Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc.

The Foxgate Homeowners’ Association, Inc. (Foxgate) (plaintiff) represented the owners of a 65-unit condominium complex developed and constructed by Bramalea California, Inc. and related parties (Bramalea) (defendants). Foxgate sued Bramalea for alleged construction defects in the complex. The trial court ordered the parties to attend a mediation and to make their best efforts to cooperate in the mediation process. Judge Peter Smith, a retired judge, was appointed as the mediator and a date was set. To accommodate Bramalea’s counsel, the original mediation date was rescheduled for September 16-22, 1997. Bramalea sought to continue the mediation again, but Judge Smith denied the request. Bramalea filed a challenge to the mediator that was denied by the trial court. Bramalea appealed this ruling, and the Court of Appeals summarily denied the appeal. The first day of the mediation was specifically set for each party’s experts to interact with each other. On September 16, Foxgate appeared with nine experts. Bramalea’s counsel appeared 30 minutes late and did not bring any experts. The mediation was then cancelled because Judge Smith determined that the mediation could not proceed without any experts for Bramalea. Foxgate moved for sanctions because Bramalea had not cooperated in the mediation. The motion included a description of the comments made by Bramalea’s counsel during the mediation. Additionally, the motion attached Judge Smith’s mediation report. The report also described the comments and actions of Bramalea’s counsel and recommended that costs be awarded to Foxgate. Bramalea argued that all communications in the mediation were confidential under California Evidence Code § 1119 and § 1121. The trial court granted the motion for sanctions, and Bramalea appealed. The Court of Appeals reversed the sanctions order but endorsed a nonstatutory exception to the confidentiality of mediation communications. The California Supreme Court granted review.