Ryan v. Garcia

• Decision Date: 22 August 1994
• Docket Number: No. C016773,C016773
• Citation: 27 Cal.App.4th 1006,33 Cal.Rptr.2d 158
• Court: California Court of Appeals
• Parties: Donald RYAN et al., Plaintiffs and Respondents, v. Ralph GARCIA, Defendant and Appellant.

Page 158

33 Cal.Rptr.2d 158

27 Cal.App.4th 1006

Donald RYAN et al., Plaintiffs and Respondents, v.Ralph GARCIA, Defendant and Appellant.

No. C016773.

Court of Appeal, Third District, California.

Aug. 22, 1994.

Sinclair, Wilson & Sinclair and Robert F. Sinclair, Roseville, for defendant and appellant.

Randy E. Thomas, Stockton, for plaintiffs and respondents.

NICHOLSON, Associate Justice.

May evidence of statements made during mediation be admitted in court to prove the parties orally settled the dispute?The trial court concluded it may.We disagree.Admission of such evidence violates the prohibition of Evidence Code section 1152.5 which protects statements made in mediation from use in litigation.Accordingly, we reverse.

FACTS AND PROCEDURE

In 1989, plaintiffs Donald and Richard Ryan purchased the Old Roseville Opera House from defendantRalph Garcia.Finding defects in the building, the Ryans sued Garcia for negligent construction and fraud.

The parties privately agreed to mediate the dispute and hired a mediator.The mediator drafted a confidentiality agreement, quoting subdivisions (a) and (b) of Evidence Code section 1152.5.¹The mediator and parties signed the agreement.

Mediation began at 10 a.m. and concluded about 2:30 p.m. on March 11, 1992.It appears the mediator conferred with the parties separately.Eventually, the mediator called the parties together and announced an agreement.For the next 15 minutes, someone, it is not clear who, stated the terms of that agreement.Garcia's attorney was assigned to reduce the agreement to writing, and the parties left the session feeling the case was settled.However, the parties later disagreed concerning the terms of the settlement, and no written agreement was ever executed.

The Ryans amended their pending complaint by adding a cause of action to enforce the oral settlement agreement.Recognizing a resolution of the new cause of action could eliminate the need to try the other causes of action, the parties agreed to a court trial on the oral settlement cause of action.

At trial, Garcia objected to the introduction of anything said during the March 11 meeting.He asserted it entailed statements made during mediation which are inadmissible under section 1152.5.The court overruled the objection as to statements made after the mediator announced the parties had an agreement.The court reasoned mediation ended when an agreement was reached, and the statement of the terms of the agreement was therefore not a part of mediation.Thus, the court admitted evidence of statements made at the end of the session on March 11.

After hearing the evidence, the court found the parties reached an oral settlement agreement on March 11, 1992.It further found the Ryans's evidence accurately reflected the terms of that agreement, disbelieving Garcia's version.The remaining causes of action were dismissed without prejudice, and judgment was entered in the Ryans's favor.Garcia appeals.

DISCUSSION

Generally, oral settlement agreements may be enforced in the same way oral contracts are enforced.If the plaintiff proves an oral settlement agreement by substantial evidence and the defendant proffers no valid defense, a court will enter judgment enforcing the oral agreement.(SeeNicholson v. Barab(1991)233 Cal.App.3d 1671, 1681, 285 Cal.Rptr. 441;Gorman v. Holte(1985)164 Cal.App.3d 984, 989, 211 Cal.Rptr. 34.)The issue here is whether the evidence used to prove the existence and terms of the oral settlement agreement was admissible.

In 1985, the Legislature enacted section 1152.5 which provides, in relevant part: "Evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence...."Section 1152.5 neither defines "mediation" nor delineates the boundaries of the process.The Law Revision Commission commented: "Section 1152.5 provides protection to information disclosed during mediation to encourage this alternative to a judicial determination of the action.The same policy that protects offers to compromise (Section 1152) justifies protection to information disclosed in a mediation."(SeeCal. Law Revision Com. com., Deering'sAnn.Evid.Code, § 1152.5(1986)p. 322.)²Accordingly, the public policy underlying section 1152.5 is to promote mediation as a preferable alternative to judicial proceedings by providing confidentiality.

