Mireskandari v. Gallagher ( 2020 )


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  • Filed 12/30/20
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    SHAHROKH MIRESKANDARI,                     D076130
    Plaintiff and Appellant,
    v.                                  (Super. Ct. No. 37-2015-
    00029990-CU-FR-CTL)
    LAUREN GALLAGHER, as Executor,
    etc.,
    Defendant and Respondent.
    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 Defendant and Respondent.
    In a second amended complaint (complaint), Shahrokh Mireskandari
    alleged four causes of action against Joseph Scoma, M.D.,1 based on the
    reports and opinions Scoma provided at the request of a disciplinary tribunal
    in London, England, as part of the tribunal’s formal proceedings involving
    Mireskandari, his legal practice, and his license to practice law in the United
    Kingdom. The trial court sustained without leave to amend Scoma’s
    demurrer to the complaint and entered judgment in favor of Scoma and
    against Mireskandari. As we explain, on the record presented by
    Mireskandari, California’s litigation privilege codified at Civil Code
    section 47, subdivision (b) (section 47(b)), bars each of Mireskandari’s causes
    of action. Thus, we will affirm the judgment.
    I. FACTUAL BACKGROUND2
    Mireskandari received an undergraduate degree from National
    University in California, graduated from the American University of Hawaii
    1     Scoma passed away in April 2017, and in December 2017 the probate
    court appointed Lauren Gallagher as the executor of the Estate of Joseph A.
    Scoma. In November 2020, this court granted a motion to substitute
    Gallagher, as the personal representative of Scoma’s estate, as the
    respondent in this action. (Code Civ. Proc., § 377.41.) For ease of reading, we
    do not differentiate between Scoma and Gallagher, although the arguments
    on appeal are made by Gallagher, and the disposition of the appeal affects
    only Gallagher as the party respondent.
    2      Because this is an appeal following a demurrer, we are limited to and
    “must accept the facts pleaded as true and give the complaint a reasonable
    interpretation.” (Mathews v. Becerra (2019) 
    8 Cal. 5th 756
    , 762 (Mathews).)
    Under this standard, when describing or referring to the “facts,” we mean the
    facts as alleged in the complaint.
    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).)
    2
    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. (Evid. Code, §§ 459,
    subd. (a), 452, subd. (a).) The appellate panel in this appeal is the same as in
    Gilbert, and we must accept the same facts here as we accepted in Gilbert
    
    (Mathews, supra
    , 8 Cal.5th at p. 762). Thus, in this opinion, we adopt
    without citation to Gilbert much of the factual presentation from Gilbert.
    3      The LSE is the “governing body of legal professionals in the United
    Kingdom.” (Landen, The Prospects of the Accountant-Lawyer
    Multidisciplinary Partnership in English-Speaking Countries (1999) 13
    Emory Int’l L.Rev. 763, 799.) Among other responsibilities, the SRA is “the
    regulatory arm of the [LSE]” (Parks, Justice and Equality (Jan.-May 2012)
    NBA Nat. Bar Assn. Mag.) and is one of a number of regulatory authorities
    that licenses individual lawyers in the United Kingdom (Hadfield & Rhode,
    How to Regulate Legal Services to Promote Access, Innovation, and the
    Quality of Lawyering (2016) 
    67 Hastings L.J. 1191
    , 1210).
    “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 (28 U.S.C. § 1602
    et seq.)].)
    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.
    3
    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.
    4
    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.”
    Scoma did not perform a physical examination of Mireskandari. Based
    on his receipt from Mireskandari’s doctor and his review of what he described
    as “ ‘a comprehensive medical package . . . contain[ing] the medical records
    concerning Mr. Mireskandari’s colorectal history,’ ” on May 23, 2012, Scoma
    reported to the LSE/SRA (only) that Mireskandari “ ‘should be able to travel
    to London at any time.’ ” The next day, which was four days prior to the date
    set for the continued proceedings before the SDT, in response to a direct
    inquiry from the LSE/SRA, Scoma provided the additional opinions that
    “ ‘Mireskandari is able to instruct legal representatives, prepare for, attend,
    and participate in the hearing due to commence on May 28, 2012. I see no
    reason why he is unable to travel by plane from the USA to the UK.’ ” In
    providing these opinions, Scoma “disregarded the reports from
    [Mireskandari’s] doctors which demonstrated that [Mireskandari] was on
    substantial medications that impaired his judgment at that time and which
    would have made him unable to properly instruct his legal representatives or
    attend and participate in hearings.”
    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,
    5
    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),
    and the unauthorized disclosure of Mireskandari’s medical records.
    Underlying the first three causes of action is Mireskandari’s allegation that
    Scoma’s actions—including but not limited to communicating with the
    LSE/SRA, taking instructions from the LSE/SRA, advocating for the
    LSE/SRA, and producing Mireskandari’s medical files without his
    4     Mireskandari named a Los Angeles law firm and one of its paralegals
    as codefendants in the underlying action and in the complaint.
