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BENJAMIN REAVIS ET AL., § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
§ DALLAS COUNTY, TEXAS
§
TOYOTA MOTOR CORPORATION ET §
, §
§
Defendants. § 134th DISTRICT COURT
MOTION TO COMPEL
Benjamin and Kristi Reavis (“the Reavises” or “ ”) submit this Motion to Compel
and would show as follows:
I.
SUMMARY OF ARGUMENT
Toyota Motor Corporation (“TMC” or, with its subsidiaries, “Toyota aggregates
compendiums of information concerning Toyota’s safety design kn
These compendiums have been referenced by different titles, such as “Books of
Awareness of these compendiums only became public after a
former in-house counsel whistleblower came forward and disclosed their
existence Despite the public disclosure, Toyota still seeks to avoid disclosing the
information in litigation.
True to form, Toyota has not produced responsive information from these
databases in this case.
HAS WRONGFULLY failed TO PRODUCE
DOCUMENTS FROM VARIOUS SAFETY DATABAS
Toyota’s ex-attorney disclosed the existence of key databases of safety
documents that have not been produced in this litigation.
Mr. Dimitrios Biller is a licensed attorney in the State of California. His career has
included working as an Assistant United States Attorney and a lengthy career in private practice
MOTION TO COMPEL PAGE 1
at the Pillsbury Winthrop law firm defending products liability lawsuits. In 2003, Toyota Motor
Sales USA, Inc. hired Biller as National Managing Counsel, placing him in charge of managing
substantial Toyota litigation in the United States.
In the spring of 2007, Biller resigned his position at Toyota. In short, Biller claimed he
had been asked by Toyota to commit litigation fraud and felt compelled to resign. Biller filed a
lawsuit against Toyota. In the summer of 2007, the parties went to mediation, where Biller’s
complaints were settled for nearly $4 million in a settlement that resulted in a severance
agreement from Toyota—after only four years of work and no apparent contractual
entitlement to any such payment. Biller v. Faber, 2016 WL 1725185 (Cal. App. Apr. 27, 2016)
(Exhibit A).
After resigning from Toyota, Biller established a legal consulting business and created a
website on which information about Toyota was posted. Upon learning of these and other
disclosures, Toyota sued Biller in arbitration for breaching the confidentiality provision of the
severance agreement. (Unsurprisingly, Toyota ultimately prevailed in that arbitration, since
Biller clearly posted the incriminating documents on his website.) In the meantime, Biller had
sued Toyota in federal court for alleged violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), constructive wrongful discharge, intentional infliction of emotional
distress, and defamation. In this later complaint against Toyota, Biller states:
For years, Defendants, Toyota Motor Corporation, its United States subsidiaries,
and key Toyota executives, have conspired, and continue to conspire, to
unlawfully withhold evidence from plaintiffs and obstruct justice and lawsuits
throughout the United States against Toyota. Many of the plaintiffs in these
lawsuits sustained catastrophic and fatal injuries in rollover accidents involving
Toyota vehicles.
Plaintiff Dimitrios P. Biller, the former National Managing Counsel in charge of
MOTION TO COMPEL – PAGE 2
Toyota’s National Rollover Program, became aware of Toyota’s conspiracy to
conceal, withhold, and destroy evidence and information, and obstruct justice,
during his employment at Toyota. As Toyota’s in-house counsel in charge of
managing some of the very cases in which Toyota was concealing evidence, Biller
was in a unique position to know the relevance of the evidence and information
that was concealed in the cases in which it was requested by plaintiffs in
discovery. As Toyota’s managing counsel in those cases, Mr. Biller was ethically
and legally obligated to turn over the evidence that Toyota had been concealing
and withholding, and which it continues to conceal and withhold.
Mr. Biller repeatedly confronted Toyota executives about the need to turn over
the evidence it was concealing and withholding, and repeatedly was told by
Toyota executives, including in-house counsel, that Toyota would not comply
with its legal duty to do so. Despite Toyota’s resistance, Mr. Biller persisted in his
efforts to convince Toyota to meet its ethical and legal obligations to turn over
the evidence it was concealing and withholding.
When it became clear to Toyota and its executives that Mr. Biller could not be
dissuaded in his insistence, Toyota and its executives made every effort to
prevent Mr. Biller from turning over, and even preserving, the damaging
evidence the company so desperately sought to conceal. Mr. Biller was subjected
to intimidation, harassment, and an uncertain future, both at Toyota and
elsewhere, as a result of his efforts to comply with the legal and ethical
obligations.
Original Complaint, Biller v. TMS, Case No. 2:09-cv-05429-GHK-RZ (C.D. Cal. July 24, 2009)
(Exhibit B).
In particular, Biller observed that Toyota consciously refuses to produce documents
“related to the ‘Books of Knowledge’ … and computer systems containing relevant information
and ESI.” Exh. B, p.32. Biller also identified a computer database known as “MIK” which includes
information about design problems encountered and addressed during the development of
Toyota’s vehicles. (Exhibit C, not attached).
Biller has complained that Toyota has withheld these databases from production in
litigation. See Exhibits C & D (not attached). These internal complaints were disclosed to the
MOTION TO COMPEL – PAGE 3
public in connection with a 2010 investigation by the United States Congress into Toyota’s
conduct. See Exhibit E (not attached).1
As a matter of law, Toyota should properly be bound by Biller’s statements insofar as he
was Toyota’s authorized representative at the time he made those statements. Celtic Life Ins.
Co. v. Coats, 885 S.W.2d 96, 98-99 (Tex. 1994) (discussing relevant agency law principles).
In any event, there is substantial evidence which indicates the accuracy of Biller’s
complaints. First, he remained in a senior in-house counsel position for more than a year after
his internal complaints without any evident questioning of his veracity. Second, when Biller
produced documents in response to Congressional subpoenas, the members of Congress who
reviewed the information found it sufficiently compelling to warrant a formal investigation.
Third, the culture described by Biller is corroborated by other incidents in which Toyota has
been charged by the Department of Justice for deliberately deceiving federal regulators and
defrauding consumers by issuing misleading statements about safety issues. (Exhibit F) These
charges resulted in an agreement (the “Deferred Prosecution Agreement,” attached as Exhibit
G) in which Toyota stipulated to regularly misleading federal regulators and the public about
safety issues. An agreed “Statement of Facts,” in which Toyota confesses to its actionable
conduct, is attached as Exhibit H.
B. A general description of the missing documents
Based on Biller’s reports, it is apparent that Toyota maintains databases in which
information discussing safety issues, design issues, and potential alternative designs that
1
Out of an abundance of caution, Plaintiffs have not attached Exhibits C, D, and E to this Motion.
However, Plaintiffs still anticipate offering them as evidence at a hearing on this Motion, at which time
the Court can consider how the Exhibits should be treated under the provisions of Tex. R. Civ. P. 76a.
