Lappe v. Superior Court of Los Angeles County

Filed 12/19/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

GILDA LAPPE, B255704

Petitioner, (Los Angeles County

Super. Ct. No. BD539336)

v.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Respondent;

MURRAY LAPPE,

Real Party in Interest.

PETITION for Writ of Mandate from an order of the Superior Court of Los

Angeles County, Thomas Trent Lewis, Judge. Petition granted.

Barbakow & Ribet, Daniel Barbakow, Claudia Ribet and Elizabeth Skorcz

Anthony for Petitioner.

No Appearance for Respondent.

Law Offices of James M. Donovan, James M. Donovan, Michael J. Glenn;

Walzer & Melcher LLP, Christopher Melcher and Anthony D. Storm for Real Party in

Interest.

_____________________

INTRODUCTION

This writ proceeding arises from a marital dissolution action brought by petitioner

Gilda Lappe against her former husband and real party in interest Murray Lappe.1 The

parties agreed to resolve their property and support issues through mediation, during

which they purportedly exchanged certain financial disclosure declarations that are

mandated by the Family Code. They also executed a marital settlement agreement,

which was incorporated into a stipulated judgment. Shortly after entry of judgment,

Gilda learned that Murray recently sold a company he founded during the marriage. In

the settlement agreement, Gilda relinquished her community share of the company for

$10 million. Murray received approximately $75 million from the sale.

Following this revelation, Gilda filed an application to set aside the judgment on

grounds of fraud and duress. In connection with the application, Gilda served discovery

on Murray requesting, among other things, the financial disclosure declarations that were

exchanged prior to entry of judgment. Murray refused to produce the declarations,

asserting they were covered by the mediation confidentiality statutes, insofar as they

constituted writings that were “prepared for the purpose of, in the course of, or pursuant

to, a mediation.” (Evid. Code, § 1119, subd. (b).) Gilda moved to compel production.

The trial court denied the motion on mediation confidentiality grounds.

1

We refer to Gilda and Murray Lappe by their first names for the sake of clarity and

not out of disrespect.

2

In her petition for writ of mandate challenging the trial court’s order, Gilda

contends the mediation confidentiality statutes do not apply because the subject financial

disclosure declarations were necessarily prepared pursuant to and for the purpose of

complying with the Family Code’s statutory mandate, not because the parties participated

in mediation. We agree, and grant Gilda’s petition.

FACTS AND PROCEDURAL BACKGROUND

Gilda and Murray were married for 16 years and have two children together.

Gilda was a stay-at-home mother during their marriage. Murray is trained as a medical

doctor and is a successful businessman.

On February 10, 2011, Gilda filed a petition for dissolution of the marriage. The

parties agreed to settle their property and support issues through mediation without

representation by counsel. During the mediation, Gilda and Murray signed declarations

stating that service of the preliminary and final declarations of disclosure had been made

on the other party as required by the Family Code. Notwithstanding these declarations,

Gilda maintains that she did not serve Murray with a preliminary or final declaration of

disclosure, nor did she receive a preliminary or final declaration from Murray. She avers

the declaration regarding service was one of several documents that Murray “coerced”

her to sign while they were alone in the mediator’s office. Murray denies the allegation.2

During the mediation, the parties also executed a marital settlement agreement.

As pertinent to the instant proceeding, the agreement provides that Murray shall pay

Gilda a total of $10 million in full satisfaction of her entire community interest in shares

2

We state the parties’ competing allegations for the purpose of providing context

and make no judgment as to whose statement of the facts is correct. Factual disputes

concerning the alleged coercion are committed in the first instance to the trial court,

which may resolve them in ruling on Gilda’s pending motion to set aside the judgment.

