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KLINEDINST PC
801 K Street, Suite 2100
SACRAMENTO, CALIFORNIA 95814
Natalie P. Vance, Bar No. 206708
KLINEDINST PC
801 K Street, Suite 2100
Sacramento, California 95814
ELECTRONICALLY
(916) 444-7573/FAX (916) 444-7544
nvance@klinedinstlaw.com FILED
Superior Court of California,
Attorneys for Non-Parties County of pan mancieco|
INITIATIVE LEGAL GROUP APC; 06/23/2015
Clerk of the Court
BY-MICHAEL RAYRAY
Deputy Clerk
INITIATIVE LEGAL GROUP LLP; MARC
PRIMO PULISCI; G. ARTHUR MENESES;
MONICA BALDERRAMA; and JOSEPH S.
LIU
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
DAWN LOFTON, individually and on Case No. — CGC-11-509502
behalf of all others similarly situated, COMPLEX LITIGATION
LEXISNEXIS EFILING
Plaintiffs,
NONPARTIES' REPLY TO MAXON'S
v. RESPONSE TO MEDIATION PRIVILEGE
OBJECTIONS
WELLS FARGO HOME MORTGAGE, a
division of WELLS FARGO BANK, DATE: June 24, 2015
NATIONAL ASSOCIATION, TIME: 9:30 a.m.
DEPT: 305
Defendants. JUDGE: Hon. Mary E. Wiss
TERRI MAXON, as successor in interest
to David Mark Maxon, Intervenor. Complaint Filed: 9/5/2012
Trial Date: None set
Mediation confidentiality is absolute. The fact that a mediation occurred is undisputed.
Initiative Legal Group APC (“ILG”) may properly assert mediation confidentiality against any
party who attempts to introduce evidence of communications made in the course of or related to
that mediation. It has done so, and evidence of communications in the course of and pursuant to
the mediation with Wells Fargo must be excluded, including communications which occurred
after the first session of mediation, which refer to mediation, and while mediated discussions
were still ongoing.
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLINEDINST PC
801 K Street, Surre 2100
SACRAMENTO, CALIFORNIA 95814
I.
CALIFORNIA’S MEDIATION CONFIDENTIALITY PROVISIONS ARE BROAD,
ABSOLUTE, AND MUST BE STRICTLY APPLIED
Under Evidence Code section 1119, subdivisions (a) and (b), evidence of anything said or
admissions made for the purpose of, in the course of, or pursuant to a mediation cannot be
disclosed in a legal proceeding, with certain statutory exceptions. Writings prepared for the
purpose of, in the course of, or pursuant to a mediation are also protected from disclosure. Under
subdivision (c), “[a]ll communications, negotiations, or settlement discussions by and between
participants in the course of a mediation or a mediation consultation shall remain confidential.”!
The California Supreme Court has repeatedly described the mediation confidentiality
provisions as “clear and absolute. Except in rare circumstances, they must be strictly applied and
do not permit judicially crafted exceptions or limitations, even where competing public policies
may be affected.” Cassel v. Superior Court, 51 Cal.4th 113, 118 (2011) (citing Simmons v.
Ghaderi, 44 Cal.4th 570, 580 (2008); Fair v. Bakhtiari, 40 Cal.4th 189, 194 (2006); Rojas v.
Superior Court, 33 Cal.4th 407, 415-416 (2004); Foxgate Homeowners’ Assn. v. Bramalea
California, Inc., 26 Cal.4th 1, 13-14, 17 (2001)); see also Wimsatt v. Superior Court, 152
Cal.App.4th 137, 152 (2007) (“The court has refused to judicially create exceptions to the
statutory scheme, even in situations where justice seems to call for a different result.”).
Mediation confidentiality extends beyond communications in the mediation itself to
communications that are for the purpose of or pursuant to mediation. Evid. Code § 1119. In
Cassel, the California Supreme Court noted that the Legislature revised the mediation
confidentiality provisions by replacing the term “in the course of the mediation” with “for the
' Bvidence Code section 1119, subdivisions (a) and (b) state: “Except as otherwise
provided in this chapter: (a) No evidence of anything said or any admission made for the purpose
of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or
subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration,
administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to
law, testimony can be compelled to be given. (b) No writing, as defined in Section 250, that is
prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation
consultation, is admissible or subject to discovery, and disclosure of the writing shall not be
compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal
proceeding in which, pursuant to law, testimony can be compelled to be given.”
