SHAHROKH MIRESKANDARI, Plaintiff and Appellant, v. LAUREN GALLAGHER, as Executor, etc., Defendant and Respondent.
D076130
(Super. Ct. No. 37-2015-00029990-CU-FR-CTL)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 12/30/20
John S. Meyer, Judge.
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.
James & Associates, Becky S. James and Lisa M. Burnett for Plaintiff and Appellant.
Reback, McAndrews & Blessey, Robert C. Reback and Rebecca G. Goldstein for
In a second amended complaint (complaint), Shahrokh Mireskandari alleged four causes of action against Joseph Scoma, M.D.,1 based on
I. FACTUAL BACKGROUND2
Mireskandari received an undergraduate degree from National University in California, graduated from the American University of Hawaii
law school in 1997, and attended London Guildhall University Law School in London in 1998. He qualified as a solicitor in 2000, and by 2006 he was the managing partner of a London firm with mostly “black, minority, or ethnic origin” (BME) solicitors and staff.
In 2007, Mireskandari publicly disclosed to a member of Parliament problems BME solicitors experienced “at the hands of the Legal Society of England and Wales (‘LSE’) and the Solicitors Regulatory Authority (‘SRA’)” (together, the LSE/SRA).3 As a result, an internal review was commenced
On our own motion we take judicial notice of Gilbert. (
relating to the allegedly discriminatory and racist practices of the LSE/SRA toward BME solicitors. In retaliation, the LSE/SRA began a campaign to discredit Mireskandari. As part of its effort to obtain Mireskandari’s “confidential information“—and, as a pretext for intervening in Mireskandari’s law practice—the LSE/SRA retained a Los Angeles law firm. The LSE/SRA instructed the Los Angeles law firm “to illegally access” a specific website “to obtain [Mireskandari’s] educational records without notice to or knowledge of [Mireskandari].” In late September 2008, one of the firm’s paralegals “unlawfully and illegally . . . gain[ed] access to [Mireskandari’s] confidential educational records” and communicated the information she received to the LSE/SRA.
Within two weeks being advised of these records, the LSE/SRA demanded from Mireskandari information regarding his “educational and work background.”
Approximately two months later, in mid-December 2008, the LSE/SRA intervened in Mireskandari’s law practice.
More than two years later, in early April 2011, the Solicitor’s Disciplinary Tribunal (SDT) “initiated the proceedings against [Mireskandari] regarding the intervention of [Mireskandari’s] legal practice and his license to practice law in the United Kingdom” (SDT proceedings). After approximately three weeks of testimony, the SDT temporarily adjourned the SDT proceedings.
At that time, Mireskandari travelled to California. He became seriously ill and requested that the SDT proceedings be further adjourned. In support of his request, Mireskandari submitted evidence from California physicians of his illness, his inability to travel to England, and his inability to participate in the SDT proceedings.
In response, at the request of the LSE/SRA, the SDT appointed Scoma “as an independent expert (not the expert of the LSE/SRA),” and directed counsel to instruct Scoma “that he was to act as an independent expert.” Consistently, in April 2012, which was almost a year after the adjournment, Scoma was directed in writing “that he was to be an independent expert to determine whether [Mireskandari] was medically fit to travel to London for the conclusion of the proceedings before the SDT.”
The continued proceedings before the SDT did not commence on May 28, 2012. Over the course of the next two weeks, the LSE/SRA and Scoma continued to exchange letters and medical reports—all without Mireskandari’s knowledge, authority, or permission. On June 12, 2012,
Scoma sent an email to LSE/SRA, stating that he ” ‘will review the seven statements[,] letters[,] and reports,’ ” but that he ” ‘d[id] not plan on changing [his] report of May 23, 2012.’ ” Later that day, Scoma submitted an addendum to his May 2012 report, advising that his ” ‘opinion and report remain the same.’ ”
The LSE/SRA presented Scoma’s report to the SDT, which rejected Mireskandari’s request for a delay and proceeded with the hearing in Mireskandari’s absence. Based on the SDT proceedings, the SDT struck Mireskandari from the roll of solicitors, thereby preventing him from practicing law in the United Kingdom. This resulted in the permanent closing of the law firm of which he was a partner. Mireskandari suffered damages in excess of $500 million.