To the extent Gilda intends to rely on communications made pursuant to or in the course

of the mediation, the trial court’s review of such evidence will of course be constrained

by mediation confidentiality. (See, e.g., Cassel v. Superior Court (2011) 51 Cal.4th 113,

133-137 (Cassel) [evidence of alleged attorney malpractice committed in course of

mediation is subject to mediation confidentiality]; Wimsatt v. Superior Court (2007)

152 Cal.App.4th 137, 163 (Wimsatt) [same].)

3

of eScreen, Inc. With respect to the declarations of disclosure, the agreement also states:

“The parties’ Preliminary/Final Declarations of Disclosure shall be inadmissible in a

court of law, and otherwise protected from disclosure, pursuant to the provisions of

Section 1119(b) of the California Evidence Code.” Evidence Code section 1119,

subdivision (b) bars discovery or admissibility of writings “prepared for the purpose of,

in the course of, or pursuant to, a mediation.” On August 2, 2011, the trial court entered

a stipulated judgment, which incorporated the marital settlement agreement.

On April 24, 2012, Gilda filed an application to set aside the judgment on grounds

of fraud, perjury, duress, and mistake. In her supporting declaration, Gilda asserted that

in January 2012, less than five months after the judgment was entered, she learned

Murray was in the process of selling eScreen and all equity shares he acquired in the

company through the marital settlement agreement. As a result of the sale, Murray

received approximately $75 million pre-tax for the eScreen shares. Gilda averred that

Murray never disclosed he was shopping eScreen for sale, and had she known as much,

she would not have agreed to surrender her community interest in the company for only

$10 million.

In connection with her application to set aside the judgment, Gilda served a

request for production of documents on Murray, which included a request for the

declaration of disclosure that Murray served upon Gilda prior to entry of judgment.

Murray objected to the request and refused to produce the declaration on the ground that

it was protected from disclosure by the mediation confidentiality statutes. Gilda brought

a motion to compel production.

The trial court appointed a referee to make recommendations regarding the

discovery dispute. The referee concluded the declaration of disclosure was not subject to

mediation confidentiality because the document had “independent legal significance” and

the “public policy” declared by the Family Code favoring disclosure to ensure fair and

equal property divisions “overrides” mediation confidentiality. Gilda applied for an order

confirming the referee’s recommendation and findings. Murray objected to the

recommendation.

4

In his objections, Murray principally argued that the referee erred by relying on a

nonstatutory exception for documents having “independent legal significance” in

violation of the Supreme Court’s repeated instruction that courts may not craft judicial

exceptions to mediation confidentiality. Murray also argued the recommendation ignored

the parties’ express agreement that the declarations of disclosure were to be deemed

inadmissible and shielded from discovery under the mediation confidentiality provisions

of the Evidence Code.

The trial court agreed with Murray. In view of the Supreme Court authorities

consistently rejecting judicially crafted exceptions to mediation confidentiality, and the

parties’ stipulation in their marital settlement agreement that Evidence Code section 1119

applied to the declarations of disclosure, the court ruled the mediation confidentiality

statutes barred compelled production of the disclosure declarations.

DISCUSSION

1. Standard of Review

We review the order denying Gilda’s motion to compel for an abuse of discretion.

(People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1071 (Lockyer).)

Under this standard, a trial court’s ruling on a discovery motion will be overturned upon a

prerogative writ if there is “no substantial basis” for the manner in which the court

exercised its discretion or if the court applied a “patently improper standard” for its

decision. (Coriell v. Superior Court (1974) 39 Cal.App.3d 487, 491, fn. 1.) Where the

propriety of a discovery order turns on statutory interpretation, we review the issue de

novo, as a question of law. (Lockyer, at p. 1071.)

Gilda contends the Evidence Code’s mediation confidentiality provisions cannot

be applied in a marital dissolution proceeding to bar the discovery and admissibility of

financial disclosures mandated by the Family Code. To put the issue in context, we begin

with a review of each statutory scheme.

2. Family Code Disclosure Requirements

As codified in Family Code section 2100 et seq., California law recognizes the

vital importance of “full and accurate disclosure of all assets and liabilities” at the “early

5

stages” of a marital dissolution proceeding to ensure fair and sufficient child and spousal

support awards and to achieve a proper division of community and quasi-community

assets and liabilities. (Fam. Code, § 2100, subds. (a) & (c); Hogoboom & King, Cal.