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLNEDINST PC
801 K Street, Surre 2100
SACRAMENTO, CALIFORNIA 95814
Nu
purpose of, in the course of, or pursuant to” a mediation. Cassel, 51 Cal.4th at p. 128. The
Court concluded that even communications outside of the mediation itself were intended to be
covered if they related to the mediation:
The obvious purpose of the expanded language is to ensure that the
statutory protection extends beyond discussions carried out directly
between the opposing parties to the dispute, or with the mediator,
during the mediation proceedings themselves, All oral or written
communications are covered, if they are made “for the purpose of”
or “pursuant to” a mediation.
Id, (citing Evid. Code § 1119).
IL
A MEDIATION OCCURRED TO WHICH CONFIDENTIALITY APPLIES
Maxon attempts to circumvent the application of mediation confidentiality by arguing
that no mediation occurred, because six of ILG’s 605 clients have submitted declarations stating
that they did not know the mediation was occurring and ILG was not a “disputant.” However,
there is no statutory (or other) rule requiring a client to consent to its attorney’s participation in
mediation for mediation confidentiality to apply. Indeed, while an attorney cannot settle an
action without client consent, there is no similar rule requiring a client’s consent to initiate
settlement discussions or participate in a mediation.” See e. g. Levy v. Superior Court, 10 Cal. 4th
578, 583-84 (settlement requires client’s knowledge and express consent),
And, the California Supreme Court has already rejected a contention that the disputant is
the only real party to a mediation, holding that a disputant’s attorney is also a “participant” in
mediation as defined by Evidence Code section 1119:
[N]o reason appears why other persons attending and assisting in
the mediation on behalf of the disputants, such as their counsel, are
not themselves distinct “participants” who must agree to the
disclosure of confidential mediation-related communications they
made or received.
? The dicta in Wimsatt v. Superior Court cited by Maxon is a plea for the legislature to amend the
statute to avoid the sometimes harsh effect of participating in mediation, and at most, describes
best practices in light of the consequences of mediation. It does not suggest that mediation
confidentiality requires client consent to the mediation in the first instance. To the contrary, the
case states that even meritorious claims of bad conduct by lawyers must give way to mediation
confidentiality. Wimsatt, 152 Cal. App. 4th at 162.
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKunepinst PC
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Cassel, 51 Cal.4th at p. 131.
Moreover, the Evidence Code does not limit confidentiality “by the identity of the
communicator, by his or her status as a ‘party,’ ‘disputant,” or ‘participant’ in the mediation
itself, by the communication’s nature, or by the specific potential for damage to a disputing
party.” Jd. at 130. Regardless, ILG had a direct claim against Wells Fargo for recovery of its
fees, and was a “disputant” in its own right. Flannery v. Prentice, 26 Cal.4th 572, 590 (2001)
(award of attorney fees belongs to the attorney who labored to earn them).
A mediation occurred on February 15, 2011, and both Wells Fargo and Initiative Legal
Group have submitted declarations confirming their belief that the mediation continued until
approximately January 2012. [See May 21, 2015 Decl. of Linbergh Porter re: settlement; May
21, 2015 Decl. of M. Primo, § 6, on file with this court].
Il.
MEDIATION CONFIDENTIALITY IS NOT VITIATED BY ALLEGED “BAD” ACTS
A subsequent dispute between a client and his attorneys does not present due process
concerns, and mediation confidentiality will be applied even if the client is denied a remedy
against the attorney as a result. Casse/, 51 Cal.4th at 135 (“application of the mediation
confidentiality statutes to legal malpractice actions does not implicate due process concerns”).
