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                                             LEXSEE 109 CAL.APP.4TH 351

               JOHN EISENDRATH, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES
                 COUNTY, Respondent; KATHRYN PRATT ROGERS, Real Party in Interest.

                                                        No. B164245.

                  COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
                                        DIVISION FOUR

                    109 Cal. App. 4th 351; 134 Cal. Rptr. 2d 716; 2003 Cal. App. LEXIS 798; 2003 Cal.
                               Daily Op. Service 4593; 2003 Daily Journal DAR 5849

                                                   May 30, 2003, Decided
                                                    May 30, 2003, Filed

NOTICE: [***1] CERTIFIED FOR PUBLICATION                        cerning the mediator's proposed testimony. The ex-
                                                                husband sought a writ of mandate, which the court grant-
PRIOR HISTORY: Los Angeles County. Super. Ct.                   ed. The trial court erred in finding a waiver by the par-
No. BD274276. Richard E. Denner, Judge.                         ties. The implied waiver provisions of Cal. Evid. Code §
                                                                910 et seq. were limited to the particular privileges enu-
DISPOSITION: Let a peremptory writ of mandate issue             merated therein only. The confidentiality rule in Cal.
directing the trial court to: (1) vacate its January 8, 2003,   Evid. Code § 1119 encompassed communications by
order; (2) determine the extent to which the mediation          participants before the end of mediation that were mate-
participants (including Rosenfeld) will expressly waive         rially related to the purpose of the mediation, regardless
their confidentiality rights, in accordance with this opin-     of whether the communications were made in the media-
ion; and (3) issue an order barring testimony from              tor's presence. Because the ex-husband's motion to cor-
Rosenfeld, and discovery into, and admission of, all me-        rect the judgment rested on confidential communications,
diation matters not encompassed by the participants'            evidence of those communications was inadmissible ab-
waivers or otherwise permitted by section 1115 et seq.          sent suitable express waivers. The mediator was not
The temporary stay shall be effective until this decision       competent to testify under Cal. Evid. Code § 703.5.
is final as to this court. Petitioner is awarded his costs.
                                                                OUTCOME: The court ordered that a peremptory writ
CASE SUMMARY:                                                   of mandate issue directing the trial court to (1) vacate its
                                                                order, (2) determine who was going to, and to what ex-
                                                                tent, waive their confidentiality rights, and (3) enter an
PROCEDURAL POSTURE: Petitioner ex-husband                       order barring testimony from the mediator and discovery
sought a writ of mandate against respondent Superior            concerning all mediation matters not encompassed by
Court of Los Angeles County (California) and sought             waivers or otherwise permitted by the statutory scheme.
relief from the trial court's orders related to real party in   The temporary stay was effective until the decision was
interest ex-wife that (1) denied a protective order, (2)        final.
found that both parties waived the mediation privilege
under Cal. Evid. Code § 1115 et seq. and the right to
assert a mediator's immunity under Cal. Evid. Code §            SUMMARY: CALIFORNIA OFFICIAL REPORTS
703.5, and (3) ordered a hearing.                               SUMMARY

OVERVIEW: A dissolution judgment was entered after
                                                                     After a former husband filed a motion to correct a
the parties attended mediation. The ex-husband later
                                                                spousal support agreement reached through mediation,
sought to correct the judgment. The ex-wife sought to
                                                                his former wife sought to depose the mediator. The hus-
depose the mediator, and the ex-husband sought a protec-
                                                                band requested a protective order to bar discovery and
tive order, which the trial court denied. The trial court
                                                                evidence regarding mediation communications, with the
found that the parties waived the mediation privilege.
                                                                exception of certain conversations between the parties
The trial court further ordered an in camera hearing con-
                                                                                                                    Page 2
                                 109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                           2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

