Superior Court of Monterey County

Procedural Posture

Appellant, an expert who previously had testified in a wrongful death suit on behalf of respondent claimants, sought review of an order from the Superior Court of Monterey County (California), which denied the expert's Code Civ. Proc., § 425.16, motion to strike the claimants' complaint alleging negligence and conspiracy to commit fraud.

Overview: negligent employment

The underlying wrongful death suit, which involved an allegedly defective product, was settled after the claimants' attorneys obtained a continuance of the trial date on the basis that the expert had testified falsely in his deposition. The claimants contended that they had been deceived and pressured into accepting a settlement because the expert and the attorneys wanted to market a new safety device for the product. The court held that the expert's alleged misconduct was not protected activity under § 425.16, subd. (b)(1), because it did not arise from the underlying lawsuit. Although the deposition testimony was a statement made in the course of a judicial proceeding, that did not insulate the expert from recourse by the parties on whose behalf the statement was made. The court reasoned that the claims against the expert were analogous to legal malpractice claims, which were not within the ambit of § 425.16. The court further held that the expert's invocation of the litigation privilege under Civ. Code, § 47, subd. (b), did not automatically mean that his deposition testimony and other alleged conduct was protected activity under § 425.16.

Outcome

The court affirmed the order.

Overview

HOLDINGS: [1]-Judgment notwithstanding the verdict was properly granted on a sports columnist's claim for constructive discharge because the evidence showed only subjective reactions to the use of standard disciplinary procedures, including a demotion from columnist to reporter, with no breach of confidentiality, harassment, or other mistreatment. While the evidence allowed the inference that age or disability discrimination was a motivating factor, it did not show unusually aggravated working conditions or a continuous pattern of mistreatment; [2]-There was no error of law in concluding that it was impossible to separate damages for the discrimination alone from noneconomic damages for constructive discharge; [3]-The evidence supported a finding that plaintiff experienced an adverse employment action for purposes of age and disability discrimination claims.

Outcome

Orders affirmed.

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