To that end, mediation confidentiality is applied even if it means a client must forgo an action for
legal malpractice against his attorney:
Preventing [the client] from accessing mediation-related
communications may mean he must forgo his legal malpractice
lawsuit against his own attorneys. However, the Supreme Court
has declared that exceptions to mediation confidentiality must be
expressly stated in the statutes. Further, cases have shielded
evidence of sanctionable conduct, criminal conduct and statements
that purportedly were inconsistent with those made in a mediation
[citations]... Even though in each of those cases strong reasons
existed to permit the introduction of the evidence, the results were
dictated by the comprehensive statutory scheme devised by the
Legislature.
Wimsatt v. Superior Court, 152 Cal. App. 4th 136, 162 (2007); see also Amis v. Greenberg
Traurig LLP, 234 Cal.App.4th 331, 342-43 (2015) (affirming summary judgment for defendant
in legal malpractice action arising from mediation related conduct because mediation
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLINEDINST PC
801 K Street, Surre 2100
SACRAMENTO, CALIFORNIA 95814
confidentiality prohibits admission of evidence on the issue). And, mediation confidentiality
applies even if the alleged misconduct occurs in the course of the mediation itself. Foxgate
Homeowners Ass’n., Inc. v. Bramalea California, Inc., 26 Cal.4th 1, 17 (2001) (no waiver for
bad faith conduct by party during course of mediation), Maxon argues for a judicially crafted
exception, based on a claim that their attorneys “concealed” their participation mediation from
them and committed alleged bad acts in the course of the mediation. The statute does not allow
for such judicially created exceptions, and mediation confidentiality must be strictly applied.
IV.
MEDIATION CONFIDENTIALITY CONTINUES AFTER A MEDIATION IS
TERMINATED
Maxon argues that the mediation terminated in February 2011, citing to Evidence Code
section 1125(a)(5), which states a mediation ends ten days after the mediation if there is no
communication with the mediator. But this provision states that “the mediator and the parties
may shorten or extend this time by agreement.” Evid. Code § 1125(a)(5). Here, the parties did
agree that mediation confidentiality would extend to all statements made in the course of
mediation and in mediator follow-up “at any time prior to complete settlement of this matter...”
[Decl. of M. Primo re: Settlement, filed May 21, 2015, Ex. 1, Confidentiality Agreement].
Regardless, even communications that occurred after mediation are confidential if they
refer or relate to the mediation itself, Although Evidence Code section 1125(a)(5) defines when
mediation ends, it does not address when mediation confidentiality ends. Confidentiality for all
communications made pursuant to the mediation continues “to the same extent after the
mediation ends.” Evidence Code section 1126. While communications that occur after
mediation and do nor implicate confidential communications made in the course of and pursuant
to mediation, communications after the mediation that include disclosures of what occurred at
mediation are barred. See Eisendrath v. Superior Court, 109 Cal.App.4th 351, 365, fn. 8 (2003)
(confidentiality rule does not encompass statements made after mediation completed and which
do not implicate confidential communications made prior to end of the mediation).
In this case, Wells Fargo and ILG’s emails after the February mediation included
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLINEDINST PC
801 K Street, Sure 2100
SACRAMENTO, CALIFORNIA 95814
communications about what occurred during the February mediation, in fact they specifically
reference the negotiations which occurred “at mediation” and are thus protected under mediation
confidentiality. Moreover, the parties continued to engage the mediator in settlement discussions
throughout 2011, such that mediation continued and they are protected in any event.
Vv.
THERE IS NO LIMIT ON THE SCOPE OF MEDIATION CONFIDENTIALITY
The confidentiality agreement signed at mediation does not limit the scope of mediation
confidentiality. The agreement does not purport to limit or waive any statutory mediation
confidentiality. Rather, the plain language expands confidentiality beyond the conclusion of
mediation to “[aJll statements made...in mediator follow up thereafter at any time prior to
complete settlement of the matter...” By agreeing to and signing the agreement, the participants,
including ILG and Wells Fargo, explicitly extended the “course” of the mediation to include
ongoing settlement discussions prior to complete settlement. See Evid. Code § 1125(a)(5)
(allowing parties to extend the mediation by agreement).
VI.