II. PROCEDURAL BACKGROUND
In September 2015, Mireskandari filed this lawsuit against Scoma and others.4 In a second amended complaint (previously identified as the complaint), Mireskandari alleges causes of action against Scoma for breach of contract, breach of fiduciary duty, fraud and deceit (fraudulent concealment),
authorization—demonstrate that, “in violation of the terms and conditions of his appointment as an independent expert in the case,” Scoma did not act independently.
In support of his cause of action for breach of contract, Mireskandari alleges that he was a third-party beneficiary of the agreement between the SDT and Scoma, pursuant to which Scoma agreed “to provide an independent examination of [Mireskandari’s] medical condition.” Scoma breached this agreement to the detriment of Mireskandari because, instead of conducting an independent examination of Mireskandari, “Scoma acted as the LSE/SRA’s expert and advocated their position as to [Mireskandari’s] condition and whether he could travel to London for the proceedings before the SDT.”
In his second cause of action, Mireskandari alleges that, as an independent medical expert, Scoma owed Mireskandari a fiduciary duty. Scoma breached this duty when he “acted on behalf of the LSE/SRA to the detriment of [Mireskandari],” by “improperly communicat[ing] with the LSE/SRA” and “fail[ing] to communicate at all with [Mireskandari] when providing his reports to the LSE/SRA.”
Mireskandari’s third cause of action seeks relief based on Scoma’s fraud and deceit. Mireskandari alleges that, despite having been retained as an independent expert, Scoma fraudulently concealed the following from Mireskandari: (1) Scoma believed that he was working for the LSE/SRA (not the SDT); (2) Scoma had communications with, and took directions from, the LSE/SRA with regard to what information to include in his report; (3) the true reason that Scoma, a San Diego resident, could not travel to Los Angeles to examine Mireskandari; (4) Scoma provided Mireskandari’s medical records to the LSE/SRA without Mireskandari’s authorization; and (5) Scoma
provided his opinions without reviewing all of Mireskandari’s medical records.
In his last cause of action against Scoma, Mireskandari asserts statutory violations of the California Confidentiality of Medical Information Act (CMIA) (
Mireskandari filed written opposition to the demurrer. In part, and as relevant to the disposition of this appeal, he relied significantly on a request for judicial notice and the “Expert Report of Thomas Roe, Q.C. on behalf of Plaintiff, dated 8/3/16” (Roe report) presented as an exhibit to the request.6
Substantively, Mireskandari argued that the law of the United Kingdom, not of California, applied; and Mireskandari attempted to present the law of the United Kingdom by way of the content of the Roe report and case law from courts of the United Kingdom.
In reply to the opposition, Scoma argued principally that, for purposes of applying a litigation privilege, the law of California, not of the United Kingdom, was controlling and, alternatively, that each of the causes of action failed to allege facts sufficient to state a cause of action.
The court entertained oral argument, the focus of which was whether the law of California or the United Kingdom applied to Mireskandari’s claims. At the conclusion of the hearing, the court confirmed its tentative ruling and sustained the demurrer without leave to amend. In a written minute order, the
assumptions for Roe’s opinions; (5) Roe’s responses to five specific questions; and (6) a typewritten closing that includes Roe’s name, title, address, email address, telephone number, and the date “3 August 2016” (which, Mireskandari explains on appeal, is because he previously filed the Roe report in support of his opposition to Scoma’s demurrer to an earlier amended complaint in this action).
Mireskandari. In the alternative, the court ruled that, in each of the four claims, Mireskandari failed to state facts sufficient to constitute a cause of action. (
The court entered a judgment of dismissal with prejudice in favor of Scoma and against Mireskandari. Mireskandari timely appealed.
III. DISCUSSION
On appeal, Mireskandari contends that the trial court erred in: applying the California, rather than the United Kingdom, litigation privilege as a bar to each of the four claims in the complaint; and, alternatively, in concluding that each of the four claims fails to state facts sufficient to constitute a cause of action. Mireskandari also argues, that, in the event we agree that any of the four claims fails to state facts sufficient to constitute a cause of action, the trial court erred in denying leave to amend.
We affirm. As we explain, Mireskandari did not meet his burden of establishing that, on the record presented, the trial court erred in applying California’s litigation privilege (
A. Standards of Review
The trial court’s judgment is “presumed to be correct.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) Thus, the appellant has the burden of affirmatively establishing reversible error. (Ibid.)