that took place outside the mediator's presence. The trial     waiver provisions of Evid. Code, § 910 et seq., by their
court found that the husband had impliedly waived his          plain language, are limited to the particular privileges
confidentiality rights, denied the motion for a protective     enumerated therein. Further, statutory exceptions aside,
order, and decided to hold an in camera hearing on the         Evid. Code, § § 1119 and 1121, by their plain language,
mediator's potential testimony. (Superior Court of Los         render confidential any communications between media-
Angeles County, No. BD274276, Richard E. Denner,               tion participants before the end of mediation that occur
Judge.)                                                        outside the mediator's presence, provided that those
                                                               communications are materially related to the mediation.
     The Court of Appeal ordered issuance of a peremp-
                                                               Thus, in support of his motion to correct, the husband
tory writ of mandate directing the trial court to vacate the
                                                               could not rely on the parties' conversations about the
order denying the motion for a protective order, to de-
                                                               support issue that occurred outside the mediator's pres-
termine the extent to which the mediation participants,
                                                               ence absent an express waiver by both sides.
including the mediator, would expressly waive their con-
fidentiality rights, and to issue an order barring testimony
                                                               [See I Witkin, Cal. Evidence (4th ed. 2000) Circumstan-
from the mediator, and discovery into, and admission of,
                                                               tial Evidence, § 152 et seq.]
all mediation matters not encompassed by the partici-
pants' waivers or otherwise permitted by Evid. Code, §
                                                                (2) Statutes §            29--Construction--Language--
1115 et seq. The court held that nothing in Evid. Code, §
                                                               Legislative Intent. --A fundamental rule of statutory
910 et seq., evidences any legislative intent to extend the
                                                               construction is that a court should ascertain the intent of
principles of implied waiver to mediation confidentiality
                                                               the Legislature so as to effectuate the purpose of the law.
rights, and such an extension is not needed to avoid un-
                                                               In construing a statute, the court's first task is to look to
acceptable consequences. The implied waiver provisions
                                                               the language of the statute itself. In examining the statu-
of Evid. Code, § 910 et seq., by their plain language, are
                                                               tory language, the court must consider the context of the
limited to the particular privileges enumerated therein.
                                                               entire statute and the statutory scheme of which it is a
Further, Evid. Code, § § 1119 and 1121, by their plain
                                                               part. Moreover, the various parts of a statutory enactment
language, render confidential any communications be-
                                                               must be harmonized by considering the particular clause
tween mediation participants before the end of mediation
                                                               or section in the context of the statutory framework as a
that occur outside the mediator's presence, provided that
                                                               whole.
those communications are materially related to the medi-
ation. Thus, the husband could not rely, in support of his
                                                                (3) Witnesses § 11--Privileged Relationships and
motion to correct, on the parties' conversations about the
                                                               Communications--Waiver--In-issue Doctrine. --The
support issue that occurred outside the mediator's pres-
                                                               in-issue doctrine, which applies to the attorney-client,
ence absent an express waiver by both sides. The court
                                                               marital communication, physician-patient, and psycho-
further held that the trial court erred in denying the hus-
                                                               therapist-patient privileges, creates an implied waiver
band's request to bar the mediator as a witness and in
                                                               when the privilege's holder tenders an issue involving the
deciding to hold an in camera hearing on the mediator's
                                                               substance or content of a protected communication. The
potential testimony. (Opinion by Curry, J., with Vogel
                                                               doctrine stems from considerations of fairness. In the
(C. S.), P. J., and Hastings, J., concurring.)
                                                               case of the attorney-client privilege, if, in litigation be-
                                                               tween an attorney and the attorney's client, the attorney's
HEADNOTES:    CALIFORNIA                       OFFICIAL
                                                               integrity, good faith, authority, or performance of his or
REPORTS HEADNOTES
                                                               her duties is questioned, the attorney should be permitted
                                                               to meet this issue with testimony as to the attorney's
Classified to California Digest of Official Reports
                                                               communications with the client.
 (1a) (1b) (1c) Evidence § 31--Admissibility--Offer to
                                                                (4) Witnesses § 11--Privileged Relationships and
Settle or Compromise--Testimony of Mediator--
                                                               Communications--Creation of Privileges and Excep-
Implied Waiver. --After, a former husband filed a mo-
                                                               tions by Courts. --Courts may not add to the statutory
tion to correct a spousal support agreement reached
                                                               privileges except as required by state and federal consti-
through mediation and the former wife sought to depose
                                                               tutional law, nor may courts imply unwritten exceptions
the mediator, he trial court erred in finding that the hus-
                                                               to existing statutory privileges.
band had impliedly waived his confidentiality rights and
in denying his motion for a protective order. Nothing in
                                                                (5) Evidence § 31--Admissibility--Offer to Settle or
Evid. Code, § 910 et seq., evidences any legislative in-
                                                               Compromise--Mediation--Testimony by Mediator. ---
tent to extend the principles of implied waiver to media-
                                                               After a former husband filed a motion to correct a spous-
tion confidentiality rights, and such an extension is not
                                                               al support agreement reached through mediation and the
needed to avoid unacceptable consequences. The implied
                                                                                                                 Page 3
                                109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                          2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

