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                                                LEXSEE 93 P.3D 260

                GENOVEVA ROJAS et al., Petitioners, v. THE SUPERIOR COURT OF LOS
               ANGELES COUNTY, Respondent; JULIE COFFIN et al., Real Parties in Interest.

                                                       S111585

                                      SUPREME COURT OF CALIFORNIA

                    33 Cal. 4th 407; 93 P.3d 260; 15 Cal. Rptr. 3d 643; 2004 Cal. LEXIS 6281; 2004
                            Cal. Daily Op. Service 6189; 2004 Daily Journal DAR 8387

                                                 July 12, 2004, Filed

PRIOR HISTORY: Superior Court of Los Angeles                 1119(b) was contrary to the statutory language and the
County, Nos. BC21452 and BC224568, Anthony J.                legislature's intent. In passing § 1119(b), the legislature
Mohr, Judge. Court of Appeal, Second Dist., Div. Seven,      specifically intended to extend protection to all types of
No. B158391.                                                 writings, including photographs, and the appellate court's
                                                             narrowing of the protection under the statute was incon-
 Rojas v. Superior Court, 102 Cal. App. 4th 1062, 126        sistent with the legislative efforts to expand protection.
Cal. Rptr. 2d 97, 2002 Cal. App. LEXIS 4792 (Cal. App.       The appellate court erred in holding that a "good cause"
2d Dist., 2002)                                              exception applied to so-called derivative material.

DISPOSITION: Judgment of the Court of Appeal re-             OUTCOME: The court reversed. Based on the parties'
versed; cause remanded.                                      settlement, the court remanded to the appellate court and
                                                             directed that it dismiss the mandamus petition and dis-
CASE SUMMARY:                                                charge the peremptory writ.


PROCEDURAL POSTURE: Real parties in interest, an             SUMMARY: CALIFORNIA OFFICIAL REPORTS
apartment complex owner, her agent, and a construction       SUMMARY
company, sought review of a decision of the Court of
                                                                  Tenants of an apartment complex sued the owner of
Appeal of California, Second Appellate District, Divi-
                                                             the complex and others, alleging that defective construc-
sion Seven, which granted petitioner tenants' request for
                                                             tion had allowed water to circulate and microbes to infest
mandamus relief against respondent trial court and held
                                                             the complex, causing numerous health problems. Defen-
that, under Cal. Evid. Code § 1119, certain documents
                                                             dants had been involved in prior litigation regarding the
sought by the tenants in discovery were not protected by
                                                             complex. The prior litigation had settled as a result of
the statute.
                                                             mediation. The tenants served a request for information
                                                             regarding the mediation and a request for production of
OVERVIEW: The owner and company had been in-
                                                             all photographs and videotapes taken or received during
volved in a lawsuit concerning the apartment complex.
                                                             the prior litigation. The trial court denied the tenants'
The litigation settled as a result of mediation. The set-
                                                             motion to compel production of the requested material.
tlement agreement stated that the documents used in the
                                                             (Superior Court of Los Angeles County, Nos. BC214521
mediation process were protected by Cal. Evid. Code §
                                                             and BC224568, Anthony J. Mohr, Judge.) The tenants
1119. The tenants then brought this action for defective
                                                             then sought a writ of mandate. The Court of Appeal,
construction that caused injury. They sought the docu-
                                                             Second Dist., Div. Seven, No. B158391, granted writ
ments exchanged in the mediation. The appellate court
                                                             relief, holding that application of Evid. Code, § 1119,
held that § 1119 did not protect pure evidence, but pro-
                                                             subd. (b), is governed by the same principles that govern
tected only the substance of the mediation. Applying
                                                             application of the work product privilege under Code
work product principles under Cal. Code Civ. Proc. §
                                                             Civ. Proc., § 2018. Applying those principles, the Court
2018, the appellate court found that only certain docu-
                                                             of Appeal classified raw test data, photographs, and wit-
ments were privileged. The court reversed, because the
                                                             ness statements as nonderivative material that is not pro-
appellate court's interpretation of Cal. Evid. Code §
                                                                                                                   Page 2
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

tected. By contrast, the Court of Appeal concluded that       (2) Discovery and Depositions § 22--Inspection of
material reflecting only an attorney's impressions, con-      Records and Things--Photographs and Written Wit-
clusions, opinions, or legal research or theories is abso-    ness Statements--Prepared for Mediation--Material
lutely protected. Finally, the Court of Appeal held that      Not Admissible or Subject to Discovery.--Under Evid.
derivative materials--amalgamations of factual informa-       Code, § 1119, where both photographs and written wit-
tion and attorney thoughts, impressions, and conclusions-     ness statements qualified as writings, as defined in Evid.
-are qualifiedly protected; they are discoverable only        Code, § 250, if they were prepared for the purpose of, in
upon a showing of good cause, which involves a balanc-        the course of, or pursuant to, a mediation, then they were
ing of the need for the materials and the purposes served     not admissible or subject to discovery, and their disclo-
by mediation confidentiality.                                 sure could not be compelled.
     The Supreme Court reversed the judgment of the
                                                              [1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial
Court of Appeal and remanded to that court with direc-
                                                              Evidence, § 152 et seq.]
tions. The court held that the Court of Appeal erred in
holding that photographs, videotapes, witness statements,
                                                              (3) Discovery and Depositions § 22--Inspection of
and "raw test data" from physical samples collected at
                                                              Records and Things--Photographs and Written Wit-
the complex--such as reports describing the existence or
                                                              ness Statements--Prepared for Mediation.--Read to-
amount of mold spores in a sample--that were prepared
                                                              gether, Evid. Code, § § 1119 & 1120, establish [*409]
for the purpose of, in the course of, or pursuant to, the
                                                              that a writing--which qualifies as evidence (Evid. Code,
mediation in the prior litigation were not protected under
                                                              § 140)--is not protected solely by reason of its introduc-
Evid. Code, § 1119. [*408] The Court of Appeal's in-
                                                              tion or use in a mediation (Evid. Code, § 1120, subd.
terpretation of Evid. Code, § 1119, subd. (b), was con-
                                                              (a)), but is protected only if it was prepared for the pur-
trary to both the statutory language and the Legislature's
                                                              pose of, in the course of, or pursuant to, a mediation. In
intent. In enacting § 1119, subd. (b), the Legislature
                                                              other words, under § 1120, a party cannot secure protec-
specifically intended to extend protection to all types of
                                                              tion for a writing--including a photograph, a witness
writings, including photographs. The Court of Appeal
                                                              statement, or an analysis of a test sample--that was not
also erred in holding that, although the statute's protec-
                                                              prepared for the purpose of, in the course of, or pursuant
tion applies to so-called derivative material that is pre-
                                                              to, a mediation (Evid. Code, § 1119, subd. (b)) simply
pared for the purpose of, in the course of, or pursuant to,
                                                              by using or introducing it in a mediation or even includ-
a mediation (Evid. Code, § 1119, subd. (b))--such as
                                                              ing it as part of a writing--such as a brief or a declaration
charts, diagrams, information compilations, and expert
                                                              or a consultant's report--that was prepared for the pur-
opinions and reports--such material is nevertheless dis-
                                                              pose of, in the course of, or pursuant to, a mediation.
coverable upon a showing of good cause. In reaching this
                                                              This construction does not render Evid. Code, § 1120,
conclusion, the Court of Appeal borrowed principles
                                                              "surplusage" or permit parties to use mediation as a
governing discovery of work product. However, discov-
                                                              shield to hide evidence. Rather, consistent with the Leg-
ery of work product is expressly governed by statute.
                                                              islature's intent, it applies § 1120 as a limit on the scope
The Legislature clearly knew how to establish a "good
                                                              of Evid. Code, § 1119, that prevents parties from using a
cause" exception to a protection or privilege if it so de-
                                                              mediation as a pretext to shield materials from disclo-
sired. The Legislature did not enact such an exception
                                                              sure.
when it passed Evid. Code, § 1119, and the other media-
tion confidentiality provisions. There was no evidence of
                                                              (4) Discovery and Depositions § 35--Protections
a legislative intent supporting the "good cause" exception
                                                              Against      Improper        Discovery--Privileges--Work
the Court of Appeal read into the statute. (Opinion by
                                                              Product Rule--Exception.--Discovery of work product
Chin, J., expressing the unanimous view of the court.)
                                                              is expressly governed by statute. Code Civ. Proc., §
                                                              2018, subd. (b), provides that work product--other than
HEADNOTES: CALIFORNIA OFFICIAL REPORTS
                                                              writings reflecting an attorney's impressions, conclu-
HEADNOTES
                                                              sions, opinions, or legal research or theories--is discover-
                                                              able if the court determines that denial of discovery will
Classified to California Digest of Official Reports
                                                              unfairly prejudice the party seeking discovery in prepar-
                                                              ing that party's claim or defense or will result in an injus-
 (1) Legislature § 1--Implementation of Alternatives
                                                              tice. Thus, the Legislature clearly knows how to establish
to Judicial Dispute Resolution--Mediation.--With re-
                                                              a "good cause" exception to a protection or privilege if it
spect to legislative implementation of alternatives to
                                                              so desires. The Legislature did not enact such an excep-
judicial dispute resolution, mediation is one of the alter-
                                                              tion when it passed Evid. Code, § 1119, and the other
natives the Legislature has sought to implement.
                                                              mediation confidentiality provisions.
                                                                                                                   Page 3
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

