Metropolitan News-Enterprise


Monday, August 6, 2012


Page 1


C.A. Affirms Dismissal of Action Against Cochran Firm

Says Mediation Privilege Bars Action Based on Alleged Unauthorized Settlement


By a MetNews Staff Writer


The Court of Appeal on Friday affirmed the scuttling of an action against The Cochran Firm and two members of it by plaintiffs who say their case against their employer was settled without their consent.

The complaint by seven erstwhile clients against the law firm and attorneys Daniel H. Cargnelutti and Brian Dunn alleges negligence, breach of fiduciary duties, and fraud. It recites that they sued their employer for racial discrimination, went to mediation, and signed a confidentiality agreement—and that signature page was, without their authorization, later attached to a settlement agreement.

Los Angeles Superior Court Judge Rolf M. Treu granted a motion in limine to exclude all of the evidence because it stemmed from mediation, and Evidence Code Sec. 1119 renders confidential whatever occurs in that setting. He then dismissed the action.

Not ‘Mediation Related’

The appellants insisted that the unauthorized settlement was not “mediation related” because the mediation did not produce the purported settlement.

Div. Eight of this district’s appeals court, in an unpublished opinion by Justice Elizabeth Grimes, rejected the distinction. She cited the California Supreme Court’s opinion in Cassel v. Superior Court (2011) 51 Cal.4th 113 for the proposition that confidentiality provisions of Sec. 1119 are “clear and absolute” and that “[e]xcept in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected.”

The appellants argued that they, unlike the plaintiff in Cassel, were not seeking disclosure of anything said during mediation, but were seeking to establish that they had not assented to a settlement of their case.

Contention Rejected

Grimes responded:

“[P]laintiffs cannot establish their claims without delving into the circumstances under which they were allegedly fraudulently induced to sign a document at the mediation that their counsel later represented to be a settlement agreement. The trier of fact must necessarily consider the circumstances under which the purported settlement agreement came to exist. To the extent counsel’s alleged deception occurred at the mediation, it was ‘in the course of, or pursuant to, a mediation’ under the expansive interpretation given to those terms.”

Grimes said that Sec. 1119 renders the evidence inadmissible “even if it would ‘unfairly’ shield an attorney from liability.”

Michael A. Lotta represented six of the plaintiffs; plaintiff Anthony Hadley represented himself; and Kenneth C. Feldman and Barry Zoller of Lewis Brisbois Bisgaard & Smith acted for the defendants.

Lotta could not be reached for comment.

Feldman said that the Court of Appeal “appropriately followed what the Supreme Court articulated in Cassel.”


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