,” he said. But Sonenshine’s online bio on JAMS has no connection to Kinsella’s divorce case, the judge reasoned. And he appeared to suggest that a judge could indeed be sued for claiming summa cum laude status in law school if that were provably false.

Perhaps most ominously for JAMS, Meyer ruled that the Fourth District Court of Appeal has already made law of the case on several points with its previous ruling on JAMS’ anti-SLAPP motion. The appellate court ruled that Sonenshine’s online bio is advertising that contains factual representations, not nonactionable opinion or hyperbole as JAMS had contended. “Law. Of. The. Case,” Vess repeated throughout his argument.

Kinsella is the founder of La Jolla-based Avalon Ventures. He said he agreed to have Sonenshine preside over his marital dissolution after reading her JAMS bio and being impressed with her business background. After appearing before the judge several times, Kinsella began making repeated attempts to recuse her. Sonenshine eventually withdrew after issuing a temporary spousal support order.

JAMS casts Kinsella as an implacable litigant who has waged “an unrelenting campaign” of harassment against any jurist who might rule against him. During the dissolution proceedings, he hired a private investigator to scour Sonenshine’s personal and professional background, including contacting her law school and former bank employees, JAMS says. He also forced the next judge assigned to his dissolution to recuse as well. When JAMS filed an anti-SLAPP motion that was heard by the court of appeal, he tried to disqualify the appellate judges and filed a federal civil rights suit against Fourth District Administrative Presiding Justice Judith McConnell . McConnell ended up writing the favorable opinion that Vess quoted in court Friday.

JAMS and Sonenshine argued they are entitled to judicial immunity because Sonenshine was performing a judicial function. But Meyer ruled Kinsella isn’t challenging any judicial acts. “In making the statements on the website, defendants were not exercising their judicial functions or performing dispute resolution services,” Meyer said in his tentative order.

JAMS and Sonenshine further contend they’re shielded by California’s litigation privilege, which bars lawsuits based on statements made during litigation. JAMS said its website was created “for litigation purposes,” and in any event the privilege extends beyond the courtroom to third parties such as forensic testers.

But Meyer wasn’t having that either. To qualify for the litigation privilege, he wrote, the statements have to be connected to the litigation. The statements in Sonenshine’s bio “were made to sell defendants’ services to litigants at large,” he wrote in his tentative ruling.

Kinsella said he was pleased by Friday’s ruling. “I want my rights respected and I want her false resume taken down,” he said. Conferring immunity on JAMS “would mean that every ADR neutral could bald-face lie on their resume with impunity.”

Contact Scott Graham at sgraham@alm.com. On Twitter: @scottkgraham.

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.