You Say Waiver; I Say Estoppel

let's call the whole thing wrong -- another look at Simmons v. Ghaderi

No matter how frustrating it might have been for the trial and appellate courts to prohibit Plaintiffs from proving up their oral contract just because they failed to comply with the detailed and rigorous provisions imposed by Evidence Code sections 1115 et. seq., California case law simply does not permit it.

As a different panel in the same District ruled just three years ago in Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 360, parties to mediation proceedings cannot impliedly waive the protections of the mediation confidentiality statutes contained in sections 1115 et seq. Id.

The parties can't waive that right by failing to object to the admission of confidential mediation communications in Court. Id. They can't waive that right by disclosing a substantial part of those communications in support of their own motions. Id. And they can't waive that right by litigating the enforceability of a mediated oral agreement. Id.

Although the Simmons majority acknowledged that these same litigation activities, the same failures to object and the same affirmative disclosures could not impliedly waive a party's right to assert the privilege, it went on to hold that they could estop a party from relying on them. This is particularly odd given the greater difficulty a party faces in proving estoppel (which requires a showing of prejudice) than in proving waiver.

The majority's reliance on estoppel cases holding that a party cannot invoke and later challenge the Court's jurisdiction to decide an issue is not, as the dissent notes, controlling here. Here, the defendant asked the Court to deny Plaintiffs' motion for the summary enforcement of the contract under section 664.6; then moved for summary adjudication of the breach of contract cause of action; and, finally defended that cause of action at trial.

What the defendant didn't do was contest the Court's jurisdiction to decide whether or not the agreement was enforceable. She only contested Plaintiffs' right to introduce into evidence confidential mediation communications and documents prepared for and during the mediation.

If the majority can conjure a proper estoppel from facts that can't support a waiver, they must have been studying under The Illusionist. It may not be sleight of hand, but it's just not right.

A fine summary of the case appeared in the Metropolitan News-Enterprise on September 29 courtesty of able Staff Writer Steven Cischke. His brief of Simmons can be found here.

We'll have more to say about all of this soon.

Very soon.

Promise.