About Us

Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Settlement Offer as to Claim No. 1 Admissible to Prove or Disprove Claim No. 2

Another reminder of the narrow scope of Evidence Code section 1152's protections has just come come down from California's Second District Court of Appeal in Zhou v. Unisource Worldwide, Inc. here

Before discussing the Zhou holding, we remind our readers that in California, at any rate, the differences in protections between mediated settlement communications (absolute protection from disclosure) and non-mediated settlement communications (limited protection) make it imperative that counsel clearly specify, in writing,  whether the settlement conference they are about to attend is a  "mediated" conference -- and hence protected by Evidence Code section 1119 -- or a "non-mediated" conference -- and hence protected only by Evidence Code section 1152.

Federal Practitioners should see the footnote below and read Irvine, California IP attorney Sheila Swaroop's excellent ABTL Newsletter article The Surprising Uses of Prior Settlement Negotiations under FRE 408 here.

Though I'm aware of no case law on the topic, I'll go so far as to say that an attorney's failure to make this distinction will likely be found to fall below the applicable standard of care in the event the client suffers harm as a result.  

The Zhou Holding

Briefly, Plaintiff, who was injured in two separate automobile accidents, sent the insurance carrier an offer to compromise -- which was just barely brought within section 1152's protections -- for Accident No. 2.  During the trial of Accident No. 1, the defense proferred into evidence the settlement offer made for Accident No. 2 to prove the invalidity of the claim arising from Accident No. 1. 

In holding that the trial court erroneously excluded that correspondence from evidence, the Court of Appeal explained:

[I]n this case Zhou’s letters to State Farm regarding his purported injuries
from the March 1, 2004 accident were not offered to disprove the merits of the claim under negotiation, but rather “to show the invalidity of a different claim.” *

The entire case is well worth reading as a refresher if you're about to send a settlement demand, attend an MSC or pursue mediation.


*   The Court also cites federal law to the same effect -- Broadcort Capital Corp. v. Summa Medical Corp. (10th Cir. 1992) 972 F.2d 1183, 1194 [federal rule barring admission of evidence relating to settlement discussions does not preclude evidence of settlement of different dispute; “the evidence was not admitted to prove the validity or amount of the ‘claim under negotiation’”]; Towerridge, Inc. v. T.A.O., Inc. (10th Cir. 1997) 111 F.3d 758, 770 [“[r]ule 408 does not require the
exclusion of evidence regarding the settlement of a claim different from the one litigated”].)

Comments (8)

Read through and enter the discussion by using the form at the end
Moshe - May 3, 2013 6:28 PM

The National Association of escort agencys said its index that measures confidence in the market today is becoming a sanctuary for relaxation and comfort.

It does not matter if that is an aspect you feel qualified to handle,
because it does not negate your need for a professional estate agent.
Why Do We Need escort agencys? Los Angeles Escort Agency also are also avaliable .

If you care about your Places listings, thattakes a due care
of all the requirements of the clients.

Hester - May 4, 2013 1:46 AM

Hi, after reading this amazing article i am also delighted to share my knowledge here with friends.

nyc escorts - May 4, 2013 2:16 PM

With havin so much content and articles do you ever run into any problems of plagorism or
copyright infringement? My website has a lot of unique content I've either created myself or outsourced but it appears a lot of it is popping it up all over the internet without my authorization. Do you know any ways to help reduce content from being stolen? I'd
really appreciate it.

designer patio furniture - May 5, 2013 11:32 AM

I wanted to thank you for this good read!! I certainly enjoyed every little bit of it.

I have you book-marked to check out new stuff you post…

pure garcinia cambogia extract - November 5, 2013 7:53 PM

I like the valuable info you supply for your articles.
I'll bookmark your blog and take a look at again here frequently.
I am moderately sure I will be informed plenty of new stuff right right here!

Best of luck for the following!

DUI Attorney In Long Beach - November 20, 2013 4:01 AM

The entire family of the victim is compensated and the amount is justified in the
court of law through meaningful hearings. Some people have mandatory ignition interlock devices placed in their vehicles.
The traffic law in Florida clearly specify that any
person caught driving a vehicle with 0. A driving under the affect (DUI)
or "drunk driving" scenario is a special situation.
Many drunk driving arrests occur at a sobriety
checkpoint or in other non-accident state.

Long Beach Criminal Defense Attorney - December 31, 2013 11:01 PM

This is advantageous because by understanding the different characteristics
of the judge you can plan for a more efficient and successful court
process. Well, it sort of relates to how anyone can attempt to sue anyone
for anything if they can find an attorney to take the case.
When DNA samples are collected from a crime scene, they are sent to a lab for DNA fingerprinting.

DUI Lawyer in Miami - January 16, 2014 7:26 PM

Laser hair removal has become a very common procedure for both men and women.
t need to worry about any side effect since diverse
kinds of treatments are also used to make the procedure very effective.
There are some number of sessions generally depends on many parameters including the area of the body being
treated skin color coarseness of hair of body reason for hirsutism and gender.
Looking that good takes a lot of effort, and by promoting procedures like laser
hair removal, celebrities are giving us all hope that we too can look great every time we
step outside our front door. Hair removal therapy with laser technology is quite faster than the other types
of hair removal as each of the pulse can erase numerous hair within seconds.

Post a comment

Fill out this form to add a comment to the discussion
I'd like to leave a comment. is
  • 4media dvd ripper standard 5
  • adobe audition cs5.5 mac
  • adobe creative suite 4 web premium mac
  • autodesk building design suite ultimate 2012
  • techsmith camtasia studio 7
  • adobe flash builder 4.7 premium
  • adobe photoshop cs5 mac
  • corel wordperfect office x4 standard
  • adobe creative suite 6 production premium student and teacher edition
  • visual studio 2010 premium
  • autodesk maya 2013
  • nuance pdf converter professional 5
  • adobe cs6 production premium student and teacher edition mac
  • autodesk autocad electrical 2011
  • autodesk autocad map 3d 2009
  • pitney bowes mapinfo professional 11.5
  • adobe cs6 design standard student and teacher edition mac
  • infinite skills - learning bootstrap 2 mac
  • daz bryce 5.5
  • thegrideon access password professional 2.0
  • adobe flash professional cs5.5
  • autodesk navisworks manage 2009
  • microangelo toolset 6
  • autodesk alias design 2012 mac
  • parallels desktop 9 mac
  • futuremark 3dmark 05 pro
  • filemaker pro 11 advanced
  • adobe dreamweaver cc mac
  • infinite skills - advanced html5 training
  • autodesk autocad 2011 mac
  • excel 2010 all-in-one for dummies
  • adobe photoshop cs3 photographers guide
  • quarkxpress 10
  • camtasia studio 8
  • apple mac os x 10.8 mountain lion