Supreme Court of California Justia
Citation 44 Cal. 4th 570, 187 P.3d 934, 80 Cal. Rptr. 3d 83

Simmons v. Ghaderi

Filed 7/21/08

IN THE SUPREME COURT OF CALIFORNIA

MICHELLE SIMMONS, as Personal
Representative, etc., et al.,
Plaintiffs
and
Respondents,
S147848
v.
Ct.App. 2/3 B180735
LIDA GHADERI,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BC270780

Evidence Code section 1115 et seq.1 sets forth an extensive statutory
scheme protecting the confidentiality of mediation proceedings, with narrowly
delineated exceptions. In this breach of contract action arising from a medical
malpractice suit, plaintiffs sought to enforce an oral settlement agreement
allegedly formed during mediation. During pretrial proceedings, the doctor
stipulated to, and submitted evidence of, events which had occurred during
mediation, arguing that no enforceable contract was formed during mediation. For
the first time at trial, the doctor invoked the mediation confidentiality statutes to
prevent plaintiffs from introducing evidence relating to the mediation proceedings.
Over the doctor’s objection, the trial court admitted the evidence.

1
All further statutory references are to the Evidence Code.
1


A majority of the Court of Appeal held that, despite the statutory
confidentiality protections, the doctor was judicially estopped from arguing that
evidence of the settlement agreement is statutorily inadmissible; she “placed
before the trial court the facts of the mediation and sought a legal determination as
to their effect.” We conclude that the Court of Appeal improperly relied on the
doctrine of estoppel to create a judicial exception to the comprehensive statutory
scheme of mediation confidentiality and that the evidence relating to the mediation
proceedings should not have been admitted at trial.
I. FACTUAL AND PROCEDURAL HISTORY
On March 27, 2002, plaintiffs (the minor son and mother of Kintausha
Clemmons) filed a wrongful death complaint against defendant Dr. Lida Ghaderi,
alleging that her medical malpractice caused the death of Kintausha Clemmons.
Cooperative of American Physicians, Inc./Mutual Protection Trust (CAP-MPT)
was defendant’s medical malpractice insurance provider.
On July 9, 2003, the parties attended a mediation with the Honorable
Robert T. Altman, retired. Plaintiffs and their counsel appeared. Defendant was
present with a CAP-MPT claims specialist, the CAP-MPT attorney, and Cumis
counsel.2 Under the provisions of her professional liability policy with CAP-
MPT, defendant had the right to withhold her consent to the settlement of any
third party malpractice claim. At the request of the mediator, before the beginning
of settlement discussions, defendant executed a standard consent-to-settlement
form provided by CAP-MPT. This document authorized CAP-MPT to negotiate a

2 Cumis counsel refers to independent counsel provided to an insured by an
insurer contesting coverage, but still providing a defense. (San Diego Federal
Credit Union v. Cumis Ins. Society, Inc
. (1984) 162 Cal.App.3d 358, 364; (Civ.
Code, § 2860.)
2


settlement on defendant’s behalf, with the settlement value limited to $125,000.
The document also stated that defendant’s consent to settlement could only be
revoked in writing and would remain in force until a written revocation was
received by CAP-MPT at its offices.
The parties then engaged in settlement discussions while defendant waited
in another room with Cumis counsel. At one point, CAP-MPT instructed Judge
Altman to offer plaintiffs $125,000 to settle the matter in exchange for a dismissal
with prejudice and a waiver of costs. Plaintiffs orally accepted the offer. Judge
Altman then placed the essential terms of the settlement into a document for the
parties to sign. When defendant was informed that the case had settled, she
declared that she was revoking her consent and left the building without signing
the settlement agreement. The claims specialist, unsure of how to proceed,
contacted the CAP-MPT office and learned that CAP-MPT would consider
defendant’s oral revocation of her consent valid. Plaintiffs and their counsel
signed the settlement agreement, but no one signed on behalf of defendant or
CAP-MPT.
The following day, plaintiffs’ attorney and CAP-MPT’s attorney appeared
in court and sought guidance. Both counsel recounted the facts of the mediation to
the court, including defendant’s written consent to settle for $125,000, the offer in
that amount, the acceptance of the offer, and defendant’s departure while the
settlement was being reduced to writing. The trial court speculated that there may
be an enforceable oral settlement agreement. Accordingly, the trial court vacated
the trial date and set the matter for an order to show cause why the case should not
be dismissed.
On July 16, 2003, defendant sent CAP-MPT a letter formally revoking her
consent to settle.
3
At the July 29, 2003, dismissal hearing, defendant spoke with the trial
court. The court stated on the record that defendant was unwilling to consent to
the settlement, but then suggested that plaintiffs move to enforce the settlement
under Code of Civil Procedure section 664.6.3
On August 15, 2003, plaintiffs moved to enforce the settlement on the
ground that an oral agreement had been reached with CAP-MPT while CAP-MPT
had defendant’s consent to settle the action. Plaintiffs supported their motion with
a copy of defendant’s signed consent to settle, the written settlement agreement
prepared by Judge Altman and signed only by plaintiffs and their counsel, and
declarations from plaintiffs’ attorney and the mediator setting forth the events at
the July 9 mediation.
In opposing plaintiffs’ motion to enforce, defendant did not dispute their
factual representations regarding the mediation. Instead, arguing the legal effect
of those facts, she claimed that the settlement could not be enforced because it did
not meet the requirements of Code of Civil Procedure section 664.6. Defendant
argued that no agreement had been consummated; she had not signed the written
settlement agreement and had withdrawn her consent, and therefore CAP-MPT
had no authority to execute a settlement agreement on her behalf. The trial court
denied the motion to enforce settlement. It found that, because neither defendant
nor CAP-MPT had signed the written agreement, the requirements of Code of
Civil Procedure section 664.6 had not been met. However, it noted there might be

3
Code of Civil Procedure section 664.6 states, “If parties to pending
litigation stipulate, in a writing signed by the parties outside the presence of the
court or orally before the court, for settlement of the case, or part thereof, the
court, upon motion, may enter judgment pursuant to the terms of the settlement. If
requested by the parties, the court may retain jurisdiction over the parties to
enforce the settlement until performance in full of the terms of the settlement.”
4


