For more than 30 years, Michael L. Kirby has been involved in civil litigation, trying more than 50 jury trials throughout his career and obtaining total recoveries valued in excess of $275 million as lead counsel.  His expertise is extensive and covers a variety of practice areas that involve business, partnerships, real estate and investor disputes. He has received multiple Outstanding Trial Lawyer awards from Consumer Attorneys of San Diego (CASD).

A founding partner at KIRBY & KIRBY LLP (and formerly a founding partner of Post Kirby Noonan & Sweat), Kirby is recognized as one of the most well-respected trial lawyers in San Diego County.

Kirby is listed in Best Lawyers® – the leading rating of U.S. lawyers – for Bet The Company Litigation (San Diego Lawyer of the Year 2015) and Commercial Litigation for multiple years.

Since 1994, Kirby has been a member of the American Board of Trial Advocates (ABOTA) – a national organization of civil trial attorneys – and has served on its national board of directors. He is a master in the American Inns of Court – William B. Enright Chapter.  Kirby was also named one of the top attorneys in California – five years in a row – by California Super Lawyers magazine, an honor given to only five percent of attorneys in the state.

He was a founder of the Association of Business Trial Lawyers of San Diego, served four years as a Southern District of California Lawyer Representative to the Ninth Circuit and is the president of the San Diego chapter of the International Network of Boutique Law Firms.

In his spare time, Kirby enjoys golfing and traveling with his wife, fly fishing and playing with his grandchildren.

Education

  • University of Iowa, J.D., 1970
  • University of Iowa, B.A., 1967

Professional Memberships and Activities

  • American Board of Trial Advocates
  • State Bar of California, Litigation Section
  • American Bar Association, Litigation Section, Securities Litigation Committee
  • The Association of Trial Lawyers of America
  • California Trial Lawyers Association
  • San Diego Trial Lawyers Association
  • Fellow, Litigation Counsel of America

Litigation Practice Area

  • Commercial Litigation
  • Securities Litigation
  • Class Actions
  • Business Torts

 

Notable Case Achievements

  • Defamation: Trial

Represented a physician sued for defamation, seeking $3 million in damages. The physician countersued for defamation. In a trial in September/October 2014, all of the plaintiff’s claims were defeated, and Kirby obtained a verdict $250,000 in compensatory damages and $2.5 million in punitive damages for his client

  • Real Estate: Judgment

Obtained judgment for defendants after trial in 2014 in San Diego Superior Court, defeating plaintiffs’ claims for $13 million

  • Real Property: Litigation/Settlement

Successfully handled litigation that cleared a major easement and made possible the development and construction of the new regional FBI center in San Diego, which opened in 2013

  • Contract Dispute: Arbitration

Served as the lead attorney representing a Liquidating Trust for the Benefit of Creditors created by the Bankruptcy Court in San Diego to pursue claims by a major distributor who was terminated by a national direct broadcast satellite entertainment company. After a hotly contested eight-day arbitration before the American Arbitration Association, the Arbitration Panel issued an award in favor of the Liquidating Trust of more than $9.5 million. That award was confirmed by the Court of Appeal in October 2014

  • Investor Claims: Trial

Obtained more than $15 million against a developer, $1.1 million in compensatory damages and $5.7 million in punitive damages against a title/escrow company in a four-month jury trial involving a scheme to defraud elderly investors – some of whom lost their life savings. The trial focused on plaintiff’s theories of fraud, aiding and abetting, and conspiracy against the financial planner/developer and a national title/escrow company. Kirby received the San Diego Consumer Attorneys’ Outstanding Trial Lawyer Award for this case

  • Securities: Settlement

Obtained a settlement of $91 million for class action plaintiffs in a lawsuit filed against a national securities brokerage firm in a case that began in San Diego Federal Court, and was later transferred to the U.S. District Court of New Jersey. All investors, many of whom were elderly or retired, recovered their losses in full

  • Trade Secrets: Trial

Obtained a defense verdict for a national securities broker dealer in a seven-week jury trial in San Diego Superior Court, defeating all damage claims for more than $30 million

  • Contract Dispute: Dismissal

Obtained dismissal of action in 2012 by former bank CEO seeking $20 million in compensation allegedly due

  • Franchise: Trial

Represented the plaintiff, a terminated franchisee, in an action in San Diego Superior Court, which resulted in a jury verdict of $7.6 million, including $6 million in punitive damages. Kirby received the Outstanding Trial Lawyer Award for his work in this case