former wife sought to depose the mediator, the trial court        We conclude that the trial court erred on these mat-
erred in denying the husband's request for an order bar-     ters. However, we also conclude that unless Eisendrath
ring the mediator as a witness and in deciding to hold an    and Rogers execute suitable express waivers, any protec-
in camera hearing on the mediator's potential testimony,     tive order must also bar admission of all confidential
where no constitutional right concerning the presentation    conversations between Eisendrath and Rogers that may
of evidence was implicated, and where neither party had      be cited in Eisendrath's motion to correct the spousal
executed a waiver of his or her confidentiality rights.      support agreement.
Even if the parties executed such a waiver, the testimony
                                                                  We therefore grant the relief requested in the peti-
sought concerned the very terms of the agreement
                                                             tion in part, deny it in part, and remand for further pro-
reached through mediation, and a conclusion that the
                                                             ceedings.
mediator could testify in such circumstances would au-
thorize testimony in virtually every dispute over a media-       Relevant Procedural Background
tion agreement and thus weaken Evid. Code, § 703.5
                                                                 Eisendrath and Rogers were married in 1992. Their
(mediator is not competent to testify concerning media-
                                                             marriage produced two children, Maxwell, born in 1992,
tion in subsequent civil proceeding).
                                                             and Samuel, born in 1997.
COUNSEL: Freid & Goldsman, Gary J. Cohen; Akin                    Eisendrath filed a petition for dissolution of mar-
Gump Strauss Hauer & Feld, Edward P. Lazarus, L. Ra-         riage in February 1998. In February [***3] 2000,
chel Helyar and Jonathan Gottlieb for Petitioner.            Eisendrath and Rogers began mediation with Ronald
                                                             Rosenfeld as mediator.
No appearance for Respondent.
                                                                  Before commencing mediation, they executed a me-
Trope & Trope, Thomas Paine Dunlap and Steven                diation agreement that expressly states that the mediation
Knowles for Real Party in Interest.                          was governed by Evidence Code sections 703.5 and 1115
                                                             et seq. In addition, the mediation agreement provides:
Dunn & Koes, Pamela E. Dunn and Daniel J. Koes for           "We agree that what is [**718] said in our sessions with
Several Individual Mediators as Amici Curiae.                Ronald Rosenfeld will be treated as confidential infor-
                                                             mation, and that all communications with Ronald Rosen-
JUDGES: (Opinion by Curry, J., with Vogel (C. S.), P.        feld are privileged and not admissible in Court or subject
J., and Hastings, J., concurring.)                           to discovery. We further agree that Ronald Rosenfeld
                                                             will not be called as a witness, nor will his notes and/or
OPINION BY: CURRY                                            memoranda be subpoenaed by either of us in any legal
                                                             [*355] proceeding. We further agree that Ronald Rosen-
OPINION: [**717] [*354]                                      feld's notes and/or memoranda shall not be released to
                                                             either of us under any circumstances, and Ronald Rosen-
    CURRY, J.--                                              feld may destroy said materials at his discretion."
    By petition for writ of mandate or prohibition, John          On April 22, 2002, the trial court filed a stipulated
Eisendrath seeks relief from orders of the trial court re-   judgment of dissolution that contained orders regarding
garding his mediation confidentiality rights under Evi-      child custody and visitation, child support, and spousal
dence Code sections 703.5 and 1115 et seq.                   support. Under the heading "Family Support," the judg-
     After Eisendrath filed a motion to correct a spousal    ment provides in paragraph 9.1: "[Eisendrath] [***4] is
                                                             ordered to pay [Rogers] as non-taxable family support
support agreement reached through mediation, real party
                                                             (child support and spousal support) $ 24,000 per month
in interest Kathryn Pratt Rogers sought to depose the
                                                             for 84 months commencing November 1, 2001 and con-
mediator. Eisendrath requested [***2] a protective order
intended to bar discovery and evidence regarding media-      tinuing for a period of 83 months thereafter. ..." Further-
tion communications, with the exception of certain con-      more, paragraph 9.1.g of the judgment provides: "If
                                                             [Rogers] remarries, or cohabits with another person in a
versations between himself and Rogers that formed the
                                                             marital-like relationship, [Eisendrath] shall nevertheless
basis of his motion to correct the spousal support agree-
                                                             remain obligated to pay [Rogers] the family support set
ment. The trial court found that Eisendrath had impliedly
                                                             forth in paragraph 9.1 above, but [Rogers] in her sole
waived his confidentiality rights, denied the protective
order, and decided to hold an in camera hearing on the       discretion may elect to modify or limit [Eisendrath's]
mediator's potential testimony to determine whether it       remaining family support obligation by reducing the
                                                             spousal support component (the sum of $ 14,000 per
should be admitted.
                                                             month). ..."
                                                                                                                   Page 4
                                  109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                            2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

     Eisendrath and Rogers each remarried following the        the term "non-taxable family support" when he reviewed
judgment of dissolution. On October 21, 2002,                  and signed the judgment.
Eisendrath filed a motion to correct or reform the judg-
                                                                    Regarding paragraph 9.1.g, Eisendrath stated that in
ment under Code of Civil Procedure section 473, n1 and
                                                               "negotiations and conversations ... during the time period
Family Code sections 2121 and 2122. n2 The motion
                                                               mediation was proceeding," he understood that he--and
contended that paragraphs 9.1 and 9.1.g of the judgment
                                                               not Rogers--was to have the discretion to continue
did not accurately reflect their agreement. According to
                                                               spousal support if Rogers remarried. According to
the motion, Eisendrath "was not represented by counsel
                                                               Eisendrath, he and Rogers "discussed these provisions
during [***5] the negotiation and execution of the"
                                                               numerous times before and during the execution of the"
judgment, and he "missed language which was contrary
                                                               judgment. Eisendrath further stated that upon Rogers's
to those provisions upon which the parties had already
                                                               remarriage, she had expected him to continue to pay
agreed."
                                                               spousal support, even [***7] though this was "incon-
                                                               sistent with the position she took when we negotiated,
                                                               signed and otherwise discussed those provisions of the"
                                                               judgment.
         n1 Code of Civil Procedure section 473, subdivi-
                                                                    On October 29, 2002, Rogers filed a motion for a
         sion (b), provides: "The court may, upon any
                                                               continuance so that she could depose Rosenfeld. She
         terms as may be just, relieve a party ... from a
                                                               stated that she was willing to waive her confidentiality
         judgment, dismissal, order, or other proceeding
                                                               rights regarding the mediation, and contended that
         taken against him or her through his or her mis-
                                                               Eisendrath had "constructively waived any privilege re-
         take, inadvertence, surprise, or excusable ne-
                                                               lating to settlement negotiations and mediation" by dis-
         glect."
                                                               cussing these matters in his declaration. She also indicat-
                                                               ed that Rosenfeld had asserted "the mediation privilege,"
         n2 Family Code section 2121 provides that in
                                                               and would not agree to be deposed.
         dissolution proceedings, the trial court "may, on
         any terms that may be just, relieve a spouse from          Eisendrath opposed this motion, and requested a
         a judgment, or any part or parts thereof, adjudi-     protective order barring Rosenfeld's deposition, discov-
         cating support or division of property," provided     ery into the mediation, and admission of any communi-
         that it "find[s] that the facts alleged as the        cation during the mediation sessions. He argued that his
         grounds for relief materially affected the original   motion to correct or reform the judgment rested solely on
         outcome and ... the moving party would material-      conversations with Rogers outside the mediation ses-
         ly benefit from the granting of the relief." (Fam.    sions. Although he conceded that these conversations did
         Code, § 2121, subds. (a) & (b).)                      not represent "the totality of the discussions," he stated
                                                               that he would not rely on discussions within the scope of
              Subdivision (e) of Family Code section 2122
                                                               mediation confidentiality.
         permits the trial court to grant relief "[a]s to
         stipulated or uncontested judgments" for "mis-             Furthermore, Eisendrath contended that the confi-
         take, either mutual or unilateral, whether mistake    dentiality statutes [***8] and confidentiality provision
         of law or mistake of fact."                           of the mediation agreement barred Rogers's discovery.
                                                               According to Eisendrath, in addition, his confidentiality
[***6]                                                         rights under Evidence Code section 1115 et seq., could
                                                               not be waived absent his express consent, which he had
     In support of the motion, Eisendrath submitted a
                                                               not given, and that Evidence Code section 703.5 barred
declaration that he was not represented by counsel while
                                                               testimony from Rosenfeld.
he and Rogers negotiated and executed the judgment.
According to the declaration, "[b]efore and during the              Following a hearing, the trial court filed an order on
execution of the" judgment, they discussed generally           January 8, 2003, that (1) denied Eisendrath's request for a
how to "handle support in a way that would be most ben-        protective order; (2) found that Eisendrath and Rogers
eficial to both of [them] financially."                        had impliedly waived the mediation privilege in Evi-
                                                               dence Code section 1115 et seq., and their right to assert
     [**719]       [*356]     Regarding paragraph 9.1,
                                                               Rosenfeld's immunity [*357] under Evidence Code sec-
Eisendrath stated that he specifically recalled one con-
                                                               tion 703.5; and (3) ordered an in camera hearing to de-
versation prior to the signing of the judgment in which
                                                               termine whether Rosenfeld should be compelled to testi-
he and Rogers agreed that family support was to be taxa-
                                                               fy. n3
ble. Eisendrath further indicated that he had overlooked
                                                                                                                   Page 5
                                 109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                           2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

