“On the facts presented here, the [c]ourt concludes that 8 communications to the mediator and communications between parties during the mediation are 9 protected.”
How later courts described this case
- “On the facts presented here, the [c]ourt concludes that 8 communications to the mediator and communications between parties during the mediation are 9 protected.”
- “[T]he mediation privilege adopted 19 today applies only to information disclosed in conjunction with mediation proceedings with a 20 neutral.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 SHARON S. CHAND, No. 2:23-cv-01583-DC-SCR (PS)
12 Plaintiff,
13 v. ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
14 LORI LYNN RICH-BANALES, et al.,
(Doc Nos. 5, 15)
15 Defendants.
16
17 Plaintiff is proceeding pro se in this action. The matter was referred to a United States
18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
19 On December 9, 2024, the magistrate judge filed findings and recommendations
20 recommending that the court grant Defendants’ motion to dismiss Plaintiff’s Fair Employment
21 and Housing Act (“FEHA”) claims against all Defendants, Plaintiff’s 42 U.S.C § 1981 claims
22 against Defendants Jennifer Lynn Crick and Lori Lynn Rich-Banales, Plaintiff’s § 1981 hostile
23 work environment and non-employment-based claims against Defendants Philip J. Bonnet and
24 Alta California Regional Center (“ACRC”), and all claims against Defendant ACRC, Board of
25 Directors. (Doc. No. 15.) The pending findings and recommendations were served on all parties
26 and contained notice to all parties that any objections to the findings and recommendations were
27 to be filed within fourteen days. (Id. at 29–30.) On December 23, 2024, Defendants filed
28 objections to the pending findings and recommendations. (Doc. No. 16.)
1 In their objections, Defendants argue, in part, that the magistrate judge erred in finding no
2 mediation privilege applies to statements made by Defendant Bonnet and a mediator during a
3 mediation with Plaintiff. (Doc. No. 16 at 17–21.) Defendants argue that the federal mediation
4 privilege adopted by Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164
5 (C.D. Cal. 1998) applies in this case. (Id.) In Folb, the district court articulated a federal common
6 law mediation privilege, prohibiting the use of information exchanged during mediation. See
7 Folb, 16 F. Supp. 2d at 1180 (“On the facts presented here, the [c]ourt concludes that
8 communications to the mediator and communications between parties during the mediation are
9 protected.”). Defendants further argue that under Federal Rule of Evidence 501, the court should
10 look to the mediation privilege provided by California state law. (Id.) Specifically, Defendants
11 argue the mediation privilege provided by California Evidence Code section 1119 applies. (Id.)
12 California Evidence Code section 1119 provides that “[n]o evidence of anything said or any
13 admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation
14 consultation is admissible or subject to discovery” and “[a]ll communications, negotiations, or
15 settlement discussions by and between participants in the course of a mediation or a mediation
16 consultation shall remain confidential.” Cal. Evid. Code § 1119.
17 The mediation privilege adopted in Folb applies only to a formal mediation proceeding
18 before a neutral mediator. See Folb, 16 F. Supp. 2d at 1180 (“[T]he mediation privilege adopted
19 today applies only to information disclosed in conjunction with mediation proceedings with a
20 neutral.”) Likewise, California Evidence Code section 1119 applies to mediations with a “neutral
21 person.” See Cal. Evid. Code § 1115. Here, Plaintiff alleges that the mediation at issue was not
22 before a neutral mediator. (See Doc. No. 4 at 11.) Therefore, the court concludes that Defendants’
23 objections do not provide a basis upon which to reject the pending findings and
24 recommendations.
25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
26 court has conducted a de novo review of this case. Having carefully reviewed the entire file,
27 including Defendants’ objections, the court finds the findings and recommendations to be
28 supported by the record and by proper analysis.
1 Accordingly, IT IS HEREBY ORDERED that:
2 1. The findings and recommendations filed December 9, 2024 (Doc. No. 15) are
3 ADOPTED in full;
4 2. Defendants’ motion to dismiss (Doc. No. 5) is GRANTED in part and DENIED in
5 part as follows:
6 a. GRANTED as to Plaintiff’s claims against Defendant ACRC, Board of
7 Directors without leave to amend;
8 b. GRANTED as to Plaintiff’s Fair Employment and Housing Act (“FEHA”)
9 claims against all Defendants with leave to amend;
10 c. GRANTED as to Plaintiff’s 42 U.S.C. § 1981 claims against Defendants
11 Jennifer Lynn Crick and Lori Lynn Rich-Banales with leave to amend;
12 d. GRANTED as to Plaintiff’s 42 U.S.C. § 1981 hostile work environment claim
13 against Defendants Philip J. Bonnet and ACRC with leave to amend;
14 e. GRANTED as to Plaintiff’s 42 U.S.C. § 1981 non-employment-based claim
15 against Defendants Philip J. Bonnet and ACRC with leave to amend;
16 f. DENIED as to Plaintiff’s 42 U.S.C. § 1981 retaliation claim against
17 Defendants Philip J. Bonnet and ACRC with leave to amend;
18 g. DENIED as to Plaintiff’s 42 U.S.C. § 1981 constructive discharge claim
19 against Defendants Philip J. Bonnet and ACRC with leave to amend;
20 3. Within thirty (30) days from the date of this order, Plaintiff shall file a second
21 amended complaint, or alternatively, file a notice of her intent to proceed with the
22 remaining claims in her first amended complaint; and
23 /////
24 /////
25 /////
26 /////
27 /////
28 /////
1 4. This matter is referred back to the assigned magistrate judge for further
2 proceedings.
3
4 IT IS SO ORDERED. □
5 | Dated: _ October 3, 2025 EIU os
Dena Coggins
6 United States District Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28