  • Contract Dispute: Arbitration

Recovered $500,000 for his client, a California company, in an arbitration proceeding in Tampa, Florida, and also defeated all of the plaintiff’s claims of more than $6 million against his client

  • Maritime Law: Trial

Represented a tuna boat captain against a helicopter manufacturer, which resulted in a jury verdict in excess of $3 million for his client

  • Business Tort: Summary Judgment

Obtained a summary judgment in favor of his clients, a Michigan bank and its directors, in a business tort case involving alleged damage claims of $30 million in Arizona Superior Court

 

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For almost 20 years, Jason M. Kirby has represented hundreds of clients in litigation cases throughout Southern California.  Kirby's primary practice areas are business litigation and real estate litigation, but he has handled almost every type of civil case at some point during his career.    

Kirby is a trial lawyer.  He is both a plaintiff's lawyer and a defense lawyer.  He has tried numerous cases on both sides of the courtroom and he is confident that doing both plaintiff's work and defense work gives him a better perspective on the evidence and strategy in every case.      

Kirby has been rated AV Preeminent® by Martindale-Hubbel® from 2013 through 2020.  This rating reflects the highest level of professional excellence.  His rating is measured by local lawyers that have worked with him and against him on his cases.  His rating and lawyer feedback about him is publicly available at www.martindale.com.  Kirby has also been consistently listed as one of the Top Lawyers for Business Litigation by San Diego Magazine.

While in law school, Kirby interned as a full-time law clerk at the San Diego Superior Court for the Honorable J. Richard Haden (Ret.).  In 2001, Kirby started his career at Post Kirby Noonan & Sweat, then one of the top civil litigation firms in San Diego for trial lawyers.  In 2007, Kirby was admitted as a partner to the firm after its name change to Kirby Noonan Lance & Hoge.  Kirby remained a partner with the firm until the partners went their separate ways in 2016.  Kirby and his father then started their own firm, KIRBY & KIRBY LLP.            

Direct Dial: (619) 557-4404   

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Real Estate Litigation

In 2019, Kirby's clients prevailed on all claims against them following a two-week jury trial.  The dispute arose out of the sale of a home in Rancho Santa Fe.  The buyers alleged that Kirby's clients failed to disclose plumbing leaks and mold conditions in the real estate disclosure forms.  The buyers alleged fraud, active concealment, negligence, and breach of contract.  The jury rejected all theories of liability against Kirby's clients.  In post-trial motions, Kirby's clients were awarded more than $400,000 in attorneys' fees and costs as the prevailing parties.

Kirby's client prevailed on all claims against it in a two-week arbitration.  The dispute arose out a build-to-suit development project for a commercial tenant.  Kirby represented the developer and the issue was whether the operative development contracts required the developer or the tenant to pay more than $500,000 in impact fees due to the City of Carlsbad.  Both sides were convinced that the contract shifted impact fees to the other.  Kirby's client prevailed in convincing the arbitrator that his client's interpretation of the contract was correct.  The arbitrator awarded more than $500,000 to Kirby's client.

Kirby represented an out-of-state real estate developer that had contracted with the Federal Government to construct the FBI's new office complex in Sorrento Valley.  The dispute arose out of the neighbor's easement over the FBI's intended parcel.  The case was successfully resolved through a confidential settlement that cleared the way for construction to proceed.  Kirby was a guest of honor at the grand opening of the new FBI complex and the firm was publicly recognized for helping save the project.

Kirby represented the general partner in a limited partnership dispute over the acquisition and development of three unrelated parcels in Arizona.  The case was resolved through a confidential settlement.  

Kirby represented a land developer that had to initiate litigation to enforce his option contracts to purchase a series of residential parcels.  The case was resolved by settlement and cleared the way for the new housing development.

Business Litigation

In 2018, Kirby's clients prevailed in a multi-week arbitration that extended over three months.  The dispute arose out of a written contract that Kirby's clients signed whereby they agreed to pay an unlicensed mergers and acquisition (M&A) company a multi-million "deal fee" on the sale of their pet food company.  The M&A company was seeking more than $4 million as a deal fee and prejudgment interest of more than $2 million.  The M&A company lost on all claims against Kirby's clients.  While no case would have ever been brought against the M&A company absent Kirby's clients being sued, Kirby's clients also prevailed on their cross-claims in the arbitration which resulted in a six-figure damage award as well.  In post-arbitration proceedings, the arbitrator awarded Kirby's clients more than $1 million comprised of damages, prejudgment interest, attorneys' fees, and costs.