STATEMENTS IN OPEN COURT ARE BARRED BY MEDIATION
CONFIDENTIALITY
Contrary to Maxon’s position, the Lofion appellate opinion did not find that all statement
made in open court were not subject to mediation confidentiality. Without addressing any
specific objections, Lofion court stated only that Mr. Primo’s declaration, along with two letters
written in 2012 and “the record of the settlement approval proceedings” were sufficient to meet
Plaintiff's burden on a TRO. ILG never got a ruling on any of its mediation objections in either
the trial court or court of appeal. Jd. at 1068-69 (holding no prejudicial error in trial court’s
failure to rule on mediation confidential evidence). The court did not address any objections
related to specific parts of the record on the approval proceedings. However if it had, some
portions of the record would undoubtedly have been stricken.
The California Supreme Court has already held that statements made in open court, by
counsel, which disclose mediation confidential evidence, may later be excluded by that same
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKunepinst PC
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SACRAMENTO, CALIFORNIA 95814
counsel. Simmons v. Ghaderi, 44 Cal.4th 570, (2008). In Simmons, following a dispute over
whether the case had settled at mediation, counsel appeared in court and recited the facts of what
occurred in mediation to the court. Jd. at 576. Subsequently, the plaintiff amended the
complaint to add a cause of action for breach of an oral settlement agreement allegedly reached
at the mediation, and the same counsel who had recited the facts of what occurred at mediation in
the prior hearing moved to exclude any evidence of what occurred at mediation from the trial of
the action. Jd. at 577. The California Supreme Court reversed the trial court’s denial of the
objections, because the California mediation confidentiality statute do not provide and exception
for an implied waiver based on litigation conduct, including prior direct disclosure of mediation
communications to the court. Jd. at 586-87. Noting that mediation confidentiality continues even
after the mediation ends, where statutory requirements for admissibility of mediation confidential
evidence have not been met, mediation confidential evidence is inadmissible. Jd. at 580, 587-88.
To the extent that any prior pleadings or statements before the court reference mediation
confidential evidence, including discussions that occurred at mediation or learned from
mediation communications, they must be excluded.
Klinedinst PC
DATED: June 22. 2015 By: _/s/ Natalie P. Vance
Natalie P. Vance
Attorneys for Non-Parties
INITIATIVE LEGAL GROUP APC;
INITIATIVE LEGAL GROUP LLP; MARC
PRIMO PULISCI; G. ARTHUR MENESES;
MONICA BALDERRAMA,; and JOSEPH S.
LIU
16229960v1
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REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONS
Preview
KLINEDINST PC 801 K Street, Suite 2100 SACRAMENTO, CALIFORNIA 95814 Natalie P. Vance, Bar No. 206708 KLINEDINST PC 801 K Street, Suite 2100 Sacramento, California 95814 ELECTRONICALLY (916) 444-7573/FAX (916) 444-7544 nvance@klinedinstlaw.com FILED Superior Court of California, Attorneys for Non-Parties County of pan mancieco| INITIATIVE LEGAL GROUP APC; 06/23/2015 Clerk of the Court BY-MICHAEL RAYRAY Deputy Clerk INITIATIVE LEGAL GROUP LLP; MARC PRIMO PULISCI; G. ARTHUR MENESES; MONICA BALDERRAMA; and JOSEPH S. LIU SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO DAWN LOFTON, individually and on Case No. — CGC-11-509502 behalf of all others similarly situated, COMPLEX LITIGATION LEXISNEXIS EFILING Plaintiffs, NONPARTIES' REPLY TO MAXON'S v. RESPONSE TO MEDIATION PRIVILEGE OBJECTIONS WELLS FARGO HOME MORTGAGE, a division of WELLS FARGO BANK, DATE: June 24, 2015 NATIONAL ASSOCIATION, TIME: 9:30 a.m. DEPT: 305 Defendants. JUDGE: Hon. Mary E. Wiss TERRI MAXON, as successor in interest to David Mark Maxon, Intervenor. Complaint Filed: 9/5/2012 Trial Date: None set Mediation confidentiality is absolute. The fact that a mediation occurred is undisputed. Initiative Legal Group APC (“ILG”) may properly assert mediation confidentiality against any party who attempts to introduce evidence of communications made in the course of or related to that mediation. It has done so, and evidence of communications in the course of and pursuant to the mediation with Wells Fargo must be excluded, including communications which occurred after the first session of mediation, which refer to mediation, and while mediated discussions were still ongoing. 