59 Cal.App.5th 346
Cal. Ct. App.2020Background
- Plaintiff Shahrokh Mireskandari, a U.K. solicitor, was the subject of disciplinary proceedings before the Solicitors Disciplinary Tribunal (SDT) after the U.K. regulator (LSE/SRA) intervened in his practice.
- The SDT appointed Dr. Joseph Scoma (San Diego physician) as an independent medical expert; Scoma did not examine Mireskandari but reviewed medical records and opined Mireskandari was fit to travel and attend the SDT hearing.
- The SDT relied on Scoma’s communications, proceeded in Mireskandari’s absence, and struck him from the roll, which Mireskandari alleges caused > $500 million in losses.
- In California, Mireskandari sued Scoma for breach of contract (third‑party beneficiary), breach of fiduciary duty, fraud/deceit (fraudulent concealment), and violations of the CMIA for disclosure of medical records.
- The trial court sustained Scoma’s demurrer without leave to amend, holding California’s litigation privilege (Civ. Code § 47(b)) barred the claims; plaintiff appealed, arguing U.K. law should apply and the privilege did not cover Scoma’s conduct.
- The Court of Appeal affirmed: it applied California law (plaintiff failed to establish applicable U.K. law on the record) and held California’s absolute litigation privilege bars each cause of action against a neutral expert retained for quasi‑judicial proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law for privilege (CA vs UK) | UK litigation privilege governs because Scoma acted for a British tribunal in a British proceeding | California law governs; plaintiff failed to present admissible UK law to show a conflict | CA law applies; plaintiff did not satisfy burden to show UK law should displace CA law |
| Whether CA litigation privilege bars claims against a neutral expert | Privilege should not shield an independent expert who acted improperly and took directions from the regulator | Privilege covers communications by participants/authorized experts in quasi‑judicial proceedings, including neutral experts | Privilege applies: Scoma’s communications were made in quasi‑judicial proceeding, by an authorized participant, to achieve litigation objects, and related to the action |
| Whether noncommunicative acts (refusing physical exam; obtaining/forwarding records) escape privilege | These are independent, noncommunicative wrongful acts forming the gravamen of the claims | The gravamen is communicative (reports/recommendations relied on by SDT); privilege extends to related acts | Rejected — gravamen is communicative (Scoma’s reports/emails); noncommunicative acts tied to communications are privileged |
| Denial of leave to amend / alternative failure to state claims | If privilege fails, plaintiff should be allowed to amend (or claims otherwise state relief) | Demurrer properly sustained; privilege is a complete bar and alternative pleading faults fatal | Court did not reach merits of alternative grounds because privilege is dispositive; denial of leave to amend affirmed implicitly in upholding dismissal |
Key Cases Cited
- Ramalingam v. Thompson, 151 Cal.App.4th 491 (litigation privilege bars suit against neutral expert retained for litigation)
- Gootee v. Lightner, 224 Cal.App.3d 587 (litigation privilege shields expert retained by stipulation/court order)
- Howard v. Drapkin, 222 Cal.App.3d 843 (litigation privilege bars tort claims against court‑ordered neutral psychologist)
- Jacob B. v. County of Shasta, 40 Cal.4th 948 (defines "usual formulation" / four‑part test for litigation privilege)
- Silberg v. Anderson, 50 Cal.3d 205 (litigation privilege is absolute and its purposes)
- Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459 (procedure for establishing foreign law via judicial notice and expert advice)
- Washington Mutual Bank, FA v. Superior Court, 24 Cal.4th 906 (choice‑of‑law/governmental interest analysis when invoking foreign law)
- McCann v. Foster Wheeler LLC, 48 Cal.4th 68 (three‑step governmental interest analysis for conflicts issues)