                                                              Poole & Shaffery, Charles W. Jenkins and Samuel L.
(5) Discovery and Depositions § 22--Inspection of             Tolwin for Real Party in Interest Inland Water Proofing
Records and Things--Discovery of Protected Com-               & Sheet Metal.
munications and Writings Prepared by or on Behalf
of Fewer than All Mediation Participants--Express             Ivan K. Stevenson for Law Office of Ivan K. Stevenson
Agreement to Disclose.--Evid. Code, § 1122, subd.             and Confidential Mediation & Dispute Resolution as
(a)(2), permits discovery of protected communications         Amici Curiae on behalf of Real Parties in Interest Julie
and writings that were prepared by or on behalf of fewer      Coffin, Richard Ehrlich and Deco Construction Corpora-
than all the mediation participants if those participants     tion.
expressly agree to disclosure and disclosure would not
reveal anything said or done or any admission made in         Dunn Koes, Pamela E. Dunn and Daniel J. Koes for As-
the course of the mediation. The language of this provi-      sociation of Southern California Defense Counsel as
sion was designed to give a mediation participant control     Amicus Curiae on behalf of Real Parties in Interest.
over whether something prepared for the mediation is           [*411]
used in subsequent litigation. Evid. Code, § 1122, subd.      James R. Madison and David Finch for the California
(a)(1), establishes another exception; it permits discovery   Dispute Resolution Council as Amicus Curiae on behalf
of protected material if all persons who conduct or oth-      of Real Parties in Interest.
erwise participate in [*410] the mediation expressly
agree to disclosure. The Legislature has established other    Law and Mediation Offices of Elizabeth E. Bader and
exceptions for settlement agreements made or prepared         Elizabeth E. Bader for Ron Kelly and Elizabeth E. Bader
in the course of, or pursuant to, a mediation.                as Amici Curiae.

COUNSEL: Agnew & Brusavich, Bruce M. Brusavich,               JUDGES: Chin, J., with George, C. J., Kennard, Baxter,
Leonor C. Gonzales, Vibhu Talwar; Lewis, Marenstein,          Werdegar, Brown, and Moreno, JJ., concurring..
Wicke & Sherwin, Thomas L. Hoegh; Esner & Chang,
Andrew N. Chang and Stuart B. Esner for Petitioners.          OPINION BY: CHIN

Jeff Kichaven; Lascher & Lascher and Wendy Cole               OPINION:
Lascher for Southern California Mediation Association
                                                                     [**262] [***645] CHIN, J.--We granted review
as Amicus Curiae on behalf of Petitioners.
                                                              in this case to consider the scope of Evidence Code sec-
                                                              tion 1119, subdivision (b), n1 which provides: "No writ-
Greene, Broillet, Panish & Wheeler and Christine Spag-
                                                              ing, as defined in Section 250, that is prepared for the
noli for Consumer Attorneys of California as Amicus
                                                              purpose of, in the course of, or pursuant to, a mediation
Curiae on behalf of Petitioners.
                                                              ... is admissible or subject to discovery ... ." In a divided
                                                              decision, a majority of the Court of Appeal held that ap-
No appearance for Respondent.
                                                              plication of this statute is governed by the same prin-
                                                              ciples that govern application of the work product privi-
Watten, Discoe & Bassett, Watten, Discoe, Bassett &
                                                              lege under Code of Civil Procedure section 2018. Apply-
McMains, Robert C. Risbrough and Kathleen Barnett for
                                                              ing those principles, the majority classified raw test data,
Real Parties in Interest Julie Coffin and Richard Ehrlich.
                                                              photographs, and witness statements as nonderivative
                                                              material that is not protected. By contrast, the majority
Friedenthal, Cox & Herskovitz, Daniel R. Friedenthal,
                                                              held, material reflecting only an attorney's impressions,
Mark H. Herskovitz, Carlos C. Cabral and Janette S.
                                                              conclusions, opinions, or legal research or theories is
Bodenstein for Real Party in Interest Deco Construction
                                                              absolutely protected. Finally, the majority held that de-
Corporation.
                                                              rivative materials--amalgamations of factual information
                                                              and attorney thoughts, impressions, and conclusions--are
Veatch, Carlson, Grogan & Nelson, Kevin H. Louth,
                                                              qualifiedly protected; they are discoverable only upon a
Steven W. Sedach and Bernhard E. Bihr for Real Party in
                                                              showing of good cause, which involves a balancing of
Interest GES Roofing.
                                                              the need for the materials and the purposes served by
                                                              mediation confidentiality.
 Selman . Breitman, A. Scott Goldberg, Eldon S. Edson
and Won M. Park for Real Party in Interest Haven Me-
chanical.
                                                                          n1 Unless otherwise indicated, all further sta-
                                                                     tutory references are to the Evidence Code.
                                                                                                                 Page 4
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

