NICKOLAS J. DIBIASO

Justice Nickolas J. Dibiaso (Ret.)

Of Counsel

Alternative Dispute Resolution

FresnoFresno
PH 559.432.4500
FX 559.432.4590
ndibiaso@fennemorelaw.com

 

Never ascribe to malice that which is adequately explained by stupidity. 

-Napoleon Bonaparte

Justice Nickolas J. Dibiaso (Ret.)

Nick Dibiaso works in our Fresno office where his practice is principally devoted to serving as an arbitrator, mediator, special master, referee and private judge for third parties. He also provides consulting services for firm clients in matters involving ADR, antitrust compliance, appeals, and trial practice. His broad experience, first as a trial attorney, next as a trial court judge, and then as an appellate justice, uniquely qualifies him to serve as a dispute resolution neutral in all capacities in a wide variety of matters.

To relax and rejuvenate, Nick engages with his kids and grandkids, reads history, and travels.

Please click here to download Nick's complete bio, including specific cases and rates.

Education

  • J.D., University of California Berkeley School of Law
  • B.A., magna cum laude, History, Santa Clara University

AREAS OF PRACTICE

  • Alternative Dispute Resolution
  • Antitrust Compliance
  • Appeals

Representative Cases

As an Arbitrator Private Judge, Referee, and Special Master:

  • Appointed in more than 300 proceedings as an arbitrator or court officer. Acted as a Panel chair, or wing, or solo arbitrator in AAA, ICDR, and other arbitrations involving issues arising under the laws of California and/or Delaware, Nevada, Texas, Illinois, New York, Nebraska, Kansas, Utah, and the United States. Significant experience in conducting video hearings via Zoom and similar platforms. 

CONTRACTS/BREACH OF CONTRACT: non-competition and non-solicitation covenants, franchises/franchising, licensing agreements, manufacturing agreements, mining and subsurface rights, oil and gas leases, product sales, accounts, accountings, executive employments and compensation, security interests, hospital/physician specialty coverage agreements, UCC sales transactions, settlement agreements, professional medical corporations/associations/groups, automobile sales and financing, technology consulting/services, Medicaid reimbursement services, high frequency/computer stock trading, sales of water rights, partnership agreements, stock sale agreements, and contracts to negotiate.

CORPORATIONS/PARTNERSHIPS: governance issues, director liability, shareholder buyouts, derivative actions, business/stock valuations/appraisals, majority-minority shareholder claims, shareholder agreements, general and limited partnership relationships and agreements; advancement and indemnification issues.

DISSOLUTIONS OF CORPORATIONS, LLCS, PARTNERSHIPS, LLPS, AND JOINT VENTURES: fair market/going concern/liquidations valuations, goodwill, breach of fiduciary duties, accounts, buy-out agreements, statutory buy-out provisions, and appraiser appointment and review.

AGRICULTURE: agricultural packing/marketing contracts, agricultural associations and cooperatives, conventional/organic products, marketing orders, grower agreements, custom farming contracts, Federal Crop Insurance Policy (7 U.S.C. §1501 et seq.) claims (involving, among other crops, walnuts, tomatoes, wheat, grapes, strawberries, and apricots).

REAL PROPERTY: commercial, real estate sales and development, financing arrangements, shopping centers and leases, subdivisions, partitions/partition ,referee appointments, options, lease/conditional sales, rights of first refusal, valuations/appraisals, deed of trust/mortgage foreclosures and servicing entities, and property management/sub-management agreements.

EMPLOYMENT: breach of contracts, wages and hours, discrimination, harassment, wrongful actual/constructive discharge, violations of public policy, failure to interact or accommodate, retaliation, hostile work environment, privacy, FEHA, Title VII, ADA, FMLA, with claimants including an oil well driller, a physician, a fast food restaurant worker, automobile dealership executives, hospital service workers, a hospital executive, and retail department store employees.