                                                               tial communications relevant to Eisendrath's motion to
                                                               correct the judgment, and absent [*358] such waivers,
       n3 Several individual mediators have requested          to enter a protective order barring discovery into, and
       permission to file an amicus curiae brief. We           admission of, Rosenfeld's testimony and all confidential
       hereby grant them leave to do so.                       communications, including any such communications
                                                               cited in Eisendrath's motion.
     Petitioner filed [***9] his petition and request for a        A. Statutory Scheme Governing Mediation Confi-
stay on January 16, 2003. On February 21, 2003, we is-         dentiality
sued an order to show case and a temporary stay.
                                                                     Because the resolution of these issues hinges on the
    Discussion                                                 proper interpretation of the statutes in question, we begin
                                                               with a description of the pertinent statutory scheme. n5
     Eisendrath contends that the trial court erred (1) in
                                                               As our Supreme Court explained in Foxgate Homeown-
finding that he had impliedly waived his confidentiality
                                                               ers' Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th
rights under Evidence Code section 1115[n4] et seq., and
                                                               1, 14-15 [108 Cal. Rptr. 2d 642, 25 P.3d 1117]
(2) in ordering an in camera hearing to assess potential
                                                               (Foxgate), this statutory scheme implements a strong
testimony from Rosenfeld, notwithstanding section
                                                               legislative policy regarding the confidentiality of media-
703.5. He argues that the statutes governing mediation
                                                               tion.
confidentiality do not permit implied waivers of confi-
dentiality rights, and bar testimony from Rosenfeld.


                                                                      n5 Eisendrath has requested that we take judicial
                                                                      notice of materials related to the legislative histo-
       n4 All further statutory citations are to the Evi-
                                                                      ry of section 1115 et seq. We hereby do so, alt-
       dence Code, unless otherwise indicated.
                                                                      hough these materials play no role in our analysis
                                                                      of the issues before us.
     Rogers disagrees, contending that Eisendrath's statu-
tory confidentiality rights are akin to the statutory privi-   [***12]
leges defined in section 910 et seq. These privileges can
                                                                    Under this scheme, "mediation" means "a process in
[**720] be waived by conduct amounting to consent (§
                                                               which a neutral person or persons facilitate communica-
912, subd. (a)), and in some cases, by the tendering of
                                                               tion between the disputants to assist them in reaching a
claims that raise issues within the scope [***10] of the
                                                               mutually acceptable agreement," and "mediation consul-
pertinent privilege (§ § 958, 984, 1001, 1020). Rogers
                                                               tation" means "a communication between a person and a
argues that unless Eisendrath's confidentiality rights are
                                                               mediator for the purpose of initiating, considering, or
subject to these implied waiver principles, he will seek to
                                                               reconvening a mediation or retaining the mediator." (§
alter their spousal support agreement while unfairly pre-
                                                               1115, subds. (a), (c).) The scheme applies to all media-
venting her from presenting evidence regarding the nego-
                                                               tions, with limited exceptions not applicable here. (§
tiation of that agreement. Similarly, she argues that tes-
                                                               1117.)
timony from Rosenfeld is necessary for proper resolution
of Eisendrath's motion to correct the agreement.                    Section 1119 states the fundamental rule regarding
                                                               confidentiality of mediation communications. It pro-
     The trial court agreed with Rogers on these matters.
                                                               vides: "(a) No evidence of anything said or any admis-
In our view, this was error. As we explain below, confi-
                                                               sion made for the purpose of, in the course of, or pursu-
dential mediation communications are not admissible
                                                               ant to, a mediation or a mediation consultation is admis-
absent Eisendrath's express consent (see pt. B.2.a., post),
                                                               sible or subject to discovery, and disclosure of the evi-
and testimony from Rosenfeld is absolutely barred under
                                                               dence shall not be compelled, in any ... civil action ... in
the circumstances of this case (see pt. C., post).
                                                               which, pursuant to law, testimony can be compelled to be
     Nonetheless, we also conclude that Eisendrath's mo-       given. [¶] ... [¶] (c) All communications, ne-
tion to correct the judgment itself relies wholly, or in       gotiations, or settlement discussions by and between par-
large measure, on confidential mediation communica-            ticipants in the course of a mediation or a mediation con-
tions that are admissible only with the parties' express       sultation shall remain confidential."
consent (see pt. B.2.b., post). We will therefore remand
                                                                    [**721] The statutory scheme places several limits
the matter to the trial court to give the mediation partici-
                                                               on this [***13] broad rule. To begin, section 1125 pro-
pants (including, if necessary, Rosenfeld) an opportunity
                                                               vides that a mediation ends for the purposes of confiden-
to enter express [***11] waivers regarding the confiden-
                                                                                                                  Page 6
                                 109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                           2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

