Foxgate Homeowners’ Assn. v. Bramalea California, Inc – Case Brief Summary (California)

In Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, a construction defect action, the plaintiff homeowners' association moved for sanctions against the defendant developer and its attorney for failing to participate in good faith in court-ordered mediation, and to comply with an order of the mediator. (Foxgate, supra, 26 Cal.4th at pp. 4-8.)

Attached to the sanctions motion were the report of the mediator and a declaration by counsel, both reciting statements made by the developer's attorney during the mediation, which tended to show obstructionist and possibly bad faith conduct. (Id. at pp. 6-7.) The motion for sanctions was granted, and the developer appealed. (Id. at p. 8.)

The Court of Appeal concluded that, notwithstanding the provisions of Evidence Code sections 1119 and 1121, a mediator or party could report information "reasonably necessary to describe sanctionable conduct and place that conduct in context," and thus the mediator's report was appropriate. (Foxgate, supra, 26 Cal.4th at p. 9.)

The Supreme Court held this conclusion to be error, noting that the language in Evidence Code sections 1119 and 1121 was clear and required no judicial construction:

"Section 1119 prohibits any person, mediator and participants alike, from revealing any written or oral communication made during mediation. Section 1121 also prohibits the mediator, but not a party, from advising the court about conduct during mediation that might warrant sanctions. It also prohibits the court from considering a report that includes information not expressly permitted to be included in a mediator's report. The submission to the court, and the court's consideration of, the report of the mediator violated sections 1119 and 1121." (Foxgate, supra, 26 Cal.4th at pp. 13-14.)

The court further concluded that the legislative intent underlying the mediation confidentiality provisions was clear: it was designed "to promote 'a candid and informal exchange regarding events in the past . . . . This frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.' " (Foxgate, supra, 26 Cal.4th at p. 14.)

The court further noted that Evidence Code section 703.5 made arbitrators, judges, and mediators persons incompetent to testify. (Foxgate, supra, 26 Cal.4th at pp. 14-15.)

This statute provides in part: "No 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 . . . ."

Based upon all the foregoing, the court held that "to carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme, which includes Evidence Code sections 703.5, 1119, and 1121, unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception." (Foxgate, supra, 26 Cal.4th at p. 15.)

The court in Foxgate did note the concern regarding litigants that engage in bad faith conduct during the mediation process. However, because the legislature had concluded that the need for confidentiality of the mediation process outweighed the need for evidence of sanctionable conduct, no exception could be carved out for bad faith conduct. (Foxgate, supra, 26 Cal.4th at p. 17.)

Therefore, since the mediator's report was used by the court as a basis for imposition of sanctions, the court concluded that the only appropriate remedy was a reversal of the order imposing sanctions. (Id. at p. 18.)

The court in Foxgate has set forth a bright-line rule that prohibits the use of such information in any proceeding and no matter how relevant, absent an express statutory exception to the mediation confidentiality provisions.

In Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) a mediator submitted a report to the trial court stating that a participant had engaged in misconduct during mediation proceedings. ( Foxgate, supra, 26 Cal.4th at pp. 4-8.)

After the trial court awarded sanctions, the Court of Appeal reversed and remanded the matter because the trial court's order was insufficiently detailed under Code of Civil Procedure section 128.5. ( Foxgate, at pp. 8-10.)

For the guidance of the trial court, the Court of Appeal addressed whether the mediator's report could support sanctions. ( Foxgate, supra, 26 Cal.4th at p. 8.)

Despite the unqualified ban on mediator reports in section 1121, it concluded that policy considerations warranted a nonstatutory exception to this ban for reports of misconduct. ( Foxgate. at p. 9.)

Applying the rule that unambiguous statutes are subject to judicial construction when literal interpretation would lead to an absurd result or defeat manifest legislative purposes ( Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1334, fn. 7), the Court of Appeal reasoned that the nonstatutory exception was necessary to ensure good faith conduct in mediations. ( Foxgate, at p. 9.)

The California Supreme Court rejected the Court of Appeal's determination on this matter. ( Foxgate, supra, 26 Cal.4th at pp. 13-18.)

It determined that the language of sections 1119 and 1121 was clear, as was the legislative intent underlying the statutory scheme, namely, to promote mediation by ensuring confidentiality. ( Foxgate, at pp. 14-15.)

Furthermore, it determined that the nonstatutory exception was not needed to avoid absurd results or to expedite legislative goals, reasoning that in enacting the scheme, the Legislature had balanced the policy that promotes effective mediation through confidentiality against a policy of encouraging good faith conduct in mediation through disclosure of misconduct. ( Id. at p. 17.)

The court in Foxgate thus stated:

"To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme, which includes sections 703.5, 1119, and 1121, unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception." ( Foxgate, supra, 26 Cal.4th at p. 15.)

Nonetheless, the Foxgate court left open the possibility that mediators may be compelled to disclose confidential communications in extraordinary circumstances, notwithstanding the statutory scheme. ( Foxgate, supra, 26 Cal.4th at pp. 15-17.)