TENTATIVE RULING

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street
P.O. Box 21107 
Santa Barbara, CA  93121-1107

FAMILY LAW

Nature of Proceedings: Motion Disqualification of Counsel/Recusal of Mediator

This matter was last on my calendar on 8/11/09. I reviewed a great amount of material and 
reached some conclusions. I wrote an extensive memorandum explaining my conclusions. 
Among other things considered at that time was mother’s request to disqualify the 
mediator. 

Summary of this motion

This matter came on pursuant to an ex parte motion filed on November 9 when mother 
sought immediate relief and requested: (1) recusal of the recommending mediator; (2) 
recusal of opposing counsel; or (3) in the alternative staying the recommending mediation 
and setting hearing on the motion for recusal of both the mediator and opposing counsel so 
as to allow for discovery and appointment of a special master.

The ex parte requests were denied and time was shortened so the matter could come on 
for hearing on November 24. 

Mother contends in her moving papers that she discovered, on October 29, 2009, 
communications in her former attorney’s file that were exchanged between opposing 
counsel and the mediator that have caused her significant concern and “undermined the 
legitimacy of this divorce proceeding and the Recommending Mediation process.” She 
reports that the extent of the confidential communications between her counsel and 
opposing counsel was “unknown at the time because pages of the communication are 
missing from the file” she received from her attorney. 

As for the recommending mediator she became aware that her attorney had ex parte 
communications with the recommending mediator, which discussed her “feelings and 
attitudes toward the Recommending Mediation and the litigation process.” Mother reports 
these communications portrayed her “in a negative light and makes references to 
problems” she had expressed with her representation. She directs the Court’s attention to 
some emails. She reports these communications are sensitive in nature and should be 
protected and asks that any review of the documents be in camera and that even than the 
documents would be redacted copies. 

Evidentiary Objections

Father filed a response on November 9 and at the outset he seeks the Court’s rulings on 
evidentiary objections. (Mother also seeks evidentiary objection rulings against father’s 
responsive documents.) I am familiar with Sambrano v City of San Diego (2001) 94 
Cal.App.4th 225, and its admonition in Summary Judgment cases. I also am familiar with 
cases such as In re Marriage of Heggie (2002) 99 Cal.App.4th 28, and CCP §436 (a). I 
don’t know if those authorities “make it mandatory” for the Court to consider striking all 
these statements in this case. I have said the following with rhythmic regularity but no one 
seems to listen. I will say it again. Lawyers must use some reasonable restraint in their 
submission of declarations that contain inadmissible statements and opposing counsel 
must use some reasonable restraint in making their objections. Counsel seems not to have 
even considered using such restraint in this case. Many of the objections made by moving 
party are valid. I urge again, as I have in the past, to (1) ask counsel who are submitting the 
declarations to read them before filing them and eliminate the inadmissible testimony, and 
(2) I ask counsel who are objecting to the inadmissible testimony to resist exercising every 
conceivable objection, on the theory that in most cases there is virtually no harm done by 
the inadmissible statement and in every case I am inevitably asked to read and rule on 
each objection.

Evidentiary Rulings:

Declaration of mother

Objections ##1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27,  - 
sustained

Objections ## 12, 13, 16, 20, 28, 29, 30, 31, 32 – overruled 

Declaration of mother’s counsel 

Objections ##1, 2, 3, 6 - sustained

Objections ## 4, 5 – overruled 

Summary of the Response

Father filed a response and a supplemental response on 11/12. Among other things father 
reports that the governing principle of disqualification cases is that the attorney sought to be 
disqualified acted inappropriately when the confidential information was acquired. He points 
out that the information in this case was intentionally transmitted. Father also does not 
accept mother’s characterization that the information were “detrimental” to mother. He 
points out that mere exposure to allegedly confidential material is not ground for recusal 
and that the “appearance of impropriety” thrust of mother’s case should not play here since 
if it did that would foist the consequences of mother’s lawyer on opposing counsel. 
As for the mediator recusal issues he addresses the four signature claims of recusal. He 
points out that the Judgment permits ex parte communications. He points out that the 
process itself anticipates there will be information relayed and that it will be sometime 
inadmissible, improper, intimate, irrational and adversarial. That it is for the experienced 
mediator to separate the wheat from the chafe. 