an enforceable oral contract and suggested plaintiffs amend their complaint to
allege breach of contract.
Following the trial court’s suggestion, plaintiffs amended their complaint to
add a cause for breach of contract and alleged that defendant breached an oral
settlement agreement reached during mediation. Plaintiffs served a request for
admissions on defendant and deposed her. In response to this discovery and in her
motion for summary adjudication of the breach of contract cause, defendant did
not dispute the events that had occurred during the mediation. Indeed, in a
declaration appended to her motion, defendant proffered that she had signed a
written consent for CAP-MPT to settle, her counsel had made a $125,000
settlement offer to plaintiffs, and she had revoked her consent without executing
the settlement agreement.
The trial court denied defendant’s motion for summary adjudication of the
breach of contract cause of action and granted plaintiffs’ motion to sever the
breach of contract and medical malpractice claims. The case proceeded to trial
only on the breach of contract cause.
On October 6, 2004, nearly 15 months after the mediation, defendant filed
her trial brief. For the first time, she asserted that the mediation confidentiality
statutes precluded plaintiffs from proving the existence of an oral settlement
agreement. Defendant’s trial brief raised no other issue.
At a bench trial, over defendant’s objection, plaintiffs submitted the
following documents relating to the mediation: (1) the consent to settlement
signed by defendant; (2) the settlement agreement prepared by Judge Altman; (3)
defendant’s letter revoking her consent to settlement; (4) defendant’s deposition
testimony; (5) the deposition testimony of the CAP-MPT claims specialist; and (6)
a declaration from Judge Altman. The parties agreed to almost everything that had
occurred at the mediation, except what the CAP-MPT claims specialist did once
5
defendant had refused to sign the document. Over defendant’s objection, the
CAP-MPT claims specialist testified about the events of the mediation.
The trial court concluded that plaintiffs and defendant’s agent, acting
within his authority as evidenced by defendant’s signed consent agreement, had
entered into a valid, enforceable oral contract before defendant withdrew her
consent. It ordered specific performance of the agreement and entered judgment
in favor of plaintiffs for $125,000, plus prejudgment interest.
In a two-to-one decision, the Court of Appeal affirmed the trial court’s
judgment. The majority held that a valid oral agreement had been reached during
mediation. It further held that, because defendant had presented evidence of the
occurrences at the mediation and failed to object to plaintiffs’ use of these facts
during pretrial motions, she was estopped from asserting mediation
confidentiality. In his dissent, Justice Aldrich maintained that the mediation
confidentiality statutes prevented plaintiffs from proving the existence of an oral
settlement agreement, that the majority’s focus on estoppel was “a veiled attempt
at relabeling waiver as estoppel,” and that a party cannot impliedly waive
mediation confidentiality through litigation conduct.
We granted defendant’s petition for review to determine if she could be
estopped from objecting to the admission of evidence proving the existence of an
oral settlement agreement reached during mediation proceedings.
II. DISCUSSION
Defendant contends that the Court of Appeal majority improperly relied on
the doctrine of estoppel to create a judicial exception to the statutory requirements
of confidentiality of mediation proceedings. (§ 1115 et. seq.) As explained
below, we agree.
6
1. The Mediation Confidentiality Statutes
In 1997, the Legislature adopted the California Law Revision
Commission’s (Commission) recommendations and revised the mediation
confidentiality statutes. (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194-196 (Fair).)
It enacted section 1115 et seq., creating an extensive statutory scheme governing
mediation confidentiality and its exceptions. (Fair, supra, at pp. 194-196.)
“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.
[Citation.]” (Doe 1 v. Superior Court (2005) 132 Cal.App.4th 1160, 1165.) The
Legislature designed the mediation confidentiality statutes to “promote ‘a candid
and informal exchange regarding events in the past . . . . This frank exchange 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.’ [Citations.]” (Foxgate Homeowners’ Assn., Inc. v. Bramalea
California, Inc. (2001) 26 Cal.4th 1, 14 (Foxgate).) “[C]onfidentiality is essential
to effective mediation . . . .” (Ibid.)
Section 1119 governs the general admissibility of oral and written
communications made during the mediation process. It “prohibits any person,
mediator and participants alike, from revealing any written or oral communication
made during mediation.” (Foxgate, supra, 26 Cal.4th at p. 13.) Section 1119,
subdivision (a) states, in pertinent part, that: “Except as otherwise provided in this
chapter: [¶] (a) No evidence of anything said or any admission made for the
purpose of, in the course of, or pursuant to, a mediation . . . is admissible or
subject to discovery, and disclosure of the evidence shall not be compelled, in
any . . . civil action . . . .”
7
Similarly, section 1119, subdivision (b) states, in pertinent part, that:
“Except as otherwise provided in this chapter: [¶] . . . [¶] No writing . . . that is
prepared for the purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation, is admissible or subject to discovery, and disclosure of the
writing shall not be compelled, in any . . . civil action. . . .” Section 1119,
subdivision (c) further mandates that “All communications, negotiations, or
settlement discussions by and between participants in the course of a
mediation . . . shall remain confidential.”
Sections 1122 and 1124 specifically lay out exceptions for the admission of
evidence produced during mediation. As relevant here, section 1122, subdivision
(a)(1) provides that “[a] communication or a writing . . . that is made or prepared
for the purpose of, or in the course of, or pursuant to, a mediation or a mediation
consultation, is not made inadmissible, or protected from disclosure, by provisions
of this chapter if . . . the following condition[] 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.”
Section 1124 specifies that an oral agreement made in the course of, or
pursuant to, a mediation is not made inadmissible, or protected from disclosure, if
certain conditions involving section 1118 are satisfied.4 Oral agreements in
4 Section
1124
states:
“An oral agreement made in the course of, or pursuant to, a mediation is not
made inadmissible, or protected from disclosure, by the provisions of this chapter
if any of the following conditions are satisfied:
“(a) The agreement is in accordance with Section 1118.

(footnote continued on next page)
8


accordance with section 1118 occur when: (a) the oral agreement is recorded by a
court reporter, tape recorder, or other reliable means of sound recording; (b) the
terms of the oral agreement are recited on the record in the presence of the parties
and the mediator, and the parties express on the record that they agree to the terms
recited; (c) the parties to the oral agreement expressly state on the record that the
agreement is enforceable or binding or words to that effect; and (d) the recording
is reduced to writing and the writing is signed by the parties within 72 hours after
it is recorded.
The legislative scheme also provides rules for the use of written settlement
agreements produced during mediation. Section 1123 protects the confidentiality
of any written agreement made during mediation unless the parties expressly agree
to disclosure or the agreement is used to show fraud, duress, or illegality.5

(footnote continued from previous page)

“(b) The agreement is in accordance with subdivisions (a), (b), and (d) of
Section 1118, and all parties to the agreement expressly agree, in writing or orally
in accordance with Section 1118, to disclosure of the agreement.
“(c) The agreement is in accordance with subdivisions (a), (b), and (d) of
Section 1118, and the agreement is used to show fraud, duress, or illegality that is
relevant to an issue in dispute.”

5 Section
1123
reads:
“A written settlement agreement prepared in the course of, or pursuant to, a
mediation, is not made inadmissible, or protected from disclosure, by provisions of
this chapter if the agreement is signed by the settling parties and any of the
following conditions are satisfied:
“(a) The agreement provides that it is admissible or subject to disclosure, or
words to that effect.