     We conclude that the Court of Appeal's interpreta-        defects and that they (Tenants) had not become aware of
tion of section 1119, subdivision (b), is contrary to both     the defects until April 1999.
the statutory language and the Legislature's intent. We
                                                                    In November 1999, Tenants served deposition sub-
therefore reverse the Court of Appeal's judgment.
                                                               poenas on attorneys and experts/consultants involved in
                                                               the underlying action, demanding production of each
                                                               deponent's "entire files" relating to that action. Coffin
                                                               and Ehrlich moved to quash the subpoenas and sought a
Factual Background                                             protective order. Eventually, [**263] the court ordered
                                                               the subpoenas withdrawn and directed Tenants to file a
      Real party in interest Julie Coffin, trustee of the
                                                               motion to compel, production. Tenants subsequently
1979 Ehrlich Investment Trust (Coffin), is the owner of
                                                               filed a motion to compel, requesting production of,
an apartment complex in Los Angeles that includes three
                                                               among other things, the following: (1) discovery ex-
buildings and a total of 192 units. In 1996, Coffin sued
                                                               changed between the parties to the underlying litigation;
the contractors and subcontractors who built the com-
                                                               (2) physical evidence of the condition of the buildings,
plex--including real party in interest Deco Construction
                                                               including photographs, videotapes, test samples and re-
Corporation (Deco)--alleging that water leakage due to
                                                               ports, and any physical evidence that was removed from
construction defects had produced toxic molds and other
                                                               the buildings and saved, such as drywall, plumbing, and
microbes on the property (the underlying action). In July
                                                               framing; (3) writings describing the buildings, including
1998, the court, with the parties' consent, issued a com-
                                                               written notes of observations made during inspections
prehensive case management order (CMO), which pro-
                                                               and witness interviews; and (4) writings evidencing ex-
vided in part: "Evidence of anything said or any admis-
                                                               perts' opinions and conclusions, whether or not commu-
sion made by attorneys, parties, principals, consultants,
                                                               nicated to the defendants in the underlying action. Cof-
or others in the course of any [*412] 'mediation pro-
                                                               fin, Ehrlich, and Deco opposed the motion, arguing in
ceeding' ... and any document prepared for the purpose
                                                               part that all of the requested documents were undisco-
of, or in the course of, or pursuant to any mediation pro-
                                                               verable under section 1119 because they were prepared
ceeding shall be deemed privileged pursuant to Evidence
                                                               for the mediation in the underlying action. [*413]
Code § 1119 and shall not be admissible as evidence at
trial or for any purpose prior to trial."                           The motion was heard by Judge Charles McCoy. He
                                                               ruled that whether a particular document prepared in the
      In April 1997, Coffin prepared a preliminary defect
                                                               underlying action was discoverable depended in part on
list identifying structural defects and mold infestation. In
                                                               whether it was prepared before or after July 2, 1998,
April 1998, she began air testing. In late 1998, one of the
                                                               when the CMO was signed and the mediation process
buildings at the complex was closed for abatement, in-
                                                               began. Judge McCoy found that, as section 1119 pro-
cluding demolition and replacement of drywall and ceil-
                                                               vides, documents prepared after that date "for the pur-
ings, application of antimicrobial agents, and plumbing
                                                               pose of, in the course of, or pursuant to" the mediation
repairs.
                                                               were undiscoverable. Documents prepared before that
     In April 1999, the litigation settled as a result of      date were discoverable if they were "subject to the dis-
mediation. The settlement agreement stated in part that,       covery process prior to entry of the CMO" and "were not
"throughout this resolution of the matter, consultants         prepared for mediation purposes." Judge McCoy ordered
[***646] provided defect reports, repair reports, and          the parties to submit the documents in question for in
photographs for informational purpose which are pro-           camera review. Defendants complied with this order by
tected by the Case Management Order and Evidence               submitting the compilations they had prepared for the
Code § § 1119 and 1152, and it is hereby agreed that           mediation in the underlying action. After in camera re-
such materials and information contained therein shall         view, Judge McCoy ruled that the compilations--
not be published or disclosed in any way without the           including photographs--were undiscoverable under sec-
prior consent of plaintiff or by court order."                 tion 1119. However, he specified that his ruling applied
                                                               only to "the documents taken together as a compilation
     In August 1999, several hundred tenants of the
                                                               for mediation purposes," and that he was not deciding
apartment complex (Tenants) filed the action now before
                                                               whether the individual documents in the compilations,
us against Deco, Coffin, Richard Ehrlich--as Coffin's
                                                               which "were not submitted ... separately," were discover-
agent and employee--and numerous other entities that           able. Tenants did not challenge this ruling.
participated in development or construction of the com-
plex. Tenants alleged that defective construction had              After the case was reassigned to Judge Anthony
allowed water to circulate and microbes to infest the          Mohr, another discovery dispute arose when Tenants
complex, causing numerous health problems. They also           served interrogatories on another defendant--Alper De-
alleged that all defendants had conspired to conceal the       velopment, [***647] Inc. (Alper)--seeking information
                                                                                                                      Page 5
                                            33 Cal. 4th 407, *; 93 P.3d 260, **;
                                     15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