MOTION TO COMPEL – PAGE 4
Toyota’s engineers have discussed and evaluated isstored and organized. The “organization”
piece is important – according to Biller, Toyota maintains the databases in such a way that the
databases can be usefully researched by Toyota personnel, e.g., searchable by component
system.
At different times and at different locations, various iterations of these databases have
taken shape. Thus, at one point, the compendiums were called “Books of Knowledge.” At
another point, Toyota stored documents in a database called “the MIK database.”
C. The missing documents are relevant.
The Reavises’ Petition alleges that their Lexus was defectively designed, that Toyota
knew or should have known about the defects, and that Toyota unreasonably refused to adopt
safer alternative designs. This Court previously found that Plaintiffs are entitled to broad
discovery concerning these issues, including the production of ESI and other information that
would exist in Toyota’s internal databases and the so-called “Books of Knowledge.” See Order
(Nov. 2, 2017).
If Toyota personnel have compiled materials related to seatback failures,
crashworthiness issues, and design approaches that protect rear seat occupants, Plaintiffs must
be permitted to discover those materials. As this Court previously acknowledged, it should not
matter whether that information was created specifically for 2002 US-bound Lexus ES300 or
not. Rather, Toyota has been compelled to produce information relating to (1) prior and
subsequent Toyota platforms as well as (2) platform-independent information that reflects
Toyota’s general awareness and understanding of design issues. Such information will allow
Plaintiffs’ experts to evaluate the Reavises’ vehicle in the context of Toyota’s overall knowledge
MOTION TO COMPEL – PAGE 5
concerning seatback design, crashworthiness, and safety issues. Moreover, databases like the
MIK database and any information contained therein regarding design issues with seatback
failures or occupant protection following a rear-end collision and “countermeasures” used to
resolve such issues would go to the core liability issues in this case. Toyota’s own consideration
of alternative designs would be key evidence on the feasibility (and, possible, the efficacy) of
such designs. The same is true of any Customer Quality Engineering “CQE-J” or “CQE-LA” entries
related to the ES300 and its seatback performance or design. The CQE department, based at
TMC in Japan, monitors the performance of vehicles in the field around the globe and in the
United States and strategizes regarding Toyota’s response to performance issues that may
arise.2
D. The missing documents should fall within the scope of this Court’s prior
Order.
On November 2, 2017, this Court entered an Order that compelled Toyota to produce,
inter alia,
All reports, memoranda, and correspondence (including e-mails) in which any
risk posed by rear-end collisions is discussed;
All reports, memoranda, and correspondence (including e-mails) in which any
risk posed by seatback failures is discussed;
All reports, memoranda, and correspondence (including e-mails) in which the
safety of alternative designs for the front seats and/or the restraint system is
discussed.
2
For a description of the type of role that these entities play in Toyota’s internal assessment of
possible “defective design” issues based on evidence discovered in the real world, see Exh. H, ¶¶5, 23,
37-38, 40.
MOTION TO COMPEL – PAGE 6
documents at the deposition. Shibata produced some, but not all, of the documents he
reviewed.
Plaintiffs request an Order compelling the production of (1) the documents discussing
the rearward deformation target and (2) any other documents that were reviewed by TMC’s
corporate representative in preparation for the corporate representative deposition.
B. Cost data
On November 2, 2017, this Court expressly ordered Toyota to
supplement their Response to Plaintiffs’ Interrogatory 4 by providing an answer
which fully explains the cost to Toyota of the front seats used in the Reavises’
vehicle.
Nevertheless, Toyota thumbed its nose at this Order by (1) re-urging its previously overruled
objections and (2) stating that it could not locate any information that would allow it to comply
with the Court’s Order.
Contradicting this explanation, Shibata acknowledged in the corporate representative
deposition that he could explain the costs of the front seats and, moreover, that he had
reviewed documents which would allow him to make that calculation. Exhibit I (Dep. at 210-
12).
Plaintiffs request that Toyota be compelled to comply with this Court’s prior Order by
“fully explaining,” under oath, “the cost to Toyota of the front seats used in the Reavises’
vehicle.”
IV.
TOYOTA’S PROFIT MARGINS
The Court ordered TMC to quantify the average “profit” made on the sale of 2002
ES300s sold in Texas. This information is directly relevant to assessing whether alternative
MOTION TO COMPEL – PAGE 11
designs for Toyota’s seats and restraint systems were “economically feasible,” which is one of
the statutory criteria established for design defect cases by Tex. Civ. Prac. & Rem. Code
§82.005(b)(2). In essence, the question of economic feasibility turns on whether the expenses
of the alternative designs make them cost-prohibitive.
In response, Toyota has refused to produce responsive information. Instead, Toyota has
asserted that the information should be protected by the “trade secrets privilege.” See TEX. R.
EVID. 507.
If Toyota intends to challenge the economic feasibility of alternative designs, then
Plaintiffs are entitled to discovery concerning Toyota’s profit margins, since such evidence
would be probative of whether the marginal costs, if any, of the alternative designs would truly
render Toyota’s cars too expensive. This issue directly addresses one of the elements of
Plaintiffs’ claims. If Toyota intends to dispute economic feasibility, it should be deemed to have
waived any claim that its financial information is “privileged.” See TEX. R. EVID. 507 (noting
Court’s power to order disclosure of confidential information in the interests of justice); In re
Continental Gen. Tire, 979 S.W.2d 609, 612 (Tex. 1998) (orig. proceeding) (disclosure is
appropriate when information is necessary for a “fair adjudication” of a party’s claims or
defenses).
Plaintiffs request that Toyota be compelled to disclose the responsive “profit”
information, consistent with the requirements of Tex. R. Evid. 507.
V.
CONCLUSION AND PRAYER
WHEREFORE, Plaintiffs request that Toyota be compelled to thoroughly search for the
requested information, prove to the Court that such a search has been performed, and produce
MOTION TO COMPEL – PAGE 12
to Plaintiffs that responsive materials from that search. Plaintiffs further request such other
relief to which they may be entitled.
Respectfully submitted,
The Law Offices of Frank L. Branson P.C.
/s/ Eric Stahl
Frank L. Branson
State Bar No. 02899000
Eric T. Stahl
State Bar No. 00794685
18th Floor, Highland Park Place
4514 Cole Avenue
Dallas, TX 75205-4185
Telephone: (214) 522-0200
Facsimile: (214) 521-5485
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF CONFERENCE
I, the undersigned, hereby certify that Suzanne Sawyer, counsel for Toyota, and I
conducted a conference on the 11th day of January, 2018, during which there was a substantive
discussion of every item that is being presented to the Court in this motion and, despite best
efforts, we have not been able to resolve the matters which are being presented.
/s/ Eric Stahl
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing was
served on all counsel of record via electronic means on the 16th day of January, 2018.
/s/ Eric Stahl
2018 0116 motion to compel.doc
MOTION TO COMPEL – PAGE 13
Biller v. Faber, Not Repor
KeyCite Red Flag - Severe Negative Treatment
Unpublished/noncitable April 27, 2016
2016 WL 1725185 FACTUAL AND PROCEDURAL BACKGROUND
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) Plaintiff and appellant Dimitrios P. was employed
Only the Westlaw citation is currently available. as in-house counsel for Toyota Motor Sales, U.S.A., Inc.