tiality when the parties execute a suitable settlement        "disclose anything said or done or any admission made
agreement, or when the participants execute a writing         in the course of the mediation." (§ 1122, subd. (a)(2).)
terminating the mediation. Thus, "the confidentiality
                                                                   The statutory scheme also limits disclosures by the
protections ... do not apply to any later proceedings, such
                                                              mediator. Section 1121 provides that absent a written
as attempts to further refine the content of the agree-
                                                              agreement or suitable oral agreement from all the parties
ment." (Cal. Law Revision Com. com., 29B pt. 3 West's
                                                              to the mediation, "[n]either a mediator nor anyone else
Ann. Evid. Code (2003 supp.) foll. § 1125, p. 136.)
                                                              may submit to a court or other adjudicative body, and a
Nonetheless, confidential communications made before
                                                              court or other adjudicative [***15] body may not con-
the end of the mediation remain confidential after the
                                                              sider, any report, assessment, evaluation, recommenda-
mediation ends (§ 1126).
                                                              tion, or finding of any kind by the mediator concerning a
     [*359] Other provisions state exceptions to the          mediation conducted by the mediator, other than a report
confidentiality rule for mediation agreements, disclosure     that is mandated by court rule or other law and that states
of the mediator's identity, and settlement agreements that    only whether an agreement was reached ... ."
emerge from the mediation, and some categories of evi-
                                                                   This restriction supplements section 703.5, which
dence used in the mediation. n6 (§ § 1120, 1123, 1124.)
                                                              provides (with qualifications that are not applicable
Finally, the statutory scheme specifies two circumstances
                                                              here): "No ... mediator[] shall be competent to testify, in
under which mediation participants may agree to the
                                                              any subsequent civil proceeding, as to any statement,
disclosure of mediation communications.
                                                              conduct, decision, or ruling, occurring at or in conjunc-
                                                              tion with the prior proceeding ... ."
                                                                   [*360] B. No Implied Waiver
       n6 The exception regarding evidence is found in              (1a) The first issue raised by Eisendrath is whether
       subdivision (a) of section 1120, which provides:       mediation participants can waive [**722] their confiden-
       "Evidence otherwise admissible or subject to dis-      tiality rights in an implied manner, by raising a claim
       covery outside of a mediation or a mediation con-      about the agreement reached through mediation. Alt-
       sultation shall not be or become inadmissible or       hough there is no case law on point, we find guidance on
       protected from disclosure solely by reason of its      this issue in Foxgate, supra, 26 Cal.4th 1.
       introduction or use in a mediation or a mediation
                                                                  1. Foxgate
       consultation." The scope of this exception is
       presently before our Supreme Court in Rojas. v.             In Foxgate, a mediator submitted a report to the trial
       Superior Court, review granted January 15,             court stating that a participant had engaged in miscon-
       2003, S111583.                                         duct during mediation proceedings. ( Foxgate, supra, 26
           Although the communications at issue here          Cal.4th at pp. 4-8.) After the trial court awarded [***16]
       do not appear to implicate this exception, we do       sanctions, the Court of Appeal reversed and remanded
                                                              the matter because the trial court's order was insufficient-
       not decide this question, which may be addressed
                                                              ly detailed under Code of Civil Procedure section 128.5.
       upon remand (see fn. 8, post).
                                                              ( Foxgate, at pp. 8-10.)
[***14]                                                            For the guidance of the trial court, the Court of Ap-
      First, the statutory scheme permits mediation com-      peal addressed whether the mediator's report could sup-
munications to be disclosed or admitted if "[a]ll persons     port sanctions. ( Foxgate, supra, 26 Cal.4th at p. 8.) De-
                                                              spite the unqualified ban on mediator reports in section
who conduct or otherwise participate in the mediation
                                                              1121, it concluded that policy considerations warranted a
expressly agree in writing," or enter into a recorded oral
                                                              nonstatutory exception to this ban for reports of miscon-
agreement that is memorialized in writing in a timely
fashion. (§ § 1118, 1122, subd. (a)(1).) The phrase "[a]ll    duct. ( Foxgate. at p. 9.) Applying the rule that unambig-
persons," as used here, includes "not only parties but also   uous statutes are subject to judicial construction when
                                                              literal interpretation would lead to an absurd result or
the mediator and other nonparties attending the media-
                                                              defeat manifest legislative purposes ( Times Mirror Co.
tion ... ." (Cal. Law Revision Com. com., 29B pt. 3
                                                              v. Superior Court (1991) 53 Cal.3d 1325, 1334, fn. 7
West's Ann. Evid. Code, supra, foll. § 1122, p. 133,
                                                              [283 Cal. Rptr. 893, 813 P.2d 240]), the Court of Appeal
italics added.)
                                                              reasoned that the nonstatutory exception was necessary
     Second, communications "prepared by or on behalf         to ensure good faith conduct in mediations. ( Foxgate, at
of fewer than all the mediation participants" may be dis-     p. 9.)
closed or admitted upon such waivers from the relevant
participants, provided that these communications do not
                                                                                                                     Page 7
                                  109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                            2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

