Von Dutch, a Partnership Dispute, and a Mediation That Lasted Until Midnight

Kenny Howard was a legendary custom car and motorcycle painter who worked under the name Von Dutch. He died in 1992, and his daughters licensed the name to Michael Cassel in 1996. Cassel built a clothing line around the brand — the Von Dutch trucker hat became a cultural phenomenon in the early 2000s, worn by celebrities and appearing in magazines worldwide. The business grew rapidly.

Cassel had brought in a business partner, Tonni Sorensen, a martial arts champion who helped drive the brand's expansion. As the business grew, so did the friction between them. The partnership eventually broke down entirely and produced litigation. Cassel was represented by the law firm Wasserman, Comden, Casselman and Pearson, LLP and several of its individual attorneys. The case proceeded toward trial, and the parties agreed to attempt to resolve it through mediation.¹

According to Cassel's account, before the mediation began he told his attorneys clearly: he would accept no less than $2 million to resolve the dispute. The mediation proceeded over 14 hours. By Cassel's account, what followed was a sustained pressure campaign. His attorneys allegedly threatened to abandon him on the eve of trial if he refused to settle, misrepresented the terms of the proposed deal, and falsely promised they could negotiate a side arrangement that would make up for the shortfall in whatever amount Von Dutch's side offered. They also allegedly told Cassel they would waive a large portion of their $188,000 legal bill if he accepted.²

Most strikingly, Cassel alleged that his attorneys accompanied him to the bathroom during the mediation session and continued pressing him to settle even there. At midnight, after 14 hours of negotiations, exhausted and unable to think clearly, Cassel signed the settlement agreement. He claimed his attorneys evaded his questions about its terms as he was signing. He settled for an amount below his stated floor.

The Malpractice Lawsuit — and the Problem of Proof

After the settlement was concluded, Cassel sued his former attorneys for legal malpractice, breach of fiduciary duty, fraud, and breach of contract. His complaint described in detail the tactics they had used during the mediation: the threats, the misrepresentations, the pressure, the midnight signature. To prove his case at trial, Cassel needed to use evidence of what had happened in those pre-mediation meetings and during the mediation itself — his own testimony about conversations with his attorneys, the attorneys' conduct during the session, the discussions about settlement strategy.

The defendant attorneys filed motions in limine to exclude all of it. Their legal basis: California Evidence Code Section 1119, which broadly protects all communications made for the purpose of, in the course of, or pursuant to a mediation from disclosure in any subsequent civil proceeding. The attorneys argued that every conversation Cassel sought to use as evidence — even the private attorney-client conversations that had nothing to do with the opposing party or the mediator — was protected by the statute.³

The Los Angeles Superior Court granted the motions. Without the mediation communications, Cassel had no evidence. The Court of Appeal vacated the order, concluding that confidentiality should not apply to purely private attorney-client discussions that occurred outside the mediator's presence. The California Supreme Court granted review.

What the California Supreme Court Held — and Why

The Supreme Court's unanimous opinion reversed the Court of Appeal and reinstated the trial court's exclusion order. The ruling was direct: California Evidence Code Section 1119 protects all communications made for the purpose of, in the course of, or pursuant to a mediation — including private attorney-client discussions — from disclosure in any subsequent proceeding. There are no judicially created exceptions. The statute means what it says.⁴

The Court acknowledged the hardship this created for Cassel. Here was a client who alleged that his own attorneys had pressured him into an unwanted settlement through coercion and misrepresentation — and the very evidence he needed to prove it was the evidence the statute protected. The Court did not deny the difficulty. But it held that creating exceptions was a legislative task, not a judicial one. The Legislature had chosen a policy of broad, unconditional mediation confidentiality to encourage open and candid communication in the mediation process. That policy required strict enforcement, even in cases where the result seemed unfair to an individual litigant.⁴

The Court was explicit that it was not endorsing the attorneys' alleged conduct. It was simply holding that the confidentiality statute applied regardless of what that conduct was.

What California's Mediation Confidentiality Law Actually Covers

Cassel v. Superior Court is the controlling authority on the scope of California's mediation confidentiality statutes, and its reach is broader than most participants in mediation realize. Evidence Code Sections 1115 through 1128 create a comprehensive framework that protects an enormous range of communications — not just what is said in the mediation room itself.

The Settlement Agreement Trap — Language That Must Appear

One of the most practically important aspects of California's mediation confidentiality framework is the requirement for enforceable written agreements. A settlement reached during mediation is confidential and inadmissible — unless it is reduced to a writing that expressly states it is intended to be enforceable or binding. California Evidence Code Section 1123 requires that this specific intention be stated in the agreement itself.⁵

Courts have held that this is not a technicality. A signed agreement that omits the required language may be unenforceable — even if both parties intended to be bound by it and signed it in good faith. In real estate transactions, business disputes, and construction mediations, the failure to include the Section 1123 language in a settlement agreement has caused signed deals to fall apart when one party later sought to enforce them. This is sometimes called the "magic words" problem — the specific language matters, and omitting it has real consequences.

What Cassel Means for Anyone Entering Mediation in California

The ruling in Cassel is not a criticism of mediation as a process — it is a recognition of why mediation works. Mediation produces settlements at extraordinary rates in California precisely because the parties and their attorneys can speak openly, explore settlement ranges, and discuss positions that would never be admitted in court. That candor depends entirely on confidentiality. If everything said in a mediation could be used against you in a later lawsuit, no party would speak freely.

But the breadth of that protection — absolute, statutory, without judicial exception — has practical consequences that every party to a mediation should understand going in.

How DiJulio Law Group Approaches Mediation in Southern California

Mediation resolves the vast majority of civil disputes in California — including real estate disputes, business partnership breakdowns, construction defect claims, and commercial contract disagreements. When it works as intended, it is faster, less expensive, and more private than litigation. When it is entered without preparation, without independent counsel, or without a clear understanding of the process and its consequences, the outcome can be a signed agreement that neither reflects the client's interests nor can be undone.

DiJulio Law Group represents clients in real estate mediation, business mediation, construction mediation, and mediation across all practice areas in Glendale, Los Angeles, and throughout Southern California. We also represent clients in disputes that proceed to litigation when mediation fails or is not appropriate. Understanding the confidentiality framework is part of how we prepare every client for a mediation — and ensuring that any agreement that is reached is documented correctly is part of how we protect them when a session concludes.

Cassel v. Superior Court is a reminder that the mediation room is not just a negotiation setting — it is a legally distinct environment with its own rules. Those rules can protect you. They can also limit your options if something goes wrong. Walking in informed is the starting point for any successful outcome.