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 an experienced trial lawyer.  Kirby handles both plaintiff's cases and defense cases.  As a plaintiff's lawyer he has had multiple jury verdicts in excess of a million dollars.  As a defense lawyer, he has had multiple complete defense verdicts.  Kirby believes that doing both plaintiff's work and defense work gives him a better perspective on the evidence and strategy in every case.  

Kirby was first rated AV Preeminent® by Martindale-Hubbel® in 2013.  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.

Kirby previously served as a full-time law clerk at the San Diego Superior Court for the Honorable J. Richard Haden (Ret.).             

Direct Dial: (619) 557-4404   

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Business Litigation

Kirby has represented Fortune 500 companies, local companies, officers and directors, partners, and members in almost every conceivable type of business dispute. 

In 2018, Kirby's clients prevailed in a breach of contract case.  The dispute arose out of a written contract that Kirby's clients signed that stated they would pay an unlicensed mergers and acquisition (M&A) company a multi-million "deal fee" on the sale of their pet food company.  Upon the sale of the company, the M&A company sought a "deal fee" of more than $4 million.  The M&A company lost on all claims against Kirby's clients as a result of their participation in negotiations without a license.  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.  

Real Estate Litigation

Kirby has represented commercial developers, commercial tenants, and residential owners in a variety of real estate disputes.

In 2019, Kirby's client prevailed in a residential real estate dispute on all claims.  The dispute arose out of the sale of a multi-million home in Rancho Santa Fe.  The buyers alleged that Kirby's client failed to disclose certain defects including past plumbing leaks and mold conditions in the seller's real estate disclosure forms.  The buyers alleged fraud, negligence, and breach of contract.  The jury rejected all theories of liability against Kirby's client.  In post-trial motions, Kirby's client was awarded more than $400,000 in attorneys' fees and costs as the prevailing parties.

  

Investment Fraud Litigation

Kirby has had the privilege to representing many investors over the years that have lost their investment funds to bad actors and those working with them.  His experience representing investors followed years of experience representing one of the nation's largest broker-dealers.    

In 2010, 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.   

Sexual Abuse Litigation

Kirby is well versed in California law in sexual abuse cases.

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.  

Personal Injury Litigation

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

In 2014, 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.  The worker fell off the homeowners' second-story roof while working without adequate safety restraints.       

In 2008, Kirby's client prevailed in a jury trial defending San Diego Gas & Electric against multi-million damage claims in a wrongful death and personal injury action.   

Probate Litigation

Kirby has been involved in numerous trust disputes over family assets and has extensive experience litigating trustee conduct.  

From 2013 to 2016, Kirby was lead counsel in a highly contentious family dispute over the control and management of a privately-held corporation holding more than $50 million in family investments.  The case was resolved pursuant to a confidential settlement agreement.  Kirby's ethics in handling the case were recognized by both the majority and dissenting opinions in the seminal case, McDermott Will & Emery LLP v. Superior Court , 10 Cal.App.5th 1083 (2017). 

Banking Litigation

Kirby was hired to defend bank officers and directors against the allegations of the Federal Deposit Insurance Corporation (FDIC) after the Office of Thrift Supervision (OTS) shut-down the bank chain.  The bank's alleged losses were more than $1 billion.  Most of Kirby's clients were not pursued.  Those that were pursued by the FDIC, settled the claims on favorable terms.    

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 (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