     Our Supreme Court rejected the Court of Appeal's           which resulted in a settlement agreement. Subsequently,
determination on this matter. ( Foxgate, supra, 26              one of the parties contended that she was mentally in-
Cal.4th at pp. 13-18.) [***17] It determined that the           competent during the mediation, and the mediation par-
language of sections 1119 and 1121 was clear, as was the        ticipants--except the mediator--expressly waived their
legislative intent underlying the statutory scheme, name-       confidentiality rights to the extent necessary to resolve
ly, to promote mediation by ensuring confidentiality. (         the competency question. ( Id. at p. 1129.) Citing
Foxgate, at pp. 14-15.) Furthermore, it determined that         Rinaker, the court in Olam concluded that it could com-
the nonstatutory exception was not needed to avoid ab-          pel the mediator to testify on the issue of competency,
surd results or to expedite legislative goals, reasoning        provided that an in camera hearing revealed that the me-
that in enacting the scheme, the Legislature had balanced       diator's testimony was sufficiently probative. ( Id. at p.
the policy that promotes effective mediation through            1131-1136.)
confidentiality against a policy of encouraging good faith
                                                                     Although Foxgate may raise doubts about Rinaker
conduct in mediation through disclosure of misconduct. (
                                                                and Olam, it did not expressly criticize or qualify them.
Id. at p. 17.)
                                                                The situation in Foxgate did not involve criminal consti-
      The court in Foxgate thus stated: "To carry out the       tutional rights or waivers from the parties to mediation,
purpose of encouraging mediation by ensuring confiden-          and the Foxgate court elected to distinguish Rinaker and
tiality, the statutory scheme, which includes sections          Olam on their [***20] facts. ( Foxgate, supra, 26
703.5, 1119, and 1121, unqualifiedly bars disclosure of         Cal.4th at pp. 15-17.) Nonetheless, given the forceful
communications made during mediation absent an ex-              rejection of nonstatutory exceptions to mediation confi-
press statutory exception." ( Foxgate, supra, 26 Cal.4th        dentiality requirements in Foxgate, we conclude that
at p. 15, fn. omitted.)                                         Rinaker and Olam should be closely limited to their
                                                                facts.
     [*361] Nonetheless, the Foxgate court left open the
possibility that mediators may be compelled to disclose              [*362] 2. Application to Present Case
confidential communications in extraordinary circum-
                                                                     The trial court in the present case apparently deter-
stances, notwithstanding the statutory scheme. ( Foxgate,
                                                                mined that Eisendrath's confidentiality rights were im-
supra, 26 Cal.4th at pp. 15-17.) [***18] It discussed
                                                                pliedly waived under the principles applicable to the
two cases in which the courts had permitted such testi-
                                                                privileges in section 910 et seq., notwithstanding the
mony, and distinguished these cases on their facts, with-
                                                                clear and detailed provisions requiring the express waiv-
out rejecting them. (Ibid.)
                                                                er of confidentiality rights in section 1122. In view of
     In the first of these cases, Rinaker v. Superior Court     Foxgate, this was error. As we explain below, (1) noth-
(1998) 62 Cal.App.4th 155, 161-162 [74 Cal. Rptr. 2d            ing in section 910 et seq. evidences any legislative intent
464] (Rinaker), two youths were charged with vandalism          to extend principles of implied waiver to mediation con-
after they allegedly threw rocks at a car, and the car's        fidentiality rights. Furthermore, (2) this extension is not
owner also brought a civil harassment action against            needed to avoid unacceptable consequences.
them. The owner and the youths then participated in
                                                                    a. Inapplicable Waiver Principles
[**723] a voluntary mediation to resolve the harassment
action. (Ibid.) During juvenile delinquency proceedings,             The relationship of the provisions governing privi-
the youths sought to impeach the owner with testimony           leges in section 910 et seq. to the statutory scheme at
from the mediator that the owner had admitted in the            issue is a question of statutory interpretation.
mediation that he had not seen the rock throwers. (Ibid.)
                                                                     (2) "A fundamental rule of statutory construction is
The court in Rinaker concluded that the statutory ban on
                                                                that a court should ascertain the [***21] intent of the
the disclosure of mediation communications yielded to
                                                                Legislature so as to effectuate the purpose of the law.
the youths' constitutional rights to confront and cross-
examine prosecution witnesses. ( Id. at pp. 165-167.) It        [Citations.] In construing a statute, our first task is to
directed the juvenile court to conduct an in camera exam-       look to the language of the statute itself. [Citation.]" (
                                                                DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th
ination of the mediator's potential testimony, and to de-
                                                                382, 387 [20 Cal. Rptr. 2d 523, 853 P.2d 978].) In exam-
termine whether this testimony was necessary to vindi-
                                                                ining the statutory language, we must consider "the con-
cate the constitutional rights [***19] at issue. ( Id. at pp.
                                                                text of the entire statute ... and the statutory scheme of
169-171.)
                                                                which it is a part. ... 'Moreover, the various parts of a
    In the second case, Olam v. Congress Mortg. Co.             statutory enactment must be harmonized by considering
(N.D.Cal. 1999) 68 F. Supp. 2d 1110, 1113-1118                  the particular clause or section in the context of the statu-
(Olam), the parties to an action arising from the non-          tory framework [**724] as a whole. [Citations.]' [Cita-
payment of a loan participated in voluntary mediation,          tions.]" ( Id. at p. 388.)
                                                                                                                   Page 8
                                 109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                           2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