Kirby's client prevailed in an arbitration brought against her after she refused to pay the amount due under a written contract and a promissory note to purchase a dental practice in La Jolla.  Kirby's client alleged that her signature on the written contract and promissory note had been procured by fraud after it was discovered that the seller had misrepresented the financial condition of the dental practice.  The arbitrator agreed that Kirby's client had been defrauded.  As such, the sale transaction was set aside and the seller received none of the money she was claiming.    

Kirby's client prevailed in an employment arbitration.  Kirby represented the former Chief Executive Officer (CEO) of a medical device company who had been wrongfully terminated.  More than $500,000 was awarded to the former CEO for damages and attorneys' fees.

Kirby's clients prevailed in defending against the allegations of the former Chief Executive Officer (CEO) of a bank seeking close to $20 million as a golden parachute payment due under his employment contract.  After a series of procedural mistakes and the CEO's refusal to abide by the trial court's orders, the case was dismissed with prejudice without ever making it past the demur stage. See, Hall v. Warren Properties, Inc., 2015 WL 865350 (2015).  

Sexual Abuse Litigation

In 2018, Kirby's client was awarded $2.1 million by a jury against the San Diego Unified School District and its former teacher and volleyball coach, Toni Sutton.  The female teacher had sexual relations with a male student in her classroom.  Kirby's client alleged that the school district negligently supervised the teacher and the minor student.  The jury's verdict was the second largest sexual abuse jury verdict in California in 2018.

Kirby began a trial against a school district where a minor child had been sexually abused by other minor students in a school bathroom.  The mother of the child, acting has her guardian ad litem, alleged that the school was responsible for the negligent supervision of her children in between classes.  The case settled on the first day of trial for a confidential amount.

Personal Injury Litigation

Kirby recovered more than $1 million in a settlement for a construction worker that was hired directly by a homeowner in Rancho Santa Fe without securing worker's compensation insurance for the worker.  The worker had fallen off the second story of the home while working and there were not adequate safety precautions taken to protect the worker.  

Kirby won a defense jury verdict defending San Diego Gas & Electric against multi-million damage claims in a wrongful death and personal injury action involving one of its utility poles.  

Kirby has filed and successfully settled numerous personal injury settlements for injured drivers, pedestrians, and bikers in automobile injury cases.  

Investment Fraud Litigation

Kirby's clients were awarded more than $2.3 million by a San Diego jury after Kirby proved that they had been defrauded in a ponzi scheme.  The defendants had defrauded a number of elderly investors, including Kirby's clients, of their retirement savings.  The verdict included an award of punitive damages against the defendants.  Following Kirby's jury verdict, Kirby assisted with providing relevant information to federal authorities investigating similar claims.  A number of the defendants involved in the case were then prosecuted by federal authorities and some remain in prison to this day.   

Probate Litigation

Kirby was lead counsel in a highly contentious family dispute over the control and management of a privately-held corporation holding more than $40 million in family investments.  The case was resolved pursuant to a confidential settlement agreement.  Kirby's ethical conduct was the subject of both the majority and dissenting opinions in the seminal case, McDermott Will & Emery LLP v. Superior Court , 10 Cal.App.5th 1083, 217 Cal.Rptr.3d 47 (2017). 

Banking Litigation

Kirby was heavily involved in the defense of numerous bank officers and directors against the allegations made by the Federal Deposit Insurance Corporation (FDIC) after a local bank was closed by it the Office of Thrift Supervision (OTS).  The alleged losses were more than $1 billion.  After numerous depositions were taken of the escrow officers involved, the FDIC realized that the bad-actors were other persons within the bank and not Kirby's clients.  Most of Kirby's clients were dismissed and others resolved the litigation for nominal amounts.   

After a bank entered into a stipulated judgment for more than $500,000, the judgment was later acquired by a third-party.  The third-party that acquired the judgment sought to collect upon it against Kirby's client.  The case was dismissed without leave to amend after a demurrer was sustained.  The published case is Cadle Co. II, Inc. v. Sundance Financial, Inc., 154 Cal.App.4th 622, 64 Cal.Rptr.3d 824 (2007).     

Education

  • University of Arizona, Bachelor of Science in Business Administration (1995)
  • California Western School of Law, Juris Doctor (2001)

Professional Memberships and Activities

  • Association of Business Trial Lawyers - Board of Governors
  • American Bar Association
  • San Diego County Bar Association
  • Consumer Attorneys of California 
  • Consumer Attorneys of San Diego