"Confidentiality is absolutely essential to mediation.This is not simply to allow parties to keep their dispute out of the public limelight.It is essential for the parties to feel confident that anything they reveal privately to the mediator or in open mediation sessions cannot be used against them should the mediation fail.Otherwise, parties would be reluctant to make the kinds of concessions and admissions that pave the way to settlement."(Knight, Fannin & Disco, Cal.Practice Guide: Alternative Dispute Resolution (The Rutter Group 1993)§ 3:25, p. 3-5, italics in original.)

The operative phrase in section 1152.5 for our purposes is "in the course of the mediation."Statements made "in the course of the mediation" are inadmissible.(§ 1152.5, subd. (a)(1).)Adopting the trial court's reasoning, the Ryans contend the statements they introduced as evidence to prove the existence and terms of the settlement agreement were not made "in the course of mediation" because the mediation was successfully completed when the mediator convened the parties to recite the terms of the settlement.Because there was no explicit agreement between the parties to end the mediation before the recitation of the settlement, the Ryans's argument necessarily includes the notion mediation ends, as a matter of law, just before the parties state their agreement.They contend this must be so because, otherwise, settlements reached in mediation would be unenforceable.

Garcia's response is simple.He asserts the statements concerning the existence and terms of the settlement agreement were part of the mediation and, therefore, were inadmissible as evidence.He has the better argument, as we explain.

Heretofore, the appellate courts have not determined the scope of the confidentiality provided by section 1152.5 to statements made "in the course of the mediation."Hence, we must determine the intention of the Legislature.(Code Civ.Proc., § 1859.)

Using similar "in-the-course-of" language, Civil Code section 47 grants privileged status to statements made "in the initiation or course of any ... proceeding authorized by law....""This statute protects attorneys as well as judges, jurors, witnesses and other court personnel from liability arising from publication made in the course of a judicial proceeding.The policy underlying the privilege is that of affording to our citizens utmost freedom of access to the courts.As a consequence, attorneys are given broad protection from the threat of litigation arising from the use of their best efforts on behalf of their clients."(Younger v. Solomon(1974)38 Cal.App.3d 289, 300, 113 Cal.Rptr. 113.)"The privilege has been given broad application to further the public policies it is designed to serve."(Kupiec v. American Internat. Adjustment Co.(1991)235 Cal.App.3d 1326, 1331, 1 Cal.Rptr.2d 371;see alsoMoore v. Conliffe(1994)7 Cal.4th 634, 654, 29 Cal.Rptr.2d 152, 871 P.2d 204.)

Likewise, section 1152.5 must be interpreted broadly to serve its purpose, that is, to encourage the use of mediation by ensuring confidentiality.Judicial sifting of statements made at a confidential mediation to select those which can be used as evidence of an agreement contravenes the legislative intent underlying adoption of section 1152.5.Indeed, the risk of this judicial sifting would deter some litigants from participating freely and openly in mediation.As quoted above, the Law Revision Commission comment states the purpose of section 1152.5 is to promote mediation as an alternative to judicial proceedings.To condone further judicial proceedings to enforce oral agreements made during mediation directly undercuts the effect of the statute intended by the Legislature.

By using the broad phrase "in the course of the mediation,"the Legislature manifested its intent to protect a broad range of statements from later use as evidence in litigation.To establish arbitrary boundaries within the general process of "mediation," with a vague delineation between what is included and what is not included, is contrary to that intent and may not be inferred from the language of the statute.

Narrow interpretation of "in the course of the mediation" leads to anomalous results not intended by the Legislature.For example, under the interpretation urged by the Ryans, if the parties here had committed their settlement agreement to writing but failed to include in the writing a waiver of confidentiality, they could prove the settlement agreement by reciting their recollections of the oral agreement but could not introduce the written agreement because it was "prepared for the purpose of, or in the course of, or pursuant to, the mediation...."(§ 1152.5, subd. (a)(2).)Common sense dictates the Legislature did not intend to allow admission of an oral agreement while excluding a written memorial of the same agreement.

Furthermore, narrow interpretation would lead the trial court to filter the mediation proceedings to determine if any portion of the proceeding crossed the line from negotiation into agreement.This is the type of disclosure and use of statements made in mediation the confidentiality statute is meant to preclude.

Certainly, the confidentiality given to mediation must end at some point.However, in this context, we need not undertake the task of defining the boundaries of mediation.Instead, we merely determine that the statements made here among the parties and the mediator, at the time and in the place set for mediation, were well within "the course of the mediation," and,...