Doe 1 v. Superior Court

• Decision Date: 22 September 2005
• Docket Number: No. B180181.,B180181.
• Citation: 132 Cal.App.4th 1160,34 Cal.Rptr.3d 248
• Court: California Court of Appeals Court of Appeals
• Parties: DOE 1, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Roman Catholic Archbishop of Los Angeles, et al., Real Parties in Interest.

34 Cal.Rptr.3d 248

132 Cal.App.4th 1160

DOE 1, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Roman Catholic Archbishop of Los Angeles, et al., Real Parties in Interest.

No. B180181.

Court of Appeal, Second District, Division 8.

September 22, 2005.

Law Offices of Guzin & Steier and Donald H. Steier, Los Angeles, for Petitioners.

No appearance for Respondent.

Hennigan, Bennett & Dorman, J. Michael Hennigan, Donald F. Woods, Jr., and Jeffrey S. Koenig, Los Angeles, for Real Party in Interest The Roman Catholic Archbishop of Los Angeles.

Kiesel, Boucher & Larson, Raymond P. Boucher, Patrick DeBlase, Beverly Hills, and Anthony M. De Marco, for Real Parties in Interest and All Interested Plaintiffs.

RUBIN, J.

Petitioners — 26 Catholic priests — have asked us to stop the Los Angeles Archdiocese from disclosing written summaries made of the personnel records of numerous priests accused of sexually molesting minors. Because those summaries were prepared for purposes of an ongoing mediation process, contain admissions of liability by the Archdiocese, and reveal something about the mediation discussion, we agree that their disclosure would violate the mediation confidentiality privilege. (Evid.Code, § 1122, subd. (a)(2).) We therefore issue a writ prohibiting their release.

FACTS AND PROCEDURAL HISTORY

The Roman Catholic Bishop of Los Angeles is the principal defendant in nearly 500 lawsuits based on allegations that various priests committed acts of childhood sexual molestation on the plaintiffs.¹ In July 2003, Judge Peter D. Lichtman was appointed as the settlement and mediation judge. Shortly thereafter, the Archdiocese offered to prepare written summaries of its personnel and other files concerning more than 100 priests who had been identified as molesters by the Clergy Cases I plaintiffs.² The summaries, which the Archdiocese called "proffers," would allow disclosure for mediation and settlement purposes of the contents of its files to the extent they reflected notice to the Archdiocese of an accused priest's propensities toward child molestation before the alleged misconduct took place. Based on the contents of its files, the Archdiocese would, in some instances, concede the notice issue by stating that it would "not contend that it lacked notice of offender's sexual interest toward minors following this report." The purpose behind this procedure was to prevent disclosure of communications that the church believed were privileged and to avoid protracted litigation over certain constitutional and evidentiary privileges to the contents of the files that were asserted by the priests and the Archdiocese.

As part of this process, which the parties dubbed the "proffer protocol," retired Judge Lester E. Olson was appointed to assist Judge Lichtman. The Archdiocese prepared its proffers, then turned over to Judge Olson the proffers and the files from which the information was derived. Judge Olson cross-checked the contents of the files with the proffers to ensure that the summaries were accurate and complete. Proffers that were not accurate or complete were then revised by Judge Olson. At the end of this lengthy process, the completed proffers of 118 priests were placed in a sealed packet by Judge Olson and delivered to Judge Lichtman on November 15, 2004.

The proffers from the 26 priests-petitioners were included in the record of this writ proceeding. Each one lists the dates and locations of a priest's work assignments for the Archdiocese. As to some, a skeletal description of complaints concerning molestation or other sexually inappropriate behavior is set forth. Some also mention that a particular priest was referred for psychological treatment, including the locations of such treatment. A few mention treatment for other problems. Eight of the proffers include a statement by the Archdiocese that, as of the date of a certain sexual misconduct report, the Archdiocese would not contend it lacked notice of that priest's sexual interest in minors. From the start of this process, the Archdiocese made clear that it intended to release publicly the proffers once they were completed. Also from the start, counsel for petitioners, some of whom were named defendants, objected to the compilation and disclosure of the proffers on various grounds, including the constitutional right to privacy, the priest-penitent privilege, and the psychotherapist-patient privilege. Judge Lichtman issued orders overruling those objections because the church was turning over its files for settlement purposes only and because the priests' objections were not yet "implicated." Judge Lichtman also ruled that the information exchanged as part of the proffer process was covered by the mediation confidentiality privileges found in the Evidence Code. Petitioners agreed to defer a motion on the propriety of publicly disclosing the proffers until a later time.