1 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLINEDINST PC 801 K Street, Surre 2100 SACRAMENTO, CALIFORNIA 95814 I. CALIFORNIA’S MEDIATION CONFIDENTIALITY PROVISIONS ARE BROAD, ABSOLUTE, AND MUST BE STRICTLY APPLIED Under Evidence Code section 1119, subdivisions (a) and (b), evidence of anything said or admissions made for the purpose of, in the course of, or pursuant to a mediation cannot be disclosed in a legal proceeding, with certain statutory exceptions. Writings prepared for the purpose of, in the course of, or pursuant to a mediation are also protected from disclosure. Under subdivision (c), “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”! The California Supreme Court has repeatedly described the mediation confidentiality provisions as “clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected.” Cassel v. Superior Court, 51 Cal.4th 113, 118 (2011) (citing Simmons v. Ghaderi, 44 Cal.4th 570, 580 (2008); Fair v. Bakhtiari, 40 Cal.4th 189, 194 (2006); Rojas v. Superior Court, 33 Cal.4th 407, 415-416 (2004); Foxgate Homeowners’ Assn. v. Bramalea California, Inc., 26 Cal.4th 1, 13-14, 17 (2001)); see also Wimsatt v. Superior Court, 152 Cal.App.4th 137, 152 (2007) (“The court has refused to judicially create exceptions to the statutory scheme, even in situations where justice seems to call for a different result.”). Mediation confidentiality extends beyond communications in the mediation itself to communications that are for the purpose of or pursuant to mediation. Evid. Code § 1119. In Cassel, the California Supreme Court noted that the Legislature revised the mediation confidentiality provisions by replacing the term “in the course of the mediation” with “for the ' Bvidence Code section 1119, subdivisions (a) and (b) state: “Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” 2 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLNEDINST PC 801 K Street, Surre 2100 SACRAMENTO, CALIFORNIA 95814 Nu purpose of, in the course of, or pursuant to” a mediation. Cassel, 51 Cal.4th at p. 128. The Court concluded that even communications outside of the mediation itself were intended to be covered if they related to the mediation: The obvious purpose of the expanded language is to ensure that the statutory protection extends beyond discussions carried out directly between the opposing parties to the dispute, or with the mediator, during the mediation proceedings themselves, All oral or written communications are covered, if they are made “for the purpose of” or “pursuant to” a mediation. Id, (citing Evid. Code § 1119). IL A MEDIATION OCCURRED TO WHICH CONFIDENTIALITY APPLIES Maxon attempts to circumvent the application of mediation confidentiality by arguing that no mediation occurred, because six of ILG’s 605 clients have submitted declarations stating that they did not know the mediation was occurring and ILG was not a “disputant.” However, there is no statutory (or other) rule requiring a client to consent to its attorney’s participation in mediation for mediation confidentiality to apply. Indeed, while an attorney cannot settle an action without client consent, there is no similar rule requiring a client’s consent to initiate settlement discussions or participate in a mediation.” See e. g. Levy v. Superior Court, 10 Cal. 4th 578, 583-84 (settlement requires client’s knowledge and express consent), And, the California Supreme Court has already rejected a contention that the disputant is the only real party to a mediation, holding that a disputant’s attorney is also a “participant” in mediation as defined by Evidence Code section 1119: [N]o reason appears why other persons attending and assisting in the mediation on behalf of the disputants, such as their counsel, are not themselves distinct “participants” who must agree to the disclosure of confidential mediation-related communications they made or received. ? The dicta in Wimsatt v. Superior Court cited by Maxon is a plea for the legislature to amend the statute to avoid the sometimes harsh effect of participating in mediation, and at most, describes best practices in light of the consequences of mediation. It does not suggest that mediation confidentiality requires client consent to the mediation in the first instance. To the contrary, the case states that even meritorious claims of bad conduct by lawyers must give way to mediation confidentiality. Wimsatt, 152 Cal. App. 4th at 162. 