Eisendrath v. Superior Court

• Decision Date: 30 May 2003
• Docket Number: No. B164245.,B164245.
• Citation: 134 Cal.Rptr.2d 716,109 Cal.App.4th 351
• Parties: John EISENDRATH, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Kathryn Pratt Rogers, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

134 Cal.Rptr.2d 716

109 Cal.App.4th 351

John EISENDRATH, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Kathryn Pratt Rogers, Real Party in Interest.

No. B164245.

Court of Appeal, Second District, Division 4.

May 30, 2003.

Freid and Goldsman, Gary J. Cohen, Los Angeles; Akin Gump Strauss Hauer & Feld, Edward P. Lazarus, L. Rachel Helyar and Jonathan Gottlieb, Los Angeles, for Petitioner.

No appearance for Respondent.

Trope and Trope, Thomas Paine Dunlap and Steven Knowles, Los Angeles, for Real Party in Interest.

Dunn Koes, Pamela E. Dunn and Daniel J. Koes, Pasadena, for Amici Curiae on behalf of Several Individual Mediators.

CURRY, J.

By petition for writ of mandate or prohibition, John Eisendrath seeks relief from orders of the trial court regarding his mediation confidentiality rights under Evidence Code sections 703.5 and 1115 et seq.

After Eisendrath filed a motion to correct a spousal support agreement reached through mediation, real party in interest Kathryn Pratt Rogers sought to depose the mediator. Eisendrath requested a protective order intended to bar discovery and evidence regarding mediation communications, with the exception of certain conversations between himself and Rogers that formed the basis of his motion to correct the spousal support agreement. The trial court found that Eisendrath had impliedly waived his confidentiality rights, denied the protective order, and decided to hold an in camera hearing on the mediator's potential testimony to determine whether it should be admitted.

We conclude that the trial court erred on these matters. However, we also conclude that unless Eisendrath and Rogers execute suitable express waivers, any protective order must also bar admission of all confidential conversations between Eisendrath and Rogers that may be cited in Eisendrath's motion to correct the spousal support agreement.

We therefore grant the relief requested in the petition in part, deny it in part, and remand for further proceedings.

RELEVANT PROCEDURAL BACKGROUND

Eisendrath and Rogers were married in 1992. Their marriage produced two children, Maxwell, born in 1992, and Samuel, born in 1997.

Eisendrath filed a petition for dissolution of marriage in February 1998. In February 2000, Eisendrath and Rogers began mediation with Ronald Rosenfeld as mediator.

Before commencing mediation, they executed a mediation agreement that expressly states that the mediation was governed by Evidence Code sections 703.5 and 1115 et seq. In addition, the mediation agreement provides: "We agree that what is said in our sessions with Ronald Rosenfeld will be treated as confidential information, and that all communications with Ronald Rosenfeld are privileged and not admissible in Court or subject to discovery. We further agree that Ronald Rosenfeld will not be called as a witness, nor will his notes and/or memoranda be subpoenaed by either of us in any legal proceeding. We further agree that Ronald Rosenfeld's notes and/or memoranda shall not be released to either of us under any circumstances, and Ronald Rosenfeld may destroy said materials at his discretion."

On April 22, 2002, the trial court filed a stipulated judgment of dissolution that contained orders regarding child custody and visitation, child support, and spousal support. Under the heading "Family Support," the judgment provides in paragraph 9.1: "[Eisendrath] is ordered to pay [Rogers] as non-taxable family support (child support and spousal support) $24,000 per month for 84 months commencing November 1, 2001 and continuing for a period of 83 months thereafter...." Furthermore, paragraph 9.1.g of the judgment provides: "If [Rogers] remarries, or cohabits with another person in a marital-like relationship, [Eisendrath] shall nevertheless remain obligated to pay [Rogers] the family support set forth in paragraph 9.1 above, but [Rogers] in her sole discretion may elect to modify or limit [Eisendrath's] remaining family support obligation by reducing the spousal support component (the sum of $14,000 per month)

Eisendrath and Rogers each remarried following the judgment of dissolution. On October 21, 2002, Eisendrath filed a motion to correct or reform the judgment under Code of Civil Procedure section 473,¹ and Family Code sections 2121 and 2122.² The motion contended that paragraphs 9.1 and 9.1.g of the judgment did not accurately reflect their agreement. According to the motion, Eisendrath "was not represented by counsel during the negotiation and execution of the" judgment, and he "missed language which was contrary to those provisions upon which the parties had already agreed."