In December 2004, after the proffer protocol was completed and public disclosure of the proffers appeared imminent, petitioners brought a motion for a protective order to halt the planned disclosure. In addition to the privacy and privilege issues raised before, the priests also objected that release of the proffers violated the mediation confidentiality privilege. (Evid.Code, § 1122.)³ When that motion was denied by trial Judge Haley J. Fromholz, the priests petitioned this court to reverse the trial court's order and stop any public disclosure of the proffers. After we summarily denied the petition, the California Supreme Court, acting on a petition for review of our decision, granted that petition, transferred the matter back to us with directions to issue an order to show cause why the petition should not be granted, and enjoined the Archdiocese from disclosing the proffers pending a further order from this court.

DISCUSSION

1. Disclosure of the Proffers Would Violate the Applicable Mediation Confidentiality Statutes

California's Legislature has a strong policy favoring mediation as an alternative to litigation. Because mediation provides a simple, quick, and economical means of resolving disputes, and because it may also help reduce the court system's backlog of cases, it is in the public interest to encourage its use. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 415, 15 Cal. Rptr.3d 643, 93 P.3d 260 (Rojas).) Confidentiality is considered essential to effective mediation because it allows for frank and candid discussions by the parties without fear that adverse information presented during a mediation will be used against them later. Therefore, one of the Legislature's fundamental means of encouraging mediation has been the enactment of mediation confidentiality provisions. To ensure confidentiality, the statutory scheme unqualifiedly bars disclosure of specified communications and writings associated with a mediation absent an express statutory exception. (Id. at pp. 415-416, 15 Cal.Rptr.3d 643, 93 P.3d 260.) This policy is expressed by section 1119, which provides, in relevant part: "(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."⁴

The applicable statutory exception to this rule is found in section 1122, subdivision (a), which provides that a communication or writing made or prepared for, in the course of, or pursuant to, a mediation, is not made inadmissible or protected from disclosure if either of the following conditions is satisfied: "(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.⁵ [¶] (2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation."

A. The Proceedings Below Were a Mediation, Not a Mandatory Settlement Conference

At oral argument, real parties contended for the first time that the process occurring below might not be a mediation at all, but instead might be a mandatory settlement conference under rule 222 of the California Rules of Court, and is therefore exempt from the mediation confidentiality rules. (§ 1117, subd. (b)(2).) As real parties stated during oral argument, the court used the terms "mediation" and "settlement" interchangeably when referring to the process taking place. We also recognize the conceptual difficulties in distinguishing between a mediation and a settlement conference when a bench officer is presiding at those talks. Because the record so clearly shows that the parties were mediating, we do not believe those abstract distinctions apply here. The initial case management order of September 15, 2003, discussed the effect of certain answers or demurrers "in the initial mediation phase" and "[w]hile these cases are in mediation." The September 5, 2003, order appointing Judge Olson states that Judge Lichtman was appointed to conduct settlement conferences and report to the court on the progress of the mediation. In the December 8, 2004, order denying petitioners' motion for a protective order, the trial court noted that the proffers were prepared "for purposes of mediation and settlement." The record is replete with numerous other references to an ongoing mediation. The court's interchangeable use of the term "settlement" does not lead to a contrary conclusion, especially considering that the obvious and commonsense intended result of a mediation is to reach a settlement. Nowhere in the record are Rules of Court rule 222 or the term "mandatory settlement conference" mentioned.

If counsel wish to avoid the effect of the...