Summary of the Reply

Mother filed her reply on 11/17. She included a Reply Memorandum of Points and 
Authorities to Respondent's Opposition and Supplemental Opposition to Motion for 
Disqualification of Opposing Counsel and Recusal of Recommending Mediator; the 
Declaration of Renee M Fairbanks; the Reply Declaration of Petitioner Dominique Lacerte; 
the Petitioner's Separate Statement of Facts; and a Request to Strike Portions of the 
Declaration of Jaime Forrest Raney in Opposition to Petitioner's Motion.

Among other things mother filed and the Court has read the materials filed under seal on 
November 19, 2009. 

Evidentiary Rulings:

Declaration of father’s counsel 

Objections ##1, 2, 3, 5, 6 - sustained

Objections ## 4, 7, 8, 9, 10 – overruled 

Ms. Fairbanks reports that she told opposing counsel that any fees incurred by the 
mediator would be in dispute; that the mediator told her she understood her recommending 
mediation had not been stayed, that she told opposing counsel further ex parte 
communications with the mediator should cease immediately; that she inquired of the 
mediator specifics relating to a lunch meeting with mother’s former counsel, that opposing 
counsel told her the mediator does not have to answer her questions because they relate 
to discovery. She attaches exhibits O through T. 

Mother’s separate statement of facts has been read and considered. 

Mother reports in her 8-page declaration with exhibits A through N that she did not benefit 
from the communications between the mediator, her former lawyer, and opposing counsel. 
She reports she was kept out of the loop and that the three made decisions about her life. 
She reports her former husband and his attorney see her as being disruptive to the 
process. She reports she had very private thoughts, which she shared only with her 
attorney that were forwarded with negative commentary from her former lawyer to the 
mediator and opposing counsel. She points to emails #6-10 and she claims they reveal that 
her former counsel shared with the mediator information about her that she had only as a 
result of the attorney-client relationship and she did not consent to the disclosure. She 
reports in detail how she perceives the mediator is biased against her and that such bias 
developed because her attorney shared “negative things about” her family; shared with the 
mediator her misgivings about the process; that she wanted to pursue recusal; and that her 
former lawyer characterized her as “spiraling out” to the mediator. 

In her brief she contends the mediator is a “referee” and therefore a “judge” and subject to 
disqualification upon the same guidelines. She lists 12 bullet points that she contends were 
communications exchanged between the participants and if they were exchanged between 
counsel and a sitting superior court judge, that judge’s impartiality would be in doubt. These 
specific communications include her “spiraling out;” that counsel signed off their 
communications “xoxoxo;” that the mediator said she had received communications from 
counsel and added notations “confidential?” and “helpful?;” that the mediator asked former 
counsel whether mother wanted her removed from the case and asked for counsel’s 
opinion if mother would prevail; mediator shared her impression with former counsel that 
opposing counsel was “operating from a value system, as she did with tom rogers” – an 
unrelated case; that mediator told former counsel mother was “hypersensitive” and 
was “expecting too much;” that former counsel shared with the mediator that mother’s 
family were “yammering” at her about the mediator; that former counsel told the mediator 
mother thought she was “selling her down the river;” that former counsel sought mediator’s 
opinion regarding her “malpractice” concerns and the mediator considered former 
counsel’s concerns and opined that there was “nada malpractice” on former counsel’s 
part. She concludes that the mediator should be evaluated upon the rules of ethics that 
apply to judges and since she failed to meet them she must be recused. 

As to opposing counsel she reports she did not waive her privilege and since opposing 
counsel received attorney-client communications through “improper means” she must be 
recused. She directs the Court to the Complex Asbestos case (1991) 232 Cal. App. 3rd 
572, 591 [discussed the remedies for the ethical problems created by nonlawyer 
employees of law firms who change firms]. She contends that opposing counsel failed to 
comply with her obligation to act appropriately when she received mother’s attorney-client 
information through improper means irrespective of the fact that she did not have an 
established attorney-client relationship with mother. She directs the Court to the Rico case 
(2007) 42 Cal. 4th 807 [an automobile manufacturer was sued after a sport utility vehicle 
rolled over; disqualification of plaintiffs’ legal team and experts was proper, where one of 
plaintiffs’ attorneys obtained through inadvertence notes of one of the defense attorneys 
and used them during a deposition to impeach a defense expert; plaintiffs' attorney acted 
unethically in making full use of the confidential document; without disqualification of 
plaintiffs’ legal team and their experts, the damage caused by plaintiffs’ attorney’s use and 
dissemination of the notes was irreversible.]

