TIPS FOR PRESERVING CONFIDENTIALITY IN DIVORCE SETTLEMENT DISCUSSIONS
Evidence Code Section 1152:
How to (Attempt to) Ensure That Family Law
Based Settlement Offers Remain Confidential
Evidence Code section 1152 exists to ensure that civil case litigants can safely have the discussions
that settle financial disputes of many flavors. It is also very frequently
used in an effort to protect the content of marital settlement-related
communications by purportedly ensuring the confidentiality of offers to
settle, and so it may be useful when attempting to resolve property division
and spousal support disputes. However, I must add a major
Section 1152 is not directed to marital disputes, and only makes reference
to resolving insurance related claims and other civil actions involving
money disputes. Indeed, a literal reading of section 1152 does not support
its application to family law proceedings - and certainly not as to non-financially
related settlement conversations (as in custody, visitation, etc.). Nonetheless,
I almost never see any kind of a family law settlement proposal on any
topic that does not contain a reference to 1152, as though it does in
fact extend to such. It is universally used (and sometimes abused where
someone is trying to cloak a position in confidentiality in order to avoid
the consequences for taking an unreasonable position or making an improper
allegation or bullying statement) in such contexts, even if the basis
for relying upon it is suspect.
The application of section 1152 within the family law context is something
of a myth. No reported decision to my knowledge makes reference to 1152
as applicable. I am aware of no treatise that opines that it applies to
family law. For instance, I consider Hogoboom & King, The Rutter Group,
Family Law to be a terrific resource - in its index of the statutes that
are cited within the three volume treatise, no reference to section 1152
exists (including no statement that it is inapplicable).
Nonetheless, you will rarely find a family court judge who thinks it doesn't apply. And, at least for that reason, citing to it may prove valuable, even
if ultimately misguided. "Your Honor, I object!!! Counsel is violating
the settlement confidentiality of Evidence Code section 1152! This is
inadmissible and improper - the other party is Bad, Bad, Bad and you should
not consider anything she just said! I move that any evidence concerning
our communications be stricken. I demand that they be sanctioned!"
Only a very sophisticated judge will not fall for this. Hence, the common
perception becomes reality, and so provides a tool.
What we need is a explicit privilege for family law based offers and counter-offers,
but so far no one seems to be clamoring for a new Family Code provision
that clearly delineates the bounds of confidentially within the public
policy context of encouraging settlement discussions.
We have that in the Evidence Code meditation statutes. But, there are different reasons for protecting confidentiality in mediation
that do not apply to divorce warfare.
It is imperative that the integrity of negotiations be maintained. If offers
were not privileged from disclosure there would be strong disincentives
against being reasonable - spouses would be too worried that these offers
would become a ceiling in terms of what a family court judge might decide,
if she or he later learned what the parties felt was minimally acceptable.
That is a valid concern, because in my experience when a judge believes
that a party was willing to accept a lesser outcome, even though they
are now demanding something much larger, they will sometimes scale down
their awards to satisfy those expectations.
In practice most attorneys insert in the subject line (RE:...) of their
letters the words "Confidential Evidence Code Section 1152 Settlement
Discussion." This is a wise practice for the reasons stated. There
is arguably an open debate about the applicability of section 1152 within
famlaw, since neither the appellate courts nor the legislature have elected
to weigh in. So it is a tool in the toolbox.
But, if you are defending against a claim that 1152 cloaks some supposedly
privileged communication that you want entered into evidence, know that said alleged
privilege is highly suspect. And that you may be still be shut down, leaving
you to an unappetizing appellate remedy.
CALIFORNIA EVIDENCE CODE
EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES
Evidence Code Section 1152
(a) Evidence that a person has, in compromise or from humanitarian motives,
furnished or offered or promised to furnish money or any other thing,
act, or service to another who has sustained or will sustain or claims
that he or she has sustained or will sustain loss or damage, as well as
any conduct or statements made in negotiation thereof, is inadmissible
to prove his or her liability for the loss or damage or any part of it.
(b) In the event that evidence of an offer to compromise is admitted in
an action for breach of the covenant of good faith and fair dealing or
violation of subdivision (h) of Section 790.03 of the Insurance Code,
then at the request of the party against whom the evidence is admitted,
or at the request of the party who made the offer to compromise that was
admitted, evidence relating to any other offer or counteroffer to compromise
the same or substantially the same claimed loss or damage shall also be
admissible for the same purpose as the initial evidence regarding settlement.
Other than as may be admitted in an action for breach of the covenant
of good faith and fair dealing or violation of subdivision (h) of Section
790.03 of the Insurance Code, evidence of settlement offers shall not
be admitted in a motion for a new trial, in any proceeding involving an
additur or remittitur, or on appeal.
(c) This section does not affect the admissibility of evidence of any of
(1) Partial satisfaction of an asserted claim or demand without questioning
its validity when such evidence is offered to prove the validity of the claim.
(2) A debtor's payment or promise to pay all or a part of his or her
preexisting debt when such evidence is offered to prove the creation of
a new duty on his or her part or a revival of his or her preexisting duty.