Stanford Law School - Robert Crown Law Library

Filed 7/12/04

IN THE SUPREME COURT OF CALIFORNIA

GENOVEVA ROJAS et al.,
Petitioners,
S111585
v.
Ct.App. 2/7 B158391
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Respondent;
Super. Ct. Nos. BC214521,
BC224568
JULIE COFFIN et al.,
Real Parties in Interest.

We granted review in this case to consider the scope of Evidence Code
section 1119, subdivision (b),1 which provides: “No writing, as defined in Section
250, that is prepared for the purpose of, in the course of, or pursuant to, a
mediation . . . is admissible or subject to discovery . . . .” In a divided decision, a
majority of the Court of Appeal held that application of this statute is governed by
the same principles that govern application of the work product privilege under
Code of Civil Procedure section 2018. Applying those principles, the majority
classified raw test data, photographs, and witness statements as nonderivative

1
Unless otherwise indicated, all further statutory references are to the
Evidence Code.
1

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material that is not protected. By contrast, the majority held, material reflecting
only an attorney’s impressions, conclusions, opinions, or legal research or theories
is absolutely protected. Finally, the majority held that derivative materials—
amalgamations of factual information and attorney thoughts, impressions, and
conclusions—are qualifiedly protected; they are discoverable only upon a showing
of good cause, which involves a balancing of the need for the materials and the
purposes served by mediation confidentiality.
We conclude that the Court of Appeal’s interpretation of section 1119,
subdivision (b), is contrary to both the statutory language and the Legislature’s
intent. We therefore reverse the Court of Appeal’s judgment.
FACTUAL BACKGROUND
Real party in interest Julie Coffin, trustee of the 1979 Ehrlich Investment
Trust (Coffin), is the owner of an apartment complex in Los Angeles that includes
three buildings and a total of 192 units. In 1996, Coffin sued the contractors and
subcontractors who built the complex—including real party in interest Deco
Construction Corporation (Deco)—alleging that water leakage due to construction
defects had produced toxic molds and other microbes on the property (the
underlying action). In July 1998, the court, with the parties’ consent, issued a
comprehensive case management order (CMO), which provided in part:
“Evidence of anything said or any admission made by attorneys, parties,
principals, consultants, or others in the course of any ‘mediation proceeding’ . . .
and any document prepared for the purpose of, or in the course of, or pursuant to
any mediation proceeding shall be deemed privileged pursuant to Evidence Code
§ 1119 and shall not be admissible as evidence at trial or for any purpose prior to
trial.”
In April 1997, Coffin prepared a preliminary defect list identifying
structural defects and mold infestation. In April 1998, she began air testing. In
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late 1998, one of the buildings at the complex was closed for abatement, including
demolition and replacement of drywall and ceilings, application of antimicrobial
agents, and plumbing repairs.
In April 1999, the litigation settled as a result of mediation. The settlement
agreement stated in part that, “throughout this resolution of the matter, consultants
provided defect reports, repair reports, and photographs for informational purpose
which are protected by the Case Management Order and Evidence Code §§ 1119
and 1152, and it is hereby agreed that such materials and information contained
therein shall not be published or disclosed in any way without the prior consent of
plaintiff or by court order.”
In August 1999, several hundred tenants of the apartment complex
(Tenants) filed the action now before us against Deco, Coffin, Richard Ehrlich—
as Coffin’s agent and employee—and numerous other entities that participated in
development or construction of the complex. Tenants alleged that defective
construction had allowed water to circulate and microbes to infest the complex,
causing numerous health problems. They also alleged that all defendants had
conspired to conceal the defects and that they (Tenants) had not become aware of
the defects until April 1999.
In November 1999, Tenants served deposition subpoenas on attorneys and
experts/consultants involved in the underlying action, demanding production of
each deponent’s “entire files” relating to that action. Coffin and Ehrlich moved to
quash the subpoenas and sought a protective order. Eventually, the court ordered
the subpoenas withdrawn and directed Tenants to file a motion to compel
production. Tenants subsequently filed a motion to compel requesting production
of, among other things, the following: (1) discovery exchanged between the
parties to the underlying litigation; (2) physical evidence of the condition of the
buildings, including photographs, videotapes, test samples and reports, and any
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physical evidence that was removed from the buildings and saved, such as
drywall, plumbing, and framing; (3) writings describing the buildings, including
written notes of observations made during inspections and witness interviews; and
(4) writings evidencing experts’ opinions and conclusions, whether or not
communicated to the defendants in the underlying action. Coffin, Ehrlich, and
Deco opposed the motion, arguing in part that all of the requested documents were
undiscoverable under section 1119 because they were prepared for the mediation
in the underlying action.
The motion was heard by Judge Charles McCoy. He ruled that whether a
particular document prepared in the underlying action was discoverable depended
in part on whether it was prepared before or after July 2, 1998, when the CMO
was signed and the mediation process began. Judge McCoy found that, as section
1119 provides, documents prepared after that date “for the purpose of, in the
course of, or pursuant to” the mediation were undiscoverable. Documents
prepared before that date were discoverable if they were “subject to the discovery
process prior to entry of the CMO” and “were not prepared for mediation
purposes.” Judge McCoy ordered the parties to submit the documents in question
for in camera review. Defendants complied with this order by submitting the
compilations they had prepared for the mediation in the underlying action. After
in camera review, Judge McCoy ruled that the compilations—including
photographs—were undiscoverable under section 1119. However, he specified
that his ruling applied only to “the documents taken together as a compilation for
mediation purposes,” and that he was not deciding whether the individual
documents in the compilations, which “were not submitted . . . separately,” were
discoverable. Tenants did not challenge this ruling.
After the case was reassigned to Judge Anthony Mohr, another discovery
dispute arose when Tenants served interrogatories on another defendant—Alper
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Development, Inc. (Alper)—seeking information regarding the mediation in the
underlying action. Alper objected to the discovery request, based in part on
section 1119. On August 16, 2001, at the hearing on Tenants’ subsequent motion
to compel, Judge Mohr ruled that Alper did not have to disclose information
contained in the documents Judge McCoy had already held to be undiscoverable
under section 1119. Judge Mohr also reaffirmed Judge McCoy’s ruling that the
mediation compilations were undiscoverable. However, Judge Mohr indicated
that the individual photographs contained in the compilations were discoverable
and would have to be produced if requested.
After this ruling, Tenants served another request for production of all
photographs (and negatives) and videotapes taken or received during the
underlying action, “all recorded statements” of former or current tenants obtained
in that action, all “results” from destructive testing during that action, and all “raw
data” collected during that action from “air sampling for mold spores,” “bulk
sampling of mold spores,” and “destructive testing.” When Coffin and Ehrlich
objected to the request, Tenants moved to compel production, arguing that Judge
Mohr had ruled only that the mediation compilations were not discoverable and
had stated that the individual photographs in those compilations were discoverable
if requested. In opposition to the motion, Coffin and Ehrlich asserted that, under
section 1119, the requested documents were not discoverable and that Judge
McCoy had so held.
On March 7, 2002, Judge Mohr denied Tenants’ motion. At the hearing on
that date, Judge Mohr focused primarily on the requested photographs, explaining:
“The plaintiffs say that they need these photos and there’s no other evidence of the
conditions as they were at that time and in those places, and [defendants are]
saying these photographs were created for mediation purposes. They are
documents under Evidence Code section 250. They’re clearly protected by the
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mediation privilege. Judge McCoy so found. They were created pursuant to [the
CMO] in the earlier case . . . . There’s no question they’re covered.”2 Judge Mohr
also concluded that principles governing discovery of evidence subject to a
qualified work product privilege do not govern evidence “covered by the
mediation privilege.” Finally, Judge Mohr remarked: “This is a very difficult
decision . . . because it could well be that there’s no other way for the plaintiffs to
get this particular material. On the other hand, the mediation privilege is an
important one, and if courts start dispensing with it by using the . . . test
[governing the work product privilege], . . . you may have people less willing to
mediate.”
Tenants then sought a writ of mandate in the Court of Appeal. In a split
decision, a majority of the Court of Appeal granted relief, concluding that section
1119 does “not protect pure evidence,” but protects only “the substance of
mediation, i.e., the negotiations, communications, admissions, and discussions
designed to reach a resolution of the dispute at hand.” As noted above, according
to the majority, section 1119 protects mediation materials “in the same manner as
the work product doctrine.” Applying work product principles, the majority
classified the “raw test data, photographs, and witness statements” as “non-
derivative” material that is “not protected by section 1119” and is therefore
discoverable. By contrast, the majority held, “material solely reflecting an
attorney’s ‘ “impressions, conclusions, opinions, or legal research or theories,” ’ is
entitled to absolute protection.” Finally, the majority held, “derivative material”—

