Appellate

View alphabetical listings of Seltzer Caplan McMahon Vitek attorneys practicing in Appellate below:

Michael G. Nardi Shareholder

Mr. Nardi is a shareholder of the firm.  His practice focuses on complex civil/commercial litigation, in federal and state trial and appellate courts and in alternative dispute resolution proceedings.  Mr. Nardi has 30 years of experience representing individuals, governmental entities and private businesses ranging in size from small “mom and pop” organizations to large multi-national corporations.  He has particular expertise in insurance coverage, employment, environmental, intellectual property and business disputes.  He serves as Chair of the firm’s Appellate Law practice group and Co-Chair of its Insurance Law practice group.

Education

Mr. Nardi received his Bachelor of Science degree, magna cum laude, from Towson State University in 1981.  He earned his law degree, with honors, from the University of Maryland School of Law in 1986, where he was named Order of the Coif.  He was the recipient of the W. Calvin Chesnut Prize, Bridgewater M. Arnold Prize, and the American Jurisprudence Awards for Property, Criminal Procedure, Commercial Paper and Conflict of Law.  Mr. Nardi was a member and the Notes and Comments Editor of the Maryland Law Review.

Employment Background

Prior to joining Seltzer Caplan McMahon Vitek, Mr. Nardi served as a law clerk for the Honorable Norman P. Ramsey, U.S. District Court, District of Maryland from 1986-1987.

Representative Matters

Representative insurance matters and cases:

  • Represented insurer-client in insurance coverage/“bad-faith” action brought by underlying plaintiffs as assignees of D&O insureds. Case involved interpretation and application of policies’ related-claims and prior notice provisions. Summary judgment in favor of insurer-client and award of attorney’s fees and costs affirmed on appeal, with award of additional appellate attorney’s fees and costs.
  • Represented insurer-client in insurance coverage/“bad-faith” action involving alleged failure to pay underlying class-action settlement. Case involved interpretation of policy provisions not previously interpreted in California.  Summary judgment in favor of insurer-client and award of costs affirmed on appeal.
  • Represented insurer client in insurance coverage/”bad-faith” action involving liability coverage for hydrocarbon contamination at a public facility. Summary judgment for insurer client and award of costs affirmed on appeal.
  • Represented insurer-client in insurance coverage/“bad-faith” arbitration arising out of dispute regarding coverage for underlying wage-and-hour class-action suits. Three-member panel denied claimant’s demands for tort/“bad-faith” damages (including reimbursement of an underlying settlement, attorney’s fees and punitive damages), and prejudgment interest and ordered claimant to pay a substantial portion of insurer-client’s arbitration costs.
  • Represented insurer-client in multi-million-dollar contribution action to recover defense fees/costs and a settlement payment from a second insurer. Summary judgment favorable to insurer-client affirmed on appeal.
  • Represented insurer-client as defendant in contribution/subrogation action. Summary judgment granted in favor of insurer-client, with award of costs to insurer-client.
  • Represented holding company client in insurance coverage/“bad-faith” litigation. Motion to quash service of summons granted for lack of personal jurisdiction over holding company defendant.
  • Represented insurer-client in insurance coverage/“bad-faith” action involving alleged property damage coverage. Matter successfully resolved after proving the claim was inflated and overstated and securing partial summary judgment for insurer-client.
  • Represented insurer-client in insurance coverage/“bad-faith” action involving alleged property damage coverage. Matter successfully resolved after demurrer sustained for insurer-client.
  • Represented insurer-client in insurance coverage/“bad-faith” suit regarding coverage for complaints made to insured homeowners’ association. Case involved question whether pre-suit demand letters constituted a “Claim” for purposes of placing coverage in the appropriate claims-made policy period.  Case successfully resolved after ruling on insurer’s motion to dismiss.
  • Represented insurer-client in insurance coverage/“bad-faith” litigation brought by City of Phoenix, Arizona. Matter successfully resolved while awaiting ruling on insurer’s motion for summary judgment.
  • Represented title insurer defendant in consumer class action. Matter successfully resolved while awaiting decision on insurer’s motion to dismiss.
  • Represented insurer-client in dispute regarding reimbursement of insured’s independent counsel fees/costs. Matter involved complicated choice-of-law issues and conflict between statutory and common law rights/obligations pertaining to independent counsel.  Matter successfully resolved.
  • Represented insurer-client in insurance coverage/“bad-faith” litigation brought by California public entity insured. Matter involved claims exceeding $100 million in alleged defense and indemnity expenses associated with long-term environmental pollution.  Matter successfully resolved while insurer-client’s motion for summary judgment pending.
  • Represented insurer-client on petition for writ of certiorari to the United States Supreme Court. Case involved the rights of an insurer, as its insured’s subrogee, to pursue cost-recovery action under CERCLA.
  • Represented insurer-client in several insurance coverage/“bad-faith” suits arising out of underlying environmental litigation. Matters successfully resolved at various stages of the litigation.
  • Represented and continue to represent and advise insurer-clients on variety of coverage-related issues, with objective of avoiding (or improving likelihood of success in) litigation.