Mother contends opposing counsel goes beyond the appearance of impropriety because 
she obtained and used mother’s communications with notations of “sub rosa, 
FYI;” “attorney-attorney privilege;” and “another example of the rampant paranoia on both 
sides.” Mother vigorously objects to opposing counsel contending her charge is a tactical 
abuse and contends that father is conflating two distinct requests for relief [recusal of the 
mediator and recusal of opposing counsel]. Mother also contends that she has in fact been 
harmed and that “the no harm no foul” defense does not play; she directs the Court to 
the “cap” on father’s income and the liquidated damage provision and attorney fees if she 
challenges the “cap.” 

On 11/19 mother filed an opposition to father’s evidentiary objections. I have considered the 
objections.

Rulings:

1. Mother’s requests are denied. 

2. As for the recusal of opposing counsel there is insufficient evidence legally or factually to 
support the contention. At the outset it is clear the information was intentionally supplied. 
State Farm v WPS (1999) 70 Cal. App. 4th 644; Complex Asbestos (1991) 232 Cal. App. 
3rd 572; and Rico (2007) 42 Cal. 4th 807 are not applicable here because those fact and 
legal analysis are distinctly dissimilar. 

Moreover, to embrace the suggestion that an attorney can seek disqualification of the 
opposition because confidential material was deliberately supplied would invite an abuse of 
the system that strongly encourages a party to select their lawyer and would provide a road 
map that one side could employ to deviously exclude selected counsel from the case. 
But even if there were competent legal reasons to recuse, I am unable to find, from all the 
material submitted, persuasive and substantial evidence that there was, in fact, disclosure 
of attorney client information or if there was that it harmed mother’s case. It may be that the 
words used could have been selected differently but having reviewed the material 
submitted I am unable to find support for the claims made. There is a lot made of things 
said that supposedly this Court should then assume more facts were conveyed but I find 
no actual evidence that harmful information has actually been exchanged. I see a lot of 
smoke but no fire. Communications between family law attorneys are often emotional, 
sometimes clinical, sometimes deliberate, and sometimes presented in a tactical or 
strategic effort to find a resolution of a case fraught with highly charged emotional and 
confrontational clients. Thus it was necessary for the Court to actually examine the actual 
words and the materials and communications relied upon by mother as being sufficient to 
find if there should be a recusal here. I did not find communications that were persuasively 
within the parameters that I must look to when finding grounds for recusal.
   
3. As for the recusal of the recommending mediator the Court cannot find any substantial 
evidence of detrimental attorney client communications that would persuade me to recuse 
the mediator. The actual communications that mother points to do not support her claim 
that there were damaging attorney client communications exchanged. 
The effort to analogize to the “judges” ethical obligations was not helpful. The 
recommending mediator occupies a distinct place in the process and disqualification 
techniques must be separately considered. I have done that and there is no evidence that 
the communications were a breach of the privilege or that there was harm caused by the 
communications made. 

In addition the mediator is trained to separate the materials provided to her in an effort to 
make a recommendation to the Court as to what is in the best interests of the child. Courts 
commonly listen to testimony from mediators to ferret out if the recommendations are 
logically formulated and if it is the one the Court wants to adopt, in total or in part. 
Inadmissible or privileged material that goes to the basis of the expert’s opinion can be 
excluded. Indeed the Court has wide latitude as to what it wants to do relating to any 
recommendation made. 

But it is also important to point out that this is a broad recusal motion. There is nothing 
now “pending” and the Court might well be asked to address issues concerning the minor 
child that has nothing to do with communications that allegedly breached any privilege. 
Furthermore, examination of the admissibility of an expert’s opinions whether in  family law 
cases or otherwise, is so common that hardly a case is ever tried these days when the 
issues of inadmissibility of an expert’s opinion is not raised either during trial or during 
pretrial motions in limine. Thus the issue that will or may be presented can be effectively 
addressed when it is presented. 

I am not unmindful that this is the second time within a few months that mother has sought 
to have the recommending mediator removed from the case. 

4. Mother’s remedy is misdirected. To the extent she believes her former counsel has 
deviated from her ethical and professional responsibilities her claims should be directed to 
other avenues of relief all of which are clear and available if she so elects. Recusal of 
opposing counsel and the mediator are not the remedies available here under the 
applicable law.