Practice Guide: Family Law (The Rutter Group 2014) ¶ 11:40, p. 11-8.) This includes a

“continuing duty” on the part of each spouse to “immediately, fully, and accurately

update and augment that disclosure” so both will have “full and complete knowledge of

the relevant underlying facts.” (Fam. Code, § 2100, subd. (c).)

To implement this policy, the Family Code mandates that each spouse “shall serve

on the other party” a “preliminary” and “final” declaration of disclosure. (Fam. Code,

§ 2103.) The preliminary declaration of disclosure provides a general inventory of the

parties’ respective assets at the outset of dissolution proceedings.3 The final declaration

requires far more extensive disclosures.

The Family Code mandates that the final declaration of disclosure “shall include”

“[a]ll material facts and information” regarding (1) the characterization of all assets and

liabilities; (2) the valuation of all assets that are contended to be community property;

(3) the amounts of all obligations that are contended to be community obligations; and

(4) the earnings, accumulations, and expenses of each party. (Fam. Code, § 2105, subd.

(b); Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶¶ 11:68, 11:87.) The

final declaration must also contain “accurate and complete written disclosure of any

investment opportunity, business opportunity, or other income-producing opportunity that

presents itself after the date of separation, but that results from any investment,

3

Specifically, “[t]he preliminary declaration of disclosure shall set forth with

sufficient particularity,” to the extent that “a person of reasonable and ordinary

intelligence can ascertain [them],” “[t]he identity of all assets in which the declarant has

or may have an interest and all liabilities for which the declarant is or may be liable,

regardless of the characterization of the asset or liability as community, quasi-

community, or separate.” (Fam. Code, § 2104, subd. (c)(1).) It also must include “[t]he

declarant’s percentage of ownership in each asset and percentage of obligation for each

liability where property is not solely owned by one or both of the parties.” (Id., subd.

(c)(2).) The preliminary declaration of disclosure must be served either concurrently or

within 60 days of filing a petition for dissolution or response thereto. (Id., subd. (f).)

6

significant business activity outside the ordinary course of business, or other income-

producing opportunity of either spouse from the date of marriage to the date of

separation, inclusive.” (Fam. Code, §§ 2102, subd. (a)(2), 2105, subd. (d)(3).) This

written disclosure “shall be made in sufficient time for the other spouse to make an

informed decision as to whether he or she desires to participate in the investment

opportunity, business, or other potential income-producing opportunity, and for the court

to resolve any dispute regarding the right of the other spouse to participate in the

opportunity.” (Ibid.)

Because the Family Code’s extensive disclosure requirements could reveal

sensitive financial information, the final declarations of disclosure, like the preliminary

declarations, must be served on the other spouse, but are not to be filed with the court.

(Fam. Code, §§ 2105, subd. (a), 2104, subd. (b); Hogoboom & King, Cal. Practice Guide:

Family Law, supra, ¶¶ 11:52, 11:86.) However, unless there has been a valid waiver, the

Family Code mandates that each party “shall execute and file with the court a declaration

signed under penalty of perjury stating that service of the final declaration of

disclosure . . . was made on the other party” before judgment is entered. (Fam. Code,

§ 2106.) A judgment entered when the parties have failed to comply with the declaration

of disclosure requirements is subject to set aside to the extent the nondisclosure

materially affected the judgment. (Fam. Code, §§ 2105, subd. (c), 2107, subd. (d); see In

re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 527-528.) Upon a

motion to set aside the judgment, the court may order the parties to provide the court with

the preliminary and final declarations of disclosure that were exchanged between them.

(Fam. Code, § 2107, subd. (e).)

The mandatory declaration of disclosure requirements are subject to a few narrow

statutory exemptions. Under Family Code section 2105, subdivision (a), the court has

discretion to excuse a party from serving a final declaration of disclosure upon a showing

of “good cause.” Additionally, on specified conditions, the parties may stipulate to a

7

mutual waiver of the final declaration requirement.4 (Fam. Code, § 2105, subd. (d).)

Unless the mandatory conditions specified in section 2105 are met, no purported waiver

is effective to excuse exchange of the prescribed final declarations.5 (In re Marriage of

Fell (1997) 55 Cal.App.4th 1058, 1064-1065 [“Where the Legislature permits a

particular, limited waiver of a right upon satisfaction of a set of conditions, it intends that

no other related waivers be permitted.”].)