During his employment, Biller came to believe he had
California Rules of Court, rule 8.1115, restricts been hired by Toyota to commit litigation fraud. He felt
citation of unpublished opinions in California courts. compelled to resign, and in June 2007 retained an
attorney—defendant and respondent Michael Faber—to
represent him in his employment dispute with Toyota.
Second District, Division 4, California.
The employment dispute was submitted to a mediator. At
Dimitrios P. , Plaintiff and Appellant, the conclusion of the mediation hearing on August 9,
2007, the mediator provided “a ‘Mediator’s Proposal’
Michael FABER, Defendant and Respondent. containing settlement terms that included, among other
things, a confidentiality provision and liquidated damages
B244232 Faber advised to accept the mediator’s
proposal, and offered to reduce his contingency fee from
Filed April 27, 2016 40 percent to 25 percent. accepted the mediator’s
proposal the following day. The proposal was reduced to
As Modified on Denial of Rehearing May 16, 2016
a written severance agreement that signed on
September 6, 2007. Under the terms of thatagreement,
APPEAL from a judgment of the Superior Court of Los recovered almost $4 million from Toyota, of which
Angeles County, Cesar Sarmiento, Judge. Affirmed. (Los $950,000 was paid to Faber as attorney fees.
Angeles County Super. Ct. No. SC103362)
After resigning from Toyota, established a legal
Attorneys and Law Firms consulting business and created a website on which
information about Toyota was posted. Upon learning of
P. , in pro. per., for Plaintiff and these and other disclosures, Toyota sued in2008
Appellant. for alleged breaches of the confidentiality provision of the
severance agreement. Toyota Motor Sales, U.S.A., Inc. v.
Reback, McAndrews, Kjar, Warford, Stockalper & Dimitrios P. (Super. Ct. L.A. County, No.
Moore, Cindy A. Shapiro James J. Kjar, and Evan N. SC100501) (state court action).) In 2009, sued
Okamura; Nemecek & Cole, Jonathan B. Cole and Cindy Toyota in federal court for alleged violations of the
A. Shapiro, for Defendant and Respondent. Racketeer Influenced and Corrupt Organizations Act
(RICO) (18 U.S.C. § 1961 et seq.) (this claim was later
Littler Mendelson, Alan B. Carlson and Fermin H. dismissed), constructive wrongful discharge, intentional
Llaguno, for Toyota Motor Sales, U.S.A., Inc. as Amicus infliction of emotional distress, and defamation. ( v.
Curiae on behalf of Defendant and Respondent. Toyota Motor Corporation (9th Cir.2012) 668 F.3d 655
(federal court action).)
Opinion
The state and federal court actions were submitted to joint
EPSTEIN, P.J.
arbitration under terms of the severance agreement. The
arbitrator awarded Toyota $2.5 million in liquidated
This is an appeal from a judgment dismissing a damages ($250,000 per violation of the confidentiality
complaint for legal malpractice and breach of fiduciary provision) and $100,000 in punitive damages, and
duty. We shall affirm based on the confidentiality of proposed a permanent injunction prohibiting from
communications made in the course of mediation. disclosing Toyota’s confidential and privileged
Evid.Code, § 1119 Cassel v. Superior Court (2011) 51 information.
Cal.4th 113 Cassel ).)
Toyota sought to confirm the arbitrator’s award in both
WES'ILAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
Biller v. Faber, Not Repor
state and federal court actions. In each action, Toyota information, the trial court sealed declaration,
obtained a judgment confirming the arbitrator’saward stayed the production of documents, and sealed the
and a permanent injunction prohibiting disclosure of its confidential documents filed by
confidential and privileged information. Both judgments
were affirmed on appeal. ( v. Toyota Motor In light of these developments, Faber moved for
Corporation, supra, 668 F.3d 655 Toyota Motor Sales, dismissal of the complaint. In his motion for dismissal, he
U.S.A., Inc. v. (Mar. 23, 2012, B234763) [nonpub. argued that due to Toyota’s assertion of its privilege and
opn.].) confidentiality of mediation, he was incapable of
obtaining or using the evidence he would need to defend
In the present action, is suing Faber for alleged himself at trial (citing Cassel, supra, 51 Cal.4th at p. 130
malpractice in the employment dispute and for breach of Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th
fiduciary duty. (Dimitrios P. v. Michael Faber 771, 786 ); Solin v. O’Melveny & Myers (2001) 89
(Super.Ct.L.A.County, No. SC103362).) According to the Cal.App.4th 451, 568 Solin )).
allegations of the second amended complaint, the
operative pleading, Faber made numerous Over objection, the trial court appointed a referee
misrepresentations to , including that Faber (Retired Judge David Horowitz) to manage and oversee
specialized in employment litigation and would “negotiate discovery, rule on pending discovery motions, determine
hard” to obtain the “best terms in the severance what evidence would be available to Faber at
agreement”; the provision in the severance agreement trial—taking into account the mediation confidentiality
requiring disputes to be arbitrated by JAMS was statutes, federal and state injunctions, and attorney-client
“non-negotiable”; and the severance agreement was a privilege—and make a recommendation on Faber’s
“take it or leave it offer” that would have to sign motion to dismiss. petition for writ of mandate to
without changes because he “would not get a better overturn the appointment was denied. (No. B235941.)
severance agreement.” In addition, Faber neglected to
the working drafts of the severance Without ruling on pending discovery motions, the referee
agreement, explain the significance of adopting the found that neither party could proceed with the action due
“JAMS Rules” of arbitration, advise him to seek expert to inadmissibility of necessary evidence. In the referee’s
advice regarding the tax consequences of the severance view, all of the privileged or confidential information and
payment, submit disability claims on his behalf, and seek documents that obtained while serving as in-house
a disability leave from Toyota (which he claims would counsel were inadmissible in the prosecution of his action
have eliminated taxes on the severance payment). The against Faber. Similarly, all of the privileged or
prayer for damages included the attorney fees paid to confidential information and documents that Faber
Faber in the employment dispute ($950,000), taxes paid obtained while representing in the employment
on the severance payment ($950,000), and share dispute were inadmissible in his defense of the present
of the arbitration fees in the state and federal court action. The referee recommended dismissal based on the
actions. attorney-client privilege (citing Dietz, supra, 171
Cal.App.4th 771; Solin, supra, 89 Cal.App.4th 451) and
After Faber requested documents in possession mediation confidentiality statutes (citing Cassel, supra,
pertaining to the employment dispute, Toyota, a Cal.4th 113).