3 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKunepinst PC 801 K Street, Sure 2100 SACRAMENTO, CALIFORNIA 95814 Cassel, 51 Cal.4th at p. 131. Moreover, the Evidence Code does not limit confidentiality “by the identity of the communicator, by his or her status as a ‘party,’ ‘disputant,” or ‘participant’ in the mediation itself, by the communication’s nature, or by the specific potential for damage to a disputing party.” Jd. at 130. Regardless, ILG had a direct claim against Wells Fargo for recovery of its fees, and was a “disputant” in its own right. Flannery v. Prentice, 26 Cal.4th 572, 590 (2001) (award of attorney fees belongs to the attorney who labored to earn them). A mediation occurred on February 15, 2011, and both Wells Fargo and Initiative Legal Group have submitted declarations confirming their belief that the mediation continued until approximately January 2012. [See May 21, 2015 Decl. of Linbergh Porter re: settlement; May 21, 2015 Decl. of M. Primo, § 6, on file with this court]. Il. MEDIATION CONFIDENTIALITY IS NOT VITIATED BY ALLEGED “BAD” ACTS A subsequent dispute between a client and his attorneys does not present due process concerns, and mediation confidentiality will be applied even if the client is denied a remedy against the attorney as a result. Casse/, 51 Cal.4th at 135 (“application of the mediation confidentiality statutes to legal malpractice actions does not implicate due process concerns”). To that end, mediation confidentiality is applied even if it means a client must forgo an action for legal malpractice against his attorney: Preventing [the client] from accessing mediation-related communications may mean he must forgo his legal malpractice lawsuit against his own attorneys. However, the Supreme Court has declared that exceptions to mediation confidentiality must be expressly stated in the statutes. Further, cases have shielded evidence of sanctionable conduct, criminal conduct and statements that purportedly were inconsistent with those made in a mediation [citations]... Even though in each of those cases strong reasons existed to permit the introduction of the evidence, the results were dictated by the comprehensive statutory scheme devised by the Legislature. Wimsatt v. Superior Court, 152 Cal. App. 4th 136, 162 (2007); see also Amis v. Greenberg Traurig LLP, 234 Cal.App.4th 331, 342-43 (2015) (affirming summary judgment for defendant in legal malpractice action arising from mediation related conduct because mediation 4 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLINEDINST PC 801 K Street, Surre 2100 SACRAMENTO, CALIFORNIA 95814 confidentiality prohibits admission of evidence on the issue). And, mediation confidentiality applies even if the alleged misconduct occurs in the course of the mediation itself. Foxgate Homeowners Ass’n., Inc. v. Bramalea California, Inc., 26 Cal.4th 1, 17 (2001) (no waiver for bad faith conduct by party during course of mediation), Maxon argues for a judicially crafted exception, based on a claim that their attorneys “concealed” their participation mediation from them and committed alleged bad acts in the course of the mediation. The statute does not allow for such judicially created exceptions, and mediation confidentiality must be strictly applied. IV. MEDIATION CONFIDENTIALITY CONTINUES AFTER A MEDIATION IS TERMINATED Maxon argues that the mediation terminated in February 2011, citing to Evidence Code section 1125(a)(5), which states a mediation ends ten days after the mediation if there is no communication with the mediator. But this provision states that “the mediator and the parties may shorten or extend this time by agreement.” Evid. Code § 1125(a)(5). Here, the parties did agree that mediation confidentiality would extend to all statements made in the course of mediation and in mediator follow-up “at any time prior to complete settlement of this matter...” [Decl. of M. Primo re: Settlement, filed May 21, 2015, Ex. 1, Confidentiality Agreement]. Regardless, even communications that occurred after mediation are confidential if they refer or relate to the mediation itself, Although Evidence Code section 1125(a)(5) defines when mediation ends, it does not address when mediation confidentiality ends. Confidentiality for all communications made pursuant to the mediation continues “to the same extent after the mediation ends.” Evidence Code section 1126. While communications that occur after mediation and do nor implicate confidential communications made in the course of and pursuant to mediation, communications