regarding the mediation in the underlying action. Alper                      n2 As to his comments at the prior hearing
objected to the discovery request, based in part on sec-                regarding production of the photographs, Judge
tion 1119. On August 16, 2001, at the hearing on Te-                    Mohr said to Tenants' counsel: "Well, you had
nants' subsequent motion to compel, Judge Mohr ruled                    me spouting off on the bench. I'm not sure that's
that Alper did not have to disclose information contained               an order. You just had me saying, 'Hey, they're
in the documents Judge McCoy had already held to be                     individual pictures. Turn them over.' I've done a
undiscoverable under section 1119. Judge Mohr also                      lot of thinking since then."
reaffirmed Judge McCoy's ruling that the mediation
compilations were undiscoverable. However, Judge
                                                                      Tenants then sought a writ of mandate in the Court
Mohr indicated that the individual photographs contained
                                                                of Appeal. In a split decision, a majority of the Court of
in the compilations were discoverable and would have to
                                                                Appeal granted relief, concluding that section 1119 does
be produced if requested.
                                                                "not protect pure evidence," but protects only "the sub-
     After this ruling, Tenants served another request for      stance of mediation, i.e., the negotiations, communica-
production of all photographs (and negatives) and video-        tions, admissions, and discussions designed to reach a
tapes taken or received during the underlying action, "all      resolution of the dispute at hand." As noted above, ac-
recorded statements" of former or current tenants ob-           cording to the majority, section 1119 protects mediation
tained in that action, all "results" from destructive testing   materials "in the same manner as the work product doc-
during that action, and all "raw data" collected during         trine." Applying work product principles, the majority
that action from "air sampling for mold spores," "bulk          classified the "raw test data, photographs, and witness
sampling of mold spores," and "destructive testing."            statements" as "non-derivative" material that is "
When Coffin and Ehrlich objected to the request, Te-            [***648] not protected by section 1119" and is therefore
nants moved to compel production, arguing that Judge            discoverable. By contrast, the majority held, "material
Mohr had ruled only that the mediation compilations             solely reflecting an attorney's ' "impressions, conclu-
were not discoverable and had stated that the individual        sions, opinions, or legal research or theories," ' is entitled
photographs in those compilations were discoverable if          to absolute protection." Finally, the majority held, "de-
requested. In opposition to the motion, Coffin and Eh-          rivative material"--that is, "amalgamation[s] of factual
rlich asserted that, under section 1119, the requested          information and attorney thoughts, impressions, [and]
documents were not discoverable and that Judge McCoy            conclusions," such as "charts and diagrams, audit reports,
had so held. [*414]                                             compilations of entries in documents, records and other
                                                                databases, appraisals, opinions, and reports of experts
     On March 7, 2002, Judge Mohr denied Tenants' mo-
                                                                employed as nontestifying consultants"--is qualifiedly
tion. At the hearing on that date, Judge Mohr focused
                                                                protected; it is "discoverable only upon a showing of
primarily on the requested photographs, explaining: "The
                                                                good cause, which requires a determination of the need
plaintiffs say that they need these photos and there's no
                                                                for the materials balanced against the benefit to the med-
other evidence of the conditions as they were at that time
                                                                iation privilege obtained by protecting those materials
and in those places, and [defendants are] saying these
                                                                from disclosure." Moreover, the majority held, purely
photographs were created for mediation purposes.
                                                                factual information included in derivative material--that
[**264] They are documents under Evidence Code sec-
                                                                is, photographs and test data--must, if possible, be re-
tion 250. They're clearly protected by the mediation pri-
                                                                moved and produced. The majority thus ordered issuance
vilege. Judge McCoy so found. They were created pur-
                                                                of a peremptory writ of [*415] mandate directing the
suant to [the CMO] in the earlier case ... . There's no
                                                                trial court to vacate its order denying Tenants' motion to
question they're covered." n2 Judge Mohr also concluded
                                                                compel and to apply these principles during an in camera
that principles governing discovery of evidence subject
                                                                review of the requested documents.
to a qualified work product privilege do not govern evi-
dence "covered by the mediation privilege." Finally,                 In reaching its conclusion, the majority relied largely
Judge Mohr remarked: "This is a very difficult decision         on section 1120, subdivision (a), which provides that
... because it could well be that there's no other way for      "[e]vidence otherwise admissible or subject to discovery
the plaintiffs to get this particular material. On the other    outside of a mediation ... shall not be or become inad-
hand, the mediation privilege is an important one, and if       missible or protected from disclosure solely by reason of
courts start dispensing with it by using the ... test [go-      its introduction or use in a mediation ... ." The majority
verning the work product privilege], ... you may have           reasoned that adopting the trial court's contrary analysis
people less willing to mediate."                                would "render section 1120 complete surplusage" and
                                                                would "permit the parties to use mediation as a shield to
                                                                hide evidence."
                                                                                                                  Page 6
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

     We then granted the petition for review filed by Cof-    closure of" specified communications and writings asso-
fin and Ehrlich. We also granted the petition for review      ciated with a mediation "absent an express statutory ex-
filed by Deco, which had joined the answer Coffin and         ception." ( Id. at p. 15.)
Ehrlich filed in the Court of Appeal in opposition to Te-
                                                                   The particular confidentiality provision at issue here
nant's writ petition. n3
                                                              is section 1119, subdivision (b), which provides: "No
                                                              writing, as defined in Section 250, that is prepared for the
                                                              purpose of, in the course of, or pursuant to, a mediation
            n3 After we granted review, Tenants settled
                                                              or a mediation consultation, is admissible or subject to
       their claims against Coffin, Ehrlich, and Deco.
                                                              discovery, and disclosure of the writing shall not be
       However, no motion to dismiss review has been
                                                              compelled, in any arbitration, administrative adjudica-
       filed. Moreover, discovery of the requested in-
                                                              tion, civil action, or other noncriminal proceeding in
       formation remains at issue in connection with
                                                              which, pursuant to law, testimony can be compelled to be
       production requests served on Coffin and Ehrlich
                                                              given." In turn, section 250 defines the term "writing" to
       by codefendants who have filed cross-claims.
                                                              "mean[] handwriting, typewriting, printing, photostating,
       Given these circumstances, and the fact that the
                                                              photographing, photocopying, transmitting by electronic
       case "raises issues of continuing public impor-
                                                              mail or facsimile, and every other means of recording
       tance," we exercise our discretion to retain juris-
                                                              upon any tangible thing, any form of communication or
       diction. ( Lundquist v. Reusser (1994) 7 Cal.4th
                                                              representation, including letters, words, pictures, sounds,
       1193, 1202, fn. 8 [31 Cal. Rptr. 2d 776, 875 P.2d
                                                              or symbols, or combinations thereof, and any record the-
       1279].)
                                                              reby created, regardless of the manner in which the
                                                              record has been stored." By statute, "any writing that is
                                                              inadmissible, protected from disclosure, and confidential
                                                              under" the mediation confidentiality provisions "before a
                                                              mediation ends, shall remain inadmissible, protected
Discussion
                                                              from disclosure, and confidential to the same extent after
     (1) As we recently explained, "[i]mplementing alter-     the mediation ends." (§ 1126.)
natives to judicial dispute resolution has been a strong
                                                                   (2) The Court of Appeal's holding directly conflicts
legislative policy since at least [**265] 1986." ( Fox-
                                                              with the plain language of these provisions. As noted
gate Homeowners' Assn. v. Bramalea California, Inc.
                                                              above, the Court of Appeal held that section 1119 never
(2001) 26 Cal.4th 1, 14 [108 Cal. Rptr. 2d 642, 25 P.3d
                                                              applies to photographs and witness statements. However,
1117] (Foxgate).) Mediation is one of the alternatives the
                                                              under section 1119, because both photographs and writ-
Legislature has sought to implement. The Legislature has
                                                              ten witness statements qualify as "writing[s], as defined
expressly declared: "In appropriate cases mediation pro-
                                                              in [s]ection 250," if they are "prepared for the purpose of,
vides parties with a simplified and economical procedure
                                                              in the course of, or pursuant to, a mediation," then they
for obtaining prompt and equitable resolution of their
                                                              are not "admissible or subject to discovery, and [their]
disputes and a greater opportunity to participate directly
                                                              disclosure ... shall not be compelled ... ." The Court of
in resolving these disputes. Mediation may also assist to
                                                              Appeal also held that "raw test data" are never "protected
reduce the backlog of cases burdening the judicial sys-
                                                              by section 1119." Insofar as it was referring to actual
tem. It is in the public interest for mediation to be en-
                                                              physical samples collected at the apartment complex--
couraged and used where appropriate by the courts."
                                                              either from the air or from destructive testing--the Court
(Code Civ. Proc., § 1775, subd. (c).)
                                                              of Appeal was correct; such physical objects are not
      One of the fundamental ways the Legislature has         "writing[s], as defined in [s]ection 250." (§ 1119, subd.
sought to encourage mediation is by enacting several          (b).) However, insofar as it was referring to recorded
"mediation confidentiality provisions." ( Foxgate, supra,     analyses of those samples--for example, reports describ-
26 Cal.4th at p. 14.) As we have explained, [***649]          ing the existence or amount of mold spores in a sample--
"confidentiality is essential to effective mediation" be-     the Court of Appeal erred; because such analyses are
cause it "promote[s] 'a candid and informal exchange          "writing[s], as [*417] defined in [s]ection 250," under
regarding events in the past ... . This frank exchange is     section 1119, if they were "prepared for the purpose of,
[*416] achieved only if the participants know that what       in the course of, or pursuant to, a mediation," then they
is said in the mediation will not be used to their detri-     are not "admissible or subject to discovery, and [their]
ment through later court proceedings and other adjudica-      disclosure ... shall not be compelled ... ." n4
tory processes.' [Citations.]" ( Ibid.) "To carry out the
purpose of encouraging mediation by ensuring confiden-
tiality, [our] statutory scheme ... unqualifiedly bars dis-
                                                                                                                  Page 7
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