2
As to his comments at the prior hearing regarding production of the
photographs, Judge Mohr said to Tenants’ counsel: “Well, you had me spouting
off on the bench. I’m not sure that’s an order. You just had me saying, ‘Hey,
they’re individual pictures. Turn them over.’ I’ve done a lot of thinking since
then.”
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that is, “amalgamation[s] of factual information and attorney thoughts,
impressions, [and] conclusions,” such as “charts and diagrams, audit reports,
compilations of entries in documents, records and other databases, appraisals,
opinions, and reports of experts employed as nontestifying consultants”—is
qualifiedly protected; it is “discoverable only upon a showing of good cause,
which requires a determination of the need for the materials balanced against the
benefit to the mediation privilege obtained by protecting those materials from
disclosure.” Moreover, the majority held, purely factual information included in
derivative material—that is, photographs and test data—must, if possible, be
removed and produced. The majority thus ordered issuance of a peremptory writ
of mandate directing the trial court to vacate its order denying Tenants’ motion to
compel and to apply these principles during an in camera review of the requested
documents.
In reaching its conclusion, the majority relied largely on section 1120,
subdivision (a), which provides that “[e]vidence otherwise admissible or subject to
discovery outside of a mediation . . . shall not be or become inadmissible or
protected from disclosure solely by reason of its introduction or use in a mediation
. . . .” The majority reasoned that adopting the trial court’s contrary analysis
would “render section 1120 complete surplusage” and would “permit the parties to
use mediation as a shield to hide evidence.”
We then granted the petition for review filed by Coffin and Ehrlich. We
also granted the petition for review filed by Deco, which had joined the answer
Coffin and Ehrlich filed in the Court of Appeal in opposition to Tenant’s writ
petition.3

3
After we granted review, Tenants settled their claims against Coffin,
Ehrlich, and Deco. However, no motion to dismiss review has been filed.

(footnote continued on next page)
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DISCUSSION
As we recently explained, “[i]mplementing alternatives to judicial dispute
resolution has been a strong legislative policy since at least 1986.” (Foxgate
Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 14
(Foxgate).) Mediation is one of the alternatives the Legislature has sought to
implement. The Legislature has expressly declared: “In appropriate cases,
mediation provides parties with a simplified and economical procedure for
obtaining prompt and equitable resolution of their disputes and a greater
opportunity to participate directly in resolving these disputes. Mediation may also
assist to reduce the backlog of cases burdening the judicial system. It is in the
public interest for mediation to be encouraged and used where appropriate by the
courts.” (Code Civ. Proc., § 1775, subd. (c).)
One of the fundamental ways the Legislature has sought to encourage
mediation is by enacting several “mediation confidentiality provisions.” (Foxgate,
supra, 26 Cal.4th at p. 14.) As we have explained, “confidentiality is essential to
effective mediation” because it “promote[s] ‘a candid and informal exchange
regarding events in the past . . . . This frank exchange is achieved only if
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.]” (Ibid.) “To carry out the purpose of encouraging mediation by

(footnote continued from previous page)

