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John Herlihy

Hon. John F. Herlihy (Ret.)

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Case Manager
Cynthia Victory
T: 408-346-0736
F: 408-295-5267
160 W. Santa Clara St. , Suite 1600 , San Jose , CA 95113

Hon. John Herlihy (Ret.) has a large amount of experience resolving real estate disputes both as a neutral and as a former Supervising Judge of the Civil Division of Santa Clara County Superior Court.  He has had a real estate broker’s license since 1976, which helps him to understand issues related to real estate disputes. As a judge, he case managed, settled, and tried thousands of civil cases including some of the county’s most complex civil litigation during his 29-year judicial career.  Judge Herlihy is well regarded by counsel as a very knowledgeable, thorough, and fair neutral who helps parties achieve resolution while avoiding costly litigation.

 

Representative Matters

  • Dispute over a commercial lease in which landlord claims retroactive rent payments from tenant in a commercial lease for an error by landlord in calculating tax assessments; tenant asserted, inter alia, defenses of statute of limitations, waiver, estoppel, and laches

  • Matter involving a HOA Board of Directors that allegedly convened an Executive Session of the Board without providing the proper notice to the homeowners and improperly sought to secure a lien against the property of homeowner for debts claimed to be owed to the HOA

  • Arbitration involving a previously mediated settlement for a prescriptive easement over a contiguous commercial property; allegations of trespass and violation of the terms of the original settlement

  • Case regarding the purchase and sale of multi-million dollar home in which the real estate agent allegedly hired by the seller was actually the purchaser of the home and failed to disclose that fact and was seeking specific performance

  • Matter involving a home purchased from a testamentary trust and claims that the trustee was aware of the history of water leaks and failed to disclose; also handled the claims against the trustee’s real estate broker

  • Handled commercial unlawful detainer due to breach of covenants

  • Case alleging breach of commercial lease and constructive eviction of a restaurant where landlord failed to comply with repairs ordered by city involving an underground sewage system

  • California’s Investigative Consumer Reporting Agencies Act (ICRAA) case in which a background check company provided a potential tenant’s report, which had 64 errors, to a landlord resulting in that person being denied housing

  • Dispute regarding the purchase of property which the General Plan required to be a park/open space/habitat but was represented as being zoned commercial; alleged that the seller knew and did not disclose

  • Matter involving payment of a broker’s commission which sellers refused to pay because the buyers backed out the purchase before eventually purchasing the property

  • Two large banks dispute lien position on real estate security involving issues of equitable subrogation and the processing of the loans at different times

  • Multiple disputes between homeowner and HOA board involving the power of board and issues with moneys owed by homeowner for damage to common areas

  • Dispute regarding a negotiated “cash for keys” /”deed in lieu of” settlement on a defaulted income property loan; personal residence mistakenly shown as foreclosed on owner’s credit report allegedly affecting business opportunities

  • Case involving a loan modification on a home; subsequent buyers had no knowledge that the original owner had one year to buy back the property; issues regarding the recession of the residential purchase transaction

  • Case regarding an easement by prescription over a contiguous parcel and seeking rights for ingress and egress as well as utility easements

  • Claims of misrepresentation by a seller’s agent to buyers regarding a number of offers received and on which the buyers relied; Buyers increased offer based upon misrepresentation

  • Matter seeking damages on a nondisclosure dispute involving permit and code compliance issues on a multi-million dollar estate with multiple structures

  • Case in which the purchaser of a home sought damages from the seller for allegedly undisclosed foundation issues on a home purchased 7 years prior

  • Case regarding real estate commission of almost $7 million dollars for the sale of a $116 million dollar shopping center where the issue revolved around whether it was an open or exclusive listing

  • Dispute between a broker and a seller regarding whether or not they had entered into a leasing agreement; argument that there was no meeting of the minds evidenced by the seller hiring another broker without terminating the other supposed agreement

  • Matter regarding an irrevocable license to land and an attempt to install a fence to cut off access and a preliminary injunction was granted

  • Handled case between city and developer to lease airport land to build hangers for private aircraft; city, after developer repudiated the agreement, claimed damages for lost lease revenue, tax revenue, and jet fuel revenue

