SKANSKA-SHIMMICK-HERZOG, A JOINT VENTURE vs LAN/TYLIN, A JOINT VENTURE et al

Motion: Continue Trial and all related dates by Defendant General Motors, LLC

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25CV483511 Jean Brandenburg et al vs THREE ARCH LLC et al

Motion: Order Granting a Trial Preference by Plaintiff Jean Brandenburg

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25CV468350 CAMDEN PARK LLC, a Delaware limited liability company vs SAMUEL SHAW et al

Motion: Withdraw as attorney by L.S. Carlson Law, PC -- (Joseph Sarnowski Esq.) for Defendant SAMUEL SHAW

UOPPOSED and GRANTED.

The court will sign the proposed order submitted with the moving papers.

Calendar line 4-5 Case Name: SKANSKA-SHIMMICK-HERZOG, et al vs LAN/TYLIN, et al and related cross action Case No.:24CV44840

Line 4: Motion to Compel

Defendant LAN/TYL, a joint venture (LTJV)’s motion to compel plaintiff Skansha- Shimmick-Herzog, a joint venture (SSH) to serve complete, code-compliant responses to LTJV’s Request for Admissions (RFA) and form interrogatories (FI), Set One, without reliance on mediation privilege or contractual confidentiality is DENIED.

LTJV’s motion to confirm that mediation confidentiality, as it relates to disputes resolved by the Term Sheet and May Settlement Agreement, concluded upon the execution of the Terms Sheet on March 18, 2019, is DENIED.

LTJV’s motion to confirm that LTJV may rely upon the At-Issue Evidence in this action is DENIED. This is a motion to compel further responses to discovery, not a motion in limine for trial.

Discussion

A motion to compel further responses to requests for admission may be granted only where an answer is evasive or incomplete or an objection is without merit or too general. (CCP § 2033.290(a).) A response to an RFA may “answer the substance of the requested admission, or set forth an objection to the particular request.” (CCP § 2033.210(b).) Where the response is an objection, the responding party must state the specific ground for the objection, including any privilege or other protection. (CCP § 2033.230(b).)

A motion to compel further interrogatory responses likewise requires a showing that an answer is evasive, incomplete, or that an objection is without merit. (CCP § 2030.300(a).) Discovery is broad, but it extends only to matter that is not privileged. (CCP § 2017.010.)

California law strictly bars discovery and compelled disclosure of mediation communications and writings absent an express statutory exception. (Evid. Code §§ 1119, 1122, 1123, 1126; Foxgate Homeowners’ Assn., Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 4 [“there are no exceptions to the confidentiality of mediation communications”]; Cassel v. Superior Court (2011) 51 Cal.4th 113, 124 (Cassel)[statutory scheme “unqualifiedly bars disclosure” absent an express exception].)

Section 1119 provides that no evidence of anything said or any admission made “for the purpose of, in the course of, or pursuant to, a mediation” is admissible or subject to discovery, and disclosure of that evidence may not be compelled. (Evid. Code § 1119(a).) 3 It provides the same protection for writings prepared “for the purpose of, in the course of, or pursuant to, a mediation.” (Id., § 1119(b).) It further provides that all communications,

3 Unless otherwise indicated, all unidentified statutory references are to the California Evidence Code.

negotiations, or settlement discussions by and between mediation participants in the course of mediation remain confidential. (Id., § 1119(c).)

Section 1126 separately preserves anything protected before mediation ends. It states: “Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.” (Id., § 1126.)

California courts strictly enforce these statutes. (Foxgate, 26 Cal.4th at 14-15; Rojas v. Superior Court (2004) 33 Cal.4th 407, 424 [courts may not imply additional exemptions absent clear legislative intent]; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 588 (Simmons) [section 1122 requires express waiver; implied waiver is insufficient]; Cassel, 51 Cal.4th at 136 [confidentiality applies even where valuable civil evidence becomes unavailable].)