Representative appellate matters and cases:

  • Represented (in trial court and on appeal) defendant City of San Diego in a constructive discharge/age discrimination action brought by a former Deputy City Attorney. Action dismissed, and judgment affirmed on appeal.  See Monce v. City of San Diego, 895 2d 560 (9th Cir. 1990).
  • Represented, on appeal, defendant/appellant polybutylene plumbing fitting supplier seeking reversal of a judgment in favor of homeowner plaintiffs/respondents. Judgment reversed with directions to enter judgment for fitting supplier client.  See Gawara v. U.S. Brass Company (1998) 63 Cal.App.4th 1341.
  • Represented (in trial court and on appeal) insurer-client in insurance coverage/“bad-faith” action involving alleged failure to pay underlying class-action settlement. Summary judgment and award of costs in favor of insurer-client affirmed on appeal, with award of appellate costs to insurer-client.  See Screen Actors Guild, Inc. v. Federal Insurance Company, 957 F.Supp.2d 1157 (C.D. Cal. 2013).
  • Represented, on appeal, appellant seeking reversal of $4,000,000-plus negligent misrepresentation judgment after jury verdict in favor of developer respondent. Judgment reversed, with directions to enter judgment for and award costs to client.
  • Represented, on appeal, national retailer client seeking reversal of judgment in favor of developer plaintiff/respondent. Judgment reversed, with directions to enter judgment for (and award costs and attorney’s fees to) retailer-client.
  • Represented, on appeal, insurance company principal seeking to affirm summary judgment in his favor in an action alleging defamation and interference with prospective economic advantage in connection with the sale of an aerospace company. Judgment affirmed, with costs awarded to client.
  • Represented (in trial court and on appeal) insurer-client in insurance coverage/“bad-faith” action involving liability coverage for hydrocarbon contamination at a public facility. Summary judgment and award of costs in favor of insurer-client affirmed on appeal, and appellate costs awarded to insurer-client.
  • Represented (in the trial court and on appeal) independent television station and its owner in wrongful discharge/age discrimination action brought by former long-time station manager. The case involved significant and previously untested after-acquired evidence issues and was tried to a defense jury verdict on all causes of action.  Judgment affirmed on appeal.
  • Represented, on appeal, financial advisor employees who had been induced to accept employment, then wrongfully terminated. Former employer sought to reverse the judgment confirming an arbitration award in favor of terminated employees.  Motion to dismiss appeal granted, with award of costs to employee clients.
  • Represented insurer-client, as appellee, in the Arizona Court of Appeals, after securing summary judgment for client in the trial court on insured’s breach of contract/“bad-faith” action. The Court of Appeals affirmed the judgment in favor of (and awarded appellate costs and attorney’s fees to) insurer-client.
  • Represented insurer-client on petition for writ of certiorari to the United States Supreme Court. Case involved the rights of an insurer, as its insured’s subrogee, to pursue cost-recovery action under CERCLA.

Representative employment matters and cases:

  • Represented law firm and its partners in action brought by former associate attorney alleging discrimination and dismissal because of his medical condition (HIV/AIDS) and sexual orientation. The case presented unique challenges due to the simultaneous release of the Tom Hanks movie Philadelphia, significant adverse publicity and the emotionally-charged subject matter.  The case was tried to a defense verdict on all causes of action.
  • Represented defendant City of San Diego in a constructive discharge/age discrimination action brought by a former Deputy City Attorney. Action dismissed in trial court under little-known exception to the Age Discrimination in Employment Act applicable to members of the personal staff of an elected official.  Judgment affirmed on appeal to the United States Court of Appeals for the Ninth Circuit.  See Monce v. City of San Diego, 895 2d 560 (9th Cir. 1990).
  • Represented independent television station and its owner in wrongful discharge/age discrimination action brought by former long-time station manager. The case involved significant and previously untested after-acquired evidence issues and was tried to a defense jury verdict on all causes of action.  Judgment affirmed on appeal.

