Cassel v. Superior Court
51 Cal. 4th 113
| Cal. | 2011Background
- Petitioner Cassel settled a VDO-related dispute via mediation and later sued his attorneys for malpractice, fiduciary breach, fraud, and contract in a civil action.
- During mediation, Cassel was pressured by his attorneys to accept a low settlement; he alleges coercion and deceit in private pre- and mid-mediation communications.
- Evidence sought to be excluded comprised private attorney-client discussions related to mediation, held outside other participants’ presence.
- The trial court barred these private discussions under mediation confidentiality statutes; the Court of Appeal reversed, suggesting a malpractice exception to confidentiality.
- California Supreme Court held that mediation confidentiality applies to communications 'for the purpose of, in the course of, or pursuant to' a mediation, even when between a client and his own lawyers.
- The Court reversed the Court of Appeal, affirming that such private communications are nondiscoverable and inadmissible absent an express waiver by all mediation participants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private attorney-client mediation-related communications are admissible in a legal malpractice action. | Cassel argues confidentiality should not bar malpractice proof. | Real parties contend confidentiality extends to all mediation-related communications, including private client-attorney talks. | Mediation confidentiality extends to private attorney-client talks; they are nondiscoverable/admissible absent waivers. |
| Whether the statutory waivers under § 1122 allow disclosure of fewer-than-all participants' communications. | Waiver could allow evidence if prepared for mediation but disclosed otherwise. | Waivers require disclosure only if the communication does not reveal mediation content; controlling text favors confidentiality. | Statutory waivers require compliance by all participants; private attorney-client talks remain confidential absent explicit waiver. |
| Whether treating attorneys and clients as a single mediation 'participant' defeats confidentiality for malpractice claims. | Client-attorney pair should not defeat confidentiality protections. | Court of Appeal treated disputants and attorneys as a single participant for confidentiality. | Confidentiality applies broadly beyond the 'single participant' concept; all communications for mediation are protected. |
| Whether due process or absurd results justify carving out an exception to mediation confidentiality in malpractice suits. | Public policy favors access to evidence of attorney misconduct. | Legislature balanced policy through broad confidentiality to promote candid mediation. | No due process or absurd-result exception; the plain terms control. |
| Whether private discussions that were 'for the purpose of' mediation fall outside the mediation process as contemplated by the statutes. | Private talks outside the mediation should be examinable for malpractice. | Texts show 'for the purpose of' or 'pursuant to' mediation extend to private discussions. | Private attorney-client discussions related to mediation are covered; not excluded by general language. |
Key Cases Cited
- Foxgate Homeowners' Assn. v. Bramalea California, Inc., 26 Cal. 4th 1 (Cal. 2001) (confidentiality primary; no judicially crafted exemptions)
- Rojas v. Superior Court, 33 Cal.4th 407 (Cal. 2004) (writings prepared for mediation are confidential)
- Fair v. Bakhtiari, 40 Cal.4th 189 (Cal. 2006) (requires explicit language to render a mediation writing binding)
- Simmons v. Ghaderi, 44 Cal.4th 570 (Cal. 2008) (broad enforcement of confidentiality; no due process waiver)
- Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (Cal. App. 2007) (no attorney-malpractice exception to mediation confidentiality)
- Rinaker v. Superior Court, 62 Cal. App. 4th 155 (Cal. App. 1998) (due process considerations; mediation confidentiality balanced by legislature)