LTJV contends the March 18, 2019, Term Sheet “marked the legal conclusion of mediation confidentiality,” that counsel’s April communications occurred “outside any arguable temporal reach of mediation,” and that section 1125 “sets a bright-line endpoint” after which the materials fall outside mediation confidentiality. (Mot., pp. 3:19-20, 4:3-5, 6:23-26.) But the alleged endpoint does not, by itself, establish that every later communication concerning the mediated settlement falls outside section 1119. The relevant question is whether the April communications and writings were made or prepared “for the purpose of,” “in the course of,” or “pursuant to” mediation under section 1119.

A Term Sheet that is conditionally enforceable if, and only if, a final settlement agreement is not executed is by definition not a conclusion to the mediation. Rather, the parties contemplated—and did in fact—have continued communications about the terms agreed at the mediation as they worked to finalize a settlement agreement. To argue now that discussions of the mediated terms for purposes of the finalizing the settlement agreement are not mediation protected is to lose all sight of the language of section 1119, which protects “anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation...” (Evid. Code § 1119(a)).

Section 1119 is broad. Subsection (a) protects anything said or admissions made, and subsection (b) protects writings prepared “for the purpose of,” “in the course of,” or “pursuant to” mediation. (Evid. Code § 1119(a)-(b).) Subsection (c) separately provides that communications, negotiations, and settlement discussions by and between mediation participants in the course of mediation remain confidential. (Id., § 1119(c).) The statute is not limited to statements made during the formal mediation session itself. (Cassel, 51 Cal.4th at 128, citing Simmons, 44 Cal.4th at 581.)

The Supreme Court in Cassel held that section 1119 is not confined to communications made between opposing parties or with the mediator during the mediation proceeding itself. (Cassel, 51 Cal.4th at 127-128.) Rather, section 1119 extends to communications made “for the purpose of” or “pursuant to” mediation, not merely those made “in the course of” mediation. (Id. at 128 [“All oral or written communications are covered” if made for the purpose of or pursuant to mediation].) The Court further explained that section 1122(a)(2) presupposes that communications made or prepared outside mediation may still be protected when made “for the purpose of” or “pursuant to” mediation. (Id. at 129.) And the Court

approved the rule that communications materially related to mediation are protected even if they are not made to another party or to the mediator. (Id. at 135.) Cassel therefore confirms that timing and the mediator’s absence do not, by themselves, determine whether a communication was made or prepared pursuant to mediation.

LTJV contends that the execution of the March 18, 2019, Term Sheet ended the mediation privilege under section 1125(b)(1). However, section 2 of the Term Sheet states:

2. The Parties will execute a formal Settlement Agreement within 30 days. This Term Sheet constitutes a stipulation of the Parties to settle the case within the meaning of California Code of Civil Procedure section 664.5. If not executed within 30 days, any party may enforce this stipulation pursuant to pursuant to California Code of Civil Procedure section 664.6.

(Benner Decl. Ex. E [emphasis added.].) It contemplated that the parties would continue their mediation negotiations and communications to prepare a “formal Settlement Agreement.” Those negotiations and communications were prepared “for the purpose of” or “pursuant to” a mediation (§ 1119, subds. (a), (b).) (See Cassel, 51Cal.4th at 1128 [“All oral or written communications are covered [by the mediation privilege], if they are made ‘for the purpose of’ or ‘pursuant to” a mediation. (§ 1119, subs. (a), (b).)”])

Nobody sought to enforce the Term Sheet pursuant to CCP section 664.6; instead they continued their mediation related oral or written communications which culminated in the April 30, 2019, Settlement Agreement. April 30, 2019, is the conclusion of the mediation for the purposes of this motion. That is when the parties executed a written settlement agreement that partially or totally resolved the dispute under section 1125(a)(1) or (b)(1). The final Settlement Agreement confirms that the Term Sheet contained only “basic terms” and was “subject to the execution of a formal and more complete settlement agreement....” (Brenner Decl., Ex.

F, p.2.) The emails and redlines after the term sheet and before April 30, 2019, concerned the formal agreement expressly contemplated by the Term Sheet and are protected communications under Cassel because they were communications made “for the purpose of” or “pursuant to” mediation. (Cassel, 51 Cal.4th at 127-129, 135.)