(footnote continued on next page)
9


Further, statements made during mediation and mediation materials are
confidential not only during the mediation, but also after the mediation ends.
Section 1126 clarifies that “[a]nything said, any admission made, or any writing
that is inadmissible, protected from disclosure, and confidential under this chapter
before a mediation ends, shall remain inadmissible, protected from disclosure, and
confidential to the same extent after the mediation ends.”
In addition to the unambiguous language of the mediation confidentiality
statutes, the Commission’s comments further demonstrate that the Legislature
intended to apply confidentiality broadly and to limit any exceptions to
confidentiality to narrowly prescribed statutory exemptions. (Fair, supra, 40
Cal.4th at p. 195 [the “Commission’s official comments are deemed to express the
Legislature’s intent”].) The Commission’s comment to section 1124 states
explicitly that the section sets forth specific circumstances under which mediation
confidentiality is inapplicable to an oral agreement reached through mediation.
Except in those circumstances, sections 1119 and 1124 codify the rule of Ryan v.
Garcia (1994) 27 Cal.App.4th 1006 (Ryan) (mediation confidentiality applies to
oral statement of settlement terms) and reject the contrary approach of Regents of
the University of California v. Sumner (1996) 42 Cal.App.4th 1209 (Regents)

(footnote continued from previous page)

“(b) The agreement provides that it is enforceable or binding or words to
that effect.
“(c) All parties to the agreement expressly agree in writing, or orally in
accordance with Section 1118, to its disclosure.
“(d) The agreement is used to show fraud, duress, or illegality that is
relevant to an issue in dispute.”
10


(mediation confidentiality does not protect oral statement of settlement terms).
(Cal. Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code (2008 supp.)
(hereafter Cal. Law Rev. Com.) foll. § 1124, p. 257.)
As noted in the Commission’s comment, with section 1124 the Legislature
created a specific mechanism for the admission of evidence regarding oral
settlement agreements made during mediation. This mechanism was created in
reaction to two conflicting Court of Appeal decisions, Ryan and Regents.
In
Ryan, supra, 27 Cal.App.4th at page 1013, the Court of Appeal held that
under former section 1152.5 (now section 1119), evidence offered to prove the
terms of an oral settlement agreement reached during mediation was inadmissible
because it did not meet statutory requirements. In Ryan, the parties went to
mediation, agreed to a compromise, and orally recited the terms of the agreement.
(Id. at pp. 1008-1009.) The agreement, however, was never reduced to writing,
and the defendant later contested the terms of the settlement. (Ibid.) The plaintiffs
amended their complaint to add a cause of action to enforce the oral settlement.
(Id. at p. 1009.) Over defendant’s objections, the trial court admitted evidence of
the oral recitation of the settlement terms to prove the existence of an agreement.
(Ibid.) The court reasoned that once the mediator announced the compromise,
statements made thereafter were not produced in the course of mediation and were
not protected under section 1152.5. (Ryan, at p. 1009.)
The defendant appealed, claiming the statements concerning the existence
and terms of the settlement agreement were part of the mediation and therefore
inadmissible. (Ryan, supra, 27 Cal.App.4th at p. 1010.) Noting that former
section 1152.5 should be broadly interpreted to ensure confidentiality, the Court of
Appeal held that the oral statements made after the announced compromise were
made in “the course of mediation.” (Ryan, at p. 1013.) The court rejected the
plaintiffs’ argument that such interpretation of the statutory scheme would divest
11
mediation of its intended usefulness, and it noted that the statutes provided a
procedural mechanism to protect confidentiality and simple and clear means for
enforcement of agreed-upon settlements. (Id. at p. 1012.)
Subsequently,
in
Regents, supra, 42 Cal.App.4th 1209, the Court of Appeal
declined to follow Ryan and held that former section 1152.5 did not bar
introduction of oral statements evidencing a settlement made after a compromise
had been achieved. Although the Court of Appeal acknowledged its decision
contradicted Ryan, it nonetheless concluded that a trial court could admit evidence
of oral statements made after a compromise had been reached. (Regents, supra, 42
Cal.App.4th at p. 1213.)
The
Regents rule, however, was expressly rejected by the Legislature when
it revised the mediation confidentiality statutes. The Commission’s comment to
section 1124 provides that, except when the requirements expressly laid out in
sections 1124 and 1118 are met, sections 1119 and 1124 together codify the rule
of Ryan and reject Regents. (Cal. Law Rev. Com., supra, foll. § 1124, p. 257.)
Section 1119 is more expansive than its predecessor, former section 1152.5.
Section 1119, subdivision (a), extends to oral communications made for the
purpose of or pursuant to a mediation, not just oral communications made in the
course of the mediation. (Cal. Law Rev. Com., supra, foll. § 1119, p. 241.) It also
explicitly applies in a subsequent arbitration or administrative adjudication, as
well as in any civil proceeding. (Ibid.) Recognizing both the breadth and clarity
of the mediation confidentiality statutes, we have concluded that the legislative
scheme is clear and unambiguous, and that the Legislature intended for mediation
confidentiality to apply according to the statutory rules. (Foxgate, supra, 26
Cal.4th at p. 14.) Thus, mediation confidentiality now clearly applies to prohibit
admissibility of evidence of settlement terms made for the purpose of, in the
12
course of, or pursuant to a mediation unless the agreement falls within express
statutory exceptions. (§ 1119, subd. (a).)
In the present case, an oral agreement may have been reached between
defendant’s insurer and plaintiffs during the mediation; however, the parties did
not follow the statutory procedures that would have made this agreement
admissible. Specifically, no form of recordation of the oral agreement exists, nor
is there a written agreement signed by both parties. (§§ 1118, 1122, 1124.) The
agreement as memorialized by Judge Altman is similarly inadmissible under
sections 1119, 1122, and 1123, as there was no express agreement that it
could be disclosed, and it was not signed by defendant or her attorneys. The Court
of Appeal and the parties do not dispute that evidence of the oral settlement
agreement was inadmissible under the statutory requirements.
2. Judicially Created Exceptions to Mediation Confidentiality
Nevertheless, the Court of Appeal majority relied on the doctrine of
estoppel to “prevent a litigant from tardily relying on mediation confidentiality to
shield from the court facts which she had stipulated to be true and had extensively
litigated without raising such bar.” The dissenting opinion noted, however, that,
“[b]y focusing on estoppel, the majority in essence is attempting to create a new
exception to the comprehensive scheme.” We agree with this latter
characterization.
On limited occasions, courts have crafted exceptions to mediation
confidentiality and compelled mediators to testify in civil actions. However, those
instances are very limited. In Rinaker v. Superior Court (1998) 62 Cal.App.4th
155, 167, the court compelled a mediator to testify because it found that a minor’s
due process right to confrontation of witnesses outweighed the statutory right to
mediation confidentiality. In Olam v. Congress Mortgage Co. (N.D.Cal. 1999) 68
13
F.Supp.2d 1110, 1118-1119, 1129, the parties themselves expressly waived
confidentiality. Because of this waiver, the court found that the policy driving
mediation confidentiality had appreciably less force. (Id. at p. 1133.)
Except in cases of express waiver or where due process is implicated, we
have held that mediation confidentiality is to be strictly enforced. In Foxgate, we
addressed the general validity of judicially crafted exceptions to mediation
confidentiality. (Foxgate, supra, 26 Cal.4th 1.) There, the Court of Appeal found
an exception to section 1119 that would allow a mediator to report a party’s failure
to participate in good faith in the mediation process. (Foxgate, supra, 26 Cal.4th
at p. 9.) We held that the Court of Appeal erred in judicially creating an exception
to section 1119. Distinguishing Rinaker and Olam, we noted that where a
supervening due process right is not implicated or where no express waiver of
confidentiality exists, judicially crafted exceptions to mediation confidentiality are
not appropriate. (Foxgate, at pp. 15-17.) To this end, we announced that in order
“[t]o carry out the [legislative] purpose of encouraging mediation by ensuring
confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of
communications made during mediation absent an express statutory exception.”
(Id. at p. 15, fn. omitted.) Further, judicial construction of unambiguous statutes is
appropriate only when literal interpretation would yield absurd results. (Id. at p.
14.)
In deciding whether a judicial exception was appropriate to carry out the
Legislature’s goals, we observed that with the enactment of the mediation
confidentiality statutes, the Legislature contemplated that some behavior during
mediation would go unpunished. (Foxgate, supra, 26 Cal.4th at p. 17.) The
Legislature was also presumably aware that general sanctions statutes permit
punishing bad faith conduct. Considering this, we reasoned we were bound to
respect the Legislature’s policy choice to protect mediation confidentiality rather
14
than create a procedure that encouraged good faith participation in mediation.
Thus, we held that evidence of a party’s bad faith during the mediation may not be
admitted or considered. (Ibid.)
We subsequently reaffirmed that the mediation confidentiality statutes
unqualifiedly bar disclosure of certain communications and writings produced in
mediation absent an express statutory exception. (Rojas v. Superior Court (2004)
33 Cal. 4th 407 (Rojas).) In Rojas, the Court of Appeal concluded that, like work
product, certain derivative materials exchanged during mediation were
discoverable on a good cause showing. (Id. at p. 414.) Rejecting this conclusion,
we noted that section 2018 of the Code of Civil Procedure codified the good cause
exception to the work product doctrine; the Legislature clearly knew how to enact
a statutory good cause exception to the mediation confidentiality statutes, but it
chose not to do so. (Rojas, at p. 423.) Furthermore, the Legislature has enacted
other statutory exceptions to mediation confidentiality. “ ‘Under the maxim of
statutory construction, expressio unius est exclusio alterius, if exemptions are
specified in a statute, [courts] may not imply additional exemptions unless there is
a clear legislative intent to the contrary. [Citation.]’ ” (Id. at p. 424.) Finding no
such intent, we concluded that judicial exceptions should not be read into
Evidence Code section 1119. (Rojas, at p. 424; Fair, supra, 40 Cal.4th at p. 194
[reaffirming the disapproval of judicially crafted exceptions to the mediation
confidentiality statutes].)
Like
Foxgate and Rojas, the present case does not implicate any due
process right equivalent to the right bestowed by the confrontation clause of the
United States Constitution, nor have the parties executed express waivers of
confidentiality. Thus, Rinaker and Olam are distinguishable, and their rationale
inapplicable. Instead, by creating fixed procedures that allow only certain
evidence produced at mediation to be admitted in later civil proceedings, the
15
Legislature was undeniably aware that some agreements made during mediation
would not be enforceable. The statutes thus reflect a policy judgment made by the
Legislature when weighing the value of confidentiality. Creating exceptions to
admit evidence that does not meet statutory requirements would run contrary to
legislative intent.