Moreover, discovery of the requested information remains at issue in connection
with production requests served on Coffin and Ehrlich by codefendants who have
filed cross-claims. Given these circumstances, and the fact that the case “raises
issues of continuing public importance,” we exercise our discretion to retain
jurisdiction. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8.)
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ensuring confidentiality, [our] statutory scheme . . . unqualifiedly bars disclosure
of” specified communications and writings associated with a mediation “absent an
express statutory exception.” (Id. at p. 15.)
The particular confidentiality provision at issue here is section 1119,
subdivision (b), which provides: “No writing, as defined in Section 250, 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 arbitration, administrative adjudication,
civil action, or other noncriminal proceeding in which, pursuant to law, testimony
can be compelled to be given.” In turn, section 250 defines the term “ ‘[w]riting’ ”
to “mean[] handwriting, typewriting, printing, photostating, photographing,
photocopying, transmitting by electronic mail or facsimile, and every other means
of recording upon any tangible thing any form of communication or
representation, including letters, words, pictures, sounds, or symbols, or
combinations thereof, and any record thereby created, regardless of the manner in
which the record has been stored.” By statute, “any writing that is inadmissible,
protected from disclosure, and confidential under” the mediation confidentiality
provisions “before a mediation ends, shall remain inadmissible, protected from
disclosure, and confidential to the same extent after the mediation ends.” (§
1126.)
The Court of Appeal’s holding directly conflicts with the plain language of
these provisions. As noted above, the Court of Appeal held that section 1119
never applies to photographs and witness statements. However, under section
1119, because both photographs and written witness statements qualify as
“writing[s], as defined in [s]ection 250,” if they are “prepared for the purpose of,
in the course of, or pursuant to, a mediation,” then they are not “admissible or
subject to discovery, and [their] disclosure . . . shall not be compelled.” The Court
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of Appeal also held that “raw test data” are never “protected by section 1119.”
Insofar as it was referring to actual physical samples collected at the apartment
complex—either from the air or from destructive testing—the Court of Appeal
was correct; such physical objects are not “writing[s], as defined in [s]ection 250.”
(§ 1119, subd. (b).) However, insofar as it was referring to recorded analyses of
those samples—for example, reports describing the existence or amount of mold
spores in a sample—the Court of Appeal erred; because such analyses are
“writing[s], as defined in [s]ection 250,” under section 1119, if they were
“prepared for the purpose of, in the course of, or pursuant to, a mediation,” then
they are not “admissible or subject to discovery, and [their] disclosure . . . shall not
be compelled.”4
Section 1120 does not, as the Court of Appeal held, support a contrary
conclusion. As noted above, section 1120, subdivision (a), provides that
“[e]vidence otherwise admissible or subject to discovery outside of a mediation
. . . shall not be or become inadmissible or protected from disclosure solely by
reason of its introduction or use in a mediation . . . .” Read together, sections 1119
and 1120 establish that a writing—which qualifies as “ ‘[e]vidence’ ” (§ 140)—is
not protected “solely by reason of its introduction or use in a mediation” (§ 1120,

4
In an amicus curiae brief, the Southern California Mediation Center
(SCMA) argues that section 1119 does not even apply here because what occurred
in the underlying action was not a mediation. SCMA bases its argument on the
language of (1) the CMO, which stated that “[a]ll conferences and mediations are
deemed to be mandatory settlement conferences of this court,” and (2) the
language of section 1117, subdivision (b)(2), which states that the mediation
confidentiality provisions do not apply to “[a] settlement conference pursuant to
Rule 222 of the California Rules of Court.” We decline to address this issue
because the parties have never raised it and neither the trial court nor the Court of
Appeal addressed it; at all times, the parties in this case have assumed that a
mediation took place in the underlying action.
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subd. (a)), but is protected only if it was “prepared for the purpose of, in the course
of, or pursuant to, a mediation.” (§ 1119, subd. (b).) In other words, under section
1120, a party cannot secure protection for a writing—including a photograph, a
witness statement, or an analysis of a test sample—that was not “prepared for the
purpose of, in the course of, or pursuant to, a mediation” (§ 1119, subd. (b))
simply by using or introducing it in a mediation or even including it as part of a
writing—such as a brief or a declaration or a consultant’s report—that was
“prepared for the purpose of, in the course of, or pursuant to, a mediation.” (Ibid.)
Contrary to the Court of Appeal’s conclusion, this construction does not render
section 1120 “surplusage” or permit parties “to use mediation as a shield to hide
evidence.” Rather, consistent with the Legislature’s intent, it applies section 1120
as a “limit[]” on “the scope of [s]ection 1119” that “prevent[s] parties from using a
mediation as a pretext to shield materials from disclosure.”5 (Cal. Law Revision
Com. com., 29B pt. 3 West’s Ann. Evid. Code (2004 supp.) foll. § 1120, p. 153.)6