Notwithstanding the foregoing, courts have recognized that when parties to a

marital dissolution agree to settle their property or support issues by nonjudicial

arbitration or mediation, they may do so without strictly complying with the technical

requirements of Family Code sections 2104 or 2105. (See Elden v. Superior Court

(1997) 53 Cal.App.4th 1497, 1508-1509 (Elden) [“Husband and Wife here could arbitrate

to an award whether or not they had filed either preliminary declarations or final

declarations”]; In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 892 (Woolsey)

[where parties agreed to mediation, “strict compliance” with the “technical procedural

requirements” of sections 2104 and 2105 was not required].) However, regardless of the

procedures adopted in mediation or arbitration, the parties are nonetheless required to

execute and serve final declarations of disclosure before the court may enter judgment.

(Elden, at p. 1511 [“pursuant to section 2106, the trial court could not grant Husband’s

motion and enter judgment unless both parties had first complied with section 2105”];

Woolsey, at p. 892 [“After a mediation in a marital dissolution case, parties must

nonetheless comply with section 2106 prior to entry of judgment by the trial court”].)

4

Two other exceptions apply in summary dissolution and default cases. Parties to

summary dissolution proceedings are exempted from the final declaration of disclosure

requirements; however, a preliminary disclosure is required in such proceedings. (Fam.

Code, § 2109.) Similarly, in default cases, the petitioner must serve a preliminary

declaration of disclosure, but may waive the final declaration of disclosure requirement.

(Id., § 2110.)

5

Neither Murray nor Gilda claims they stipulated to a waiver of the final

declaration of disclosure requirement as provided for in section 2105, subdivision (d).

8

3. Evidence Code Mediation Confidentiality Provisions

“[C]onfidentiality is essential to effective mediation . . . and, in some cases

required by, the Legislature.” (Foxgate Homeowners’ Assn. v. Bramalea California, Inc.

(2001) 26 Cal.4th 1, 14 (Foxgate).) “[T]he mediation confidentiality provisions of the

Evidence Code were enacted to encourage mediation by permitting the parties to frankly

exchange views, without fear that disclosures might be used against them in later

proceedings.” (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194 (Fair).)

Mediation confidentiality is codified in Evidence Code section 1115 et seq. As

delineated in Evidence Code section 1119, mediation confidentiality applies to any oral

or written communication made or “prepared for the purpose of, in the course of, or

pursuant to, a mediation or a mediation consultation . . . .” (Evid. Code, § 1119.) Section

1119 specifies that such evidence is neither subject to discovery nor admissible in any

civil action or other noncriminal proceeding. Even after mediation ends, communications

and writings protected by the statutes are to remain confidential. (Evid. Code, § 1126.)

Notwithstanding the statutes’ broad scope, the factual contents of a conversation

or writing are not automatically deemed confidential simply because they are included in

a mediation communication. Under Evidence Code section 1120, subdivision (a), facts

that constitute otherwise admissible evidence or are subject to discovery outside of a

mediation do not become inadmissible or protected from disclosure solely by reason of

their introduction or use in a mediation. Likewise, otherwise admissible facts cannot be

shielded from disclosure simply because they have been placed in confidential mediation

documents. (Wimsatt, supra, 152 Cal.App.4th at p. 161; Rojas v. Superior Court (2004)

33 Cal.4th 407, 423, fn. 8 (Rojas).)

Some mediation communications are admissible and subject to disclosure under

statutorily defined exceptions. For example, the statutory scheme specifies when written

and oral settlements resulting from the mediation process are admissible. (Evid. Code,

§§ 1118, 1123, 1124.) Additionally, mediation communications or writings may be

admitted if there is consent for disclosure in accordance with the conditions set forth in

Evidence Code section 1122.