INSURANCE: life insurance, comprehensive general liability insurance, excess insurance, reinsurance, extended coverages, uninsured and underinsured motorists, professional liability insurance loss valuation proceedings (as umpire).

CONSTRUCTION: contracts and subcontracts (refinery, roadways, buildings, concrete, electrical), extra work, delays, performance bonds, payment bonds, public/private works, loss of bonding capacity, mechanics' liens and bonds.

PROFESSIONAL NEGLIGENCE: legal, accounting, 1O-Ks, 1O-Qs, audits and auditor liability.

HEALTH CARE: medical provider insurance reimbursement claims/HMO and other group health care insurance plans, plan coverages, medical necessity, accountings, Knox Keene, IPAs, Anti-Kickback Statute.

As a Mediator:

  • Dual and multi-party cases involving breach of contract claims, construction project disputes, real estate transactions, property ownership matters, insurance contracts and coverages (including reinsurance), medical malpractice claims, legal malpractice claims, accounting malpractice claims, public retirement system controversies, inverse condemnation, condemnation valuation questions, wrongful death and personal injury claims, employment controversies, class actions, partnership and corporate governance and dissolution disputes, shareholder derivative claims, trade secret disputes, hospital governance matters, health care elder abuse, medical payor-payee disputes, public service districts, unfair competition claims, probate and trust controversies, and workers' compensation matters.

As Of Counsel:

  • Appeals (consultation, brief reviewing/editing, petitions for review, writ proceedings, "moot court” arguments); Antitrust (counseling and compliance); trials/litigation (counseling).

As a Judge/Justice:

  • Jury and non-jury trials in complex and/or coordinated civil actions, including breach of contract, fraud, unfair competition, insurance coverage, corporations, insurance subrogation, partnerships, joint ventures, real estate, libel and slander, inverse condemnation, negligence, personal injury, professional malpractice, product liability, emotional distress, government claims, crop damage, and agricultural associations and cooperatives.
  • Appellate review of multitudes of issues arising in civil cases, including breach of contract, fraud, breach of fiduciary duties, unfair competition, Cartwright Act, insurance and insurance coverage, real property transactions, premises liability, CEQA, attorney fees, mortgages, foreclosures, personal injury, wrongful death, professional malpractice, class actions, corporations and corporate governance, LLCs, partnerships, joint ventures, construction contracts and subcontracts, mechanics; liens, surety bonds, labor and employment, discrimination, wrongful termination, harassment, government tort claims, agency, sales transactions, condemnation, constitutional issues, workers' compensation, crop damage, riparian water rights, administrative law, and attorney disqualifications.

As an Attorney:

  • Litigation, jury and non-jury trials, arbitrations and appeals in state and federal courts in commercial disputes, including antitrust, unfair competition, breach of contract, construction contracts and subcontracts (buildings, roads, wastewater treatment plants, underground construction and pipelines, grocery chain central processing facility, competitive bidding statutes, public and private works, mechanics liens, Miller Act), OSHA, commerce clause, insurance and insurance coverage, surety bonds, business torts, class actions, real property transactions, corporations and corporate governance, derivative actions, agricultural associations and cooperatives, and public agencies and public service districts (water/irrigation/wastewater).

Illustrative Civil Case Opinions as a Justice, Court of Appeal of California, Fifth Appellate District:

  • Protect Our Water v. County of Merced, 130 Cal. App. 4th 488 (CEQA attorney fees)
  • Farris v. Fireman's Fund Ins. Co., 119 Cal. App. 4th 671 (attorney disqualification)
  • Jessen v. Hartford Casual Ins. Co., 111 Cal. App. 4th 698 (attorney disqualification)
  • Jefferson v. County of Kern, 98 Cal. App. 4th 606 (limitations/Tort Claims Act)
  • Lauren H. v. Kannappan, 96 Cal. App. 4th 834 (compromise verdict)
  • Souvannarath v. Hadden, 95 Cal. App. 4th 1115 (public health)
  • Lewis C. Nelson & Sons v. Clovis Unified School Dist., 90 Cal. App. 4th 64 (prejudgment interest/construction)
  • Fresno Unified School Dist. v. Workers' Comp Appeals Board, 84 Cal. App. 4th 1295 (workers' compensation)
  • Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523 (jurisdiction/corporations/alter ego)
  • Maranian v. Workers' Comp. Appeals Board, 81 Cal. App. 4th 1068 (workers' compensation)
  • Stewart Title Guar. Co. v. Fallgatter, and Prudential Ins. Co. v Fallgatter, 2006 Cal. App. Unpub. Lexis 2023 (mortgage foreclosures); 2006 Cal. App. Unpub. Lexis 1985 (attorney fees)
  • N.T. Hill v. City of Fresno, 72 Cal. App. 4th 977 (subdivision map/fees)
  • Jauregi v. Superior Court, 72 Cal. App. 4th 931 (civil forfeiture)
  • Modern Continental Construction Co., Inc v. Superior Court (Alstom Power, Inc.), 2004 Cal. App. Unpub. Lexis 11420 (construction)
  • North Kern Water Storage Dist. v. Kern Delta Water District, 2003 Cal. App. Unpub. Lexis 1130 (water rights, forfeiture)
  • Hill v. City of Clovis, 63 Cal. App. 4th 434 (appellate jurisdiction)
  • Solpac, Inc. v. City of Fresno, 2003 Cal. App. Unpub. Lexis 614 (construction competitive bidding)
  • Nevocal Enterprises, Inc. v. Board of Education, 2003 Cal. App. Unpub. Lexis 4174 (construction bid dispute)
  • Spitze v. Zolin, 48 Cal. App 4th 1920 (driving privileges)
  • Voss v. Superior Court, 46 Cal. App. 4th 900 (ag marketing act/APA)
  • Wurts v. County of Fresno, 44 Cal. App. 4th 380 (tort claim/medical malpractice)
  • Brantley v. Pisaro, 42 Cal. App. 4th 1591 (summary judgment)
  • Fresno Fab Tech, Inc. v Lemoore Unified School District, 2002 Cal. App. Unpub. Lexis 10574 (construction bidding)
  • Fantazia v. County of Stanislaus, 47 Cal. App. 4th 1444 (tort claim/legal malpractice)
  • O'Neal Irrigation Supply Co., Inc. v. Mauldin-Dorfmeir Construction, 2002 Cal. App. Unpub. Lexis 8157 (construction payment bond)
  • Miranda v. National Emergency Services, Inc., 35 Cal.App. 4th 894 (medical malpractice)
  • Parker-Renfrow v. Albertson's, Inc., 2003 Cal. App. Unpub. Lexis 9521 (non-delegable duty; subhaulers)
  • Los Angeles County Court Reporters Assn. v Superior Court, 31 Cal. App. 4th 403 (court reporters)
  • Young v. County of Fresno, 2002 Cal. App. Unpub. Lexis 2204 (wrongful termination)
  • Cutler-Orosi Unified School Dist. v. Tulare County School etc. Authority, 3l Cal. App. 4th 617 (insurer duty to defend)
  • Alan D. Barbour v. Sierra Sky Park Property Owners' Association, 2003 Cal. App. Unpub. Lexis 11728 (malicious prosecution; CC&R's)
  • Soza v. Ziering, 2002 Cal. App. Unpub. Lexis 6398 (sexual harassment)
  • Rocky D. Ritchie v. Workers' Comp. Appeals Board, 24 Cal. App. 4th 1174 (workers' compensation)
  • S.C. Anderson, Inc. v. Bank of America, 24 Cal. App. 4th 529 (construction damages/lost profits/bonding capacity)
  • Estate of Woodworth, 18 Cal. App. 4th 936 (wills and probate)
  • Curties v. Hill Top Developers, Inc., 14 Cal. App. 4th 1651 (comparative negligence/assumption of risk)
  • Smith v. Inland Crop Dusters, Inc., 2003 Cal. App. Unpub. Lexis 5976 (evidence - Dissenting Opinion)
  • Deluca v. Yosemite Lakes Owners' Assn, 2001 Cal. App. Unpub. Lexis 1180 (res iudicata)
  • Azadigian v. Workers' Comp. Appeals Board, 7 Cal. App. 4th 372 (workers' compensation)
  • Parsons Brinckerhoff Quade & Douglas, Inc. v. Kern County Employees Retirement Assn., 5 Cal. App. 4th 1264 (mechanic's lien foreclosure)
  • Miranda v. Shell Oil Co., 17 Cal. App. 4th 1651 (toxic tort damages)
  • Chevron U.S.A., Inc. v. Superior Court, 4 Cal. App. 4th 544 (summary judgment)
  • Hartwig v. Zacky Farms, 2 Cal. App. 4th 1550 (attorney fee apportionment)
  • County of Madera v. Ranger Ins. Co., 230 Cal. App. 3rd 271 (bail bond surety)
  • Jackson v. Pierce, 224 Cal. App. 3rd 964 (driver's license)
  • Hydratec, Inc. v. Sun Valley, 260 Orchard & Vineyard Co., 223 Cal. App. 3rd 924 (prevailing party fees and costs)
  • Shannon v. Superior Court, 217 Cal. App. 3rd 986 (attorney/client privilege)
  • Twain Harte Associates, Ltd. v. County of Tuolumne, 217 Cal. App. 3rd 71 (inverse condemnation)
  • St. Paul Ins. Co. v. Industrial Underwriters Ins. Co., 214 Cal. App. 3rd 117 (insurance coverage)