We review de novo an order sustaining a demurrer without leave to amend. (Mathews, supra, 8 Cal.5th at p. 762.) “[W]e accept the truth of
contentions, deductions, or conclusions of fact or law. We may also consider matters subject to judicial notice.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. omitted.)
We review the trial court’s ruling, not the reasons stated for the ruling. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981 (Rappleyea) [even where the trial court’s legal reasoning is erroneous, the ruling will be affirmed if it can be supported by any legal theory]; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [same].) The rationale for this standard is that there can be no prejudice from an error in logic or reasoning if the decision itself is correct. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)
“Determination of the law . . . of a foreign nation . . . is a question of law to be determined in the manner provided in”
B. Request for Judicial Notice
In support of his appellate briefing, Mireskandari filed a motion, asking that this court take judicial notice of the following nine documents:
- British case law identified as (1) ”Jones v. Kaney [2011] UKSC 13,” (2) ”Les Laboratoires Servier v. Apotex Inc. [2014],”8 (3) ”Patel v Mirza [2016] UKSC 42, [2016] 3 WLR 399,” (4) ”Tinsley v. Milligan [1994] 1 AC 340,” and (5) ”Three Rivers District Council v Governor & Company of the Bank of England (No. 5) (2003) EWCA Civ 474“;
- a British statute identified as (6) “Data Protection Act (1998, updated 2018)“;
-
a British treatise identified as (7) “Crown Prosecution Service (U.K.), Criminal Practice Direction V – Evidence (2015), CPD V 19A.8, 19A.9 . . . and relevant provisions 19A.8 and 19A.9“; and - United States federal court documents identified as: (8) “Excerpts of Deposition of Joseph A. Scoma, M.D. taken January 21, 2013 in Mireskandari v. Solicitors Regulation Authority (In re Mireskandari), No. 12-cv-2865-IEG-DHB (S.D. Cal. case filed Dec. 3, 2012),” and (9) “Order Granting in Part Appellant’s Motion to Compel, ECF No. 27, Mireskandari v. SRA, No. 12-cv-2865-JAH-DHB (S.D. Cal. order filed March 1, 2013).”
(
For the reasons that follow, we deny Mireskandari’s motion in its entirety.9
Since the British cases and statute (documents (1)-(6), ante) are foreign law, arguably they are subject to permissive judicial notice under
In addition, judicial notice of documents (2) and (4) (”Les Laboratoires Servier v. Apotex Inc. [2014]” and ”Tinsley v. Milligan [1994] 1 AC 340,” respectively) is inappropriate because Mireskandari did not mention either of them in his appellate briefing. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1064-1065 [“Asking that authority be judicially noticed instead of citing and discussing it in a brief gives the parties no orderly opportunity to argue the relevance of that
Documents (7)-(9) contain hearsay, and ” ‘[t]he hearsay rule applies to statements contained in judicially noticed documents,’ ” thereby
courts may ‘ “disregard any factual contention not supported by a proper citation to the record” ’ “].)
” ‘preclud[ing] consideration of those statements for their truth unless an independent hearsay exception exists.’ ” (Barri v. Workers’ Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437 (Barri).) Here, Mireskandari is not asking us to judicially notice the existence of the three documents. Rather, without suggesting any exception to the hearsay rule, Mireskandari asks us to rely on the truth of facts contained within those documents.
In addition, the British treatise (document (7)) is also irrelevant. Mireskandari relies on the treatise to support his argument that Scoma’s deposition testimony from another action (document (8))—which is hearsay and not subject to judicial notice—establishes that Scoma violated British law. Since the deposition testimony is not properly before us, a treatise which allegedly establishes that the testimony establishes a violation of law is irrelevant to our disposition of the issue under consideration. (Golden Door, supra, 53 Cal.App.5th at p. 758, fn. 16.)
Our potential consideration of the Roe report—on which Mireskandari significantly relies in his appellate briefing (see pt. III.C.1., post)—requires a different analysis, since Mireskandari did not ask us to take judicial notice of it. Scoma did not oppose Mireskandari’s request for judicial notice in the trial court, instead suggesting only that it “overstates U[nited ]K[ingdom] law and should be disregarded,” and Scoma does not mention judicial notice in his appellate brief.