             n4 In an amicus curiae brief, the Southern              the Federal Rules of Evidence (28 U.S.C.), which
       California Mediation Association (SCMA) argues                provides in relevant part: "Evidence of conduct or
       that section 1119 does not even apply here be-                statements made in compromise negotiations is ...
       cause what occurred in the underlying action was              not admissible. This rule does not require the ex-
       not a mediation. SCMA bases its argument on the               clusion of any evidence otherwise discoverable
       language of (1) the CMO, which stated that "[a]ll             merely because it is presented in the course of
       conferences and mediations are deemed to be                   compromise negotiations." As construed by the
       mandatory settlement conferences of this court,"              federal courts, the latter sentence "prevent[s] one
       and (2) the language of section 1117, subdivision             from being able to 'immunize from admissibility
       (b)(2), which states that the mediation confiden-             documents otherwise discoverable merely by of-
       tiality provisions do not apply to "[a] settlement            fering them in a compromise negotiation.' [Cita-
       conference pursuant to Rule 222 of the California             tion.] [It] does not [apply] where the document,
       Rules of Court." We decline to address this issue             or statement, would not have existed but for the
       because the parties have never raised it and nei-             negotiations, hence the negotiations are not being
       ther the trial court nor the Court of Appeal ad-              used as a device to thwart discovery by making
       dressed it; at all times, the parties in this case            existing documents unreachable." ( Ramada Dev.
       have assumed that a mediation took place in the               Co. v. Rauch (5th Cir. 1981) 644 F.2d 1097,
       underlying action.                                            1107.)

 [***650] [**266]
     (3) Section 1120 does not, as the Court of Appeal
                                                                          n6 "The official comments of the California
held, support a contrary conclusion. As noted above,
                                                                     Law Revision Commission on the various sec-
section 1120, subdivision (a), provides that "[e]vidence
                                                                     tions of the Evidence Code are declarative of the
otherwise admissible or subject to discovery outside of a
                                                                     intent not only of the draft[ers] of the code but al-
mediation ... shall not be or become inadmissible or pro-
                                                                     so of the legislators who subsequently enacted it.
tected from disclosure solely by reason of its introduc-
                                                                     [Citation.]" ( People v. Williams (1976) 16 Cal.3d
tion or use in a mediation ... ." Read together, sections
                                                                     663, 667-668 [128 Cal. Rptr. 888, 547 P.2d
1119 and 1120 establish that a writing--which qualifies
                                                                     1000].)
as " '[e]vidence' " (§ 140)--is not protected "solely by
reason of its introduction or use in a mediation" (§ 1120,
subd. (a)), but is protected only if it was "prepared for          On the other hand, the Court of Appeal's construc-
the purpose of, in the course of, or pursuant to, a media-    tion renders subdivision (b) of section 1119 essentially
tion." (§ 1119, subd. (b).) In other words, under section     useless. As noted above, the Court of Appeal held that
1120, a party cannot secure protection for a writing--        section 1119 does "not protect pure evidence," but pro-
including a photograph, a witness statement, or an analy-     tects only "the substance of mediation, i.e., the negotia-
sis of a test sample--that was not "prepared for the pur-     tions, communications, admissions, and discussions de-
pose of, in the course of, or pursuant to, a mediation" (§    signed to reach a resolution of the dispute at hand."
1119, subd. (b)) simply by using or introducing it in a       However, this protection is afforded under subdivision
mediation or even including it as part of a writing--such     (a) of section 1119, which provides: "No evidence of
as a brief or a declaration or a consultant's report--that    anything said or any admission made for the purpose of,
was "prepared for the purpose of, in the course of, or        in the course of, or pursuant to, a mediation ... is admiss-
pursuant to, a mediation." (Ibid.) Contrary to the Court of   ible or subject to discovery, and disclosure of the evi-
Appeal's conclusion, this construction does not render        dence shall not be compelled ... ." (Italics added.) Be-
section 1120 "surplusage" or permit parties "to use medi-     cause a "writing[]" constitutes "[e]vidence" [***651] (§
ation as a shield to hide evidence." Rather, consistent       140), any writing that discloses what the Court of Appeal
with the Legislature's intent, it applies section 1120 as a   characterized as "the substance of mediation"--
"limit[]" on "the scope of [s]ection 1119" that "pre-         "negotiations, communications, admissions, and discus-
vent[s] parties from using a mediation as a pretext to        sions designed to reach a resolution of the dispute"--
shield materials from disclosure." n5 [*418] (Cal. Law        necessarily qualifies as "evidence of anything said or any
Revision Com. com., 29B pt. 3 West's Ann. Evid. Code          admission made for the purpose of, in the course of, or
(2004 supp.) foll. § 1120, p. 153.) n6                        pursuant to, a mediation," and is undiscoverable under
                                                              subdivision (a) of section 1119. Thus, under the Court of
                                                              Appeal's narrow statutory construction, subdivision (b) of
           n5 This conclusion is consistent with the          section 1119 serves no purpose. [**267]
       construction of similar language in rule 408 of
                                                                                                                       Page 8
                                             33 Cal. 4th 407, *; 93 P.3d 260, **;
                                      15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