Sections 1122 and 1123 are of no avail to LTJV’s position. LTJV has not established any express waiver under section 1122. (See Simons, 44 Cal.4th at 582,588.) Even if the Term Sheet is admissible under section 1123 because it references CCP section 664.6 under Fair v. Bakhtiari (2006) 40 Cal.4th 189, 197-199, these sections do not authorize discovery into unsigned drafts, redlines, counsel emails, negotiation positions, or the alleged meaning and effect of proposed settlement language that are protected by section 1119.

Conclusion

LTJV’s motion to compel SSH to serve complete, code compliant responses to LTJV’s RFA and FI, Set One, without reliance on mediation privilege or contractual confidentiality is DENIED.

LTJV’s motion to confirm that mediation confidentiality, as it relates to disputes resolved by the Term Sheet and May Settlement Agreement, concluded upon the execution of the Terms sheet on March 18, 2019, is DENIED.

LTJV’s motion to confirm that LTJV may rely upon the At-Issue Evidence in this action is DENIED. This is a motion to compel further responses to discovery, not a motion in limine for trial.

Line 5: Motion to Strike

Plaintiff Skanska-Shimmick-Herzog, a Joint Venture, (“SSH”) moves to strike (the “Motion”) portions of Defendant LAN/TYLIN, a Joint Venture (“LTJV”)’s Motion to Compel Further Responses, filed on Feb. 3, 2026. Motion at 1:1-7 (filed: Feb. 13, 2026). The portions of the Motion to Compel that SSH seeks to have struck are:

1. Exhibits A through E of the Declaration of A. Benner, (“Benner Declaration”), and 2. Any quotations of the language or any description of the language that explicitly reveals the privileged discussions in Exhibits A-E to the Benner Declaration used through LTJV’s motion to compel, including but not limited to (collectively, the “Confidential Statements”): a. Page 1-2, lines 16-20, 1-2 b. Page 4, lines 8-18 c. Page 4, lines 19-24 d. Page 4-5, lines 24, 1-3 e. Page 7-8, lines 20-24, 1 f. Page 9-10, lines 19-25; 1

(Motion at 1:8-28.)

The motion is brought on the grounds that these portions of LTJV’s Motion to Compel violate California Evidence Code sections 1119 to 1126 as LTJV publicly filed documents protected by mediation privilege, and under Code of Civil Procedure (CCP) section 2023.010 preventing misuse of materials submitted in violation of confidentiality protections. (Motion at 2:1–9.)

LTJV timely opposed the Motion on July 6, 2026. (See LTJV ’s Opposition to Plaintiff’s Motion to Strike (“Opposition”).)

The statutory motion to strike procedure codified in CCP section 436 is expressly limited in scope and application. CCP section 436 provides that the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading.” CCP section 435(2) provides that “[t]he term ‘pleading’ means a demurrer, answer, complaint, or cross-complaint.” The statute’s plain language restricts its application to demurrers, answers, complaints, and cross-complaints, none of which are applicable here. SSH seeks to strike portions of a motion to compel, which is expressly beyond the scope of CCP sections 435 and 436. SSH’s motion to strike is procedurally improper.

However, the Court has inherent power in the Civil Discovery Act to prevent misuse of materials submitted in violation of confidentiality protections, under CCP section 2023.010.

The court also has discretion to grant a protective order on the court's determination that "justice so requires." The motion is directed to the court's inherent power to control the proceedings before it. The granting or denial of relief therefore lies within the sound discretion of the court and is reviewable only for abuse. (Greyhound Corp. v. Sup. Ct. (1961) 56 Cal.2d 355, 389-381 [superseded by statute on other grounds].)

The burden is on the party seeking the protective order to show "good cause" for whatever order is sought. (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.) A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence. (Stadish v. Sup. Ct. (1991) 71 Cal.App.4th 1130, 1145.) Here, SSH has shown good cause to seal its confidential mediation documents and communications requested by this motion by a preponderance of the evidence..