Although
“properly noticed by the trial court,” the appellate court is not required to take judicial notice; and, regardless, (2) the appellate court “may take judicial notice of a matter in a tenor different from that noticed by the trial court.” (Ibid.) Here, because the Roe report contains 14 typewritten pages with neither an oath nor a signature, both of these exceptions apply: (1) by accepting the truth of the statements in the Roe report, the trial court did not properly take judicial notice (see StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 456, fn. 9 [the taking of judicial notice of a document is merely notice of the fact that the document exists; “the truthfulness and proper interpretation of the document are disputable“]; Barri, supra, 28 Cal.App.5th at p. 437 [“It is improper to rely on judicially noticed documents to prove disputed facts because judicial notice, by definition, applies solely to undisputed facts“]); and (2) given the lack of an oath and a signature, we would give the report a significantly different tenor than the trial court did, by disregarding it altogether for lack of reliability (see Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697 [“The appellate court may adopt a construction of judicially noticed material contrary to that which the trial court found persuasive“]).
C. On the Record Presented, California’s Litigation Privilege is a Complete Defense to Each of the Causes of Action in the Complaint
Mireskandari argues that the trial court erred both in applying California, rather than United Kingdom, law and in ruling that California’s litigation privilege is a defense to his claims against Scoma. As we explain, Mireskandari did not meet his burden of establishing reversible error.
judicial notice by a reviewing court under
1. The Trial Court Did Not Err in Applying California Law
The trial court sustained Scoma’s demurrer on the ground raised in his pleadings—namely, that California’s litigation privilege was a defense to each of Mireskandari’s four California causes of action. On appeal, Mireskandari contends that, because at all times Scoma “acted at the behest of a British entity in connection with various British administrative actions relating to a British solicitor,” the litigation privilege of the United Kingdom, not of California, applies. Mireskandari emphasizes that Scoma’s “conduct occur[red] in connection with a purely British proceeding.” (Initial capitalization omitted.) Under British law, Mireskandari’s argument continues, the litigation privilege does not provide immunity to an independent expert like Scoma in defense of the claims from a party like Mireskandari.
” ‘ “[G]enerally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event [the party litigant] must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it.” ’ ” (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 919 (Washington Mutual).) By his opposition to Scoma’s demurrer, Mireskandari timely invoked the law of the United Kingdom, and in support of his position, he relied on the “governmental interest analysis”
When faced with a conflicts of law question in California, the proper application of the governmental interest analysis requires the court to ” ‘search to find the proper law to apply based upon the interests of the litigants and the involved states’ “—or, as in the present case, the involved state (California) and foreign country (United Kingdom). (Offshore Rental Co. v. Continental Oil Co. (1978) 22 Cal.3d 157, 161 (Offshore)12.) This approach generally involves three steps:
” ‘First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law “to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state” [citation] and then ultimately applies “the law of the state whose interest would be more impaired if its law were not applied.” ’ ”
(McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 87-88 (McCann), quoting Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 107-108.) This three-step analysis applies “whether the dispute arises out of contract or tort.” (Washington Mutual, supra, 24 Cal.4th at p. 920.) Under this
standard, “a separate conflict of laws inquiry must be made with respect to each issue in the case.” (Ibid.)
Although Mireskandari sets forth and relies on the well-established and appropriate governmental interest analysis,13 as we explain, he did not
On appeal, in his attempt to establish what he contends is the British law related to the litigation privilege, Mireskandari asked this court to take judicial notice of five British cases, and in his appellate briefing he relies on three of them and the Roe report (which is contained in the record on appeal because the trial court took judicial notice of it) to explain the British legal system and the application of the British law related to the litigation privilege. However, as we introduced in our denial of Mireskandari’s request for judicial notice of British legal authorities on appeal (see pt. III.B., ante), the 14 typewritten pages of the Roe report without an oath or signature contain disputed facts and lack any indicia of reliability. For these reasons, we decline to rely on the report, which necessarily results in an insufficient showing by Mireskandari, who has the burden to establish (Washington Mutual, supra, 24 Cal.4th at p. 919) that British, not California, law applies.
First, without the report, Mireskandari has not presented any judicially noticeable matter that describes or explains how, if at all, the United Kingdom applies a litigation privilege. Second, without this British legal authority, Mireskandari has not made a sufficient presentation under the governmental interest analysis for us to determine whether the foreign law is the same as or different than the California law on the issue.14
Even if we were to assume that the law of the United Kingdom applied, based on the record before us,
“30. What, then, is the law of England and Wales concerning the potential liability of an expert witness, appointed by a court or tribunal, to a party who alleges that he has been wronged by the expert’s incompetence, or worse?”