      Section 910 et seq. defines and governs a group of       rights or the statutory scheme governing these rights.
particular privileges. n7 Subdivision (a) of section 912       Furthermore, we may not extend these waiver provisions
lists eight of these privileges, and provides that any right   beyond their existing limits.(4) As our Supreme Court
to assert the enumerated privileges "is waived with re-        [***24] explained in Roberts v. City of Palmdale (1993)
spect to a communication protected by the privilege if         5 Cal.4th 363, 373 [20 Cal. Rptr. 2d 330, 853 P.2d 496],
any holder of the privilege, without coercion, has dis-        "[c]ourts may not add to the statutory privileges except
closed a significant part of the communication or has          as required by state or federal constitutional law [cita-
consented to disclosure made by anyone. Consent to dis-        tions], nor may courts imply unwritten exceptions to
closure is manifested by any statement or conduct of the       existing statutory privileges. [Citations.]"
holder of the [***22] privilege indicating consent to the
                                                                    Nothing in Rinaker or Olam disturbs our conclusion
disclosure ... ." (Italics added.)
                                                               on this matter. Unlike Rinaker, no constitutional right
                                                               touching the presentation of evidence is implicated in
                                                               this case. Furthermore, Olam did not address the ques-
                                                               tion of statutory interpretation presented here.
       n7 These privileges include the privilege of a de-
                                                                   b. No Unacceptable Consequences
       fendant in a criminal case (§ 930), the privilege
       against self-incrimination (§ 940), the lawyer-               (1c) Here, as in Foxgate, enforcing the literal mean-
       client privilege (§ 950), the spousal privilege (§      ing of the pertinent mediation statutes does not create
       970), the privilege for confidential marital com-       unacceptable or unfair results, notwithstanding Rogers's
       munications (§ 980), the physician-patient privi-       contention on this point. She argues that if Eisendrath
       lege (§ 990), the psychotherapist-patient privi-        has not impliedly waived his [**725] confidentiality
       lege (§ 1010), the clergyman-penitent privilege         rights by seeking to correct the spousal support agree-
       (§ 1030), the sexual assault victim-counselor           ment, he will be able to attack this agreement on the ba-
       privilege (§ 1035), the domestic violence victim-       sis of limited and potentially misleading evidence--that
       counselor privilege (§ 1037), the privilege re-         is, conversations outside the mediator's presence--while
       garding official information and identity of in-        barring Rogers from presenting a full picture of the nego-
       formers (§ 1040), the political vote privilege (§       tiations during the [***25] mediation.
       1050), and the trade secret privilege (§ 1060).
                                                                     [*364] In our view, Rogers's contention is incor-
                                                               rect, and rests on a misapprehension of the scope of me-
      [*363] Furthermore, four of the privileges are ac-       diation confidentiality. Statutory exceptions aside, sec-
companied by provisions expressly subjecting them to           tions 1119 and 1121, by their plain language, render con-
the so-called in-issue doctrine (§ § 958 [attorney-client      fidential any communications between mediation partici-
privilege], 984 [marital communication privilege], 1001        pants before the end of mediation that occur outside the
[physician-patient privilege], [***23] 1020 [psycho-           mediator's presence, provided that these communications
therapist-patient privilege]). (3) "The in issue doctrine      are materially related to the mediation. Thus, all such
creates an implied waiver ... when [the privilege's holder]    conversations cited in Eisendrath's motion to correct the
tenders an issue involving the substance or content of a       spousal support agreement are confidential, and may not
protected communication ... ." ( Rockwell Internat. Corp.      be admitted into evidence unless suitable express waivers
v. Superior Court (1994) 26 Cal.App.4th 1255, 1268 [32         are executed.
Cal. Rptr. 2d 153], italics deleted.)
                                                                    As we have indicated (see pt. A., ante), the confi-
     This doctrine stems from considerations of fairness.      dentiality rule in section 1119 sweeps broadly: it bars
As Witkin explains in the case of the attorney-client priv-    discovery and evidence of "anything said" not merely "in
ilege, "[i]f, in litigation between an attorney and the at-    the course of" mediation, but "for the purpose of ... , or
torney's client ... , the attorney's integrity, good faith,    pursuant to" mediation. Only certain communications
authority, or performance of his or her duties is ques-        made after the end of the mediation, or falling under oth-
tioned, the attorney should be permitted to meet this is-      er enumerated exceptions, escape its reach. Thus, the
sue with testimony as to the attorney's communications         confidentiality rule in section 1119 encompasses com-
with the client." (2 Witkin, Cal. Evidence (4th ed. 2000)      munications by participants before the end of mediation
Witnesses, § 161, p. 434.)                                     that are materially related to the purpose of the media-
                                                               tion, regardless [***26] of whether these communica-
     (1b) We conclude that the implied waiver provisions
                                                               tions are made in the mediator's presence.
in section 910 et seq., by their plain language, are limited
to the particular privileges enumerated therein. None of           This conclusion finds corroboration in the language
these waiver provisions refer to mediation confidentiality     and structure of section 1122. Under this provision,
                                                                                                                  Page 9
                                 109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                           2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

