MEDIATION

In re Marriage of Moore, 102 Cal. App. 5th 1275

Mueller v. Mueller, 102 Cal. App. 5th 593




In re Marriage of Moore, 102 Cal. App. 5th 1275

Acendi, a corporation controlled by the plaintiff’s ex-husband, appealed from monetary sanctions reflecting attorney fees awarded against it because of an alleged failure to comply with meet and confer requirements involving expenses in a mediation that occurred prior to the request to meet and confer.

The Court of Appeal held that such failure to comply subjected Acendi to sanctions but reversed because the mediation occurred prior to the meet and confer request. Section 2023.030(a) of the Civil Discovery Act empowers a court to impose a monetary sanction ordering that one engaging in the “misuse of the discovery process” pay the reasonable expenses incurred by anyone “as a result of that conduct”. The phrase “as a result of that conduct” reflects a principle of causation. It must be shown the expenses requested as sanctions were reasonably incurred because of the other side's misuse of the discovery process. Attorney fees incurred during efforts to meet and confer are no less integral to the process of obtaining relief for discovery abuses as these more direct expenses. In order to bring a motion to compel discovery, the propounding party must first engage in reasonable and good faith attempts at informal resolution and then document those efforts in a declaration filed with the motion. A failure to do so may jeopardize the movant's ability to obtain relief for the other side's alleged misuse of the discovery process. Because the efforts a movant expends in meeting and conferring are, as a general matter, directly and causally related to the other side's misuses of the discovery process, the costs of such efforts may reasonably constitute compensable expenses incurred “as a result of that conduct.”

Turning to Acendi's more specific point that because meet and confer efforts are supposed to happen before a motion is filed, the mediation-related fees could not be included in the sanctions award because the mediation occurred after the motion was filed. While there was no dispute that the mediation sessions constituted further attempts to meet and confer on the discovery dispute in question, meet and confer expenses are compensable as discovery sanctions only when they are incurred as part of the costs of bringing the motion. Applying this principle, expenses incurred during a voluntary mediation of a discovery dispute that occurs after a motion to compel has been filed are not reasonably construed as part of the costs of bringing that motion.

Mueller v. Mueller, 102 Cal. App. 5th 593

Ling and Paul Mueller were a married couple who cultivated and sold marijuana. They buried the proceeds on their property. Ultimately, they separated and entered into a collaborative law agreement which stated that it was neither legally binding nor enforceable. It also contained a confidentiality clause. Ling angrily left the second collaborative law proceeding and filed a formal divorce suit. Paul testified in the divorce trial that, during the collaborative law proceeding, Ling stated that she dug up and took most of the money. Ling objected to this testimony, citing the confidentiality clause. Paul’s testimony was admitted and this affected Ling’s share of the divorce estate. Ling appealed, citing the failed objection.

The Court of Appeal affirmed. At its outset, the agreement unequivocally stated the parties' understanding that it did not “give either of us enforceable legal rights that we did not already have”; that “these good faith undertakings set out in this document are not legally enforceable contractual obligations”; and that, while the parties commit to “resolve their differences fairly and equitably” and abide by the agreement's “letter and spirit,” they “are not relying on this Agreement to create legally enforceable rights.” These statements were not ambiguous. While the agreement set ground rules for how the parties intended to proceed, the parties agreed therein that the agreement had no legal force.