non-party, filed an ex parte application to stay production
of documents containing its confidential information. The trial court adopted the referee’s recommendation and
opposed the request for a stay, and filed a dismissed the action based on the attorney-client
declaration that contained Toyota’s confidential privilege. It reasoned that in order to prove his
information. Toyota moved to seal the declaration, malpractice claim, Biller must show he would have
arguing it contained confidential information protected by obtained a more favorable severance agreement in the
federal and state court injunctions, attorney-client underlying employment dispute (the “case within a case”)
privilege, and Business and Professions Code section in the absence of Faber’s alleged breaches of the duty of
6068, subdivision (e) argued that by hiring him for however, is unable to prove his “case within
the unlawful purpose of committing litigation fraud, a case” due to inadmissibility of Toyota’s confidential and
Toyota had forfeited the attorney-client privilege under privileged information. Similarly, Faber is unable to
the crime-fraud exception (§ 956). He filed redacted prove his defense. Accordingly, the court granted
copies of the documents and moved to produce them dismissal “on the ground that the attorney-client privilege
under seal.Based on federal and statecourt injunctions bars Defendant from adequately representing himself in
prohibiting disclosure of Toyota’s confidential this case.” A final judgment of dismissal was entered, and
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Biller v. Faber, Not Repor
this appeal followed. “promote[s] ‘a candid and informal exchange regarding
events in the past,” which “is achieved only if the
participants know that what is said in the mediation will
not be used to their detriment through later court
proceedings and other adjudicatory processes.’
DISCUSSION [Citations.]” (Ibid.) “To carry out the purpose of
encouraging mediation by ensuring confidentiality, [our]
contends the de novo standard of review is the statutory scheme ... unqualifiedlybars disclosure of” all
appropriate standard for this appeal. We agree. ( communications, writings, and settlement discussions
Citibank(1995) 11 Cal.4th 138, 145–146 Coshow v. City associated with a mediation “absent an express statutory
of Escondido (2005) 132 Cal.App.4th 687, 702–703 at p. 15.)
Before turning to the issue of mediation confidentiality, The mediation confidentiality statutes apply to all
which is dispositive, we briefly explain why communications, negotiations, or settlement discussions
assignments of error do not lead to a finding of reversible for the purpose of, in the course of, or pursuant to a
error. Even if we were to assume that on thisrecord, “mediation” or a “mediation consultation.” The
dismissal is not necessary to preserve Toyota’s principal confidentiality provision at issue in this case is
confidentiality as a matter of law, is not entitled to section 1119. Subdivision (a) of that section provides:
a reversal in the absence of prejudicial error. In order to “No evidence of anything said or any admission made for
establish prejudicial error,he must show the judgment is the purpose of, in the course of, or pursuant to, a
incorrect under any applicable theory of law, including mediation or a mediation consultation isadmissible or
the mediation confidentiality statutesand Cassel, supra, subject to discovery, and disclosure of the evidence shall
51 Cal.4th 113 Blumhorst v. Jewish Family Services not be compelled, in any arbitration, administrative
of Los Angeles (2005) 126 Cal.App.4th 993, 999 adjudication, civil action, or other noncriminal proceeding
[judgment may be affirmed on any basis presented by the in which, pursuant to law, testimony can be compelled to
record whether or not relied upon by trial court]; be given.” Subdivision (c) states:“All communications,
Schabarum v. California Legislature (1998) 60 negotiations, or settlement discussions by and between
Cal.App.4th 1205, 1216–1217 [because appellate court participants in the course of a mediation or a mediation
reviews trial court’s decision rather than its reasoning, its consultation shall remain confidential.”
ruling will be affirmed if correct, even if given for wrong
reason].) The purpose of section 1119 is to encourage “the
resolution of disputes by means short of litigation.”
We conclude this alternative theory of Cassel, supra, 51 Cal.4th at p. 132.) Section 1119 applies
dismissal—which was raised by Faber in the motion to in equal force during and after a mediation, and “prohibits
dismiss, adopted by the referee in his recommendation to any person, mediator and participants alike, from
grant the motion, and addressed by both parties in their revealing any written or oral communication made during
respective briefs on appeal—is properly before us. mediation.” (Foxgate, supra, 26 Cal.4th at p. 13 Amis v.
Greenberg Traurig LLP (2015) 235 Cal.App.4th 331, 338
[“Even after mediation ends, communications and
writings protected by the statutes are to remain
confidential. (§ 1126.)”].)
Mediation is intended to provide “a simplified and An unavoidable consequence of the confidentiality
economical procedure for obtaining prompt and equitable provisions is the increased difficulty of proving attorney
resolution” of disputes. (Code Civ. Proc., § 1775, subd. malpractice in the mediation context. In the
.) Because mediation may help “reduce the backlog of leading case on this subject, the plaintiff sued his former
cases burdening the judicial system,” the Legislature has attorneys for alleged malpractice in a prior mediation. (51
declared it is “in the public interestfor mediation to be Cal.4th at p. 118.) The defendants moved to exclude
encouraged and used where appropriate by the courts.” evidence of all confidential communications made during
Ibid. mediation. (§ 1119.) That motion was granted. The
plaintiff petitioned for a writ of mandate, which the
“[C]onfidentiality is essential to effective mediation.” appellate court granted. The Supreme Court reversed,
Foxgate Homeowners’ Assn. v. Bramalea California, holding that the plain terms of the mediation
Inc. (2001) 26 Cal.4th 1, 14 Foxgate ).) Confidentiality confidentiality statutesmust govern, “even though they
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Biller v. Faber, Not Repor
may compromise petitioner’s ability to prove his claim of on any confidential communications made during
legal malpractice. [Citations.]” ( 51 Cal.4th at pp. mediation, and hence the confidentiality provisions do not
118–119 apply. This claim conflates the confidentiality of
mediation-related communications with the mediation
explained that the confidentiality provisions were itself.According to section 1126, “[a]nything said, any
designed “to provide maximum protection for the privacy admission made, or any writing that is inadmissible,
of communications in the mediation context. A principal protected from disclosure, and confidential under this
purpose is to assure prospective participants that their chapter before a mediation ends, shall remain
interests will not be damaged, first,by attempting this inadmissible, protected from disclosure, and confidential
alternative means of resolution, and then, once mediation to the same extent after the mediation ends.”
is chosen, by making and communicating the candid
disclosures and assessments that are most likely to Regardless of ability to prove his case without
produce a fair and reasonable mediation settlement.” violating Toyota’s confidentiality, Faber has a right to put
Cassel, supra, 51 Cal.4th at pp. 132–133 on a defense. Because Faber is precluded from presenting
a defense due to inadmissibility of confidential
A confidential communication made during mediation communications under section 1119, that is a valid basis
will remain private unless all participants in the for dismissal.