“31. There is, so far as I am aware, no case law dealing expressly with this question. That is not very surprising . . . . The question therefore needs to be addressed as one of principle.” (Italics added.)
Very simply, despite its 14 pages and 50 numbered paragraphs, the Roe report presents no law, one way or the other, on the question presented.15 Instead, in the five numbered paragraphs that follow the above-quoted paragraphs 30 and 31, the Roe report proffers “good reasons to believe” how an English court would rule “in a case such as the present one” if in fact an English court were presented with the issue. Thus, Mireskandari has not provided British law on the issue to be determined in these proceedings, only speculation as to what the British law might be in the future. For this reason, even if the Roe report were properly before us, Mireskandari would not have met his burden of establishing the first step under the governmental interest analysis.
Mireskandari suggests that the ruling in an earlier appeal in this case, Mireskandari v. Gallagher (Sept. 14, 2018, D071385) [nonpub. opn.] (Gallagher), “dictates” that the British law regarding the litigation privilege, not California’s, applies. (Capitalization and underscoring omitted.) We disagree. In Gallagher, Mireskandari appealed from an order of the trial court striking the operative complaint pursuant to California’s anti-SLAPP statute,
Mireskandari argues that, based on Gallagher, supra, D071385, since California‘s anti-SLAPP statute does not apply to strike the causes of action against Scoma, California‘s litigation privilege should not apply as a defense to the causes of action against Scoma. We reject this argument because Gallagher did not involve a choice of law or conflict of law issue. (Ibid.) Instead, the only issue in Gallagher was whether California‘s anti-SLAPP statute applied, and the sole focus was whether Scoma‘s acts were in furtherance of his United States or California constitutional right to petition. (Ibid.) There was no mention—or even the possibility—of the application of British law. Stated differently, because there was no choice of law or conflict of law to consider in Gallagher, there was no application of the governmental interest analysis or the need to understand British law to determine whether it was the same as, or different from, California law in Gallagher.16
For the foregoing reasons, California law applies to Scoma‘s defense that the litigation privilege bars each of Mireskandari‘s causes of action, and Mireskandari did not meet his burden of establishing that the trial court erred in so ruling. (See Jameson, supra, 5 Cal.5th at p. 609 [appellant has the burden of establishing reversible error]; Rappleyea, supra, 8 Cal.4th at pp. 980-981 [the appellate court reviews the trial court‘s ruling, not the reasons stated for the ruling].)
2. The Trial Court Did Not Err in Ruling that California‘s Litigation Privilege Bars Each Cause of Action in the Complaint
Mireskandari contends that, even if the California law on litigation privilege applies to this litigation, the protections of
a. Law
The litigation privilege provides that any “publication” or “broadcast” made in any “judicial proceeding” or “other official proceeding authorized by law” is “privileged.” (
The privilege is a matter of substantive law (Wegner et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2019) ¶ 8:1852.6, p. 8E-3) and, when applicable, is “absolute,” because it applies regardless of the communicator‘s “motives, morals, ethics or intent” (Silberg, supra, 50 Cal.3d at p. 220; accord, Jacob B., supra, 40 Cal.4th at p. 955).17 The underlying purposes of applying the litigation privilege include: (1) affording litigants and witnesses the “utmost freedom of access” to courts without fear of “being harassed subsequently by derivative . . . actions“; (2) promoting the effectiveness of judicial proceedings by encouraging “open channels of communication and the presentation of evidence“; (3) encouraging attorneys to “zealously protect” their clients’ interests; and (4) enhancing the finality of judgments and avoiding “an unending roundelay of litigation.” (Silberg, supra, 50 Cal.3d at pp. 213-214.) ” ‘Any doubt about whether the privilege applies is resolved in favor of applying it.’ ” (Wang v. Heck (2012) 203 Cal.App.4th 677, 686.) “Although ‘the litigation privilege has its costs, ” ‘[i]t is desirable to create an absolute privilege . . . not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions.’ ” ’ ” (Id. at pp. 686-687, quoting in part Silberg, supra, 50 Cal.3d at p. 214.)
