Metropolitan News-Enterprise


Thursday, April 1, 2004


Page 1


C.A.: Retired Judge Saeta Must Testify About Hearing


By a MetNews Staff Writer


A retired Los Angeles Superior Court Judge who served as a neutral third member of an employment termination review panel must testify about what went on at the hearing, this district’s Court of Appeal has ruled.

Former Judge Philip Saeta cited Evidence Code Sec. 703.5 in declining to answer questions about the hearing when he was deposed in a lawsuit brought by Kathleen Dent. Dent sued Farmers Insurance Group of Companies after she was fired.

Under her employment agreement with Farmers, Dent was entitled to a hearing before a review panel. She selected one member of the panel, Farmers chose another, and Saeta served as the third.

The panel issued a recommendation upholding the discharge. In her suit, Dent contended the panel failed to provide a “summary of the hearing and its recommendations” as required under the agreement.

After Saeta declined at his deposition to answer questions about what occurred at the review hearing, or whether he believed the procedures mandated under the agreement had been followed, Dent moved to compel his testimony.

Los Angeles Superior Court Judge Victor Person granted the motion. In opposing it, Saeta cited Evidence Code Sec. 1119 as well as Sec. 703.5.

Person’s ruling was correct, Justice Richard D. Aldrich said Tuesday in an opinion for Div. Three.

The review panel was constituted pursuant to the employment contract and the hearing it conducted was neither an arbitration nor a mediation, Aldrich said.

Sec. 703.5 provides in part that “[n]o person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding.” Sec. 1119 makes “anything said—in the course of—a mediation or a mediation consultation” immune from discovery.

The hearing was not an arbitration, since was voluntary, included no third party decisionmaker, and eventuated only in a recommendation to the employer, Aldrich reasoned. Both Dent’s representative and the company’s were Farmers employees, and Dent had no input into Saeta’s appointment, the justice noted.

Neither was the hearing a mediation, since it was not intended to assist the parties in reaching a mutual agreement, Aldrich said.

While the definitions of mediation found in Code of Civil Procedure Sec. 1775.1(a), Evidence Code Sec. 1115, treatises and appellate decisions are broad, the justice conceded, he added that “at a minimum, mediation appears to require a neutral mediator or group of mediators and have as its aim to facilitate a mutually acceptable result.”

The justice declared:

“Statements made before the review board are not subject to the privileges of sections 703.5 and 1119 of the Evidence Code. To apply section 703.5 to events that occur before the review board, we would have to carve out a privilege that does not exist in the texts of the statutes themselves. Nor do we have authority to rework the review board’s format in order to fit it within the scope of the privilege; revision of the agreement is a task for Farmers.”

Aldrich also rejected Saeta’s claim that forcing him to testify would violate the privacy guarantee contained in Article I, Sec. 1 of the California Constitution.

When the Court of Appeal in Garstang v. Superior Court (1995) 39 Cal.App.4th 526 recognized a qualified privilege under that provision for a university ombudsman, it balanced the “compelling public need” for discovery against the privacy rights of individuals who participated in the ombudsman’s sessions and found the latter more weighty, Aldrich said.

Saeta’s situation was not similar, Aldrich asserted.

“Evidence provided by Dent reveals that the information she sought from petitioner does not relate to the private affairs of any other employees of Farmers,” the justice wrote. “Moreover, there is no showing the parties here anticipated the sessions before the review board would be confidential. Unlike Garstang, the parties here did not sign a confidentiality agreement. Farmers made no representations that the review board hearing would be held in confidence. Moreover, others who had been present at Dent’s review board hearing have already testified in depositions without invoking a privilege or a right to privacy.”

The case is Saeta v. Superior Court (Dent), 04 S.O.S. 1651.


Copyright 2004, Metropolitan News Company