BKCG Scores A Knock Out Against Rite Aid Corp. In Orange County Trial

BKCG was awarded attorneys' fees and costs in the in the Mariners Miles Gateway LLC v. Rite Aid matter of $944.162 by Orange County Superior Court Judge David T. McEachen. The decision, handed down January 6, 2009, granted Mariner's motion for attorneys' fees and follows the dismissal of the case in September 2008 when BKCG trial lawyers Daniel J. Kessler and Michael Oberbeck prevailed on a motion to dismiss the opposition's case in its entirety.

Following nearly seven weeks of trial, Mr. Kessler and Mr. Oberbeck prevailed on a non-suit motion to dismiss the opposition's case in its entirety.

BKCG represents a successful local shopping center developer that owns several parcels on the highly coveted corner of West Coast Highway and Dover in the Mariner's Mile District of Newport Beach. Mariners Mile Gateway, LLC, the developer, is a joint venture of the principals of Allied Retail Partners, LLC and Red Mountain Retail Group, LLC. Mariners acquired the property in 2004 with the intention of developing an upscale 56,000 square foot shopping center on the property to be known as "Bel Maré". Rite Aid was, at one time, to be the anchor tenant at the shopping center. Unfortunately, Mariners was unable to procure the necessary Caltrans approvals required to develop the shopping center. Even though Mariner's spent millions of dollars in an attempt to obtain the Caltrans approvals, Rite Aid filed a lawsuit against Mariners - described in trial by its own general counsel as a "shot across the bow" - in an attempt to force Mariners to build a shopping center that the governing authorities would not allow and in addition sought more than $30 million in damages from Mariners. Rite Aid initially persuaded the court to issue a preliminary injunction which suspended any and all progress at the property, except for development of the shopping center which could not be built, and that left the property vacant and fenced until the litigation was completed. The Court's ruling removes this roadblock and allows Mariners to move forward with development of the property.

With dozens of witnesses and well over one thousand exhibits, the trial was a true testament to modern trial tools and techniques. BKCG utilized its state of the art litigation document management technology to marshal the tens of thousands of pages of documents and scores of video depositions. The BKCG trial team also employed its expert computer technician for the entire trial to present all of the evidence electronically. Without the electronic presentation, the trial judge estimated the trial time would have been extended ten-fold.

During more than six weeks of trial, Rite Aid called nearly 20 witnesses in its case-in-chief, including four expert witnesses. Kessler and Oberbeck fiercely cross-examined these witnesses, and polling of the jury confirmed that Rite Aid's credibility was severely eroded-if not completely eviscerated.

After Rite Aid rested its case, BKCG then filed a written motion for non-suit, asking the court to dismiss the case based on several legal deficiencies in Rite Aid's case. The court granted Mariners' motion, dissolving the preliminary injunction and ruling that Rite Aid failed to present evidence sufficient to establish a breach of the parties' lease agreement. "It is never easy for a judge to take the decision away from the jury, especially after six weeks of trial, but Judge McEachen made the right call, albeit a very tough one," said lead trial counsel and head of BKCG's litigation department, Daniel J. Kessler. Oberbeck added, "To have this case decided on a non-suit motion was a bit of a surprise, but it confirmed the legal position we maintained from the moment our client first was served with the complaint. Credit for this hard-fought victory goes to the entire litigation team."

Now that the injunction is dissolved, Mariners intends to modify the project and is excited to move forward with plans to develop a smaller, yet still vibrant, project and hopes to complete construction of the modified project in 2010.

"Dan and Mike did a great job of presenting some pretty complex evidence to the jury, and never stopped pushing on the legal issues. It has been a long road, but obviously, we are very pleased with the result." said Mariner's principal, Douglas Beiswenger.

According to Kessler, "We were very fortunate to have great clients who allowed us to go out and do our job. This is a fantastic result for Mariners. It vindicates them entirely and we look forward to getting them whole on our motion for attorney's fees and costs."