California Court of Appeals, Second District, Third Division
PETITION for Writ of Mandate from an order of the Superior Court of Los Angeles County, No. BD539336 Thomas Trent Lewis, Judge.
[Copyrighted Material Omitted]
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, Christopher Melcher and Anthony D. Storm for Real Party in Interest.
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. 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.
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.
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 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 ...