3. Estoppel
Despite the clear legislative intent, the Court of Appeal majority
nonetheless estopped the defendant from invoking mediation confidentiality
because she herself used and did not object to plaintiffs’ use of evidence
describing the events of mediation.
The estoppel cases on which the Court of Appeal relied are inapt. The
majority concluded that, “once a party voluntarily declares certain facts to be true,
stipulates that she does not dispute them and extensively litigates the legal effect
of such facts, she is estopped to later claim that the court must disregard those
facts based upon a belated assertion of mediation confidentiality.” To support this
statement, the majority opinion relied on Gee v. American Realty & Construction,
Inc. (2002) 99 Cal.App.4th 1412, 1414, and Conservatorship of Kevin M. (1996)
49 Cal.App.4th 79, 92. These cases involved estoppel to contest jurisdiction. That
doctrine provides that when a court has subject matter jurisdiction over an action,
“a party who seeks or consents to action beyond the court’s power as defined by
statute or decisional rule may be estopped to complain of the ensuing action in
excess of jurisdiction.” (In re Griffin (1967) 67 Cal.2d 343, 347.)
As Justice Aldrich noted in his dissent, defendant does not contest the
jurisdiction of the court over the breach of contract matter. Similarly, she did not
use or initiate a procedure and then argue against its use in court. Here, estoppel
to contest jurisdiction does not apply; defendant never asked the court to act in
16


excess of its jurisdiction and then argued that the court had no power to act as it
did. Instead, defendant consistently invoked the court’s jurisdiction throughout
the litigation proceedings, maintaining that there was no enforceable settlement
agreement either because substantively such agreement did not occur or because
plaintiffs could not procedurally prove its existence.
Like estoppel to contest jurisdiction, equitable estoppel also does not apply.
A valid claim for equitable estoppel requires: (a) a representation or concealment
of material facts; (b) made with knowledge, actual or virtual, of the facts; (c) to a
party ignorant, actually and permissibly, of the truth; (d) with the intention, actual
or virtual, that the ignorant party act on it; and (e) that party was induced to act on
it. (13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 191, pp. 527-528.)
There can be no estoppel if one of these elements is missing. (Id. at p. 528.) Here,
plaintiffs were never ignorant of the facts, nor did they change their position in
reliance on defendant’s position. Thus, estoppel principles do not apply.

4. Waiver
The Court of Appeal dissenting opinion more accurately portrays the
substance of this case when it characterizes the majority’s decision as “a veiled
attempt at relabeling waiver as estoppel.” The facts of this case reveal that the real
issue is whether a party can impliedly waive mediation confidentiality through
litigation conduct. Indeed, plaintiffs now argue in this court that defendant waived
mediation confidentiality through her litigation conduct.
Civil Code section 3513 makes the doctrine of waiver applicable to all
rights and privileges that a person is entitled to, including those conferred by
statute, unless otherwise prohibited by specific statutory provisions. (OutBoard
Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41.) Thus, whether or
17


