Rojas v. Superior Court 10/10/02 CA2/7

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B158391

Case Date: 10/10/2002

Preview:Filed 10/10/02

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN GENOVEVA ROJAS et al., Petitioners, v. LOS ANGELES COUNTY SUPERIOR COURT, Respondent. JULIE COFFIN, etc., et al., Real Parties in Interest. ORIGINAL PROCEEDING; Petition for writ of mandate. Anthony J. Mohr, Judge. Petition granted; peremptory writ issued. Agnew & Brusavich, Bruce M. Brusavich, Leonor C. Gonzales, Vibhu Talwar; Lewis, Martenstine, Wicke & Sherwin, Thomas L. Hoegh; Esner & Chang, Andrew N. Chang, Stuart B. Esner, for Petitioners. Watten, Disco & Bassett, Robert C. Risbrough, for Real Parties In Interest Julie Coffin, Trustee of the 1979 Ehrlich Investment Trust and Richard Ehrlich. Friedenthal, Cox & Herskovitz, Carlos C. Abral, for Real Party In Interest Deco Construction Co. Veatch, Carlson, Grogan & Nelson, Kevin H. Louth, Steven W. Sedach, and Bernhard E. Birh, for Real Party In Interest GES Roofing. ________________________ B158391 (Super. Ct. No. BC 214521, Cons. With BC 224568)

In this writ proceeding, we address whether the mediation privilege of Evidence Code sections 1119 and 1120 applies to raw data or "non-derivative" evidentiary material. Petitioners sought production and inspection of material produced by real parties in connection with a mediation held in prior litigation to which petitioners were not parties. The materials sought included raw data as well as a compilation of data prepared for the mediation. Pursuant to the mediation privilege of Evidence Code section 1119, the trial court held all material was protected from production. Petitioners seek a writ of mandate directing the trial court to vacate its order and enter a new and different order compelling production of the materials. We conclude the mediation privilege does not apply to factual material and only provides qualified protection for amalgamated materials. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1. The Underlying Action and the Mediation. Petitioners are the tenants of an apartment complex located at 131, 141, and 171 So. Burlington Street (Apartment Complex) owned by real parties in interest Julie Coffin, Trustee of the 1979 Erhlich Investment Trust and Richard Ehrlich (collectively Coffin). The Apartment Complex was built by KSF Holdings, First City Properties, Inc., Fields & Silverman, and various other contractor and subcontractor entities (collectively Developers). Coffin became the owner of the building in 1994, and in December 1996, Coffin commenced an action against the Developers alleging numerous construction defects that had resulted in water leakage, in turn causing the presence of toxic molds and other microbes on the property. The construction defects included problems with the plumbing, electrical, and ventilation systems. In connection with the underlying action, the parties entered into a Case Management Order (CMO). The CMO provided that a special master would be appointed to oversee discovery; discovery would be stayed; specified documents would be deposited into and held at a document repository; Coffin would prepare a defect list; the Developers would be permitted to conduct destructive testing; the matter would be submitted to

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mediation; and the parties' experts would meet to discuss the cost and scope of repair. The final defect list was required to contain the type, extent and location of defects, Coffin's contentions as to the cause of the defect, whether the defect was identified by visual inspection, invasive testing, extrapolation, or some other method, and a repair report setting forth in detail the necessary repairs and specific cost of each repair.
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In April 1997, Coffin prepared a preliminary defect list, which identified defects in the structure of the Apartment Complex as well as mold infestation. In April 1998, Coffin began air testing at the Apartment Complex. Sometime in late 1998, one of the buildings (171 So. Burlington Avenue) at the Apartment Complex was closed, and some of those tenants moved into the other two buildings. Fences were placed around the building, which remained closed until abatement efforts were completed. Those abatement efforts included demolition of drywall and ceilings in all of the buildings and the installation of replacement drywall. Antimicrobial agents were also applied, and plumbing was repaired. In April 1999, the underlying litigation settled. The settlement provided that "[t]he terms of this agreement shall remain confidential as between the parties, their counsel, their consultants and their insurance carriers and their representatives. All parties, their counsel, insurance company representatives and consultants shall not take any action to facilitate, propagate and otherwise participate in the solicitation or prosecution of any claims by any tenant, current or future, with regard to their occupancy of the property. In addition, throughout this resolution of the matter, consultants provided defect reports, repair reports, and photographs for informational purpose which are protected by the Case Management Order and Evidence Code

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