      The Court of Appeal's holding is also inconsistent          tion or use in a mediation. [CAJ] also [argued] that just
with the relevant legislative history. The Legislature            because a document such as a photograph was created
passed the current mediation confidentiality provisions in        for a mediation should not make that document inad-
1997 at the recommendation of the California Law Revi-            missible." (Ibid., italics added.)
sion Commission (Commission). (See Recommendation
                                                                        In recommending against the CAJ's proposed
on Mediation Confidentiality (Jan. 1997) 26 Cal. Law
                                                                  change, the Commission's staff stated: "CAJ's proposed
Revision Com. Rep. (1996) p. 407.) An early draft of the
                                                                  revision would essentially undo ... protection of docu-
proposed provisions, which the Commission circulated
                                                                  ments prepared for the purpose of a mediation ... . Loss
for comment, included a section stating that although "a
                                                                  of that protection could inhibit [***652] mediation par-
communication, document, or any writing as defined in
                                                                  ticipants from preparing such materials, which in turn
Section 250, that is made or prepared for the purpose of,
                                                                  could adversely affect the mediation process. Notably, of
or in the course of, or pursuant to, a mediation" is confi-
                                                                  the sources commenting on the tentative recommenda-
dential and protected, it "may be admitted or disclosed if
                                                                  tion, only the State Bar groups suggested reducing the
... [P] ... [it] is an expert's analysis or report, it was pre-
                                                                  existing protection of documents prepared for a media-
pared for the benefit of fewer than all the mediation par-
                                                                  tion. Community Board Program made very clear that it
ticipants, those participants expressly consent to its dis-
                                                                  would oppose such a move: 'We are especially concerned
closure, and the communication, document, or writing
                                                                  that all documentation relating to the preparation of a
does not disclose anything said or any admission made in
                                                                  mediation, ... be deemed inadmissible as evidence unless
the course of the mediation." (Cal. Law Revision Com.,
                                                                  both parties agree that it should be disclosed.' [Citation.]
Tent. Recommendation on Mediation Confidentiality
                                                                  Thus, the staff recommends against adopting the CAJ's
(May 1996) p. 14.) n7 The accompanying comment ex-
                                                                  approach. [P] CAJ's comments did, however, cause the
plained that this proposed [*419] section "facilitates
                                                                  staff to consider whether [the proposed statute] should be
admissibility and disclosure of unilaterally prepared ex-
                                                                  limited to an expert's analysis or report. Perhaps the fol-
perts' reports, but it only applies so long as those mate-
                                                                  lowing wording would be better: [P] ... The communica-
rials may be produced in a manner revealing nothing
                                                                  tion, document, or writing [may not be admitted or dis-
about the mediation discussion. Reports and analyses
                                                                  closed unless it] [O> is an expert's analysis or report, it
that necessarily disclose mediation communications may
                                                                  <O] was prepared for the benefit of fewer than all the
be admitted or disclosed only upon satisfying the general
                                                                  mediation participants, those participants expressly con-
rule" requiring the express consent of all persons partici-
                                                                  sent to its disclosure, and the communication, document,
pating in the mediation. (Cal. Law Revision Com., Tent.
                                                                  or writing does not disclose anything said or any admis-
Recommendation on Mediation Confidentiality, supra, at
                                                                  sion made in the course of the mediation. [P] Comment.
p. 14.)
                                                                  ... [This provision] facilitates admissibility and disclosure
                                                                  of unilaterally prepared [O> experts' reports <O]
                                                                  [**268] materials, but it only applies so long as those
              n7 We grant the request of amici curiae Eliz-
                                                                  materials may be produced in a manner revealing noth-
        abeth Bader and Ron Kelly for judicial notice of
                                                                  ing about the mediation discussion. [*420] ... [P] This
        the Commission's records regarding the confiden-
                                                                  revision may alleviate some of the concerns raised by
        tiality provisions here at issue. (See Estate of Jo-
                                                                  CAJ ... . For example, it would allow a mediation partic-
        seph (1998) 17 Cal.4th 203, 210, fn. 1 [70 Cal.
                                                                  ipant to introduce a photograph that participant took for
        Rptr. 2d 619, 949 P.2d 472].)
                                                                  a mediation but later decided would be useful at trial.
                                                                  Although in many instances it would be possible to take
     The California State Bar's Committee on the Admin-           another photo, in some cases that could not be done, as
istration of Justice (CAJ) submitted comments "pro-               when a building has been razed or an injury has healed.
pos[ing] to replace" this provision with one stating: " 'A        Under the current version of [the proposed statute], the
written statement otherwise admissible is admissible if it        photo could not be introduced without the consent of all
is not precluded by other rules of evidence and as long as        of the mediation participants, some of whom might with-
it does not include statements solely made in the media-          hold consent. The staff's proposed revision would give
tion.' [Citation.]" (Cal. Law Revision Com., Staff Draft          the participant who took the photo control over whether
of Final Recommendation on Mediation Confidentiality              it is used, so long as it can be admitted without disclos-
(Dec. 1996) p. 20.) CAJ argued that, without this change,         ing anything said or done or any admission made in the
the proposed statute "could be interpreted to override"           course of the mediation." (Cal. Law Revision Com., Staff
another proposed statute "provid[ing] that evidence               Draft of Final Recommendation on Mediation Confiden-
'otherwise admissible or subject to discovery outside of          tiality, supra, at pp. 20-21, italics added.)
mediation shall not be or become inadmissible or pro-
tected from disclosure solely by reason of its introduc-
                                                                                                                     Page 9
                                             33 Cal. 4th 407, *; 93 P.3d 260, **;
                                      15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