not implied waiver applies to mediation confidentiality is ultimately an issue of
statutory interpretation.
In arguing that defendant impliedly waived mediation confidentiality,
plaintiffs refer to language in Regents, supra, 42 Cal.App.4th at page 1213, and
Foxgate, supra, 26 Cal.4th at page 10, footnote 7. In Regents, the court held that a
party may waive mediation confidentiality through conduct. In Foxgate, we
simply described the Regents holding in a footnote without endorsing the Regents
decision. In revising the mediation confidentiality statutes, the Legislature cast
doubt on Regents when it specifically rejected its holding. Thus, these cases do
not provide support to plaintiffs.
Indeed, when interpreting the current mediation confidentiality statutes, at
least one court has held that mediation confidentiality cannot be impliedly waived
through conduct. (Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 360-
365 (Eisendrath).) In Eisendrath, a husband (plaintiff) and wife (defendant)
agreed to undergo mediation of their divorce pursuant to the statutory rules set
forth in section 1115 et seq. (Eisendrath, at p. 354.) The trial court entered
judgment pursuant to the settlement reached at mediation, and the plaintiff filed a
motion to correct or reform the judgment after both parties remarried. (Id. at p.
355.) The defendant then sought to depose the mediator, and the plaintiff
opposed, citing mediation confidentiality. (Id. at p. 356.) The trial court held that
the plaintiff impliedly waived confidentiality by raising a claim about the
agreement in court and revealing communications that had occurred at the
mediation in his declaration. (Id. at pp. 356-357.) The plaintiff appealed. (Id. at
p. 357.)
18

On appeal, the defendant argued that mediation confidentiality is akin to the
evidentiary privileges laid out in section 910 et seq., privileges that section 912
states may be waived by conduct.6 (Eisendrath, supra, 109 Cal.App.4th at p.
357.) Because the plaintiff raised the issue with his suit and in supporting
declarations, the defendant argued he could not claim confidentiality. (Ibid.) The
Court of Appeal concluded that the implied waiver provisions in section 910 et
seq., by their plain language, are limited to the particular privileges enumerated
therein and therefore do not extend to mediation confidentiality. (Eisendrath, at p.
363.)
A court may not extend waiver provisions beyond their statutory existing
limits. (See Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373.) Furthermore,
courts may not add to statutory privileges except as required by federal and state
constitutional law; nor may a court imply exceptions to existing statutory
privileges. (Ibid.) Accordingly, Eisendrath correctly concludes that section 912
cannot be expanded beyond its express limits.
We must still determine whether the mediation confidentiality statutes
themselves permit implied waiver. Section 1122, the section dealing expressly
with waiver, states that a communication made during mediation is not
inadmissible if “[a]ll persons who conduct or otherwise participate in the
mediation expressly agree in writing, or orally in accordance with Section 1118, to
disclosure . . . .” (§ 1122, subd. (a)(1), italics added.) Furthermore, the
Commission’s comments provide, “[s]ubdivision (a)(1) [of section 1122] states the

6
Such privileges include the lawyer-client privilege (§ 954); the privilege for
confidential marital communications (§ 980); the physician-patient privilege (§
994); the psychotherapist-patient privilege (§ 1014); the clergymember-penitent
privilege (§§ 1033, 1034); the sexual assault victim-counselor privilege
(§ 1035.8); and the domestic violence victim-counselor privilege (§ 1037.5).
19


general rule that mediation documents and communications may be admitted or
disclosed only upon agreement of all participants, including not only parties but
also the mediator and other nonparties attending the mediation . . . . Agreement
must be express, not implied.” (Cal. Law Rev. Com., supra, foll. § 1122, p. 252,
italics added.) The comment continues, “For exceptions to Section 1122, see
Sections 1123 (written settlement agreements reached through mediation) and
1124 (oral agreements reached through mediation).” (Ibid.)
Because the language of section 1122 unambiguously requires express
waiver, judicial construction is not permitted unless the statutes cannot be applied
according to their terms or doing so would lead to absurd results, thereby violating
the presumed intent of the Legislature. (Foxgate, supra, 26 Cal.4th at p. 14.)
Moreover, because the Legislature provided express exceptions to section 1119,
“ ‘[u]nder the maxim of statutory construction, expressio unius est exclusio
alterius, . . . we may not imply additional exemptions unless there is a clear
legislative intent to the contrary. [Citation.]’ ” (Rojas, supra, 33 Cal.4th at p.
424.)
Plaintiffs argue that allowing defendant to assert mediation confidentiality
after litigating various pretrial motions would produce absurd results. In
Eisendrath, supra, 109 Cal.App.4th at pages 363-364, the Court of Appeal
concluded that judicial modification of the mediation confidentiality scheme was
not required to prevent absurd results or to fulfill legislative intent. On the facts of
that case, the result was not absurd because without express waivers, neither the
plaintiff nor the defendant could introduce evidence of what had happened at
mediation. (Ibid.) However, the court also found that the result was not absurd on
a more general level; the court remarked that Foxgate recognized that the
mediation confidentiality statutes effectively give control over evidence of certain
misconduct to the party engaged in the misconduct. (Eisendrath, at p. 365.)
20
Nonetheless, in Foxgate, we found it dispositive that “none of the confidentiality
statutes currently make an exception for reporting bad faith conduct . . . when
doing so would require disclosure of communications . . . .” (Foxgate, supra, 26
Cal.4th at p. 17.) Accordingly, the Eisendrath court concluded, “[f]ollowing the
Foxgate court, we assume that the Legislature considered these limitations on the
presentation of evidence when it enacted the statutory scheme.” (Eisendrath,
supra, 109 Cal.App.4th at p. 365.)
Here, the clear language of the statutory scheme and other indications of
legislative intent reflect that disallowing an implied waiver would not produce
absurd consequences, but was rather an intended consequence. First, as the court
in Eisendrath noted, section 1119 sweeps broadly and renders all communications
and writings made during mediation inadmissible except as otherwise specified in
the statutes. (Eisendrath, supra, 109 Cal.App.4th at p. 364.) Section 1122 plainly
states that mediation communications or writings may be admitted only on
agreement of all participants. Such agreement must be express, not implied. We
recognized that the Legislature intended section 1122 to give litigants control over
whether a mediation communication will be used in subsequent litigation. (See
Rojas, supra, 33 Cal.4th at p. 423.) However, the section does not limit this
control other than as stated through sections 1123 and 1124. (Cal. Law Rev.
Com., supra, foll. § 1122, p. 252.) Thus, the language of the statutory scheme
reflects that it was intended to be complete.
Section 912, regarding the waiver of privileges, further shows that the
Legislature did not intend for implied waiver to apply to mediation confidentiality.
Section 912 existed when the Legislature drafted section 1115 et seq. In Foxgate,
we noted that Code of Civil Procedure section 128.5 allowed a court to sanction
bad faith behavior. (Foxgate, supra, 26 Cal.4th at p. 17.) Yet, we observed that
no confidentiality statute made an exception for reporting bad faith conduct
21
through the disclosure of mediation communications. (Ibid.) Similarly, the
Legislature is capable of drafting statutes that allow for implied waivers of
confidentiality through conduct, but it did not do so in section 1122 or anywhere
within the mediation confidentiality statutes. The Legislature is assumed to have
considered the limitations on the presentation of evidence when it enacted the
statutory scheme. (See Foxgate, at p. 17.)
Section 1115’s placement within the Evidence Code further supports the
conclusion that implied waiver does not apply to mediation confidentiality.
Unlike the privileges subject to implied waiver that are found in division 8,
entitled “Privileges,” the Legislature placed section 1115 et seq. in division 9,
entitled “Evidence Affected or Excluded by Extrinsic Policies.” This placement
reflects that the Legislature considered the specific limitations placed on the
admissibility of evidence by the mediation confidentiality statutes and endorsed
those limitations to encourage mediation as a matter of public policy.
Finally, the legislative history of the mediation confidentiality statutes as a
whole reflects a desire that section 1115 et seq. be strictly followed in the interest
of efficiency. By laying down clear rules, the Legislature intended to reduce
litigation over the admissibility and disclosure of evidence regarding settlements
and communications that occur during mediation. (Recommendation on
Mediation Confidentiality (Jan. 1997) 26 Cal. Law Revision Com. Rep. (1996) p.
424.) Allowing courts to craft judicial exceptions to the statutory rules would run
counter to that intent.
Both the clear language of the mediation statutes and our prior rulings
support the preclusion of an implied waiver exception. The Legislature chose to
promote mediation by ensuring confidentiality rather than adopt a scheme to
ensure good behavior in the mediation and litigation process. The mediation
statutes provide clear and comprehensive rules reflecting that policy choice.
22

