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Cassel v. Superior Court of Los Angeles County

November 12, 2009

MICHAEL CASSEL, PETITIONER,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT,
WASSERMAN, COMDEN, CASSELMAN & PEARSON, L.L.P., ET AL., REAL PARTIES IN INTEREST.



ORIGINAL PROCEEDING; petition for writ of mandate. William A. MacLaughlin, Judge. Petition granted in part with directions. (Los Angeles County Super. Ct. No. LC070478).

The opinion of the court was delivered by: Jackson, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

Petitioner Michael Cassel seeks writ relief from two orders excluding evidence in favor of real parties in interest Wasserman, Comden, Casselman & Pearson L.L.P., David B. Casselman and Steve K. Wasserman. We grant the petition to vacate the orders with directions.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, petitioner Michael Cassel (Cassel) filed a legal malpractice action against his former attorneys, real parties in interest Wasserman, Comden, Casselman & Pearson, L.L.P., David B. Casselman (Casselman) and Steve K. Wasserman (collectively Wasserman Comden). Wasserman Comden represented Cassel in a lawsuit regarding ownership interest in Von Dutch Originals, LLC, a famous clothing company, and a license to use the Von Dutch name (Von Dutch lawsuit).*fn1 Cassel and Wasserman Comden met with each other on August 2, 3 and 4, 2004 with respect to the Von Dutch lawsuit. Cassel (directly and through Wasserman Comden) and the opposing party (directly and through his counsel) participated in a mediation on August 4 as a result of which Cassel and the opposing party entered into a $1.25 million settlement agreement. Cassel subsequently brought the legal malpractice action, alleging that Wasserman Comden forced him to sign the settlement agreement for $1.25 million, rather than the higher amount he had told Wasserman Comden was acceptable.

In preparation for trial in the legal malpractice action, Wasserman Comden brought a motion in limine seeking to exclude evidence proffered by Cassel regarding certain conversations and conduct between Cassel and Wasserman Comden on August 2, 3, and 4, 2004 during meetings in which they were the sole participants and which were held outside the presence of the opposing party and the mediator. Wasserman Comden claimed that the communications were protected from disclosure by the mediation confidentiality statutes in Evidence Code sections 1115 et seq.*fn2 Cassel argued that they were confidential communications between client and his attorneys which were subject to the law of the lawyer-client privilege in section 950 et seq. and that mediation confidentiality did not apply. The trial court and the parties acknowledged that they found no California judicial opinion dealing with communications solely between a client and his attorneys, outside the presence of the opposing party or the mediator, near or at the time a mediation was scheduled.

The trial court found that the communications were protected by mediation confidentiality and, accordingly, issued orders on April 1 and April 2, 2009 excluding them as evidence on the grounds they were inadmissible.*fn3 The court and parties discussed referring the issue to the Court of Appeal by petition for writ of mandate. At Cassel's request, on April 3, 2009, the trial court issued an order under Code of Civil Procedure section 166.1 finding that its orders excluding communications between Cassel and Wasserman Comden, based on mediation confidentiality, involve a controlling question of law for which there are substantial grounds for difference of opinion and appellate resolution of the issues could materially advance the termination of the legal malpractice action. The court nevertheless set the trial to begin on August 13, 2009. Cassel included the order in his petition for writ of mandate and stay of proceedings filed April 8, 2009 with respect to the court's orders excluding the communications from evidence.

Cassel requests that we issue a peremptory writ of mandate directing the respondent superior court to vacate its orders of April 1 and April 2, 2009 and to issue a new order denying Wasserman Comden's motion in limine to exclude the evidence and that we award him his costs on this petition.*fn4

We issued an order to show cause on April 23, 2009 as to why the court should not be compelled to vacate its orders of April 1 and April 2, 2009 granting Wasserman Comden's in limine motion to exclude evidence and to issue a new and different order denying the motion.

DISCUSSION

The question presented is whether, as a matter of law, mediation confidentiality requires exclusion of conversations and conduct solely between a client, Cassel, and his attorneys, Wasserman Comden, on August 2, 3, and 4, 2004 during meetings in which they were the sole participants and which were held outside the presence of any opposing party or mediator. The parties present arguments as if there was a mutually exclusive dichotomy-either, according to Cassel, the lawyer-client privilege statutory scheme applies (§ 950 et seq.) or, according to Wasserman Comden, the mediation confidentiality statutes apply (§ 1115 et seq.).

In our view, resolution of the issue requires consideration of both statutory schemes. The parties apparently agree as to the initial step, application of the lawyer-client privilege statutory scheme. They do not dispute that, absent the filing of the instant malpractice action, the lawyer-client privilege statutory scheme (§ 950 et seq.) would apply to the disclosures sought by Cassel in his capacity as the client. (See § 954.)*fn5 Nor do they apparently dispute that a statutory exception (§ 958)*fn6 eliminates the disclosure protections otherwise provided by the privilege when either the lawyer or, as in this case, the client files suit against the other for breach of duties arising out of the lawyer-client relationship. Accordingly, admission of the communications would not be precluded by the lawyer-client privilege. The inquiry must continue, however, to determine whether any other limitations imposed by law preclude disclosure of all or a portion of the content of the communications.

Mediation confidentiality comes into play as a possible limitation.*fn7 Mediation confidentiality statutes include recognition that other statutes govern disclosure of particular kinds of information. Section 1120, subdivision (a), provides: "Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from ...


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