communication agree to its disclosure. (Cassel, supra, 51
Cal.4th at p. 133.) In light of Toyota’s refusal to waive In order for Faber to explain his mediation strategy,he
confidentiality of its mediation-related communications, would have to present evidence of confidential
that evidence will be inadmissible at trial, even though the communications received during mediation regarding
parties are unable to proceed without it. “[T]here is no Toyota’s views on sensitive topics—such as its evaluation
‘attorney malpractice’ exception to mediation performance as in-house counsel, his future
confidentiality....”(Ibid.)“ ‘[I]fan exception is to be earning potential, and his right to a disability leave. But
made for legal misconduct, it is for the Legislature to do, Faber is precluded by section 1128 from relying on
and not the courts. [Citation.]’ ” (Ibid., quoting Wimsatt v. Toyota’s confidential communications at trial, and doing
Superior Court (2007) 152 Cal.App.4th 137, 163 so in violation of the confidentiality statut
Preview
BENJAMIN REAVIS ET AL., § IN THE DISTRICT COURT OF § Plaintiffs, § § § DALLAS COUNTY, TEXAS § TOYOTA MOTOR CORPORATION ET § , § § Defendants. § 134th DISTRICT COURT MOTION TO COMPEL Benjamin and Kristi Reavis (“the Reavises” or “ ”) submit this Motion to Compel and would show as follows: I. SUMMARY OF ARGUMENT Toyota Motor Corporation (“TMC” or, with its subsidiaries, “Toyota aggregates compendiums of information concerning Toyota’s safety design kn These compendiums have been referenced by different titles, such as “Books of Awareness of these compendiums only became public after a former in-house counsel whistleblower came forward and disclosed their existence Despite the public disclosure, Toyota still seeks to avoid disclosing the information in litigation. True to form, Toyota has not produced responsive information from these databases in this case. HAS WRONGFULLY failed TO PRODUCE DOCUMENTS FROM VARIOUS SAFETY DATABAS Toyota’s ex-attorney disclosed the existence of key databases of safety documents that have not been produced in this litigation. Mr. Dimitrios Biller is a licensed attorney in the State of California. His career has included working as an Assistant United States Attorney and a lengthy career in private practice MOTION TO COMPEL PAGE 1 at the Pillsbury Winthrop law firm defending products liability lawsuits. In 2003, Toyota Motor Sales USA, Inc. hired Biller as National Managing Counsel, placing him in charge of managing substantial Toyota litigation in the United States. In the spring of 2007, Biller resigned his position at Toyota. In short, Biller claimed he had been asked by Toyota to commit litigation fraud and felt compelled to resign. Biller filed a lawsuit against Toyota. In the summer of 2007, the parties went to mediation, where Biller’s complaints were settled for nearly $4 million in a settlement that resulted in a severance agreement from Toyota—after only four years of work and no apparent contractual entitlement to any such payment. Biller v. Faber, 2016 WL 1725185 (Cal. App. Apr. 27, 2016) (Exhibit A). After resigning from Toyota, Biller established a legal consulting business and created a website on which information about Toyota was posted. Upon learning of these and other disclosures, Toyota sued Biller in arbitration for breaching the confidentiality provision of the severance agreement. (Unsurprisingly, Toyota ultimately prevailed in that arbitration, since Biller clearly posted the incriminating documents on his website.) In the meantime, Biller had sued Toyota in federal court for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), constructive wrongful discharge, intentional infliction of emotional distress, and defamation. In this later complaint against Toyota, Biller states: For years, Defendants, Toyota Motor Corporation, its United States subsidiaries, and key Toyota executives, have conspired, and continue to conspire, to unlawfully withhold evidence from plaintiffs and obstruct justice and lawsuits throughout the United States against Toyota. Many of the plaintiffs in these lawsuits sustained catastrophic and fatal injuries in rollover accidents involving Toyota vehicles. Plaintiff Dimitrios P. Biller, the former National Managing Counsel in charge of MOTION TO COMPEL – PAGE 2 Toyota’s National Rollover Program, became aware of Toyota’s conspiracy to conceal, withhold, and destroy evidence and information, and obstruct justice, during his employment at Toyota. As Toyota’s in-house counsel in charge of managing some of the very cases in which Toyota was concealing evidence, Biller was in a unique position to know the relevance of the evidence and information that was concealed in the cases in which it was requested by plaintiffs in discovery. As Toyota’s managing counsel in those cases, Mr. Biller was ethically and legally obligated to turn over the evidence that Toyota had been concealing and withholding, and which it continues to conceal and withhold. Mr. Biller repeatedly confronted Toyota executives about the need to turn over the evidence it was concealing and withholding, and repeatedly was told by Toyota executives, including in-house counsel, that Toyota would not comply with its legal duty to do so. Despite Toyota’s resistance, Mr. Biller persisted in his efforts to convince Toyota to meet its ethical and legal obligations to turn over the evidence it was concealing and withholding. When it became clear to Toyota and its executives that Mr. Biller could not be dissuaded in his insistence, Toyota and its executives made every effort to prevent Mr. Biller from turning over, and even preserving, the damaging evidence the company so desperately sought to conceal. Mr. Biller was subjected to intimidation, harassment, and an uncertain future, both at Toyota and elsewhere, as a result of his efforts to comply with the legal and ethical obligations. Original Complaint, Biller v. TMS, Case No. 2:09-cv-05429-GHK-RZ (C.D. Cal. July 24, 2009) (Exhibit B). In particular, Biller observed that Toyota consciously refuses to produce documents “related to the ‘Books of Knowledge’ … and computer systems containing relevant information and ESI.” Exh. B, p.32. Biller also identified a computer database known as “MIK” which includes information about design problems encountered and addressed during the development of Toyota’s vehicles. (Exhibit C, not attached). Biller has complained that Toyota has withheld these databases from production in litigation. See Exhibits C & D (not attached). These internal complaints were disclosed to the MOTION TO COMPEL – PAGE 3 public in connection with a 2010 investigation by the United States Congress into Toyota’s conduct. See Exhibit E (not attached).1 As a matter of law, Toyota should properly be bound by Biller’s statements insofar as he was Toyota’s authorized representative at the time he made those statements. Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 98-99 (Tex. 1994) (discussing relevant agency law principles). In any event, there is substantial evidence which indicates the accuracy of Biller’s complaints. First, he remained in a senior in-house counsel position for more than a year after his internal complaints without any evident questioning of his veracity. Second, when Biller produced documents in response to Congressional subpoenas, the members of Congress who reviewed the information found it sufficiently compelling to warrant a formal investigation. Third, the culture described by Biller is corroborated by other incidents in which Toyota has been charged by the Department of Justice for deliberately deceiving federal regulators and defrauding consumers by issuing misleading statements about safety issues. (Exhibit F) These charges resulted in an agreement (the “Deferred Prosecution Agreement,” attached as Exhibit G) in which Toyota stipulated to regularly misleading federal regulators and the public about safety issues. An agreed “Statement of Facts,” in which Toyota confesses to its actionable conduct, is attached as Exhibit H. B. A general description of the missing documents Based on Biller’s reports, it is apparent that