Representative business/commercial matters and cases:

  • Represented sports arena concessionaire in breach of contract/breach of fiduciary duty/usurpation of corporate opportunity action and cross-action by and against high profile shareholder/director. The case was tried to a jury verdict and multi-million dollar judgment in favor of concessionaire client.
  • Represented individual clients in arbitration proceeding against commercial real estate broker arising from a Section 1031 exchange in which the accommodator had failed to return the proceeds from the first leg of the exchange (clients’ sale of multi-unit apartment project). Clients’ real estate agent had recommended the accommodator without disclosing the lender/borrower relationship that existed between the accommodator and the agent.  The arbitration panel awarded clients all lost sale proceeds, emotional distress damages and attorney’s fees.
  • Represented warehouse retailer and founder in action by founder’s son for, among other claims, loss of filial consortium. Judgment of nonsuit entered upon conclusion of the plaintiff’s case.
  • Represented automobile dealership in administrative action by Department of Motor Vehicles seeking revocation of dealership’s license and imposition of monetary penalties due to alleged sales of “used” automobiles as new and alleged registration improprieties. The case was tried to decision in favor of the dealership on all accusations.
  • Represented international automotive products manufacturer in trademark infringement action, and secured (with co-counsel in Nashville, Tennessee) an order permanently enjoining infringing and related activities.
  • Represented University professor’s Limited Liability Company in litigation with University and second professor’s corporation regarding ownership of biotech invention(s). Matter successfully resolved.
  • Represented food service company as plaintiff in trademark infringement action against competing food service company. Matter promptly resolved in favor of plaintiff client after initial case evaluation conference.

Professional Affiliations & Admissions

  • State Bar of California
  • Admitted to practice in the United States Supreme Court, the United States Courts of Appeals for the Fourth and Ninth Circuits, the United States District Courts for the Southern, Central and Eastern Districts of California and the District of Maryland, and all California state courts
  • Judge Pro Tempore, San Diego Superior Court, Small Claims Division

Professional Awards & Honors

  • Peer Rated for Highest Level of Professional Excellence (Martindale-Hubbell: AV Preeminent)
  • Listed among San Diego Magazine’s Top Lawyers (2013-2016)

Neal P. Panish Shareholder

Mr. Panish, Esq. is a trial attorney, serving as lead counsel for a wide variety of institutional and entrepreneurial clients in State and Federal Court trials and arbitrations. He is a member of Seltzer Caplan McMahon Vitek and has been recognized as a Super Lawyer, a Top Lawyer by San Diego Magazine and one of San Diego’s top ten real estate and construction litigation attorneys by his peers.

Education

Mr. Panish received his B.A. in economics, with provost honors, from the University of California, San Diego in 1983. He earned his law degree, cum laude, from Loyola Law School in 1987, where he was a staff member and Note and Comment Editor of the International and Comparative Law Journal.

Representative Matters

General Practice

  • Representation of institutional and entrepreneurial clients in commercial litigation
  • Representation of businesses, financial institutions, banks, real estate entrepreneurs, developers and owners, contractors, subcontractors and individuals in a wide array of finance, real estate and construction-related litigation
  • Representation of publicly traded REIT in commercial litigation, real estate litigation, commercial lease disputes, condemnation proceedings and CEQA litigation
  • Representation of technology, services and other companies in alleged trade secret/proprietary misappropriation, unfair business practices and employment litigation
  • Defense and prosecution of real property title insurance and escrow claims/disputes on behalf of title insurance companies and their insureds, escrow companies and property owners
  • Representation of real property owners, hoteliers, restaurant owners and business owners in tax controversies, property tax assessment appeals and valuation hearings
  • Defense of public officials in Political Reform Act litigation