Therefore, although the Court cannot procedurally grant the Motion to Strike portions of a Motion to Compel Further Responses, the Court will proceed under California Rule of Court (CRC) rule 2.550.

Under CRC rule 2.550(d), the Court can order that a record be filed under seal if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.

First, California’s Evidence Codes regarding mediation confidentiality reflect an overriding interest favoring the absolute confidentiality of mediation communications, negotiations, or discussions. (Foxgate Homeowners’ Ass’n, Inc. v. Bramalea California, Inc., (2001) 26 Cal. 4th 4; Cassel v. Superior Ct., (2011) 51 Cal. 4th 136.)

Second, this overriding interest supports sealing the record here because this Court has already found, in its ruling on Line 4 Motion to Compel Further Responses, that Exhibits A through E of the Benner Declaration are writings made for the purpose for, in the course of, or pursuant to mediation within the meaning of Evidence Code Section 1119 and remain protected under Section 1126.4

4 Even if the Term Sheet is admissible under Evidence Code section 1123 because it references CCP section 664.6 under Fair v. Bakhtiari (2006) 40 Cal.4th 189, 197-199, Evidence Code sections 1122 and 1123 do not authorize discovery into unsigned drafts, redlines, counsel emails, negotiation positions, or the alleged meaning and effect of proposed settlement language that are protected by section 1119.

Third, a substantial probability of prejudice exists absent sealing. The exhibits are currently accessible through the Court’s public electronic filing portal. Continued public availability of documents this Court has found to be confidential mediation communications defeats the purpose of the Evidence Codes.

Fourth, the proposed sealing is narrowly tailored. Plaintiff SSH seeks to strike Exhibits A through E, and the “Confidential Statements” found in the Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Further Responses (the “Defendant’s Memorandum”). Exhibits A through E are the mediation-related communications and draft redlines that this Court has already deemed privileged. Plaintiff identified the “Confidential Statements” as specific passages in the Defendant’s Memorandum that explicitly reference the privileged discussions in the Exhibits.

Fifth, no less restrictive means exist to achieve the overriding interest. Sealing the Exhibits and redacting the text of the “Confidential Statements” in the Defendant’s Memorandum are the only means available to protect the confidentiality of the mediation communications at issue while preserving public access to the remainder of the record. No lesser alternative would adequately protect the overriding interest without either disclosing protected material or unnecessarily restricting access beyond what is required.

In any event this is a discovery motion which the court can order sealed without making any of the findings required by CRC rule 2.550(d). (See CRC rule 2.2550(a)(3) [“These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.”]

Therefore, although the Court cannot procedurally grant the Motion to Strike portions of a Motion to Compel Further Responses, the Court will proceed under CRC rule 2.550, and ORDER that Exhibits A through E of the Benner Declaration be SEALED IN THEIR ENTIRETY, and that the following passages in the Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Further Responses be REDACTED:

1. Page 1-2, lines 16-20, 1-2 2. Page 4, lines 8-18 3. Page 4, lines 19-24 4. Page 4-5, lines 24, 1-3 5. Page 7-8, lines 20-24, 1 6. Page 9-10, lines 19-25; 1

The clerk of this court is hereby ORDERED to promptly file under seal (1) the unredacted Brenner Declaration filed on 2/9/2026, and (2) the unredacted Memorandum of Points and Authorities filed on 2/9/2026 by LTJV in support of its Motion to Compel its Further Responses to Requests for Admission and Form Interrogatories, Set One to SSH (and remove or withdraw the currently publicly-accessible versions of those documents from the court’s electronic filing portal.) They shall remain under seal from the public (except they may be reviewed by the parties’ counsel of record, the court or the court of appeal) pending further order of this court.

LTJV is ORDERED to, within 15 days, serve and:

(a) File a redacted public version of the Brenner Declaration (without Exhibits A through E of the Benner Declaration) in the publicly-accessible court’s electronic filing portal; (b) File a redacted public version of the Memorandum of Points and Authorities in Support of Motion to Compel Further Responses with the passages identified above redacted, with all other content of those pages remaining unredacted and publicly accessible.

The court will prepare the order.

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