Kelly Horwitz

Kelly Horwitz, a Partner at Benedon & Serlin LLP, a premier appellate boutique law firm in Southern California, represents clients in a wide variety of complex appellate matters including disputes related to employment, contracts, probate and estate law, as well as cases involving arbitration appeals, anti-SLAPP, and bankruptcy.  As an appellate attorney for more than 18 years, Kelly is proficient in handling all types of appeals, writ proceedings, trial consultations, and post-trial motions.

As a Certified Specialist in Appellate Law, Kelly regularly appears before the California Courts of Appeal and the U.S. Court of Appeals for the Ninth Circuit.  Prior to working in private practice, Kelly clerked for a number of U.S. District Court Judges, including Chief Judge Alicemarie Stotler, Judge George P. Schiavelli, and Judge John A. Houston.

Specific examples of Kelly’s work include:

• A southern California casino moved to compel arbitration in a lawsuit filed by a former employee who argued the casino waived its right to arbitration by not seeking to arbitrate for over a year due to the COVID-19 restrictions.  The trial court found waiver and denied the motion to compel arbitration. The[KH1]  Court of Appeal reversed the trial court’s order by showing the employee failed to show he was prejudiced by the delay in seeking arbitration. Shortly after this verdict, the U.S. Supreme Court, in Morgan v. Sundance, Inc., held that prejudice is not a requirement for arbitration waiver under federal law. Kelly argued before the California Supreme Court that it should affirm long-standing California precedent requiring prejudice. The Court instead chose to renounce its precedent to follow the new federal law of arbitration waiver.
• A client secured a $30 million loan for a debtor entity’s predecessor in interest using his own funds. When the debtor defaulted, the client filed a claim in the debtor’s bankruptcy proceeding seeking reimbursement on an unjust enrichment theory. The bankruptcy court denied the claim stating that the loan primarily benefited the client and only incidentally benefited the debtor.  After the district court upheld the ruling, Kelly successfully argued to reverse the decision by showing the primary purpose of the loan was to benefit the debtor entity.  This Ninth Circuit Court decision reinstated the client’s $30 million claim in the bankruptcy proceedings.
• In a wrongful termination case, Kelly obtained a reversal of the trial court’s order enforcing a settlement agreement between the employee client and her former employer.  The Court of Appeal reversed the claim on the grounds that the client did not unequivocally accept the former employer’s offer but instead made a counteroffer. Reversal allowed the case to be remanded for further proceedings on the client’s claim for wrongful termination.