     The Commission adopted the staff's proposal. Its fi-        and the communication, document, or writing does not
nal recommendation proposed a section stating that               disclose anything said or done or any admission made in
"[n]otwithstanding any other provision of this chapter"          the course of the mediation." The accompanying com-
on mediation confidentiality, "a communication, docu-            ment explains that this provision "facilitates admissibility
ment, or any writing as defined in Section 250, that is          and disclosure of unilaterally prepared materials, but it
made or prepared for the purpose of, or in the course of,        only applies so long as those materials may be produced
or pursuant to, a mediation or a mediation consultation,         in a manner revealing nothing about the mediation dis-
may be admitted in evidence or disclosed if ... [P] ... [it]     cussion." (Cal. Law Revision Com. com., 29B pt. 3
was prepared by or on behalf of fewer than all the media-        West's [**269] Ann. Evid. Code, supra, foll. § 1122 at
tion participants, those participants expressly agree in         p. 156.) The Court of Appeal's conclusion that photo-
writing, or orally in accordance with Section 1119, to its       graphs and videotapes taken for purposes of mediation
disclosure, and the communication, document, or writing          are not protected under section 1119 is inconsistent with
does not disclose anything said or done or any admission         this legislative history.
made in the course of the mediation." (Recommendation
                                                                       The Court of Appeal's narrow interpretation is also
on Mediation Confidentiality, supra, 26 Cal. Law Revi-
                                                                 inconsistent with the legislative history in several other
sion Com. Rep., at pp. 441-442.) The accompanying
                                                                 respects. Before section 1119's passage, former section
comment explained that this provision "facilitates admis-
                                                                 1152.5 governed mediation confidentiality. Subdivision
sibility and disclosure of unilaterally prepared materials,
                                                                 (a)(2) of former section 1152.5 provided that "no docu-
but it only applies so long as those materials may be pro-
                                                                 ment prepared for the purpose of, or in the course of, or
duced in a manner revealing nothing about the mediation
                                                                 pursuant to, the mediation, or copy thereof, is admissible
discussion." (Id. at p. 442.)
                                                                 ... or subject to discovery." (Stats. 1996, ch. 174, § 1,
      These materials show that, in making its recommen-         italics added.) In its final recommendation to the Legisla-
dation regarding mediation confidentiality, the Commis-          ture, the Commission proposed changing the term "doc-
sion specifically considered the discoverability of both         ument" to "document, or writing as defined in Section
expert reports and photographs and drafted [***653] its          250." (Recommendation on Mediation Confidentiality,
proposed confidentiality provisions to preclude discovery        supra, 26 Cal. Law Revision Com. Rep., at p. 438.) In
of such reports and photographs if they were "prepared           discussing this proposal, the Commission stated: "[T]he
for the purpose of, in the course of, or pursuant to, a          term 'document' is not defined in the Evidence Code. ...
mediation." (Recommendation on Mediation Confiden-               [P] The Commission proposes to address this potential
tiality, supra, 26 Cal. Law Revision Com. Rep., at p.            problem by incorporating Section 250's broad definition
438.) These materials also show that the Commission              of 'writing' into the mediation confidentiality provisions."
chose language expressly designed to give a mediation            (26 Cal. Law Revision Com. Rep., supra, at pp. 428-
participant who takes a photograph for purpose of the            429.) Again, the Legislature substantially followed the
mediation "control over whether it is used" in subsequent        Commission's recommendation, broadly providing pro-
litigation, even where "another photo" cannot be taken           tection in section 1119, subdivision (b), for a "writing, as
because, for example, "a building has been razed or an           defined in Section 250." The Commission's official
injury has healed." (Cal. Law Revision Com., Staff Draft         comment to section 1119 states that this change "ex-
of Final Recommendation on Mediation Confidentiality,            pressly encompasses any type of 'writing' as defined in
supra, at p. 21.) The Legislature adopted the Commis-            Section 250, regardless of whether the representations
sion's recommendation and enacted the mediation confi-           are on paper or on some other [***654] medium." (Cal.
dentiality provisions in substantially the form the Com-         Law Revision Com. com., 29B pt. 3 West's Ann. Evid.
mission proposed. As noted [*421] above, section                 Code, supra, foll. § 1119 at p. 149.) Thus, in passing
1119, subdivision (b), provides that "[n]o writing, as de-       section 1119, subdivision (b), the Legislature specifically
fined in Section 250,"--which includes photographs and           intended to extend protection to all types of writings,
videotapes--"that is prepared for the purpose of, in the         including photographs. [*422]
course of, or pursuant to, a mediation ... is admissible or
                                                                      At the same time, the Legislature also sought to ex-
subject to discovery." Section 1122, subdivision (a)(2),
                                                                 pand protection for oral communications. Whereas sub-
provides that "a writing, as defined in Section 250, that is
                                                                 division (a)(2) of former section 1152.5 protected docu-
made or prepared for the purpose of, or in the course of,
                                                                 ments "prepared for the purpose of, or in the course of, or
or pursuant to, a mediation or a mediation consultation,
                                                                 pursuant to, the mediation," subdivision (a)(1) protected
is not made inadmissible, or protected from disclosure,
                                                                 only those oral communications and admissions "made ...
by provisions of this chapter if ... [P] ... [it] was prepared
                                                                 in the course of the mediation." (Stats. 1996, ch. 174, §
by or on behalf of fewer than all the mediation partici-
                                                                 1.) The Commission's recommendation explained that,
pants, those participants expressly agree in writing, or
                                                                 under these provisions, the protection for documents was
orally in accordance with Section 1118, to its disclosure,
                                                                                                                  Page 10
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

