## Facts

- Michael Cassel, a clothing importer, held a “global master license” for the Von Dutch label and formed a company to market products under that label.
- A dispute over business ownership and trademark rights led to arbitration and later trademark infringement litigation against Cassel.
- Cassel’s lawyers allegedly advised him about his rights under the license, failed to oppose a preliminary injunction, and later participated with him in mediation of the infringement case.
- The mediation ended in a settlement in which Cassel assigned his license rights for $1.25 million.
- Cassel later sued his former lawyers for malpractice and related claims, alleging conflicted representation, bad advice, deception, and coercion into an undervalued settlement.
- To prove these claims, Cassel sought to introduce evidence of private attorney-client communications about mediation strategy and counsel’s efforts to secure his consent to settle.
- The trial court excluded the evidence under California’s mediation confidentiality statutes (Evid. Code §§ 1115–1128), including § 1119.
- The Court of Appeal vacated the exclusion order, reasoning that purely private attorney-client communications were not barred in the same manner as communications involving other mediation participants.

## Issues

1. Whether Evidence Code § 1119 bars admission or discovery of private attorney-client communications made for the purpose of, in the course of, or pursuant to a mediation when offered to prove a subsequent malpractice claim against mediation counsel.
2. Whether courts may recognize a judicial exception to mediation confidentiality for attorney malpractice or related misconduct occurring in the mediation context.

## Decision

- The California Supreme Court reversed the Court of Appeal and reinstated the trial court’s exclusion order.
- The court held that § 1119 applies to private attorney-client communications made for the purpose of, in the course of, or pursuant to a mediation.
- The court declined to create a judicial “malpractice exception” to mediation confidentiality.
- The matter was remanded with directions to deny Cassel’s writ petition, leaving the exclusion of the mediation-related attorney-client evidence in place.

## Legal Principles

- Evidence Code § 1119 broadly bars admission and discovery of “anything said” and writings prepared for the purpose of, in the course of, or pursuant to a mediation, subject only to statutory exceptions.
- “Participants” in mediation include the parties and their counsel; confidentiality extends to communications among them made in connection with mediation, even outside the mediator’s presence.
- Courts must apply mediation confidentiality as written and may not create policy-based or equitable exceptions absent legislative authorization, even if the rule limits proof in later civil litigation (including malpractice actions).

## Conclusion

California’s mediation confidentiality statutes prevent a client from introducing or discovering mediation-related private attorney-client communications to support malpractice and related claims against the lawyers who represented the client in the mediation, and courts may not craft a malpractice exception without legislative action.


Cassel v. Superior Court, 51 Cal. 4th 113 (Cal. 2011)