The California law on the relevant issue is clear and has been for at least 30 years: In California, the litigation privilege found at
Established California case law also holds that “[Civil Code ]section 47 privileges may properly shield conduct in [a foreign country].” (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 494.) In Beroiz, the plaintiffs sued the defendants in California for alleged defamation based on the following communications made in Mexico: “defamatory criminal accusations against [the plaintiffs]” and “defamatory letters” the defendants published to members of an association. (Id. at pp. 488-489.) The appellate court affirmed the trial court‘s grant of summary judgment to the defendants, rejecting the plaintiffs’ argument “that the pertinent privileges under
The litigation privilege has been applied as a defense to claims in cases involving each of the specific causes of action Mireskandari asserts in his complaint against Scoma: breach of contract (McNair v. City and County of San Francisco (2016) 5 Cal.App.5th 1154, 1169-1171 [collecting cases]); breach of fiduciary duty and fraud and deceit (Jacob B., supra, 40 Cal.4th at p. 960 [“the litigation privilege bars all tort causes of action except malicious prosecution“]); and CMIA violations (McNair, at pp. 1163-1164 [collecting CMIA cases], 1168 [affirmance of application of litigation privilege to CMIA claim].)
b. Analysis
As we explain, under our Supreme Court‘s ” ‘usual formulation’ ” for determining whether the litigation privilege applies (quoted at pt. III.C.2.a., ante), here the privilege applies as a bar to each of Mireskandari‘s four causes of action against Scoma. (See Jacob B., supra, 40 Cal.4th at p. 955, quoting Silberg, supra, 50 Cal.3d at p. 212.)
First, ” ‘the privilege applies to any communication (1) made in . . . quasi-judicial proceedings.’ ” (Jacob B., supra, 40 Cal.4th at p. 955, quoting Silberg, supra, 50 Cal.3d at p. 212.) Here, Mireskandari acknowledges that the SDT proceedings were “quasi-judicial.”
Second, ” ‘the privilege applies to any communication . . . (2) by litigants or other participants authorized by law.’ ” (Jacob B., supra, 40 Cal.4th at p. 955, quoting Silberg, supra, 50 Cal.3d at p. 212.) Here, Mireskandari acknowledges that Scoma provided written communications pursuant to the SDT‘s instructions and “appointment . . . as an independent expert,” both ordered “pursuant to the law” in the SDT quasi-judicial proceedings.
Third, ” ‘the privilege applies to any communication . . . (3) to achieve the objects of the litigation.’ ” (Jacob B., supra, 40 Cal.4th at p. 955, quoting Silberg, supra, 50 Cal.3d at p. 212.) Here, Mireskandari acknowledges that Scoma provided a number of written communications as part of the SDT proceedings pursuant to the SDT‘s “order[] . . . appoint[ing] . . . Dr. Scoma as an independent expert.”
Finally, ” ‘the privilege applies to any communication . . . (4) that ha[s] some connection or logical relation to the action.’ ” (Jacob B., supra, 40 Cal.4th at p. 955, quoting Silberg, supra, 50 Cal.3d at p. 212.) Here, Mireskandari acknowledges that all of Scoma‘s communications had a relation to the SDT proceedings, since, according to Mireskandari, the SDT recommenced the proceedings in Mireskandari‘s absence based on Scoma‘s communications.
Mireskandari‘s arguments do not convince us that California‘s litigation privilege does not apply as a bar to the causes of action in the complaint.
Most tellingly, in his appellate briefing, Mireskandari does not mention, let alone attempt to distinguish, the three California cases cited above in which the courts ruled that the litigation privilege found at
Mireskandari first emphasizes that, because the litigation privilege applies only to communications, the “threshold issue” is whether the defendant‘s conduct was communicative or noncommunicative. (Kimmel v. Goland (1990) 51 Cal.3d 202, 211 (Kimmel); Mancini & Associates v. Schwetz (2019) 39 Cal.App.5th 656, 661.) More specifically, Mireskandari contends that the litigation privilege does not apply to noncommunicative acts, and the fraud and deceit cause of action is based on the following noncommunicative acts: (1) Scoma‘s conduct “in refusing to conduct a physical examination of Mr. Mireskandari and fraudulently concealing the reasons for that refusal“; and (2) Scoma‘s conduct “in
” ‘The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. . . . [T]he key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1248, quoting Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.) Notably, ” ‘if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct[.]’ ” (Jacob B., supra, 40 Cal.4th at p. 957, quoting Rusheen, at p. 1065.) To show that the litigation privilege does not apply, the burden is on the plaintiff to demonstrate that ” ‘an independent, noncommunicative, wrongful act was the gravamen of the action[.]’ ” (Ibid.) Contrary to this established standard, Mireskandari focuses only on the acts he contends are noncommunicative, not on the gravamen of his claim.