"broader" than the protection for oral communications                suant to, a mediation" are protected from discov-
and admissions, and "[t]o encourage frankness in discus-             ery under section 1119 does not mean that the
sions relating to mediation, the Commission propose[d]               facts set forth in those statements are so pro-
... eliminat[ing] this distinction [by] protect[ing]                 tected. Under section 1120, subdivision (a), be-
'evidence of anything said or of any admission made for              cause facts known to percipient witnesses consti-
the purpose of, or in the course of, or pursuant to,' the            tute "[e]vidence otherwise admissible or subject
mediation." (Recommendation on Mediation Confiden-                   to discovery outside of a mediation," those facts
tiality, supra, 26 Cal. Law Revision Com. Rep., at p.                do not "become inadmissible or protected from
428.) Again, the Legislature followed suit by protecting,            disclosure solely by reason of [their] introduction
in subdivision (a) of section 1119, "evidence of anything            or use in a mediation" through witness statements
said or any admission made for the purpose of, in the                prepared for the purpose of, in the course of, or
course of, or pursuant to, a mediation." The Commis-                 pursuant to, the mediation. Otherwise, contrary to
sion's official comment explains that this section "ex-              the Legislature's intent, parties could use media-
tends [protection] to oral communications made for the               tion "as a pretext to shield materials from disclo-
purpose of or pursuant to a mediation, not just oral com-            sure." (Cal. Law Revision Com. com., 29B pt. 3
munications made in the course of the mediation." (Cal.              West's Ann. Evid. Code, supra, foll. § 1120 at p.
Law Revision Com. com., 29B pt. 3 West's Ann. Evid.                  153.)
Code, supra, foll. § 1119 at p. 149.) The Court of Ap-
peal's narrowing of the protection under section 1119 is       [***655]
inconsistent with these legislative efforts to expand pro-
                                                                   (4) The Court of Appeal also erred in holding that,
tection.
                                                              although section 1119's protection applies to so-called
     More broadly, the Court of Appeal's construction is      derivative material "that is prepared for the purpose of, in
inconsistent with the overall purpose of the mediation        the course of, or pursuant to, a mediation" (§ 1119,
confidentiality provisions. As noted above, "confidential-    subd. (b))--such as charts, diagrams, information compi-
ity is essential to effective mediation," ( Foxgate, supra,   lations, and expert opinions and reports--such material is
26 Cal.4th at p. 14) and to "ensur[e] confidentiality,        nevertheless discoverable "upon a showing of good
[our] statutory scheme ... unqualifiedly bars disclosure      cause." As noted above, in reaching this conclusion, the
of" specified communications and writings associated          Court of Appeal borrowed principles governing discov-
with a mediation "absent an express statutory exception."     ery of work product. However, discovery of work prod-
( Id. at p. 15.) In making its 1997 recommendation, the       uct is expressly governed by statute; Code of Civil Pro-
Commission explained that the then existing "statutory        cedure section 2018, subdivision (b), provides that work
scheme" regarding mediation confidentiality "ha[d] am-        product--other than writings reflecting an attorney's im-
biguities that cause[d] confusion." (Recommendation on        pressions, conclusions, opinions, or legal research or
Mediation Confidentiality, supra, 26 Cal. Law Revision        theories--is discoverable if "the court determines that
Com. Rep., at p. 414.) The changes the Commission rec-        denial of discovery will unfairly prejudice the party seek-
ommended, which the Legislature adopted, [**270]              ing discovery in preparing that party's claim or defense
were designed to "eliminate[]" these ambiguities in order     or will result in an injustice." Thus, the Legislature clear-
"[t]o further the effective use of mediation" by ensuring     ly knows how to establish a "good cause" exception to a
the "candor" that "is crucial to [its] success." (Id. at p.   protection or privilege if it so desires. The Legislature
431.) Adopting the Court of Appeal's narrow construc-         did not enact such an exception when it passed Evidence
tion of section 1119 would significantly undercut the         Code section 1119 and the other mediation confidentiali-
Legislature's efforts to ensure the confidentiality neces-    ty provisions.
sary to effective mediation. For all of the above reasons,
                                                                   (5) However, the Legislature did expressly enact
we conclude that the Court of Appeal erred in holding
                                                              other exceptions to section 1119's protection. As ex-
that photographs, videotapes, witness statements, and
                                                              plained above, section 1122, subdivision (a)(2), permits
"raw test data" from physical samples collected at the
                                                              discovery of protected communications and writings that
complex--such as reports describing the existence or
                                                              were "prepared by or on behalf of fewer than all the med-
amount [*423] of mold spores in a sample--that were
                                                              iation participants" if "those participants expressly agree"
"prepared for the purpose of, in the course of, or pursuant
                                                              to disclosure and disclosure would not reveal "anything
to, [the] mediation" in the underlying action are not pro-
                                                              said or done or any admission made in the course of the
tected under section 1119. n8
                                                              mediation." As also noted above, the language of this
                                                              provision was designed to give a mediation participant
                                                              "control over whether" something prepared for the medi-
           n8 Of course, that witness statements "pre-
                                                              ation "is used" in subsequent litigation. (Cal. Law Revi-
       pared for the purpose of, in the course of, or pur-
                                                                                                                Page 11
                                           33 Cal. 4th 407, *; 93 P.3d 260, **;
                                    15 Cal. Rptr. 3d 643, ***; 2004 Cal. LEXIS 6281

sion Com., Staff Draft of Final Recommendation on              with it by using the ... test [governing the work-product
Mediation Confidentiality, supra, at p. 21.) Subdivision       privilege], ... you may have people less willing to me-
(a)(1) of section 1122 establishes another exception; it       diate." Thus, the Court of Appeal erred in holding that
permits discovery of protected material if "[a]ll persons      so-called derivative material "that is prepared for the
who conduct or otherwise participate in the mediation          purpose of, in the course of, or pursuant to, a mediation"
expressly agree ... to disclosure ... ." [*424] The Legis-     (§ 1119, subd. (b)), is discoverable "upon a showing of
lature established other exceptions for settlement agree-      good cause." n9
ments made or prepared "in the course of, or pursuant to,
a mediation." (§ § 1123, 1124.) "Under the maxim of
statutory construction, expressio unius est exclusio alte-                 n9 Given its conclusion, the Court of Appeal
rius, if exemptions are specified in a statute, we may not            ordered issuance of a writ and sent the case back
imply additional exemptions unless there is a clear legis-            to the trial court without addressing Tenants' ar-
lative intent to the contrary. [Citation.]" ( Sierra Club v.          gument that many of the documents in question
State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230 [32                 had not been "prepared for the purpose of, in the
Cal. Rptr. 2d 19, 876 P.2d 505].) Here, there is no evi-              course of, or pursuant to, a mediation." (§ 1119,
dence of a legislative intent supporting the "good cause"             subd. (b).) We likewise express no opinion on
exception the Court of Appeal majority read into the                  this question. Moreover, in light of the parties'
statute. On the contrary, as the dissenting justice in the            settlement, it is unnecessary to remand the case
Court of Appeal observed, that [**271] exception "is                  for consideration of this issue.
inconsistent with th[e] narrowly drawn exception[s]" the
Legislature expressly established.
     In Foxgate, we stated that "[t]o carry out the purpose
of encouraging mediation by ensuring confidentiality,
                                                               Disposition
[our] statutory scheme ... unqualifiedly bars disclosure
[***656] of" specified communications and writings                  The judgment of the Court of Appeal is reversed
associated with a mediation "absent an express statutory       and, in light of the parties' settlement, the cause is re-
exception." ( Foxgate, supra, 26 Cal.4th at p. 15, italics     manded to that court with directions to dismiss the peti-
added.) We also found that the "judicially crafted excep-      tion for writ of mandate and to discharge the peremptory
tion" to section 1119 there at issue was "not necessary        writ. (See Daly v. Superior Court (1977) 19 Cal.3d 132,
either to carry out the legislative intent or to avoid an      151 [137 Cal. Rptr. 14, 560 P.2d 1193].)
absurd result." ( Id. at p. 14.) We reach the same conclu-
                                                                  George, C. J., Kennard, J., Baxter, J., Werdegar, J.,
sion here; as Judge Mohr observed, "the mediation privi-
lege is an important one, and if courts start dispensing       Brown, J., and Moreno, J., concurred.

				
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