communications "made or prepared for the purpose of, or              remand, the trial court may inquire into whether
in the course of, or pursuant to, a mediation" are protect-          any conversation cited in Eisendrath's motion es-
ed from disclosure unless all mediation participants--               capes the confidentiality rule on these grounds, or
including the mediator--give their express consent. (§               any other ground found in the statutory scheme.
1122, subd. (a)(1).)
                                                              [***28]
     However, subdivision (a)(2) of section 1122 permits
the disclosure of confidential communications "on behalf           We recognize that this conclusion gives Rogers a
of" only some of the mediation participants, provided         substantial measure of control over Eisendrath's ability to
that the pertinent participants give their express consent,   present evidence in support of his motion to correct the
and the communications do not reveal "anything said or        spousal support agreement. Nonetheless, this result does
done ... in the course of the mediation." This provision      not disturb our interpretation of the statutory scheme in
makes little sense unless mediation confidentiality en-       question. In explaining that the Legislature had balanced
compasses communications from or involving partici-           conflicting policies in enacting this scheme, the Foxgate
pants before the end of mediation that (1) are materially     court recognized that the scheme effectively gives con-
related to the purposes of the mediation, (2) occur out-      trol over evidence of some sanctionable misconduct to
side the mediator's presence, and (3) do not mention          the party engaged in the misconduct. On this matter, the
statements and conduct that occur before the mediator.        court in Foxgate remarked that "none of the confidential-
(See Cal. Law Revision Com. com., 29B pt. 3 West's            ity statutes currently make an exception for reporting bad
Ann. Evid. Code, supra, foll. § 1122, p. 133.)                faith conduct ... when doing so would require disclosure
                                                              of communications ... ." ( Foxgate, supra, 26 Cal.4th at
     Here, [***27] Eisendrath seeks to correct the
                                                              p. 17.) Following the Foxgate court, we assume that the
spousal support agreement, which resulted from the me-
                                                              Legislature considered these limitations on the presenta-
diation, on the basis of communications meeting this
                                                              tion of evidence when it enacted the statutory scheme.
description. His declaration in support of his motion to
correct the spousal support agreement describes conver-            In any event, Rogers has indicated her willingness to
sations with Rogers about the terms of his spousal sup-       waive her confidentiality rights, provided that there is a
port obligations that occurred outside the presence of the    suitable waiver on Eisendrath's part.
[*365] mediator. These conversations are generally
                                                                  C. No Testimony from Mediator
characterized as having occurred "[b]efore and during the
execution of the" judgment, or "during the time period             (5) The remaining issue [***29] concerns Rosen-
mediation was proceeding," and the only conversation          feld's competence as a witness. On this matter, the trial
described with specificity occurred before the judgment       court apparently followed Olam and Rinaker in denying
was signed. Furthermore, Eisendrath has stated that his       Eisendrath's request for an order barring Rosenfeld as a
motion "does not bring into play any of the communica-        witness, and in deciding to hold an in camera hearing on
tions between the parties and the mediator."                  Rosenfeld's potential testimony.
     In view of these representations, we conclude that             [*366] The trial court erred. Under section 703.5,
Eisendrath's motion to correct the judgment rests exclu-      Rosenfeld is incompetent to testify, and any exception to
sively or substantively on conversations that constitute      this rule found in Rinaker and Olam is inapplicable here.
[**726]     confidential communications. Accordingly,         n9 As we have explained (see pt. B.1.a, ante), the case
evidence of these conversations is inadmissible absent        before us falls outside of Rinaker because no constitu-
suitable express waivers from Eisendrath and Rogers. n8       tional right concerning the presentation of evidence is
                                                              implicated.



       n8 During oral argument, Eisendrath's counsel
       suggested that some of the conversations upon                 n9 In view of this conclusion, it is unnecessary
       which his motion to correct the judgment relies               for us to resolve Eisendrath's contentions about
       may have occurred after the end of mediation.                 the trial court's rulings based on the confidentiali-
       Under the statutory scheme at issue, the confiden-            ty provisions of the mediation agreement.
       tiality rule does not encompass conversations be-
       tween Eisendrath and Rogers that (1) occurred af-
       ter the end of the mediation (§ 1125) and (2) do           Furthermore, unlike Olam, Eisendrath and Rogers
                                                              have not executed waivers of their confidentiality rights.
       not implicate confidential communications made
                                                              However, assuming that they do so, the trial court here
       prior to the end of the mediation (§ 1126). Upon
                                                              contemplates [***30]      compelling testimony from
                                                                                                               Page 10
                                109 Cal. App. 4th 351, *; 134 Cal. Rptr. 2d 716, **;
                          2003 Cal. App. LEXIS 798, ***; 2003 Cal. Daily Op. Service 4593

Rosenfeld on the terms of the spousal support agreement      order; (2) determine the extent to which the mediation
reached through mediation, whereas the court in Olam         participants (including Rosenfeld) will expressly waive
sought testimony from the mediator on a narrow issue         their confidentiality rights, in accordance with this opin-
peripheral to the agreement achieved through mediation,      ion; and (3) issue an order barring testimony from
namely, the competence of a participant. In our view,        Rosenfeld, and discovery into, and admission of, all me-
extending Olam to the present case would authorize me-       diation matters not encompassed by the participants'
diator testimony in virtually every dispute over a mediat-   waivers or otherwise permitted by section 1115 et seq.
ed agreement, and thus gut section 703.5.                    The temporary stay shall be effective until this decision
                                                             is final as to this court. Petitioner is awarded his costs.
    DISPOSITION
                                                                 Vogel (C. S.), P. J., and Hastings, [***31] J., con-
     Let a peremptory writ of mandate issue directing the
                                                             curred.
trial court to: (1) vacate its [**727] January 8, 2003,

				
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