The gravamen of Mireskandari‘s cause of action for fraud and deceit (fraudulent concealment or omission) is that he was damaged by the SDT‘s “reli[ance] on Dr. Scoma‘s reports which ultimately led to the SDT proceeding against [Mireskandari] in his absentia [sic].” Stated differently, had Scoma not communicated the reports that concealed material facts, which then resulted in the continuation of the SDT proceedings without Mireskandari, Mireskandari would have suffered no damages and, therefore, had no claim for fraud or deceit. Mireskandari‘s claim is not that he was damaged either by Scoma “fraudulently concealing
Further, Mireskandari makes no attempt to allege in the complaint or to explain in his appellate briefing how he might have suffered $500 million in damages as a result of the arguably noncommunicative acts of either “fraudulently concealing” the reasons he did not want to conduct a physical examination of Mireskandari or obtaining Mireskandari‘s medical records “under false pretenses.” To the contrary, in the complaint, Mireskandari clearly sets forth that the $500 million in damages he allegedly suffered resulted from a communication:
“As a result of Dr. Scoma‘s . . . recommendation to the LSE/SRA and the SDT that [Mireskandari] was fit to travel to London, the SDT proceeded with the tribunal in [Mireskandari‘s] absentia [sic], resulting in the SDT striking [Mireskandari] off the roll of solicitors, thereby preventing [Mireskandari] from continuing to practice law. . . . [T]his resulted in the permanent closing of the firm, resulting in the loss of [Mireskandari‘s] income generated from his law firm. . . . Further, since [Mireskandari] was no longer able to practice as a solicitor, he no longer had the income to maintain various properties he owned in the United Kingdom, which were . . . worth millions of dollars. As a result of Dr. Scoma‘s conduct [communicating that Mireskandari was fit to travel to London], [Mireskandari] estimates that he has lost $500 million in income and real property.” (Italics added.)
Thus, according to the complaint, a principal cause of Mireskandari‘s $500 million in damages—i.e., the gravamen of the claim—was Scoma‘s “recommendation to the LSE/SRA and the SDT that [Mireskandari] was fit to travel to London“; and, Scoma effected this and related recommendations by way of email communications. Indeed, in the complaint, Mireskandari even quotes from Scoma‘s emails, frequently characterizing them as “improper communications,” and criticizes Scoma for “improperly communicat[ing]” or “secretly communicat[ing]” with the LSE/SRA. (Italics added.)
As a final argument, Mireskandari suggests that Scoma‘s conduct was not privileged, “because no ‘judicial proceedings’ within the meaning of
For the foregoing reasons, Mireskandari did not meet his burden of establishing trial court error in ruling that California‘s litigation privilege (
IV. DISPOSITION
The judgment is affirmed. Scoma is entitled to his costs on appeal. (
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Notes
Earlier this year, the complaint in this action was before us on Mireskandari’s appeal from a judgment in favor of different defendants following the sustaining of their demurrer without leave to amend. (Mireskandari v. Gilbert (July 23, 2020, D074976) [nonpub. opn.] (Gilbert).)
“The SRA has no legal existence separate from the LSE. Though the LSE and SRA are formally independent from the government, both are accountable to the statutorily-created Legal Services Board . . . , which is itself accountable to Parliament through the Lord Chancellor.” (Mireskandari v. Mayne (9th Cir. 2015) 599 Fed. Appx. 677, 677-678 [affirmance of dismissal of Mireskandari’s complaint against the LSE and the SRA on the basis that, because they “engage ‘in a public activity on behalf of the foreign government,’ ” the claims against them are subject to dismissal under the Foreign Sovereign Immunities Act of 1976 (
Our references to “the LSE/SRA” are based on Mireskandari’s submissions to the trial court and his briefing on appeal in which he does not differentiate between the two entities.