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 into that partnership.  Kirby remained a partner until the firm until it split up in 2016.  He and his father then started their own firm, KIRBY & KIRBY LLP.            

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Real Estate

In 2019, Kirby won a defense jury verdict for the sellers of a home in Rancho Santa Fe.  The buyers had sued his clients alleging that the sellers failed to disclose plumbing leaks and mold conditions in the required disclosure forms and that this failure constituted fraud and breach of the standard form California Residential Purchase Agreement.  After a two-week trial, the jury rejected all theories of liability against Kirby's clients.  After the jury's verdict, the trial judge awarded Kirby's clients more than $400,000 in attorneys' fees and costs.

Kirby represented the developer of real property in arbitration proceedings that could not be settled because both sides disputed the plain meaning of the operative development contracts.  Both sides were convinced that the contract shifted impact fees to the other.  The project was a build-to-suit construction project in Carlsbad.  Kirby's client prevailed in convincing the arbitrator that its interpretation of the contract was correct.  The arbitrator awarded more than $500,000 to Kirby's client.

Kirby represented the developer of real property that had contracted with the Federal Government to construct the FBI's new office complex in Sorrento Valley.  The case was successfully resolved through a confidential settlement that cleared the way for construction to proceed.  Kirby by his clients to attend the grand opening of the new FBI facility and were publicly recognized for helping save the project.

Kirby represented the general partner in a real estate investment partnership concerning the acquisition and development of three unrelated parcels in Arizona.  The case was resolved through a confidential settlement.  

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

 

Business

In 2018, Kirby won a defense arbitration award defending the sellers of a multi-million business in San Diego against the allegations of an unlicensed mergers and acquisition (M&A) company out of Los Angeles that demanded it receive a $4 million "deal fee," simply a disguised securities commission, pursuant to its written contract with the seller.  Kirby's clients also prevailed on their cross-claims in the arbitration which resulted in a six-figure damage award.  After the arbitration award was decided, the arbitrator awarded Kirby's clients more than $1 million comprised of damages, pre-judgment interest, attorneys' fees, and costs.

Kirby won a defense arbitration award for the purchaser of a dental practice in La Jolla after it was discovered by the purchaser that the seller had misrepresented the financial condition of the practice in the sale transaction.  The arbitrator agreed that there were intentional misrepresentations made by the seller concerning the practice finances and he rescinded the purchase based on the seller's fraud.

Kirby won a plaintiff's employment arbitration representing 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.

Sexual Abuse

In 2018, Kirby won a $2.1 million jury verdict 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

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.  

Investment Fraud

Kirby won a $2.3 million jury verdict for plaintiff investors against a number individuals engaged 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, a number of the defendants involved in the case were prosecuted by federal authorities and some remain in prison to this day.   

Probate

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

Kirby was heavily involved in the defense of numerous bank board members and bank executives 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) with alleged losses of approximately $1 billion. 

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