    Mireskandari’s claims against the other defendants are independent from his
    claims against Scoma. The other defendants, not parties to this appeal, were
    the respondents in Gilbert, supra, D074976.
    6
    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
    7
    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) (Civ. Code, § 56.10 et seq.), based on what Mireskandari contends
    was the unauthorized production of his medical records to the LSE/SRA,
    which then produced them to the SDT.
    Scoma demurred to the complaint and to each of the four causes of
    action alleged against him.5 Scoma first argued that each cause of action
    failed to allege facts sufficient to state a cause of action (Code Civ. Proc.,
    § 430.10, subd. (e)), because each was barred by the litigation privilege (Civ.
    Code, § 47(b)). In addition, Scoma argued that each cause of action failed to
    allege facts sufficient to state a cause of action (on grounds other than the
    litigation privilege) or, alternatively, was uncertain, ambiguous, and
    unintelligible (Code Civ. Proc., § 430.10, subds. (e), (f)).
    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
    5     Scoma also filed, in the alternative, a motion to strike portions of the
    complaint. In sustaining Scoma’s demurrer without leave to amend, the trial
    court denied the motion to strike, ruling it was moot.
    6      The Roe report is entitled “Expert Report on English Law on Behalf of
    [Mireskandari]” (capitalization and bolding omitted), and contains numbered
    paragraphs which set forth: (1) an introduction (“I have been asked by
    [Mireskandari’s] attorneys to give my opinion on certain questions concerning
    the relevant law of the United Kingdom as to the immunity or otherwise [sic]
    of expert witnesses.”); (2) a description of Roe’s qualifications and experience;
    (3) a list of the documents Roe reviewed in preparing his report; (4) factual
    8
    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 court took judicial notice of five exhibits submitted by
    Mireskandari (i.e., the Roe report and four cases) and then explained its
    ruling sustaining the demurrer to the complaint without leave to amend.
    First, the court determined that, with regard to the litigation privilege, it
    would apply the law of California, not of the United Kingdom. The court then
    applied California’s litigation privilege (Civ. Code, § 47(b)7) and concluded
    that it was a complete defense to the four causes of action alleged by
    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).
    7      Civil Code section 47(b) provides in part: “A privileged publication or
    broadcast is one made: [¶] . . . [¶] (b) In any . . . judicial proceeding . . . [or]
    official proceeding authorized by law[.]” (Civ. Code, § 47.)
    9
    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. (Code Civ. Proc., § 430.10, subd. (e).)
    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 (Civ. Code, § 47(b)) as a bar to his claims
    against Scoma. Thus, we affirm the judgment without reaching the issues of
    whether any of the four causes of action fails to state facts sufficient to
    constitute a cause of action and, accordingly, whether Mireskandari should
    have been granted leave to amend such a cause of action.
    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
    material facts properly pleaded in the operative complaint, but not
    10
    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” Evidence Code section 450
    et seq., which deal with judicial notice. (Evid. Code, § 310, subd. (b).)
    “Because a demurrer raises only questions of law (Code Civ. Proc., § 589),
    trial courts ordinarily do not consider evidence in connection with a
    demurrer. But a court may consider matters subject to judicial notice when
    ruling on a demurrer, and foreign law is subject to [permissive] judicial notice
    (Evid. Code, § 452, subd. (f)). In taking judicial notice, a court may rely on
    ‘the advice of persons learned in the subject matter . . . whether or not
    furnished by a party.’ (Evid. Code, § 454, subd. (a)(1)[.])” (Nedlloyd Lines
    B.V. v. Superior Court (1992) 
    3 Cal. 4th 459
    , 478, fn. 4 (Nedlloyd) (conc. & dis.
    opn. of Kennard, J.).)
    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:
    11
    • 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).”
    (Evid. Code, § 459; Cal. Rules of Court, rule 8.252.)
    For the reasons that follow, we deny Mireskandari’s motion in its
    entirety.9
    8     Neither Mireskandari’s request, Mireskandari’s proposed order, nor the
    actual document in the appellant’s appendix contains a citation for this case.
    9     We thus disregard factual statements in the appellate briefing for
    which the record reference is to a document for which judicial notice has been
    denied. (Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellate brief must
    “[s]upport any reference to a matter in the record by a citation to the volume
    and page number of the record where the matter appears”]; see Fierro v.
    Landry’s Restaurant Inc. (2019) 
    32 Cal. App. 5th 276
    , 281, fn. 5 [“appellate
    12
    Since the British cases and statute (documents (1)-(6), ante) are foreign
    law, arguably they are subject to permissive judicial notice under Evidence
    Code section 452, subdivision (f). 
    (Nedlloyd, supra
    , 3 Cal.4th at p. 478, fn. 4.)
    However, because they are of no assistance to us without “the advice of
    persons learned in the subject matter” (Evid. Code, § 454, subd. (a)(1))—and,
    as we explain, the Roe report is not properly before us—they are irrelevant to
    the disposition of the issue under consideration.10
    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 authority or to distinguish it”],
    overruled on other grounds in In re Tobacco Cases II (2007) 
    41 Cal. 4th 1257
    ,
    1276.)