5
This conclusion is consistent with the construction of similar language in
rule 408 of the Federal Rules of Evidence (28 U.S.C.), which provides in relevant
part: “Evidence of conduct or statements made in compromise negotiations is . . .
not admissible. This rule does not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course of compromise
negotiations.” As construed by the federal courts, the latter sentence “prevent[s]
one from being able to ‘immunize from admissibility documents otherwise
discoverable merely by offering them in a compromise negotiation.’ [Citation.]
[It] does not [apply] where the document, or statement, would not have existed but
for the negotiations, hence the negotiations are not being used as a device to
thwart discovery by making existing documents unreachable.” (Ramada Dev. Co.
v. Rauch (5th Cir. 1981) 644 F.2d 1097, 1107.)
6
“The official comments of the California Law Revision Commission on the
various sections of the Evidence Code are declarative of the intent not only of the
draft[ers] of the code but also of the legislators who subsequently enacted it.
[Citation.]” (People v. Williams (1976) 16 Cal.3d 663, 667-668.)
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On the other hand, the Court of Appeal’s construction renders subdivision
(b) of section 1119 essentially useless. As noted above, the Court of Appeal held
that section 1119 does “not protect pure evidence,” but protects only “the
substance of mediation, i.e., the negotiations, communications, admissions, and
discussions designed to reach a resolution of the dispute at hand.” However, this
protection is afforded under subdivision (a) of section 1119, which provides: “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 . . . .” (Italics added.) Because a
“writing[]” constitutes “[e]vidence” (§ 140), any writing that discloses what the
Court of Appeal characterized as “the substance of mediation”—“negotiations,
communications, admissions, and discussions designed to reach a resolution of the
dispute”—necessarily qualifies as “evidence of anything said or any admission
made for the purpose of, in the course of, or pursuant to, a mediation,” and is
undiscoverable under subdivision (a) of section 1119. Thus, under the Court of
Appeal’s narrow statutory construction, subdivision (b) of section 1119 serves no
purpose.
The Court of Appeal’s holding is also inconsistent with the relevant
legislative history. The Legislature passed the current mediation confidentiality
provisions in 1997 at the recommendation of the California Law Revision
Commission (Commission). (See Recommendation on Mediation Confidentiality
(Jan. 1997) 26 Cal. Law Revision Com. Rep. (1996) p. 407.) An early draft of the
proposed provisions, which the Commission circulated for comment, included a
section stating that although “a communication, document, or any writing as
defined in Section 250, that is made or prepared for the purpose of, or in the
course of, or pursuant to, a mediation” is confidential and protected, it “may be
admitted or disclosed if . . . [¶] . . . [it] is an expert’s analysis or report, it was
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prepared for the benefit of fewer than all the mediation participants, those
participants expressly consent to its disclosure, and the communication, document,
or writing does not disclose anything said or any admission made in the course of
the mediation.” (Cal. Law Revision Com., Tent. Recommendation on Mediation
Confidentiality (May 1996) p. 14.)7 The accompanying comment explained that
this proposed section “facilitates admissibility and disclosure of unilaterally
prepared experts’ reports, but it only applies so long as those materials may be
produced in a manner revealing nothing about the mediation discussion. Reports
and analyses that necessarily disclose mediation communications may be admitted
or disclosed only upon satisfying the general rule” requiring the express consent of
all persons participating in the mediation. (Cal. Law Revision Com., Tent.
Recommendation on Mediation Confidentiality, supra, at p. 14.)
The California State Bar’s Committee on the Administration of Justice
(CAJ) submitted comments “propos[ing] to replace” this provision with one
stating: “ ‘A written statement otherwise admissible is admissible if it is not
precluded by other rules of evidence and as long as it does not include statements
solely made in the mediation.’ [Citation.]” (Cal. Law Revision Com., Staff Draft
of Final Recommendation on Mediation Confidentiality (Dec. 1996) p. 20.) CAJ
argued that, without this change, the proposed statute “could be interpreted to
override” another proposed statute “provid[ing] that evidence ‘otherwise
admissible or subject to discovery outside of mediation shall not be or become
inadmissible or protected from disclosure solely by reason of its introduction or
use in a mediation. [CAJ] also [argued] that just because a document such as a