Here, the mediation confidentiality statutes made inadmissible all evidence
of an oral contract between plaintiffs and defendant during mediation. Thus, there
was no evidence to prove plaintiffs’ breach of contract claim, and defendant was
entitled to judgment as a matter of law. However, plaintiffs may still pursue their
medical malpractice cause of action before the trial court.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand the case to
that court for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

23



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Simmons v. Ghaderi
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 143 Cal.App.4th 410
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S147848
Date Filed: July 21, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Richard L. Fruin, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Morrison & Foerster, Shirley M. Hufstedler, Sarvenaz Bahar; Reback, McAndrews & Kjar, Robert C.
Reback and Melanie Shornick for Defendant and Appellant.

Law Office of Ivan K. Stevenson and Ivan K. Stevenson for Confidential Mediation & Dispute Resolution
and Southern California Mediation Association as Amici Curiae on behalf of Defendant and Appellant.

James R. Madison; Farbstein & Blackman and John S. Blackman for California Dispute Resolution
Council as Amicus Curiae on behalf of Defendant and Appellant.


__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of James Aaron Pflaster, Martin R. Berman, Stephanie C. Pflaster and James Aaron Pflaster
for Plaintiffs and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Shirley M. Hufstedler
Morrison & Foerster
555 West Fifth Street, Suite 3500
Los Angeles, CA 90013-1024
(213-892-5200

Martin R. Berman
Law Offices of James Aaron Pflaster
11835 West Olympic Boulevard, Suite 1235 East
Los Angeles, CA 90064
(310) 445-3381


Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issue: In an action to determine whether a valid oral settlement agreement was formed during mediation, was one party estopped to claim confidentiality for the mediation proceedings (Evid. Code, sections 1115-1124) because she had voluntarily declared the facts to be true, stipulated that she did not dispute them, submitted evidence of them, and litigated their effect for more than a year?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 07/21/200844 Cal. 4th 570, 187 P.3d 934, 80 Cal. Rptr. 3d 83S147848Review - Civil Appealclosed; remittitur issued

Parties
1Ghaderi, Lida (Defendant and Appellant)
Represented by Shirley M. Hufstedler
Morrison & Foerster
555 W. Fifth Street, Suite 3500
Los Angeles, CA

2Simmons, Michelle (Plaintiff and Respondent)
Represented by Martin R. Berman
Law Office of James A. Pflaster
11835 W. Olympic Boulevard, Suite 1235-E
Los Angeles, CA

3California Dispute Resolution Council (Amicus curiae)
Represented by John S. Blackman
Farbstein & Blackman
411 Borel Avenue, Suite 425
San Mateo, CA

4California Dispute Resolution Council (Amicus curiae)
Represented by James R. Madison
Attorney at Law
750 Menlo Avenue, Suite 250
Menlo Park, CA

5Stevenson, Ivan K. (Amicus curiae)
Represented by Ivan K. Stevenson
Attorney at Law
3868 W. Carson Street, Suite 304
Torrance, CA


Disposition
Jul 21 2008Opinion: Reversed

Dockets
Nov 6 2006Petition for review filed
  Appellant Lida Ghaderi Attorney Shirley M. Hufstedler
Nov 7 2006Received Court of Appeal record
 
Dec 20 2006Petition for review granted (civil case)
  Votes: George, C. J ., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ.
Dec 20 2006Letter sent to:
  counsel, certification of interested entities
Dec 29 2006Certification of interested entities or persons filed
  Attorney Shirley M. Hufstedler, Morrison & Foerster for appellant Ghaderi
Jan 3 2007Certification of interested entities or persons filed
  Respondents Michelle Simmons, etal Attorney Martin R. Berman
Jan 17 2007Opening brief on the merits filed
  Appellant Lida Ghaderi Attorney Shirley M. Hufstedler
Feb 9 2007Request for extension of time filed
  answer brief/merits to 3-19-07 Respondents Michelle Simmons, etal
Feb 15 2007Request for extension of time filed
  to March 19, 2007 to file answer brief on the merits.
Mar 12 2007Answer brief on the merits filed
  Respondents Michelle Simmons, etal Attorney Martin Berman
Apr 2 2007Reply brief filed (case fully briefed)
  Appellant Lida Ghaderi Attorney Shirley M. Hufstedler
May 2 2007Received application to file Amicus Curiae Brief
  California Dispute Resolution Council. by counsel, John S. Blackman.
May 4 2007Permission to file amicus curiae brief granted
  California Dispute Resolution Council. Answer is due within twenty days.
May 4 2007Amicus curiae brief filed
  California Dispute Resolution Council. Answer is due within twenty days.
May 24 2007Response to amicus curiae brief filed
  Respondents Michelle Simmons, etal Attorney Martin R. Berman
May 25 2007Received application to file Amicus Curiae Brief
  Ivan K. Stevenson, Law Ofcs of Ivan K. Stevenson, Confidential Mediation & Dispute Resolution, and Southern Calif. Mediation Association [in support of aplt] Attorney Ivan K. Stevenson
Jun 1 2007Received:
  notice of errata to the amicus curiae brief of Ivan K. Stevenson by Ivan K. Stevenson, counsel
Jun 7 2007Permission to file amicus curiae brief granted
  Law Offices of Ivan K. Stevenson, Confidential Mediation and Dispute Resolution, Southern California Mediation Association.
Jun 7 2007Amicus curiae brief filed
  Ivan K. Stevenson, Confidential Mediation and Dispute Resolution in support of appellant Lida Ghaderi, M.D. Answer due within twenty day of the filing of the brief.
Jun 27 2007Response to amicus curiae brief filed
  to AC Ivan K. Stevenson, Cofidential Mediation & Dispute, etal by Respondents Michelle Simmons, etal Attorney Martin R. Berman
Sep 18 2007Received:
  letter from Appellant Lida Ghaderi re: additional authority Attorney Shirley M. Hufstedler
Apr 30 2008Case ordered on calendar
  to be argued on Wednesday, May 28, 2008, at 1:30 p.m., in San Francisco
May 28 2008Cause argued and submitted
 