9

Our Supreme Court has broadly applied the mediation confidentiality statutes and

all but categorically prohibited judicially crafted exceptions, even in situations where

justice seems to call for a different result. (See Wimsatt, supra, 152 Cal.App.4th at p. 152

[cataloguing Supreme Court cases].) “To carry out the purpose of encouraging mediation

by ensuring confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of

communications [and writings] made during mediation absent an express statutory

exception.” (Foxgate, supra, 26 Cal.4th at p. 15, fn. omitted; accord, Rojas, supra,

33 Cal.4th at p. 416; Fair, supra, 40 Cal.4th at p. 194.) “Judicial construction, and

judicially crafted exceptions, are permitted only where due process is implicated, or

where literal construction would produce absurd results, thus clearly violating the

Legislature’s presumed intent. Otherwise, the mediation confidentiality statutes must be

applied in strict accordance with their plain terms. Where competing policy concerns are

present, it is for the Legislature to resolve them.” (Cassel, supra, 51 Cal.4th at p. 124;

Simmons v. Ghaderi (2008) 44 Cal.4th 570, 582-583 (Simmons).)

4. Evidence Code Section 1119 Does Not Apply to Disclosures Made

Pursuant to and For the Purpose of Complying with the Family Code’s

Statutory Mandate

As the foregoing authorities make clear, courts must eschew judicially crafted

exceptions to mediation confidentiality, unless due process is implicated or a literal

construction would produce absurd results. (Cassel, supra, 51 Cal.4th at p. 124.)

However, manifest as this rule is, it does not answer the threshold question presented by

this case—that is, do the mediation confidentiality statutes apply in the first instance to

statutorily mandated disclosures that must be made regardless of whether the parties

participate in mediation? We conclude the answer to this question is “no.”

To reiterate, under Evidence Code section 1119, mediation confidentiality applies

to any writing “prepared for the purpose of, in the course of, or pursuant to, a mediation

or a mediation consultation . . . .” The declarations of disclosure at issue in this case—in

particular the final declarations that must be exchanged before judgment can be entered

(Fam. Code, § 2106)—do not come within the categories delineated by section 1119.

10

These declarations were not prepared “for the purpose of” a mediation; rather, they were

prepared for the purpose of complying with Family Code section 2100 et seq. Nor were

the declarations prepared “pursuant to” a mediation; again, they were prepared pursuant

to a statutory duty imposed by the Family Code, and a mandate requiring exchange of the

final declarations before judgment will be entered. (See Fam. Code, § 2106.) As Gilda

aptly puts it in her writ petition, “the disclosure documents are not created and exchanged

because a mediation is contemplated and they will form a part of the party’s negotiation

strategy. Rather, they are created and exchanged because the [L]egislature demands it, so

that divorcing spouses will have full and accurate information upon which to base fair

and equitable divisions of assets.” We agree.

Further, assuming the declarations were in fact exchanged during the mediation—

an assertion that Gilda denies—this does not put them into the category of writings

prepared “in the course of” mediation. Under Evidence Code section 1120, a writing that

is otherwise admissible or subject to discovery outside of a mediation does not “become

inadmissible or protected from disclosure solely by reason of its introduction or use in a

mediation or a mediation consultation.” (Evid. Code, § 1120, subd. (a).) Section 1120

limits the scope of Evidence Code section 1119 and thus prevents parties from using

mediation as a pretext to shield materials from disclosure. (Rojas, supra, 33 Cal.4th at

p. 417.) In view of this limitation, “[m]ediation confidentiality is to be applied where the

writing or statement would not have existed but for a mediation communication,

negotiation, or settlement discussion.”6 (Wimsatt, supra, 152 Cal.App.4th at p. 160,

6

In Rojas, the Supreme Court explained that applying Evidence Code 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’ ” is “consistent with the

construction of similar language in rule 408 of the Federal Rules of Evidence

(28 U.S.C.) . . . .” (Rojas, supra, 33 Cal.4th at p. 417 & fn. 5.) As construed by the

federal courts, Rojas explains, rule 408 “ ‘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.’ ”

11

italics added, citing Rojas, at p. 417, fn. 5.) Here, because exchange of the declarations is

mandated by the Family Code, these documents would have existed (and would have

been exchanged) even if the parties had never agreed to mediate. Their introduction at

mediation does not obviate the disclosure obligation or shield the declarations from

discovery. (Evid. Code, § 1120, subd. (a).)