7
We grant the request of amici curiae Elizabeth Bader and Ron Kelly for
judicial notice of the Commission’s records regarding the confidentiality
provisions here at issue. (See Estate of Joseph (1998) 17 Cal.4th 203, 210, fn. 1.)
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photograph was created for a mediation should not make that document
inadmissible.” (Ibid., italics added.)
In recommending against the CAJ’s proposed change, the Commission’s
staff stated: “CAJ’s proposed revision would essentially undo . . . protection of
documents prepared for the purpose of a mediation . . . . Loss of that protection
could inhibit mediation participants from preparing such materials, which in turn
could adversely affect the mediation process. Notably, of the sources commenting
on the tentative recommendation, only the State Bar groups suggested reducing the
existing protection of documents prepared for a mediation. Community Board
Program made very clear that it would oppose such a move: ‘We are especially
concerned that all documentation relating to the preparation of a mediation, . . . be
deemed inadmissible as evidence unless both parties agree that it should be
disclosed.’ [Citation.] Thus, the staff recommends against adopting the CAJ’s
approach. [¶] CAJ’s comments did, however, cause the staff to consider whether
[the proposed statute] should be limited to an expert’s analysis or report. Perhaps
the following wording would be better: [¶] . . . The communication, document, or
writing [may not be admitted or disclosed unless it] is an expert’s analysis or
report, it was prepared for the benefit of fewer than all the mediation participants,
those participants expressly consent to its disclosure, and the communication,
document, or writing does not disclose anything said or any admission made in the
course of the mediation. [¶] Comment. . . . [This provision] facilitates
admissibility and disclosure of unilaterally prepared experts’ reports materials, but
it only applies so long as those materials may be produced in a manner revealing
nothing about the mediation discussion. . . . [¶] This revision may alleviate some
of the concerns raised by CAJ . . . . For example, it would allow a mediation
participant to introduce a photograph that participant took for a mediation but later
decided would be useful at trial. Although in many instances it would be possible
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to take another photo, in some cases that could not be done, as when a building
has been razed or an injury has healed. Under the current version of [the
proposed statute], the photo could not be introduced without the consent of all of
the mediation participants, some of whom might withhold consent. The staff’s
proposed revision would give the participant who took the photo control over
whether it is used, so long as it can be admitted without disclosing anything said or
done or any admission made in the course of the mediation.” (Cal. Law Revision
Com., Staff Draft of Final Recommendation on Mediation Confidentiality, supra,
at pp. 20-21, italics added.)
The Commission adopted the staff’s proposal. Its final recommendation
proposed a section stating that “[n]otwithstanding any other provision of this
chapter” on mediation confidentiality, “a communication, document, or any
writing as defined in Section 250, that is made or prepared for the purpose of, or in
the course of, or pursuant to, a mediation or mediation consultation, may be
admitted in evidence or disclosed if . . . [¶] . . . [it] 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 1119, 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.” (Recommendation on
Mediation Confidentiality, supra, 26 Cal. Law Revision Com. Rep., supra, at pp.
441-442.) The accompanying comment explained that this provision “facilitates
admissibility and disclosure of unilaterally prepared materials, but it only applies
so long as those materials may be produced in a manner revealing nothing about
the mediation discussion.” (Ibid.)
These materials show that, in making its recommendation regarding
mediation confidentiality, the Commission specifically considered the
discoverability of both expert reports and photographs and drafted its proposed
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confidentiality provisions to preclude discovery of such reports and photographs if
they were “prepared for the purpose of, in the course of, or pursuant to, a
mediation.” (Recommendation on Mediation Confidentiality, supra, 26 Cal. Law
Revision Com. Rep., supra, at p. 438.) These materials also show that the
Commission chose language expressly designed to give a mediation participant
who takes a photograph for purpose of the mediation “control over whether it is
used” in subsequent litigation, even where “another photo” cannot be taken
because, for example, “a building has been razed or an injury has healed.” (Cal.
Law Revision Com., Staff Draft of Final Recommendation on Mediation
Confidentiality, supra, at p. 21.) The Legislature adopted the Commission’s
recommendation and enacted the mediation confidentiality provisions in
substantially the form the Commission proposed. As noted above, section 1119,
subdivision (b), provides that “[n]o writing, as defined in Section 250,”—which
includes photographs and videotapes—“that is prepared for the purpose of, in the
course of, or pursuant to, a mediation . . . is admissible or subject to discovery.”
Section 1122, subdivision (a)(2), provides that “a writing, as defined in Section
250, 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 . . . [¶] . . . [it] 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.” The accompanying
comment explains that this provision “facilitates admissibility and disclosure of
unilaterally prepared materials, but it only applies so long as those materials may
be produced in a manner revealing nothing about the mediation discussion.” (Cal.
Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code, supra, foll. § 1122,
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p. 156.) The Court of Appeal’s conclusion that photographs and videotapes taken
for purposes of mediation are not protected under section 1119 is inconsistent with
this legislative history.
The Court of Appeal’s narrow interpretation is also inconsistent with the
legislative history in several other respects. Before section 1119’s passage, former
section 1152.5 governed mediation confidentiality. Subdivision (a)(2) of former
section 1152.5 provided that “no document prepared for the purpose of, or in the
course of, or pursuant to, the mediation, or copy thereof, is admissible . . . or
subject to discovery.” (Stats. 1996, ch. 174, § 1, italics added.) In its final
recommendation to the Legislature, the Commission proposed changing the term
“document” to “document, or writing as defined in Section 250.”
(Recommendation on Mediation Confidentiality, supra, 26 Cal. Law Revision
Com. Rep., supra, at p. 438.) In discussing this proposal, the Commission stated:
“[T]he term ‘document’ is not defined in the Evidence Code. . . . [¶] The
Commission proposes to address this potential problem by incorporating Section
250’s broad definition of ‘writing’ into the mediation confidentiality provisions.”
(26 Cal. Law Revision Com. Rep., supra, at pp. 428-429.) Again, the Legislature
substantially followed the Commission’s recommendation, broadly providing
protection in section 1119, subdivision (b), for a “writing, as defined in Section
250.” The Commission’s official comment to section 1119 states that this change
“expressly encompasses any type of ‘writing’ as defined in Section 250, regardless
of whether the representations are on paper or some other medium.” (Cal. Law
Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code, supra, foll. § 1119, p.
149.) Thus, in passing section 1119, subdivision (b), the Legislature specifically
intended to extend protection to all types of writings, including photographs.
At the same time, the Legislature also sought to expand protection for oral
communications. Whereas subdivision (a)(2) of former section 1152.5 protected
17

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documents “prepared for the purpose of, or in the course of, or pursuant to, the
mediation,” subdivision (a)(1) protected only those oral communications and
admissions “made . . . in the course of the mediation.” (Stats. 1996, ch. 174, § 1.)
The Commission’s recommendation explained that, under these provisions, the
protection for documents was “broader” than the protection for oral
communications and admissions, and “[t]o encourage frankness in discussions
relating to mediation, the Commission propose[d] . . . eliminat[ing] this distinction
[by] protect[ing] ‘evidence of anything said or of any admission made for the
purpose of, or in the course of, or pursuant to,’ the mediation.” (Recommendation
on Mediation Confidentiality, supra, 26 Cal. Law Revision Com. Rep., supra, at p.
428.) Again, the Legislature followed suit by protecting, in subdivision (a) of
section 1119, “evidence of anything said or any admission made for the purpose
of, in the course of, or pursuant to, a mediation.” The Commission’s official
comment explains that this section “extends [protection] 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 Revision Com. com., 29B pt. 3
West’s Ann. Evid. Code, supra, foll. § 1119, p. 149.) The Court of Appeal’s
narrowing of the protection under section 1119 is inconsistent with these
legislative efforts to expand protection.
More broadly, the Court of Appeal’s construction is inconsistent with the
overall purpose of the mediation confidentiality provisions. As noted above,
“confidentiality is essential to effective mediation,” (Foxgate, supra, 26 Cal.4th at
p. 14) and to “ensur[e] confidentiality, [our] statutory scheme . . . unqualifiedly
bars disclosure of” specified communications and writings associated with a
mediation “absent an express statutory exception.” (Id. at p. 15.) In making its
1997 recommendation, the Commission explained that the then-existing “statutory
scheme” regarding mediation confidentiality “ha[d] ambiguities that cause[d]
18