In support of the motion, Eisendrath submitted a declaration that he was not represented by counsel while he and Rogers negotiated and executed the judgment. According to the declaration, "[b]efore and during the execution of the" judgment, they discussed generally how to "handle support in a way that would be most beneficial to both of [them] financially."

Regarding paragraph 9.1, Eisendrath stated that he specifically recalled one conversation prior to the signing of the judgment in which he and Rogers agreed that family support was to be taxable. Eisendrath further indicated that he had overlooked the term "non-taxable family support" when he reviewed and signed the judgment.

Regarding paragraph 9.1.g, Eisendrath stated that in "negotiations and conversations ... during the time period mediation was proceeding," he understood that he— and not Rogers—was to have the discretion to continue spousal support if Rogers remarried. According to Eisendrath, he and Rogers "discussed these provisions numerous times before and during the execution of the" judgment. Eisendrath further stated that upon Rogers's remarriage, she had expected him to continue to pay spousal support, even though this was "inconsistent with the position she took when we negotiated, signed and otherwise discussed those provisions of the" judgment.

On October 29, 2002, Rogers filed a motion for a continuance so that she could depose Rosenfeld. She stated that she was willing to waive her confidentiality rights regarding the mediation, and contended that Eisendrath had "constructively waived any privilege relating to settlement negotiations and mediation" by discussing these matters in his declaration. She also indicated that Rosenfeld had asserted "the mediation privilege," and would not agree to be deposed.

Eisendrath opposed this motion, and requested a protective order barring Rosenfeld's deposition, discovery into the mediation, and admission of any communication during the mediation sessions. He argued that his motion to correct or reform the judgment rested solely on conversations with Rogers outside the mediation sessions. Although he conceded that these conversations did not represent "the totality of the discussions," he stated that he would not rely on discussions within the scope of mediation confidentiality.

Furthermore, Eisendrath contended that the confidentiality statutes and confidentiality provision of the mediation agreement barred Rogers's discovery. According to Eisendrath, in addition, his confidentiality rights under Evidence Code section 1115 et seq., could not be waived absent his express consent, which he had not given, and that Evidence Code section 703.5 barred testimony from Rosenfeld.

Following a hearing, the trial court filed an order on January 8, 2003 that: (1) denied Eisendrath's request for a protective order; (2) found that Eisendrath and Rogers had impliedly waived the mediation privilege in Evidence Code section 1115 et seq., and their right to assert Rosenfeld's immunity under Evidence Code section 703.5; and (3) ordered an in camera hearing to determine whether Rosenfeld should be compelled to testify.³

Petitioner filed his petition and request for a stay on January 16, 2003. On February 21, 2003, we issued an order to show case and a temporary stay.

DISCUSSION

Eisendrath contends that the trial court erred (1) in finding that he had impliedly waived his confidentiality rights under Evidence Code section 1115⁴ et seq., and (2) in ordering an in camera hearing to assess potential testimony from Rosenfeld, notwithstanding section 703.5. He argues that the statutes governing mediation confidentiality do not permit implied waivers of confidentiality rights, and bar testimony from Rosenfeld.

Rogers disagrees, contending that Eisendrath's statutory confidentiality rights are akin to the statutory privileges defined in section 910 et seq. These privileges can be waived by conduct amounting to consent (§ 912, subd. (a)), and in some cases, by the tendering of claims that raise issues within the scope of the pertinent privilege (§§ 958, 984, 1001, 1020). Rogers argues that unless Eisendrath's confidentiality rights are subject to these implied waiver principles, he will seek to alter their spousal support agreement while unfairly preventing her from presenting evidence regarding the negotiation of that agreement. Similarly, she argues that testimony from Rosenfeld is necessary for proper resolution of Eisendrath's motion to correct the agreement.

The trial court agreed with Rogers on these matters. In our view, this was error. As we explain below, confidential mediation communications are not admissible absent Eisendrath's express consent (see pt. B.2.a., post), and testimony from Rosenfeld is absolutely barred under the circumstances of this case (see pt. C, post).

Nonetheless, we also conclude that Eisendrath's motion to correct the judgment itself relies wholly, or in large measure, on confidential mediation communications that are admissible only with the parties' express consent (see pt. B.2.b., post). We will therefore remand the matter to the trial court to give the mediation participants (including, if necessary, Rosenfeld) an opportunity to enter express waivers regarding the confidential communications relevant...