This characteristic also distinguishes the declarations of disclosure from true

mediation communications that other courts have considered in rejecting judicially

crafted exceptions to mediation confidentiality. Unlike the subject declarations, which

were statutorily required regardless of whether the parties participated in mediation, the

communications at issue in those cases were plainly prepared for “the purpose of, in the

course of, or pursuant to, a mediation or a mediation consultation.” (Evid. Code, § 1119.)

For instance, in Cassel, the Supreme Court rejected a judicially crafted exception for

“communications between a mediation participant and his or her own attorneys outside

the presence of other participants in the mediation” (Cassel, supra, 51 Cal.4th at pp. 121-

122) where the subject evidence concerned “private attorney-client discussions

immediately preceding, and during, the mediation concerning mediation settlement

strategies and [the attorneys’] efforts to persuade [their client] to reach a settlement in the

mediation.” (Id. at p. 118, italics added.) Likewise, in Rojas, the Supreme Court rejected

the Court of Appeals’ application of attorney work product principles to create a “good

cause” exception to mediation confidentiality (Rojas, supra, 33 Cal.4th at pp. 414, 423)

where the subject materials consisted of photographs, written witness statements and

expert analyses of physical objects that were prepared for the purpose of mediation.

(Id. at pp. 416-417.) The same holds true of the other Supreme Court cases that have

considered nonstatutory exceptions to the mediation confidentiality statutes. (See, e.g.,

Foxgate, supra, 26 Cal.4th at pp. 17-18 [rejecting exception to allow mediator report

about bad faith conduct of a party that recited “statements made during the mediation

(Rojas, at p. 417, fn. 5, quoting Ramada Dev. Co. v. Rauch (5th Cir. 1981) 644 F.2d

1097, 1107.)

12

session”]; Simmons, supra, 44 Cal.4th at pp. 584, 588 [rejecting judicial estoppel

exception where challenged evidence concerned an alleged oral contract made during

mediation]; see also Fair, supra, 40 Cal.4th at pp. 194, 197-198 [affirming exclusion of

memorandum and portions of declaration describing purported settlement reached at

mediation].)

In Wimsatt, this court likewise rejected a proffered nonstatutory exception for

mediation communications that might reveal “ ‘perjury or inconsistent statements’ ” in a

legal malpractice action alleging the defendant attorney submitted an unauthorized

settlement demand. (Wimsatt, supra, 152 Cal.App.4th at p. 162.) Adhering to the

Supreme Court’s instruction that exceptions to mediation confidentiality must be

expressly stated in the statutes, we concluded the plaintiff was prohibited from soliciting

information in discovery concerning the contents of the parties’ mediation briefs, even

though this might deprive him of crucial evidence supporting his malpractice claim. (Id.

at pp. 158, 162.) We similarly concluded the plaintiff was prohibited from discovering e-

mail communications that referred to the mediation briefs. We reasoned these

communications were subject to mediation confidentiality insofar as “[t]he e-mails would

not have existed had the mediation briefs not been written.” (Id. at p. 159.)

In contrast to the foregoing, we held the defendant in Wimsatt failed to establish

mediation confidentiality attached to a conversation with opposing counsel that took

place outside of mediation concerning the plaintiff’s settlement demand. (Wimsatt,

supra, 152 Cal.App.4th at p. 161.) We noted there was evidence indicating the

conversation occurred “during a telephone call ‘scheduling the expert depos and touching

on whether a second mediation conf[erence] would be worthwhile.’ ” (Ibid.) Because

this suggested “the conversation may have occurred, and the statement could have been

made, even if there was to be no mediation,” and the defendant failed to “bring forth facts

to show that this conversation was anything other than a routine discussion, unassociated

with mediation,” we held the evidence was insufficient to establish the communication

was made “for the purpose of, in the course of, or pursuant to a mediation.” (Ibid.) We

13

reach the same conclusion here with respect to the statutorily mandated declarations of

disclosure.7

Because the Family Code requires it, these declarations would have been prepared

and exchanged even if there was no mediation. Accordingly, the declarations were not

prepared “for the purpose of, in the course of, or pursuant to, a mediation.” (Evid. Code,

§ 1119, subd. (b).) In so holding, we are not crafting an exception to the mediation

confidentiality statutes. On the contrary, we simply recognize that the confidentiality

statutes do not apply in the first instance, because these statutorily mandated declarations

do not fall within any category delineated by Evidence Code section 1119.8 (Wimsatt,

supra, 152 Cal.App.4th at p. 161.)