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confusion.” (Recommendation on Mediation Confidentiality, supra, 26 Cal. Law
Revision Com. Rep., supra, at p. 414.) The changes the Commission
recommended, which the Legislature adopted, were designed to “eliminate[]”
these ambiguities in order “[t]o further the effective use of mediation” by ensuring
the “candor” that “is crucial to [its] success.” (Id. at p. 431.) Adopting the Court
of Appeal’s narrow construction of section 1119 would significantly undercut the
Legislature’s efforts to ensure the confidentiality necessary to effective mediation.
For all of the above reasons, we conclude that the Court of Appeal erred in holding
that photographs, videotapes, witness statements, and “raw test data” from
physical samples collected at the complex—such as reports describing the
existence or amount of mold spores in a sample—that were “prepared for the
purpose of, in the course of, or pursuant to, [the] mediation” in the underlying
action are not protected under section 1119.8
The Court of Appeal also erred in holding that, although section 1119’s
protection applies to so-called derivative material “that is prepared for the purpose
of, in the course of, or pursuant to, a mediation” (§ 1119, subd. (b))—such as
charts, diagrams, information compilations, and expert opinions and reports—such
material is nevertheless discoverable “upon a showing of good cause.” As noted

8
Of course, that witness statements “prepared for the purpose of, in the
course of, or pursuant to, a mediation” are protected from discovery under section
1119 does not mean that the facts set forth in those statements are so protected.
Under section 1120, subdivision (a), because facts known to percipient witnesses
constitute “[e]vidence otherwise admissible or subject to discovery outside of a
mediation,” those facts do not “become inadmissible or protected from disclosure
solely by reason of [their] introduction or use in a mediation” through witness
statements prepared for the purpose of, in the course of, or pursuant to, the
mediation. Otherwise, contrary to the Legislature’s intent, parties could use
mediation “as a pretext to shield materials from disclosure.” (Cal. Law Revision
Com. com., 29B pt. 3 West’s Ann. Evid. Code, supra, foll. § 1120, p. 153.)
19

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above, in reaching this conclusion, the Court of Appeal borrowed principles
governing discovery of work product. However, discovery of work product is
expressly governed by statute; Code of Civil Procedure section 2018, subdivision
(b), provides that work product—other than writings reflecting an attorney’s
impressions, conclusions, opinions, or legal research or theories—is discoverable
if “the court determines that denial of discovery will unfairly prejudice the party
seeking discovery in preparing that party’s claim or defense or will result in an
injustice.” Thus, the Legislature clearly knows how to establish a “good cause”
exception to a protection or privilege if it so desires. The Legislature did not enact
such an exception when it passed Evidence Code section 1119 and the other
mediation confidentiality provisions.
However, the Legislature did expressly enact other exceptions to section
1119’s protection. As explained above, section 1122, subdivision (a)(2), permits
discovery of protected communications and writings that were “prepared by or on
behalf of fewer than all the mediation participants” if “those participants expressly
agree” to disclosure and disclosure would not reveal “anything said or done or any
admission made in the course of the mediation.” As also noted above, the
language of this provision was designed to give a mediation participant “control
over whether” something prepared for the mediation “is used” in subsequent
litigation. (Cal. Law Revision Com., Staff Draft of Final Recommendation on
Mediation Confidentiality, supra, at p. 21.) Subdivision (a)(1) of section 1122
establishes another exception; it permits discovery of protected material if “[a]ll
persons who conduct or otherwise participate in the mediation expressly agree . . .
to disclosure.” The Legislature established other exceptions for settlement
agreements made or prepared “in the course of, or pursuant to, a mediation.”
(§§ 1123, 1124.) “Under the maxim of statutory construction, expressio unius est
exclusio alterius, if exemptions are specified in a statute, we may not imply
20

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additional exemptions unless there is a clear legislative intent to the contrary.
[Citation.]” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230.)
Here, there is no evidence of a legislative intent supporting the “good cause”
exception the Court of Appeal majority read into the statute. On the contrary, as
the dissenting justice in the Court of Appeal observed, that exception “is
inconsistent with th[e] narrowly drawn exception[s]” the Legislature expressly
established.
In Foxgate, we stated that “[t]o carry out the purpose of encouraging
mediation by ensuring confidentiality, [our] statutory scheme . . . unqualifiedly
bars disclosure of” specified communications and writings associated with a
mediation “absent an express statutory exception.” (Foxgate, supra, 26 Cal.4th at
p. 15, italics added.) We also found that the “judicially crafted exception” to
section 1119 there at issue was “not necessary either to carry out the legislative
intent or to avoid an absurd result.” (Id. at p. 14.) We reach the same conclusion
here; as Judge Mohr observed, “the mediation privilege is an important one, and if
courts start dispensing with it by using the . . . test [governing the work-product
privilege], . . . you may have people less willing to mediate.” Thus, the Court of
Appeal erred in holding that so-called derivative material “that is prepared for the
purpose of, in the course of, or pursuant to, a mediation” (§ 1119, subd. (b)), is
discoverable “upon a showing of good cause.”9

9
Given its conclusion, the Court of Appeal ordered issuance of a writ and
sent the case back to the trial court without addressing Tenants’ argument that
many of the documents in question had not been “prepared for the purpose of, in
the course of, or pursuant to, a mediation.” (§ 1119, subd. (b).) We likewise
express no opinion on this question. Moreover, in light of the parties’ settlement,
it is unnecessary to remand the case for consideration of this issue.
21

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DISPOSITION
The judgment of the Court of Appeal is reversed and, in light of the parties’
settlement, the cause is remanded to that court with directions to dismiss the
petition for writ of mandate and to discharge the peremptory writ. (See Daly v.
Superior Court (1977) 19 Cal.3d 132, 151.)
CHIN, J.
WE CONCUR:

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

22

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

Name of Opinion Rojas v. Los Angeles Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 102 Cal.App.4th 1062
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S111585
Date Filed: July 12, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Anthony J. Mohr

__________________________________________________________________________________

Attorneys for Appellant:

Agnew & Brusavich, Bruce M. Brusavich, Leonor C. Gonzales, Vibhu Talwar; Lewis, Marenstein, Wicke
& Sherwin, Thomas L. Hoegh; Esner & Chang, Andrew N. Chang and Stuart B. Esner for Petitioners.