Awards and Honors

  • AV® Preeminent™ Peer Review Rated (the highest rating available), by Martindale-Hubbell
  • Northern California Super Lawyers®, 2013-2020
  • Alternative Dispute Resolution “Champion,” National Law Journal, 2017
  • Distinguished Service Award, American Arbitration Association, 1990
  • Army Commendation Medal (ARCOM)

PROFESSIONAL AND COMMUNITY ACTIVITIES

  • Former Justice, Court of Appeal of California, Fifth Appellate District, 198-2006
  • Former Judge, Fresno County Superior Court, 1985-1989
  • Fellow, College of Commercial Arbitrators
  • Member, California Academy of Appellate Lawyers
  • Member, American Arbitration Association/ICDR Judges, Large Complex Case, Commercial Case, International, Employment, Health Care, and Appellate panels
  • Member, State Judges’ Panel, Federal Arbitration, Inc. (“FedArb”)
  • Member, National Academy of Distinguished Neutrals Former Justice, Court of Appeal of California, Fifth Appellate District, 1989-2006
  • Past Member and President of the Board, Board of Directors, Fresno Philharmonic Association, 1976-1983
  • Past Member, Board of Directors, Fresno County Chapter of the American Red Cross, 1983-1985
  • Past Member and President of the Board, Board of Trustees, Fresno County Law Library, 1986-1989
  • Past Member, Board of Directors and Treasurer, Fresno County Bar Association, 1976-1977
  • Past Member, Board of Directors, Downtown Club, 19975-1978
  • Participated as an instructor or panel member for a multitude of civil litigation, discovery, arbitration, trial and appellate practice and substantive law (including construction, antitrust, and arbitration) educational programs, involving both federal and state law topics and sponsored by a variety of organizations, including the California Judicial College, the Center for Judicial Education and Research (CJER), the California Bar Association, the California Continuing Education of the Bar (CEB), the San Joaquin College of Law, the Court of Appeal for the Fifth Appellate District, the American Arbitration Association, the Rutter Group, the Construction Specifications Institute, and the Associated General Contractors of California.

ADMISSIONS

  • California