after the mediation that include disclosures of what occurred at mediation are barred. See Eisendrath v. Superior Court, 109 Cal.App.4th 351, 365, fn. 8 (2003) (confidentiality rule does not encompass statements made after mediation completed and which do not implicate confidential communications made prior to end of the mediation). In this case, Wells Fargo and ILG’s emails after the February mediation included 5 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKLINEDINST PC 801 K Street, Sure 2100 SACRAMENTO, CALIFORNIA 95814 communications about what occurred during the February mediation, in fact they specifically reference the negotiations which occurred “at mediation” and are thus protected under mediation confidentiality. Moreover, the parties continued to engage the mediator in settlement discussions throughout 2011, such that mediation continued and they are protected in any event. Vv. THERE IS NO LIMIT ON THE SCOPE OF MEDIATION CONFIDENTIALITY The confidentiality agreement signed at mediation does not limit the scope of mediation confidentiality. The agreement does not purport to limit or waive any statutory mediation confidentiality. Rather, the plain language expands confidentiality beyond the conclusion of mediation to “[aJll statements made...in mediator follow up thereafter at any time prior to complete settlement of the matter...” By agreeing to and signing the agreement, the participants, including ILG and Wells Fargo, explicitly extended the “course” of the mediation to include ongoing settlement discussions prior to complete settlement. See Evid. Code § 1125(a)(5) (allowing parties to extend the mediation by agreement). VI. STATEMENTS IN OPEN COURT ARE BARRED BY MEDIATION CONFIDENTIALITY Contrary to Maxon’s position, the Lofion appellate opinion did not find that all statement made in open court were not subject to mediation confidentiality. Without addressing any specific objections, Lofion court stated only that Mr. Primo’s declaration, along with two letters written in 2012 and “the record of the settlement approval proceedings” were sufficient to meet Plaintiff's burden on a TRO. ILG never got a ruling on any of its mediation objections in either the trial court or court of appeal. Jd. at 1068-69 (holding no prejudicial error in trial court’s failure to rule on mediation confidential evidence). The court did not address any objections related to specific parts of the record on the approval proceedings. However if it had, some portions of the record would undoubtedly have been stricken. The California Supreme Court has already held that statements made in open court, by counsel, which disclose mediation confidential evidence, may later be excluded by that same 6 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONSKunepinst PC 801 K STREET, Surte 2100 SACRAMENTO, CALIFORNIA 95814 counsel. Simmons v. Ghaderi, 44 Cal.4th 570, (2008). In Simmons, following a dispute over whether the case had settled at mediation, counsel appeared in court and recited the facts of what occurred in mediation to the court. Jd. at 576. Subsequently, the plaintiff amended the complaint to add a cause of action for breach of an oral settlement agreement allegedly reached at the mediation, and the same counsel who had recited the facts of what occurred at mediation in the prior hearing moved to exclude any evidence of what occurred at mediation from the trial of the action. Jd. at 577. The California Supreme Court reversed the trial court’s denial of the objections, because the California mediation confidentiality statute do not provide and exception for an implied waiver based on litigation conduct, including prior direct disclosure of mediation communications to the court. Jd. at 586-87. Noting that mediation confidentiality continues even after the mediation ends, where statutory requirements for admissibility of mediation confidential evidence have not been met, mediation confidential evidence is inadmissible. Jd. at 580, 587-88. To the extent that any prior pleadings or statements before the court reference mediation confidential evidence, including discussions that occurred at mediation or learned from mediation communications, they must be excluded. Klinedinst PC DATED: June 22. 2015 By: _/s/ Natalie P. Vance Natalie P. Vance Attorneys for Non-Parties INITIATIVE LEGAL GROUP APC; INITIATIVE LEGAL GROUP LLP; MARC PRIMO PULISCI; G. ARTHUR MENESES; MONICA BALDERRAMA,; and JOSEPH S. LIU 16229960v1 7 REPLY TO MAXON'S RESPONSE TO MEDIATION PRIVILEGE OBJECTIONS