Jeff Kichaven; Lascher & Lascher and Wendy Cole Lascher for Southern California Mediation Association
as Amicus Curiae on behalf of Petitioners.

Greene, Broillet, Panish & Wheeler and Christine Spagnoli for Consumer Attorneys of California as
Amicus Curiae on behalf of Petitioners.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Attorneys for Real Party in Interest:

Watten, Discoe & Bassett, Watten, Discoe, Bassett & McMains, Robert C. Risbrough and Kathleen Barnett
for Real Parties in Interest Julie Coffin and Richard Ehrlich.

Friedenthal, Cox & Herskovitz, Daniel R. Friedenthal, Mark H. Herskovitz, Carlos C. Cabral and Janette S.
Bodenstein for Real Party in Interest Deco Construction Corporation.

Veatch, Carlson, Grogan & Nelson, Kevin H. Louth, Steven W. Sedach and Bernhard E. Bihr for Real
Party in Interest GES Roofing.

Selman • Breitman, A. Scott Goldberg, Eldon S. Edson and Won M. Park for Real Party in Interest Haven
Mechanical.


23

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Page 2 - counsel continued - S111585

Attorneys for Real Party in Interest:

Poole & Shaffery, Charles W. Jenkins and Samuel L. Tolwin for Real Party in Interest Inland Water
Proofing & Sheet Metal.

Ivan K. Stevenson for Law Office of Ivan K. Stevenson and Confidential Mediation & Dispute Resolution
as Amici Curiae on behalf of Real Parties in Interest Julie Coffin, Richard Ehrlich and Deco Construction
Corporation.

Dunn Koes, Pamela E. Dunn and Daniel J. Koes for Association of Southern California Defense Counsel as
Amicus Curiae on behalf of Real Parties in Interest.

James R. Madison and David Finch for the California Dispute Resolution Council as Amicus Curiae on
behalf of Real Parties in Interest.

Law and Mediation Offices of Elizabeth E. Bader and Elizabeth E. Bader for Ron Kelly and Elizabeth E.
Bader as Amici Curiae.

24

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

Bruce M. Brusavich
Agnew & Brusavich
20355 Hawthorne Boulevard, Second Floor
Torrance, CA 90503
(310) 793-1400

Robert C. Risbrough
Watten, Discoe, Bassett & McMains
1551 Tustin Avenue, Suite 900
Santa Ana, CA 92705
(714) 542-5400

Mark H. Herskovitz
Friedenthal, Cox & Herskovitz
55 South Lake Avenue, Suite 220
Pasadena, CA 91101
(626) 628-2800