  • Dispute between landlord and tenant regarding an alleged purchase agreement and whether tenant had right of first refusal, an option or no contractual right to buy; also handled issues of habitability in violation of the municipal code

  • Dispute about a prescriptive easement based on the use of a driveway for over 25 years which affected the final sale of the property

  • Dispute between current and former boards of directors of an HOA where the former board and property manager allegedly deviated from the business judgment rule in the purchase of a lease option  and breached fiduciary duty

  • Putative class action in which a home seller alleged that real estate broker obtained improper secret profits through the use of a certain software platform; class claimed a right to the amount of the alleged secret profits plus disgorgement of the broker’s entire commission

  • Case involving a landlord that terminated a commercial lease due to an occurrence that rendered the premises untenable and tenant claimed breach of lease by landlord causing the tenant significant relocation costs

  • Suit for tort and contract damages: Tenant rented commercial space from shopping center developer and landlord on assurances from the leasing agent that no competing business would be leased space in the shopping center and the lawsuit alleged that space was leased to a competitor

  • Handled a matter between two parties’ joint use and ownership of a pool built on one party’s property without a written agreement

  • Handled a matter involving an incorrect legal description on the deed of trust which was learned after foreclosing; case involved cross complaints between the bank borrowers and title company

  • St. Thomas More Award, St. Thomas More Society of Santa Clara County, 2008
  • Judge of the Year, Santa Clara Trial Lawyers Association, 2007
  • Commendation from the Mayor of the City of San Jose for service on the Mayor’s Gang Prevention Task Force, 1992
  • Commendation from the Board of Supervisors for the County of Santa Clara for service on the Justice System Advisory Commission, 1990
  • Co-chair, ADR Bench Bar Committee
  • Member, Civil Advisory Committee, ADR Subcommittee, and Case Management Subcommittee, Judicial Council for the State of California
  • Member, San Francisco Bay Area Intellectual Property Inn of Court, 1999-2002, 2011-present
  • Member, Santa Clara County Bar Association, 1974-present
  • Adjunct faculty and lecturer in law, Santa Clara University Law School, 1984-present
  • Judge, International Trademark Association (INTA), Saul Lefkowitz Regional Moot Court Competition, 2009-2010 and 2010-2011
  • Created and teaches a college course in ADR for paralegals, De Anza College, 1996-present
  • "Finding His Footing," ADR Profile, Daily Journal, June 24, 2011
  • Publications:
    • Consultant, California Judges Benchbook: Civil Proceedings-Trial 2nd ed., which covered extensively topics related to case management and settlement of civil cases, California Center for Judicial Education and Research, 2008-present
    • Consultant, California Judges Benchbook: Civil Proceedings-Before Trial 2nd ed., California Center for Judicial Education and Research, 2006-2008
  • Judge, Santa Clara County Superior Court, 1990-2009 (Supervising Judge Civil Division, Civil Case Manager Judge)
  • Judge, Santa Clara County Municipal Court, 1982-1990
  • Commissioner, Santa Clara County Municipal Court, 1980-1982
  • JAG Captain, California National Guard, 1980-1985
  • Deputy District Attorney, Santa Clara County, 1976-1980
  • Civil Attorney, Hansen & Herlihy, 1974-1976
  • J.D., University of California Hastings College of the Law, 1974
    (Editorial Associate and Author, Constitutional Law Quarterly)
  • B.A., with Distinction & Honors in Political Science, San Jose State University, 1971

Counsel Comments

    “Judge Herlihy has a touch and intellect that are very effective.” Attorney

    “Effective ADR solutions help end the litigation toll on time, money, and emotions. I help parties pursue creative collaborative solutions without unnecessary costs, delays, or hostilities by cutting to the heart of the legal issues and effectively getting to the bottom line.”  JFH

    “[Judge Herlihy] talked everyone into staying, kept at it, and against all odds got the settlement done.” – Named partner at regional firm

    “[Judge Herlihy] has a great ability to work with people and size them up and recognize the strengths and weaknesses of both parties.” – Named partner at regional firm 

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