Toyota maintains databases in which information discussing safety issues, design issues, and potential alternative designs that 1 Out of an abundance of caution, Plaintiffs have not attached Exhibits C, D, and E to this Motion. However, Plaintiffs still anticipate offering them as evidence at a hearing on this Motion, at which time the Court can consider how the Exhibits should be treated under the provisions of Tex. R. Civ. P. 76a. MOTION TO COMPEL – PAGE 4 Toyota’s engineers have discussed and evaluated isstored and organized. The “organization” piece is important – according to Biller, Toyota maintains the databases in such a way that the databases can be usefully researched by Toyota personnel, e.g., searchable by component system. At different times and at different locations, various iterations of these databases have taken shape. Thus, at one point, the compendiums were called “Books of Knowledge.” At another point, Toyota stored documents in a database called “the MIK database.” C. The missing documents are relevant. The Reavises’ Petition alleges that their Lexus was defectively designed, that Toyota knew or should have known about the defects, and that Toyota unreasonably refused to adopt safer alternative designs. This Court previously found that Plaintiffs are entitled to broad discovery concerning these issues, including the production of ESI and other information that would exist in Toyota’s internal databases and the so-called “Books of Knowledge.” See Order (Nov. 2, 2017). If Toyota personnel have compiled materials related to seatback failures, crashworthiness issues, and design approaches that protect rear seat occupants, Plaintiffs must be permitted to discover those materials. As this Court previously acknowledged, it should not matter whether that information was created specifically for 2002 US-bound Lexus ES300 or not. Rather, Toyota has been compelled to produce information relating to (1) prior and subsequent Toyota platforms as well as (2) platform-independent information that reflects Toyota’s general awareness and understanding of design issues. Such information will allow Plaintiffs’ experts to evaluate the Reavises’ vehicle in the context of Toyota’s overall knowledge MOTION TO COMPEL – PAGE 5 concerning seatback design, crashworthiness, and safety issues. Moreover, databases like the MIK database and any information contained therein regarding design issues with seatback failures or occupant protection following a rear-end collision and “countermeasures” used to resolve such issues would go to the core liability issues in this case. Toyota’s own consideration of alternative designs would be key evidence on the feasibility (and, possible, the efficacy) of such designs. The same is true of any Customer Quality Engineering “CQE-J” or “CQE-LA” entries related to the ES300 and its seatback performance or design. The CQE department, based at TMC in Japan, monitors the performance of vehicles in the field around the globe and in the United States and strategizes regarding Toyota’s response to performance issues that may arise.2 D. The missing documents should fall within the scope of this Court’s prior Order. On November 2, 2017, this Court entered an Order that compelled Toyota to produce, inter alia, All reports, memoranda, and correspondence (including e-mails) in which any risk posed by rear-end collisions is discussed; All reports, memoranda, and correspondence (including e-mails) in which any risk posed by seatback failures is discussed; All reports, memoranda, and correspondence (including e-mails) in which the safety of alternative designs for the front seats and/or the restraint system is discussed. 2 For a description of the type of role that these entities play in Toyota’s internal assessment of possible “defective design” issues based on evidence discovered in the real world, see Exh. H, ¶¶5, 23, 37-38, 40. MOTION TO COMPEL – PAGE 6 documents at the deposition. Shibata produced some, but not all, of the documents he reviewed. Plaintiffs request an Order compelling the production of (1) the documents discussing the rearward deformation target and (2) any other documents that were reviewed by TMC’s corporate representative in preparation for the corporate representative deposition. B. Cost data On November 2, 2017, this Court expressly ordered Toyota to supplement their Response to Plaintiffs’ Interrogatory 4 by providing an answer which fully explains the cost to Toyota of the front seats used in the Reavises’ vehicle. Nevertheless, Toyota thumbed its nose at this Order by (1) re-urging its previously overruled objections and (2) stating that it could not locate any information that would allow it to comply with the Court’s Order. Contradicting this explanation, Shibata acknowledged in the corporate representative deposition that he could explain the costs of the front seats and, moreover, that he had reviewed documents which would allow him to make that calculation. Exhibit I (Dep. at 210- 12). Plaintiffs request that Toyota be compelled to comply with this Court’s prior Order by “fully explaining,” under oath, “the cost to Toyota of the front seats used in the Reavises’ vehicle.” IV. TOYOTA’S PROFIT MARGINS The Court ordered TMC to quantify the average “profit” made on the sale of 2002 ES300s sold in Texas. This information is directly relevant to assessing whether alternative MOTION TO COMPEL – PAGE 11 designs for Toyota’s seats and restraint systems were “economically feasible,” which is one of the statutory criteria established for design defect cases by Tex. Civ. Prac. & Rem. Code §82.005(b)(2). In essence, the question of economic feasibility turns on whether the expenses of the alternative designs make them cost-prohibitive. In response, Toyota has refused to produce responsive information. Instead, Toyota has asserted that the information should be protected by the “trade secrets privilege.” See TEX. R. EVID. 507. If Toyota intends to challenge the economic feasibility of alternative designs, then Plaintiffs are entitled to discovery concerning Toyota’s profit margins, since such evidence would be probative of whether the marginal costs, if any, of the alternative designs would truly render Toyota’s cars too expensive. This issue directly addresses one of the elements of Plaintiffs’ claims. If Toyota intends to dispute economic feasibility, it should be deemed to have waived any claim that its financial information is “privileged.” See TEX. R. EVID. 507 (noting Court’s power to order disclosure of confidential information in the interests of justice); In re Continental Gen. Tire, 979 S.W.2d 609, 612 (Tex. 1998) (orig. proceeding) (disclosure is appropriate when information is necessary for a “fair adjudication” of a party’s claims or defenses). Plaintiffs request that Toyota be compelled to disclose the responsive “profit” information, consistent with the requirements of Tex. R. Evid. 507. V. CONCLUSION AND PRAYER WHEREFORE, Plaintiffs request that Toyota be compelled to thoroughly search for the requested information, prove to the Court that such a search has been performed, and produce MOTION TO COMPEL – PAGE 12 to Plaintiffs that responsive materials from that search. Plaintiffs further request such other relief to which they may be entitled. Respectfully submitted, The Law Offices of Frank L. Branson P.C. /s/ Eric Stahl Frank L. Branson State Bar No. 02899000 Eric T. Stahl State Bar No. 00794685 18th Floor, Highland Park Place 4514 Cole Avenue Dallas, TX 75205-4185 Telephone: (214) 522-0200 Facsimile: (214) 521-5485 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF CONFERENCE I, the undersigned, hereby certify that Suzanne Sawyer, counsel for Toyota, and I conducted a conference on the 11th day of January, 2018, during which there was a substantive discussion of every item that is being presented to the Court in this motion and, despite best efforts, we have not been able to resolve the matters which are being presented. /s/ Eric Stahl CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing was served on all counsel of record via electronic means on the 16th day of January, 2018. /s/ Eric