25

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Opinion Information

Date:	Docket Number:
Mon, 07/12/2004	S111585

Disposition
Jul 12 2004	Opinion: Reversed

Dockets
Nov 18 2002	Petition for review filed   rpi Deco Construction Corporation
Nov 19 2002	2nd petition for review filed   Julie Coffin/Real Party
Nov 21 2002	Record requested
Nov 22 2002	Received Court of Appeal record   one doghouse.
Jan 15 2003	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jan 16 2003	Note:   Requested remaining volumes by overnight service.
Jan 16 2003	Letter sent to:   Counsel re Certification of Interested Entities or Persons.
Feb 13 2003	Request for extension of time filed   By RPI {Deco Construction Corp.,} asking until April 15, 2003 to file RPI'S Opening Brief on the Merits.
Feb 13 2003	Request for extension of time filed   real parties Julie Coffin, etal
Feb 25 2003	Extension of time granted   To March 17, 2003 to file RPI's (Julie Coffin) Opening Brief on the Merits.
Feb 25 2003	Extension of time granted   To March 17, 2003 to file RPI's {Deco Construction Corporation} Opening Brief on the Merits.
Mar 3 2003	Received letter from:   Counsel for RPI {Julie Coffin} dated 2/28/2003.
Mar 17 2003	Opening brief on the merits filed   real party Deco Construction Corporation
Mar 17 2003	Opening brief on the merits filed   real party Julie Coffin
Apr 16 2003	Request for extension of time filed   to file answer brief/merits petitioners' asking to May 16, 2003.
Apr 18 2003	Extension of time granted   To May 16, 2003 to file Petitioner's Answer Brief on the Merits.
May 16 2003	Answer brief on the merits filed   petitioners Genoveva Rojas, etal
May 22 2003	Received application to file Amicus Curiae Brief   Of Southern California Mediation Association in support of petitioners.
May 27 2003	Permission to file amicus curiae brief granted   Southern California Mediation Association in support of Petitioner. Answer is due within twenty days.
May 27 2003	Amicus Curiae Brief filed by:   Southern California Mediation Association in support of petitioner.
Jun 5 2003	Reply brief filed (case not yet fully briefed)   by RPI Julie Coffin
Jun 5 2003	Reply brief filed (case fully briefed)   by counsel for petitioners Deco Construction Corporation
Jun 10 2003	Response to amicus curiae brief filed   to ac brief of Southern California Mediation Assn>>real party Deco Construction
Jun 16 2003	Response to amicus curiae brief filed   to ac brief of Southern California Mediation Assn>>real party Julie Coffin
Jul 7 2003	Received application to file Amicus Curiae Brief   The California Dispute Resolution Council in support of Real Parties in Interest.
Jul 7 2003	Received application to file amicus curiae brief; with brief   from Consumer Attorneys of California supporting petnrs Genoveva Rojas, et al.
Jul 7 2003	Received application to file Amicus Curiae Brief   from The Law Offices of Ivan K. Stevenson supporting RPI Julie Coffin (brief under separate cover)
Jul 7 2003	Received application to file Amicus Curiae Brief   Association of Southern California Defense Counsel in support of RPIs {Julie Coffin et al.,}
Jul 7 2003	Request for extension of time filed   To July 17, 2003 to file Application and AC Brief of Ron Kelly and Elizabeth Bader.
Jul 9 2003	Extension of time granted   To July 17, 2003 to file Application and AC Brief of Ron Kelly & Elizabeth Bader.
Jul 9 2003	Permission to file amicus curiae brief granted   Association of Southern California Defense Counsel in support of Real Party in Interest.
Jul 9 2003	Amicus Curiae Brief filed by:   Association of Southern California Defense Counsel in support of Real Parties in Interest. Answer is due within twenty days.
Jul 10 2003	Permission to file amicus curiae brief granted   The California Dispute Resolution Council in support of Real Parties in Interest.
Jul 10 2003	Amicus Curiae Brief filed by:   The California Dispute Resolution Council in support of Real Party in Interest. Answer is due within twenty days.
Jul 11 2003	Received:   RPIS' supplemental Proof of Service to Response to AC Brief on Southern California Mediation Association.
Jul 18 2003	Received application to file Amicus Curiae Brief   AC Brief, Request for Judicial Notice and one volume of exhibits to request for judicial notice from AC Ron kelly & Elizabeth Bader./ 40(K).
Jul 21 2003	Received letter from:   Petitioner {Rojas} dated July 18, 2003.
Jul 22 2003	Permission to file amicus curiae brief granted   Consumer Attorneys of California in support of petitioners.
Jul 22 2003	Amicus Curiae Brief filed by:   Consumer attorneys of california in support of petitioners. Answer is due within twenty days.
Jul 22 2003	Permission to file amicus curiae brief granted   The Law Offices of Ivan K. Stevenson/Confidential Mediation and Dispute Resolution in support of Real Parties in Interest.
Jul 22 2003	Amicus Curiae Brief filed by:   The Law Offices of Ivan K. Stevenson/Confidential Mediation and Dispute Resolution in support of Real Parties in Interest. Answer is due within twenty days.
Jul 23 2003	Request for extension of time filed   Petitioners asking until August 29, 2003 to file Petitioner's Response to AC Brief of Association of Southern California Defense Counsel.
Jul 29 2003	Request for extension of time filed   Petitioner's asking unitl August 29, 2003 to file petitioners' Response to AC Brief of the California Dispute Resolution Council.
Jul 29 2003	Request for extension of time filed   Petitioners asking until September 5, 2003 to file Petitioners' Response to AC Brief of Ron Kelly and Elizabeth Bader.
Jul 29 2003	Request for extension of time filed   Petitioners asking until September 10, 2003 to file petitioners' Response to AC Brief of Law Offices of Ivan K. Stevenson/Confidential Mediation and Dispute Resolution.
Jul 29 2003	Permission to file amicus curiae brief granted   Ron Kelly & Elizabeth Bader.
Jul 29 2003	Amicus Curiae Brief filed by:   Ron Kelly & Elizabeth Bader. Answer is due within twenty days.
Jul 29 2003	Request for judicial notice filed (in non-AA proceeding)   and one volume of exhibits by AC Ron Kelly & Elizabeth Bader.
Aug 1 2003	Extension of time granted   To August 29, 2003 to file petitioners' response to AC Brief of California Dispute Resolution Council.
Aug 1 2003	Extension of time granted   To August 29, 2003 to file petitioners' response to AC Brief of Association of Southern California Defense Counsel.
Aug 1 2003	Extension of time granted   To Spetember 5, 2003 to file petitioners' response to AC Brief of Ron Kelly & Elizabeth Bader.
Aug 1 2003	Extension of time granted   To September 10, 2003 to file petitioners' response to AC Brief of Law Offices of Ivan K. Stevenson/Confidential Mediation and Dispute Resolution.
Aug 11 2003	Response to amicus curiae brief filed   to ac brief of Consumer Attys of California>>real parties Julie Coffin, etal
Sep 2 2003	Response to amicus curiae brief filed   By petitioners {Genoveva Rojas et al.,} to AC Briefs of Association of Southern California Defense Counsel and The California Dispute Resolution Council. / 40(K).
Sep 8 2003	Received:   Errata to AC Brief filed by The California Dispute Resolution Council.
Apr 28 2004	Case ordered on calendar   6-1-04, 2pm, L.A.
May 10 2004	Filed:   RPIs' request to divide oral argument time
May 19 2004	Order filed   permission granted for two counsel to present oral argument for real parties in interest.
May 19 2004	Order filed   request granted for division of RPIS' oral arguement time: 20 min to Robert Risbrough for RPI Coffin and 10 min to Mark Herskovitz for RPI Deco Construction
Jun 1 2004	Cause argued and submitted
Jul 12 2004	Opinion filed: Judgment reversed   and, in light of the parties' settlement, the cause is remanded to that court with directions to dismiss the petition for writ of mandate and to discharge the peremptory writ. (See Daly v. Superior Court (1977) 19 Cal.3d 132, 151.) Majority Opinion by Chin, J. ---- Joined by George, CJ., Kennard, Baxter, Werdegar, Brown and Moreno, JJ.
Jul 21 2004	Request for modification of opinion filed   By AC {Southern California Mediation Association}.
Sep 13 2004	Remittitur issued (civil case)
Sep 20 2004	Received:   receipt for remittitur.

Briefs
Mar 17 2003	Opening brief on the merits filed
Mar 17 2003	Opening brief on the merits filed
May 16 2003	Answer brief on the merits filed
May 27 2003	Amicus Curiae Brief filed by:
Jun 5 2003	Reply brief filed (case not yet fully briefed)
Jun 5 2003	Reply brief filed (case fully briefed)
Jun 10 2003	Response to amicus curiae brief filed
Jun 16 2003	Response to amicus curiae brief filed
Jul 9 2003	Amicus Curiae Brief filed by:
Jul 10 2003	Amicus Curiae Brief filed by:
Jul 22 2003	Amicus Curiae Brief filed by:
Jul 22 2003	Amicus Curiae Brief filed by:
Jul 29 2003	Amicus Curiae Brief filed by:
Aug 11 2003	Response to amicus curiae brief filed
Sep 2 2003	Response to amicus curiae brief filed

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