## Facts

- An apartment-complex owner sued developers and subcontractors, alleging construction defects caused water intrusion and resulting toxic mold and microbial contamination.
- The construction-defect case went to mediation under a court-approved case management order invoking mediation confidentiality under California Evidence Code § 1119.
- For mediation, defense experts created materials documenting property conditions, including photographs, videotapes, expert reports, and raw test data.
- The construction-defect case settled at mediation.
- Tenants later sued the owner and many of the same construction defendants, alleging concealment of defects and contamination and seeking damages for personal injury and property loss.
- In the tenants’ case, plaintiffs sought discovery of the earlier mediation-prepared materials; defendants refused, citing Evidence Code § 1119(b).
- The trial court found the requested materials were prepared for the purpose of mediation and denied the motion to compel.
- The Court of Appeal reversed, applying a work-product-like distinction and allowing discovery of “factual” materials.
- The California Supreme Court granted review to determine the scope of Evidence Code § 1119(b).

## Issues

1. Whether Evidence Code § 1119(b) bars discovery in subsequent litigation of writings prepared for the purpose of, in the course of, or pursuant to mediation, including factual materials such as photographs and raw test data.
2. Whether courts may apply a work-product-type distinction or a judicially created good-cause balancing test to permit discovery notwithstanding § 1119(b).
3. How § 1119(b) interacts with § 1120(a), which preserves discoverability of evidence that exists independently of mediation.

## Decision

- The California Supreme Court reversed the Court of Appeal and upheld the trial court’s denial of discovery.
- Section 1119(b) unambiguously prohibits discovery of any writing prepared for the purpose of, in the course of, or pursuant to mediation.
- The statute does not incorporate work-product categories distinguishing factual from opinion or derivative materials.
- Courts may not create a good-cause exception absent statutory authorization.
- Section 1120(a) allows discovery of evidence that exists independently of mediation, but does not permit compelled production of writings created for mediation.
- Because the trial court found the requested materials were created solely for mediation, they were protected from discovery in the tenants’ later action.

## Legal Principles

- Evidence Code § 1119(b) provides broad confidentiality: writings prepared for mediation are not admissible and are not subject to discovery.
- Mediation confidentiality under § 1119(b) applies regardless of whether the writing contains factual information that might otherwise be discoverable.
- Section 1120(a) preserves discoverability of evidence independent of mediation; it does not eliminate protection for materials created for mediation.
- Courts may not graft a work-product framework or a good-cause balancing test onto § 1119(b); only express statutory exceptions may limit mediation confidentiality.

## Conclusion

The court held that mediation confidentiality under Evidence Code § 1119(b) bars discovery of writings created for mediation—including factual photographs, test data, and expert materials—in later litigation, and that any change to this rule must come from the Legislature through explicit statutory exceptions.


Rojas v. Superior Court, 33 Cal. 4th 407 (Cal. 2004)