This conclusion is compelled notwithstanding the statement in the parties’ marital

settlement agreement that the “Preliminary/Final Declarations of Disclosure shall be

7

Murray asserts the trial court made a factual finding that the declarations of

disclosure were prepared for the purpose of, pursuant to or in the course of mediation,

and this factual finding constrains our review of the ruling below. We disagree. To

begin, the issue presented is properly viewed as a question of statutory interpretation

concerning the scope of Evidence Code section 1119 and the Family Code mandates

regarding declarations of disclosure—an issue of law that we review de novo. (Lockyer,

supra, 122 Cal.App.4th at p. 1071.) Be that as it may, even were we to assume Murray’s

premise, we would have to conclude no reasonable finder of fact could make the finding

he advances. That is, no reasonable fact finder could conclude the final declarations of

disclosure “would not have existed but for a mediation communication, negotiation, or

settlement discussion” (Wimsatt, supra, 152 Cal.App.4th at p. 160, italics added) in view

of the Family Code’s mandate requiring the preparation and exchange of such documents

regardless of whether the parties mediate.

8

To be clear, we are not endorsing the discovery referee’s view that the Family

Code’s policy for full disclosure “overrides” mediation confidentiality. Where such

“competing policy concerns are present, it is for the Legislature to resolve them.”

(Cassel, supra, 51 Cal.4th at p. 124.) Thus, the parties’ communications regarding their

relative finances during mediation will be subject to mediation confidentiality, even in a

dissolution proceeding under the Family Code. However, we repeat, the declarations of

disclosure at issue in this case do not come within the ambit of Evidence Code section

1119 because they are not prepared for “the purpose of, in the course of, or pursuant to, a

mediation”—they are prepared and exchanged to comply with the Family Code’s

mandate, regardless of whether the parties choose to mediate.

14

inadmissible in a court of law, and otherwise protected from disclosure, pursuant to the

provisions of Section 1119(b) of the California Evidence Code.” Because Evidence

Code section 1119 does not apply to the subject declarations of disclosure, the foregoing

must be seen for what it is—an attempt to effect a contractual waiver of the Family

Code’s mandate and to restrict the trial court’s authority to receive the declarations of

disclosure into evidence on a motion to set aside the judgment. (See Fam. Code, § 2107,

subd. (e).) In view of the Family Code’s stated public policy to promote “full and

accurate disclosure of all assets and liabilities” in dissolution proceedings (Fam. Code,

§ 2100, subd. (c)), such a stipulation is not permitted.

Civil Code section 3513 states: “Any one may waive the advantage of a law

intended solely for his benefit. But a law established for a public reason cannot be

contravened by a private agreement.” (See also Civ. Code, § 1668.) So it is here.

Except as specified in Family Code section 2105, the parties were not permitted to waive

the exchange of the final declarations of disclosure, nor could they stipulate to violate the

Family Code’s statutory pronouncements effectuating public policy. (In re Marriage of

Fell, supra, 55 Cal.App.4th at p. 1063-1064.) The trial court should have ordered

production of the declarations of disclosure as mandated by the Family Code. The failure

to do so was an abuse of discretion.

15

DISPOSITION

The petition is granted. Let a writ of mandate issue directing the trial court to

vacate its order denying Gilda Lappe’s motion to compel and to enter a new and different

order granting the motion with respect to the declarations of disclosure. The stay of

proceedings in the trial court is lifted. Gilda Lappe is awarded her costs in this writ

proceeding.

CERTIFIED FOR PUBLICATION

KITCHING, J.

We concur:

KLEIN, P. J.

EDMON, J. 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

16