Stahl 2018 0116 motion to compel.doc MOTION TO COMPEL – PAGE 13 Biller v. Faber, Not Repor KeyCite Red Flag - Severe Negative Treatment Unpublished/noncitable April 27, 2016 2016 WL 1725185 FACTUAL AND PROCEDURAL BACKGROUND Not Officially Published (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) Plaintiff and appellant Dimitrios P. was employed Only the Westlaw citation is currently available. as in-house counsel for Toyota Motor Sales, U.S.A., Inc. During his employment, Biller came to believe he had California Rules of Court, rule 8.1115, restricts been hired by Toyota to commit litigation fraud. He felt citation of unpublished opinions in California courts. compelled to resign, and in June 2007 retained an attorney—defendant and respondent Michael Faber—to represent him in his employment dispute with Toyota. Second District, Division 4, California. The employment dispute was submitted to a mediator. At Dimitrios P. , Plaintiff and Appellant, the conclusion of the mediation hearing on August 9, 2007, the mediator provided “a ‘Mediator’s Proposal’ Michael FABER, Defendant and Respondent. containing settlement terms that included, among other things, a confidentiality provision and liquidated damages B244232 Faber advised to accept the mediator’s proposal, and offered to reduce his contingency fee from Filed April 27, 2016 40 percent to 25 percent. accepted the mediator’s proposal the following day. The proposal was reduced to As Modified on Denial of Rehearing May 16, 2016 a written severance agreement that signed on September 6, 2007. Under the terms of thatagreement, APPEAL from a judgment of the Superior Court of Los recovered almost $4 million from Toyota, of which Angeles County, Cesar Sarmiento, Judge. Affirmed. (Los $950,000 was paid to Faber as attorney fees. Angeles County Super. Ct. No. SC103362) After resigning from Toyota, established a legal Attorneys and Law Firms consulting business and created a website on which information about Toyota was posted. Upon learning of P. , in pro. per., for Plaintiff and these and other disclosures, Toyota sued in2008 Appellant. for alleged breaches of the confidentiality provision of the severance agreement. Toyota Motor Sales, U.S.A., Inc. v. Reback, McAndrews, Kjar, Warford, Stockalper & Dimitrios P. (Super. Ct. L.A. County, No. Moore, Cindy A. Shapiro James J. Kjar, and Evan N. SC100501) (state court action).) In 2009, sued Okamura; Nemecek & Cole, Jonathan B. Cole and Cindy Toyota in federal court for alleged violations of the A. Shapiro, for Defendant and Respondent. Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961 et seq.) (this claim was later Littler Mendelson, Alan B. Carlson and Fermin H. dismissed), constructive wrongful discharge, intentional Llaguno, for Toyota Motor Sales, U.S.A., Inc. as Amicus infliction of emotional distress, and defamation. ( v. Curiae on behalf of Defendant and Respondent. Toyota Motor Corporation (9th Cir.2012) 668 F.3d 655 (federal court action).) Opinion The state and federal court actions were submitted to joint EPSTEIN, P.J. arbitration under terms of the severance agreement. The arbitrator awarded Toyota $2.5 million in liquidated This is an appeal from a judgment dismissing a damages ($250,000 per violation of the confidentiality complaint for legal malpractice and breach of fiduciary provision) and $100,000 in punitive damages, and duty. We shall affirm based on the confidentiality of proposed a permanent injunction prohibiting from communications made in the course of mediation. disclosing Toyota’s confidential and privileged Evid.Code, § 1119 Cassel v. Superior Court (2011) 51 information. Cal.4th 113 Cassel ).) Toyota sought to confirm the arbitrator’s award in both WES'ILAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Biller v. Faber, Not Repor state and federal court actions. In each action, Toyota information, the trial court sealed declaration, obtained a judgment confirming the arbitrator’saward stayed the production of documents, and sealed the and a permanent injunction prohibiting disclosure of its confidential documents filed by confidential and privileged information. Both judgments were affirmed on appeal. ( v. Toyota Motor In light of these developments, Faber moved for Corporation, supra, 668 F.3d 655 Toyota Motor Sales, dismissal of the complaint. In his motion for dismissal, he U.S.A., Inc. v. (Mar. 23, 2012, B234763) [nonpub. argued that due to Toyota’s assertion of its privilege and opn.].) confidentiality of mediation, he was incapable of obtaining or using the evidence he would need to defend In the present action, is suing Faber for alleged himself at trial (citing Cassel, supra, 51 Cal.4th at p. 130 malpractice in the employment dispute and for breach of Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th fiduciary duty. (Dimitrios P. v. Michael Faber 771, 786 ); Solin v. O’Melveny & Myers (2001) 89 (Super.Ct.L.A.County, No. SC103362).) According to the Cal.App.4th 451, 568 Solin )). allegations of the second amended complaint, the operative pleading, Faber made numerous Over objection, the trial court appointed a referee misrepresentations to , including that Faber (Retired Judge David Horowitz) to manage and oversee specialized in employment litigation and would “negotiate discovery, rule on pending discovery motions, determine hard” to obtain the “best terms in the severance what evidence would be available to Faber at agreement”; the provision in the severance agreement trial—taking into account the mediation confidentiality requiring disputes to be arbitrated by JAMS was statutes, federal and state injunctions, and attorney-client “non-negotiable”; and the severance agreement was a privilege—and make a recommendation on Faber’s “take it or leave it offer” that would have to sign motion to dismiss. petition for writ of mandate to without changes because he “would not get a better overturn the appointment was denied. (No. B235941.) severance agreement.” In addition, Faber neglected to the working drafts of the severance Without ruling on pending discovery motions, the referee agreement, explain the significance of adopting the found that neither party could proceed with the action due “JAMS Rules” of arbitration, advise him to seek expert to inadmissibility of necessary evidence. In the referee’s advice regarding the tax consequences of the severance view, all of the privileged or confidential information and payment, submit disability claims on his behalf, and seek documents that obtained while serving as in-house a disability leave from Toyota (which he claims would counsel were inadmissible in the prosecution of his action have eliminated taxes on the severance payment). The against Faber. Similarly, all of the privileged or prayer for damages included the attorney fees paid to confidential information and documents that Faber Faber in the employment dispute ($950,000), taxes paid obtained while representing in the employment on the severance payment ($950,000), and share dispute were inadmissible in his defense of the present of the arbitration fees in the state and federal court action. The referee recommended dismissal based on the actions. attorney-client privilege (citing Dietz, supra, 171 Cal.App.4th 771; Solin, supra, 89 Cal.App.4th 451) and After Faber requested documents in possession mediation confidentiality statutes (citing Cassel, supra, pertaining to the employment dispute, Toyota, a Cal.4th 113). non-party, filed an ex parte application to stay production of documents containing its confidential information. The trial court adopted the referee’s recommendation and opposed the request for a stay, and filed a dismissed the action based on the attorney-client declaration that contained Toyota’s confidential privilege. It reasoned that in order to prove his information. Toyota moved to seal the declaration, malpractice claim, Biller must show he would have arguing it contained confidential information protected by obtained a more favorable severance agreement in the federal and state court injunctions, attorney-client underlying employment dispute (the “case within a case”) privilege, and Business and Professions Code section in the absence of Faber’s alleged breaches of the duty of 6068, subdivision (e) argued that by hiring him for however, is unable to prove his “case within the unlawful purpose of committing litigation fraud, a case” due to inadmissibility of Toyota’s confidential and Toyota had forfeited the attorney-client privilege under privileged information. Similarly, Faber is unable to the crime-fraud exception (§ 956). He filed redacted prove his defense. Accordingly, the court granted copies of the documents and moved to produce them dismissal “on the ground that the attorney-client privilege under seal.Based on federal and statecourt injunctions bars Defendant from adequately representing himself in prohibiting disclosure of Toyota’s confidential this case.” A final judgment of dismissal was entered, and WESTLRW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Biller v. Faber, Not Repor this appeal followed. “promote[s] ‘a candid and informal exchange regarding events in the past,” which “is achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.’ DISCUSSION [Citations.]” (Ibid.) “To carry out the purpose of encouraging mediation by ensuring confidentiality, [our] contends the de novo standard of review is the statutory scheme ... unqualifiedlybars disclosure of” all appropriate standard for this appeal. We agree. ( communications, writings, and settlement discussions Citibank(1995) 11 Cal.4th 138, 145–146 Coshow v. City associated with a mediation “absent an express statutory of Escondido (2005) 132 Cal.App.4th 687, 702–703 at p. 15.) Before turning to the issue of mediation confidentiality, The mediation confidentiality statutes apply to all which is dispositive, we briefly explain why communications, negotiations, or settlement discussions assignments of error do not lead to a finding of reversible for the purpose of, in the course of, or pursuant to a error. Even if we were to assume that on thisrecord, “mediation” or a “mediation consultation.” The dismissal is not necessary to preserve Toyota’s principal confidentiality provision at issue in this case is confidentiality as a matter of law, is not entitled to section 1119. Subdivision (a) of that section provides: a reversal in the absence of prejudicial error. In order to “No evidence of anything said or any admission made for establish prejudicial error,he must show the judgment is the purpose of, in the course of, or pursuant to, a incorrect under any applicable theory of law, including mediation or a mediation consultation isadmissible or the mediation confidentiality statutesand Cassel, supra, subject to discovery, and disclosure of the evidence shall 51 Cal.4th 113 Blumhorst v. Jewish Family Services not be compelled, in any arbitration, administrative of Los Angeles (2005) 126 Cal.App.4th 993, 999 adjudication, civil action, or other noncriminal proceeding [judgment may be affirmed on any basis presented by the in which, pursuant to law, testimony can be compelled to record whether or not relied upon by trial court]; be given.” Subdivision (c) states:“All communications, Schabarum v. California Legislature (1998) 60 negotiations, or settlement discussions by and between Cal.App.4th 1205, 1216–1217 [because appellate court participants in the course of a mediation or a mediation reviews trial court’s decision rather than its reasoning, its consultation shall remain confidential.” ruling will be affirmed if correct, even if given for wrong reason].) The purpose of section 1119 is to encourage “the resolution of disputes by means short of litigation.” We conclude this alternative theory of Cassel, supra, 51 Cal.4th at p. 132.) Section 1119 applies dismissal—which was raised by Faber in the motion to in equal force during and after a mediation, and “prohibits dismiss, adopted by the referee in his recommendation to any person, mediator and participants alike, from grant the motion, and addressed by both parties in their revealing any written or oral communication made during respective briefs on appeal—is properly before us. mediation.” (Foxgate, supra, 26 Cal.4th at p. 13 Amis v. Greenberg Traurig LLP (2015) 235 Cal.App.4th 331, 338 [“Even after mediation ends, communications and writings protected by the statutes are to remain confidential. (§ 1126.)”].) Mediation is intended to provide “a simplified and An unavoidable consequence of the confidentiality economical procedure for obtaining prompt and equitable provisions is the increased difficulty of proving attorney resolution” of disputes. (Code Civ. Proc., § 1775, subd. malpractice in the mediation context. In the .) Because mediation may help “reduce the backlog of leading case on this subject, the plaintiff sued his former cases burdening the judicial system,” the Legislature has attorneys for alleged malpractice in a prior mediation. (51 declared it is “in the public interestfor mediation to be Cal.4th at p. 118.) The defendants moved to exclude encouraged and used where appropriate by the courts.” evidence of all confidential communications made during Ibid. mediation. (§ 1119.) That motion was granted. The plaintiff petitioned for a writ of mandate, which the “[C]onfidentiality is essential to effective mediation.” appellate court granted. The Supreme Court reversed, Foxgate Homeowners’ Assn. v. Bramalea California, holding that the plain terms of the mediation Inc. (2001) 26 Cal.4th 1, 14 Foxgate ).) Confidentiality confidentiality statutesmust govern, “even though they WESTLRW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Biller v. Faber, Not Repor may compromise petitioner’s ability to prove his claim of on any confidential communications made during legal malpractice. [Citations.]” ( 51 Cal.4th at pp. mediation, and hence the confidentiality provisions do not 118–119 apply. This claim conflates the confidentiality of mediation-related communications with the mediation explained that the confidentiality provisions were itself.According to section 1126, “[a]nything said, any designed “to provide maximum protection for the privacy admission made, or any writing that is inadmissible, of communications in the mediation context. A principal protected from disclosure, and confidential under this purpose is to assure prospective participants that their chapter before a mediation ends, shall remain interests will not be damaged, first,by attempting this inadmissible, protected from disclosure, and confidential alternative means of resolution, and then, once mediation to the same extent after the mediation ends.” is chosen, by making and communicating the candid disclosures and assessments that are most likely to Regardless of ability to prove his case without produce a fair and reasonable mediation settlement.” violating Toyota’s confidentiality, Faber has a right to put Cassel, supra, 51 Cal.4th at pp. 132–133 on a defense. Because Faber is precluded from presenting a defense due to inadmissibility of confidential A confidential communication made during mediation communications under section 1119, that is a valid basis will remain private unless all participants in the for dismissal. communication agree to its disclosure. (Cassel, supra, 51 Cal.4th at p. 133.) In light of Toyota’s refusal to waive In order for Faber to explain his mediation strategy,he confidentiality of its mediation-related communications, would have to present evidence of confidential that evidence will be inadmissible at trial, even though the communications received during mediation regarding parties are unable to proceed without it. “[T]here is no Toyota’s views on sensitive topics—such as its evaluation ‘attorney malpractice’ exception to mediation performance as in-house counsel, his future confidentiality....”(Ibid.)“ ‘[I]fan exception is to be earning potential, and his right to a disability leave. But made for legal misconduct, it is for the Legislature to do, Faber is precluded by section 1128 from relying on and not the courts. [Citation.]’ ” (Ibid., quoting Wimsatt v. Toyota’s confidential communications at trial, and doing Superior Court (2007) 152 Cal.App.4th 137, 163 so in violation of the confidentiality statut