Specific Representative Matters

  • Representation of reinsurance intermediary in complex litigation filed by insurance agent/producer alleging damages in excess of $10 million for breach of producer’s agreement, misappropriation of trade secrets and fraud. The case involved complex surety bond underwriting, claims handling, reinsurance and proprietary information issues, as well as the investigation of numerous, underlying surety bond claims. After approximately one week of hearings on motions in limine and voire dire of 200-plus potential jurors for anticipated 6-month trial, the case settled favorably during jury selection
  • Defense of German bank/secured creditor in adversary proceeding filed by general contractor asserting damage claims in excess of $22 million on theories of equitable subordination, fraud and conspiracy in Chapter 11 bankruptcy proceeding in the United States Bankruptcy Court, Central District of California. Successfully resolved complex adversary proceeding during trial, freeing up in excess of $40 million in secured sales proceeds
  • Defense of German bank in complex, consolidated San Diego Superior Court proceedings involving 40-plus civil cases brought by materialmen, suppliers, subcontractors and design professionals seeking priority over German bank’s deed of trust. Successfully obtained dismissals, defense judgments and settlement of all cases
  • Prosecution of trade secret claims by information technology company against former employees and competitor, resulting in recovery of substantial monies through settlement
  • Representation of institutional real property owner in complex real estate litigation and condemnation proceedings arising from various public projects, including California State Route 56, widening of Interstate 5 and the Carmel Valley Restoration and Enhancement Project (CVREP)
  • Prosecution of specific performance action for real estate developers after 30-day trial. Obtained specific performance judgment acquiring approximately 80-acres of undeveloped land in northern San Diego County and attorney fee awards exceeding $800,000
  • Representation of automobile conglomerate in approximately 30-day arbitration over 6-month period of time in alleged wrongful termination/breach of contract claims by former employee
  • Representation of automobile conglomerate in approximately 14-day arbitration over 3-month period in defense of commercial contract claims asserted by individual dealer/broker and counterclaim for breach of an alleged oral contract. Complete defense verdict and substantial award on counterclaim and attorney fees
  • Defense of CPA firm in multi-party, real estate-related, malpractice/securities litigation
  • Defense of national real estate developer in class action case and arbitration asserting unfair business practices and violations of Business & Professions Code §§ 7000 – 7191 (contractors licensing law)
  • Defense of national title insurance company in insurer bad faith litigation case in San Diego Superior Court arising from the purchase and later foreclosure on 100-plus room motel. Defense judgment obtained on motion for summary judgment and successfully upheld on appeal
  • Defense of national title insurance company in insurer bad faith litigation filed in United States District Court for the Southern District of California by insured arising out of land use constraints and violations on insured’s improved real property
  • Defense of national retail tenant in commercial lease dispute with landlord/property owner. Defense verdict obtained after trial
  • Prosecution of breach of commercial lease case by landlord/property owner against national retailer enforcing liquidated damages provision to judgment and successfully upheld on appeal
  • Defense of purchaser/developer of large, retail real estate project in approximately 28-day jury trial, post-trial motions and appeal involving alleged real estate fraud
  • Representation of public officials in defense of Political Reform Act cases alleging official misconduct and violations of campaign or election law
  • Defense of regional supermarket company in breach of lease/covenant of continuing operations case resulting in defense judgment, upheld on appeal
  • Representation of majority co-owners in defense of partition action involving 100-plus room motel in Mission Valley area of San Diego, California
  • Representation of trustees/co-owners in successful prosecution of partition action to require sale of approximately 13-acres of undeveloped land neighboring California State University, San Marcos
  • Defense of former employees and start-up life science company defeating claims asserted by publicly-traded life science company on alleged theft of trade secrets, breaches of covenants not to compete, breaches of fiduciary duty and related claims. Settlement after summary judgment hearing and successful writ to court of appeal
  • Defense of reinsurance intermediary in complex trade secret case brought by health care insurance producer against health care insurer and reinsurance intermediary arising from California’s then-largest health care insurance program with hospitals, physicians groups and medical professionals
  • Defense of real estate developer/purchase of real property for retail development project for claims of fraud, breach of contract arising from purchase of land for retail development project
  • Prosecution of complex bad faith action by commercial property owner against insurance companies arising from 5-alarm fire in China Basin Landing area of San Francisco resulting in substantial settlement
  • Representation of co-tenants in real estate partition action compelling sale via public auction of 12.70 acres of raw land in San Marcos, California
  • Defense of real estate developer in real estate fraud action by purchasers of condominiums. Defense summary judgment granted by trial court, affirmed on appeal
  • Defense of real estate developers on Mills Act claims asserted by purchasers of condominiums. Defense summary judgment affirmed on appeal
  • Representation of creditors in trial in United States Bankruptcy Court, Southern District regarding determining value of assets of debtor’s estate including substantial real property, hotel/motel properties, apartments and other residential properties
  • Representation of commercial property owner in prosecution of business interruption claim arising from fire losses suffered by owner of 900,000 square foot office building
  • Representation of restaurant group in real property tax assessment controversies and successful assessment appeal
  • Representation of hotel group in successful assessment appeals in various, multi-day hearings on real property assessment appeals of unlawful taxation of intangible assets, providing total refund recovery in excess of seven figures

Professional Affiliations & Admissions

  • State Bar of California 1987
  • District Court, Northern, Central and Southern Districts of California
  • San Diego County Bar Association
  • San Diego Trial Lawyers Association

Publications & Speaking Engagements

  • “Chile Under Allende: The Decline of the Judiciary and the Rise of a State of Necessity,” published in the Loyola of Los Angeles International and Comparative Law Journal
  • Speaker, “Legal Ethics in California” seminar (December 2000; Lorman Education Services)

Published Opinions

  • El Centro Mall, LLC v. Payless Shoesource, Inc., 174 Cal.App.4th 58; 94 Cal.Rptr.3d 43 (2009)
  • In Re Perry Arden v. Motel Partners, 176 F.3d 1226 (9th Cir. 1999)

Professional Awards & Honors

  • Named a 2013, 2014 and 2015 Super Lawyer in real estate/business litigation by San Diego Super Lawyers Magazine; San Diego Super Lawyers Supplement to The New York Times, Riviera San Diego Magazine and Super Lawyers Business Edition
  • Named a 2014 Top Lawyer in Administrative, Land Use & Environmental by San Diego Magazine
  • Named by peers as one of San Diego’s “Top Ten Real Estate and Construction Litigation Attorneys,” San Diego Daily Transcript (2006)