Jul 18 2008Notice of forthcoming opinion posted
 
Jul 21 2008Opinion filed: Judgment reversed
  We reverse the judgment of the Court of Appeal and remand the case to that court for further proceedings consistent with this opinion. Opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Moreno & Corrigan, JJ.
Aug 21 2008Remittitur issued (civil case)
 
Aug 28 2008Received:
  Receipt for remittitur Court of Appeal, Second Appellate District, Division Three

Briefs
Jan 17 2007Opening brief on the merits filed
 
Mar 12 2007Answer brief on the merits filed
 
Apr 2 2007Reply brief filed (case fully briefed)
 
May 4 2007Amicus curiae brief filed
 
May 24 2007Response to amicus curiae brief filed
 
Jun 7 2007Amicus curiae brief filed
 
Jun 27 2007Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 9, 2009
Annotated by diana teasland

Written by Kate Mann
1. Standard of Review
Cruz contends that a de novo standard of review applies to her appeal, because it involves the construction of contracts and statutes. We agree that the interpretation of a statute is a question of law that we consider de novo on appeal. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Further, we review the trial court’s conclusions of law de novo. (Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 108.) Where the evidence is not in conflict, the appellate court independently interprets the language of a written contract. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866.)

Davis contends that a substantial evidence review is appropriate here. However, because Cruz does not contend that the trial court’s factual findings are unsupported by substantial evidence, we are bound by them and do not review the evidence. (Peat, Marwick, Mitchell & Co. v. Superior Court, supra, 200 Cal.App.3d at pp. 277-278.) Instead, we accept the facts set forth in the statement of decision, and determine whether those factual findings support the judgment as a matter of law. (City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1322.)

2. Contentions
Cruz contends the court erred in requiring that she prove the agreement was enforceable against all parties to the mediation as a condition to its admissibility. She contends the court erred in excluding the April 24 document, and in finding that no enforceable agreement existed between herself and Tony. Cruz claims that Tony’s obligation under the mediation agreement was severable and separately enforceable against Tony, and that Mark’s signature was unnecessary to her separate contract with Tony. She argues that the court unnecessarily determined that no contract was formed by all the parties to the mediation, when the sole issue she presented was whether a separate contract was formed between herself and Tony.

Cruz recognizes that because Mark did not sign the mediation agreement, he is not bound by it as a settlement of the underlying dispute, and she does not contend that the signature of Mark’s attorney was sufficient for that purpose. Cruz cites the rule that “in the absence of a showing that the contract is not intended to be complete until signed by all parties, the parties who did sign will be bound.” (Angell v. Rowlands (1978) 85 Cal.App.3d 536, 542.) Thus, the signatories resisting enforcement of the contract bear the burden to establish “that the signatures of all parties were contemplated as being a condition precedent to the validity of the contract [citation].” (Id. at p. 541.) Cruz contends that the court erred in admitting parol evidence of the parties’ subjective “‘“[T]he law is well settled that an attorney must be specifically authorized to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise settlement of pending litigation. . . .”’ [Citation.]” (Levy v. Superior Court (1995) 10 Cal.4th 578, 583.)

“Contract formation is governed by objective manifestations, not subjective intent to prove such a condition precedent. Cruz does not dispute the principle asserted by Davis -- that an agreement or stipulation that no party shall be bound by a contract unless all parties sign it -- may be proven by parol. (See Cavanaugh v. Casselman (1891) 88 Cal. 543, 549-550.) However, she contends that such parol evidence must consist of an objective manifestation of the agreement or stipulation that Tony would not be obligated to Cruz, absent the signature of all parties, including Mark. Finally, she asserts that the parties’ testimony concerning their beliefs did not objectively manifest an agreement not to be bound without the signature of all parties. (See Angell v. Rowlands, supra, 85 Cal.App.3d at p. 541.)

Davis notes that the court rejected Cruz’s testimony that Tony told her that she and he had a contract regardless of the others’ signatures. Cruz suggests that because she requested a finding that the agreement contained severable, independent covenants, the court should have examined the agreement before rejecting this evidence. To do that, she argues, the court should have considered, as a threshold issue, the admissibility of the mediation agreement under section 1119. For the court and Davis to have done otherwise, Cruz contends, was to put the “cart before the horse.”

Davis contends that the uncontradicted testimony of Tony’s counsel established that neither she nor Tony intended to waive the confidentiality provisions of section 1119 unless Mark signed the April 24 document. This intent was further shown by evidence that Tony did not intend any agreement to come into effect unless all parties, including Mark, signed the document. Because Mark did not do so, no agreement -- and no waiver contained in it -- ever came into existence.

Although Davis agrees with the trial court’s determination that the document was not admissible, he contends the court erred in denying his motion for attorney fees pursuant to the attorney fee provision contained in it. He asks that -- for purposes of enforcing the attorney fees provision of the mediation agreement under Civil Code section 1717 -- Cruz be judicially estopped from claiming the agreement is inadmissible.

3. Mediation Confidentiality
We agree that the admissibility of the mediation agreement must precede the issue of enforceability. “[A] settlement agreement drafted during mediation must be admissible before a court can reach the issue of enforceability.” (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 199 (Fair).) Further, before the court determines whether a term is severable from the agreement and separately enforceable, the agreement must be admissible. (Ibid.)
“Documents prepared for purposes of mediation are generally inadmissible in civil proceedings.” (Fair, supra, 40 Cal.4th at p. 191, quoting § 1119, subd. (b).) However, a settlement agreement reached through mediation and signed by the settling parties is exempt from this general rule, if it satisfies a requirement of section 1123. (Id. at pp. 191-192.)
Section 1123 provides: “A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: [¶] (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. [¶] (b) The agreement provides that it is enforceable or binding or words to that effect. [¶] (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. [¶] (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.”

Cruz contends that the agreement satisfied the requirements of subdivisions (a) and (b) of section 1123, because the agreement was signed by the “relevant settling parties” -- Cruz and Tony -- and it expressly provided in paragraph G that the agreement was binding on all parties, and in paragraph I that the parties waived the provisions of section 1119, subdivision (b). She argues that Cruz and Tony are the only relevant settling parties because they agreed to independent covenants in the agreement.

Because Cruz’s argument depends upon a severable, independently enforceable agreement, it is Cruz who has placed the “cart before the horse.” Before a term may be severed and enforced, the agreement must be admissible. (Fair, supra, 40 Cal.4th at p. 199.) Moreover, the exceptions enumerated in section 1123 require the signature of the settling parties, not the relevant settling parties. Here, the parties to the settlement agreement are expressly set forth, and include not only Cruz and Tony, but also Yolanda, Tina and Mark. Thus, the agreement names the persons who must sign it to bind themselves to its provisions.
Cruz acknowledges that Mark did not personally sign the agreement, and was thus not bound by a settlement, but claims that the agreement need not be enforceable as a whole for its waiver of confidentiality to be enforceable. She contends that the confidentiality waiver may be separately enforced, and that by signing the agreement, Mark’s attorney agreed to that provision on his behalf.

Cruz relies on Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565 (Stewart). In Stewart, the parties had submitted their personal injury dispute to mediation, at the conclusion of which a settlement agreement -- containing an express waiver of mediation confidentiality -- was prepared and signed by the plaintiff, the plaintiff’s attorney, and the defendants’ attorney, but not the defendants. (Id. at pp. 1568-1569.) After the plaintiff rejected the settlement and sued to recover damages for his injuries, the defendants brought motions under Code of Civil Procedure sections 664.6 and 437c to enforce the settlement agreement. (Id. at p. 1569.) The plaintiff argued that a waiver of mediation confidentiality could not be enforced by a party who did not personally sign the agreement. (Id. at p. 1580.) The court acknowledged that an attorney must have authorization to waive his or her client’s substantive rights, but construed waivers of mediation confidentiality as procedural matters subject to waiver in the attorney’s discretion. (Id. at pp. 1581-1583.)

Stewart is distinguishable. There, the party seeking to exclude the agreement and avoid its enforcement was the plaintiff who had personally signed it, along with the confidentiality waiver. Moreover, the defendants who sought to enforce the agreement did not suggest their counsel lacked authority to bind them. This was, as the court observed, “of some consequence” as “neither defendants nor their insurer challenged defense counsel’s authority to sign the stipulation on their behalf.” (Stewart, supra, 134 Cal.App.4th at p. 1580.) Instead, the defendants sought to enforce a contract containing a waiver of mediation confidentiality which they had authorized their counsel to sign on their behalf and which the plaintiff had personally signed.

Here, Mark neither signed the agreement with its confidentiality waiver nor sought to enforce it. Nor did he authorize his counsel to bind him. The court in Stewart was careful to distinguish the two circumstances, finding that the purpose of mediation confidentiality “would not be promoted by applying confidentiality statutes to prevent one settling party from enforcing a settlement agreement signed by the party allegedly reneging on the settlement.” (Stewart, supra, 134 Cal.App.4th at p. 1575, italics added.) The court distinguished the facts before it from another case, where “significantly, the parties asserting evidentiary objections to mediation conduct and communications had not waived mediation confidentiality.” (Id. at p. 1575, citing Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 16-17 (Foxgate).) Mark testified, and his counsel Ruth Phelps confirmed, that he did not authorize her to waive mediation confidentiality on his behalf. He is not the party seeking to enforce the settlement agreement; nor is he a signatory seeking to renege on the agreement by invoking a confidentiality waiver. Thus, Stewart has no application here.

We conclude that the trial court correctly held that the term of the agreement waiving confidentiality never took effect because Mark did not sign it. The agreement was thus inadmissible. Because the agreement was inadmissible, it was unenforceable in whole or in part. (Fair, supra, 40 Cal.4th at p. 199.)

4. Attorney Fees
Davis contends that the trial court erred in denying his motion for attorney fees. As Davis notes, the sole question presented is one of first impression, viz., whether attorney fees are recoverable under Civil Code section 1717 where the contract providing for such fees has been excluded as inadmissible under division 9, chapter 2 of the Evidence Code, section 1115 et seq. We conclude they are not recoverable.
“Many contracts include a provision requiring a contracting party to pay any attorney fees that the other party incurs to enforce the contract or in litigation arising from the contract. To ensure that these contractual attorney fee provisions do not operate in an unfairly one-sided manner, the Legislature enacted Civil Code section 1717 . . . .” (Santisas v. Goodin (1998) 17 Cal.4th 599, 602.) Civil Code section 1717 provides in subdivision (a): “In any action on a contract, where the contract specifically provides that attorney’s fees . . . incurred to enforce that contract . . . shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether . . . specified in the contract or not, shall be entitled to reasonable attorney’s fees . . . .”

Davis contends that because Cruz would have been entitled to her attorney fees under the mediation agreement had she prevailed, he must be afforded the reciprocal right to fees usually granted to a “prevailing party [who] defends the litigation ‘by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.’ [Citation.]” (Santisas v. Goodin, supra, 17 Cal.4th at p. 611.) He relies on the proposition that “when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party’s recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. [Citations.]” (Ibid.)

Here, the mediation greement was not simply unenforceable; it was inadmissible. (Fair, supra, 40 Cal.4th at p. 199; § 1119, subd. (b).) Section 1123 contains no admissibility exception to permit the application of Civil Code section 1717. “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” (Foxgate, supra, 26 Cal.4th at p. 15.) There are no exceptions to mediation confidentiality, other than those provided by statute. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 416, 422.) Thus, except where due process is implicated, there can be no judicially created exceptions to mediation confidentiality. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 582-583.) Further, there are no implied waivers of confidentiality. (Ibid.; Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 362.)

Davis concedes that the agreement containing an attorney fee provision is inadmissible, but argues that it would be inherently unfair to relieve Cruz of the obligation to pay his attorney fees, when she would have been entitled to her fees had she prevailed on the contract. Our Supreme Court has held that courts may not judicially create an exception to avoid unfairness, such as to redress bad faith actions or tactics in the course of the mediation. (See Foxgate, supra, 26 Cal.4th at p. 17.) “[A]ny resolution of the competing policies is a matter for legislative, not judicial action.” (Ibid., fn. 13.)

Davis also asks that we apply the doctrine of judicial estoppel to prevent Cruz from taking one position in her appeal -- that the mediation agreement was admissible and enforceable -- and taking the opposite position in supporting the trial court’s denial of attorney fees. “‘Judicial estoppel is an equitable doctrine aimed at preventing fraud on the courts.’ [Citation.] It prohibits a party from taking inconsistent positions in the same or different judicial proceedings. [Citation.] Judicial estoppel ‘“‘is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process . . . .’”’ [Citations.]” (M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 463.)

The mediation confidentiality statutes provide no exception for judicial estoppel, and the courts may not fashion one, except in the case of estoppel to contest jurisdiction, where the party to be judicially estopped “asked the court to act in excess of its jurisdiction and then argued that the court had no power to act as it did.” (Simmons v. Ghaderi, supra, 44 Cal.4th at p. 584.) Without such facts, in an ordinary contract action in which the parties have not executed express waivers of confidentiality and in which no due process right is implicated, the judicial creation of “exceptions to admit evidence that does not meet statutory requirements would run contrary to legislative intent.” (Ibid.) Here, Cruz did not ask the trial court to act in excess of its jurisdiction, and Davis does not assert a denial of due process. Thus, judicial estoppel provides no exception to mediation confidentiality.