    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” ’ ”].)
    10    Although, “as a ‘reviewing court’ (Evid. Code, § 459, subd. (a)), we must
    take judicial notice of some matters (id., § 451) and may take judicial notice
    of others (id., § 452), . . . a precondition to the taking of judicial notice in
    either its mandatory or permissive form” is that “any matter to be judicially
    noticed must be relevant to a material issue.” (People ex rel. Lockyer v.
    Shamrock Foods Co. (2000) 
    24 Cal. 4th 415
    , 422, fn. 2; accord, Golden Door
    Properties, LLC v. Superior Court of San Diego County (2020) 
    53 Cal. App. 5th 733
    , 758, fn. 16 (Golden Door) [the requests for judicial notice were “denied as
    not relevant to the disposition of th[e] issue” on appeal].)
    13
    “ ‘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 Evidence Code section 459, subdivision (a) generally requires
    that a reviewing court must take judicial notice of matters the trial court
    judicially noticed,11 there are two exceptions: (1) if the matter was not
    11    We will assume without deciding that this part of Evidence Code
    section 459, subdivision (a) applies without the formality required by
    California Rules of Court, rule 8.252(a)(1), which provides in full: “To obtain
    14
    “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 Evidence Code section 459, a party
    must serve and file a separate motion with a proposed order.”
    15
    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” for dealing with this choice of
    law issue. As we explain, however, Mireskandari did not meet his burden of
    demonstrating that the application of the British litigation privilege in this
    California litigation of California state law claims would further the interests
    of the United Kingdom. Accordingly, Mireskandari did not meet his burden
    of demonstrating that the foreign law should be applied here.
    16
    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
    12    In Offshore, a California corporation sued a Louisiana corporation for
    injuries negligently inflicted upon the California corporation’s “key employee”
    in Louisiana. 
    (Offshore, supra
    , 22 Cal.3d at pp. 160-161.) Applying the
    governmental interest analysis, the Supreme Court concluded that Louisiana
    law applied and affirmed the dismissal of the complaint on the basis that,
    under Louisiana law, no such cause of action could be stated. (Id., at pp. 169-
    170.)
    17
    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
    present the law of the United Kingdom in a form or format that allows us to
    determine it. By failing to establish the applicable law of the United
    Kingdom, therefore, Mireskandari necessarily failed to establish the first step
    of the analysis—namely, whether the applicable law in California and the
    United Kingdom (regarding the litigation privilege as a defense to a claim
    against an independent expert) “ ‘is the same or different.’ ” 
    (McCann, supra
    ,
    48 Cal.4th at p. 87.)
    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
    13    This analysis has been the standard in California for more than a half
    century. (See Reich v. Purcell (1967) 
    67 Cal. 2d 551
    , 553.) Scoma fails to
    mention this test, despite citing cases in which our Supreme Court has
    applied it; and we reject his suggestion to apply any different analysis.
    18
    
    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, Evidence Code section 311, subdivision (a)
    requires that we nonetheless apply California law: “If the law of . . . a foreign
    nation . . . is applicable and such law cannot be determined, the court may, as
    the ends of justice require, . . . [¶] . . . [a]pply the law of this state if the court
    can do so consistently with the Constitution of the United States and the
    Constitution of this state[.]”
    Finally, in any event, even if we considered the Roe report, the result
    would be no different. That is because the report provides in part:
    “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?
    14    Here, Scoma did not submit expert testimony with regard to what he
    contended the foreign law to be; and, as we just explained, Mireskandari did
    not properly present what he contended the foreign law to be. Had the
    parties presented admissible but conflicting expert evidence of the foreign
    law, the court would have had to determine the foreign law as “a question of
    law” pursuant to rules and procedures associated with requests for judicial
    notice at Evidence Code section 450 et seq. (Evid. Code, § 310, subd. (b).)
    19
    “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, Code of Civil Procedure section 425.16. 
    (Gallagher, supra
    , D071385.)
    The issue on appeal was whether Mireskandari’s claims were based on
    Scoma’s protected petitioning activity (ibid.), because section 425.16,
    15     Indeed, the trial court so found (“no party has identified authority
    directly on point in the U[nited ]K[ingdom”), before erroneously concluding
    that, “considering the parallels between the two jurisdictions, it is unlikely
    there would be a split on this issue.”
    20
    subdivision (b)(1) precludes claims against a defendant like Scoma that arise
    from anything the defendant did “in furtherance of [his] right of petition or
    free speech under the United States Constitution or the California
    Constitution in connection with a public issue.” We reversed the trial court,
    holding that “Scoma’s acts—even though they took place in California—were
    not in furtherance of Scoma’s constitutional right to petition and, thus, were
    not subject to California’s anti-SLAPP statute.” 
    (Gallagher, supra
    , D071385;
    see
    ibid. [“for purposes of
    applying the anti-SLAPP statute, the protected
    activity is the right to petition, not the right to provide an expert opinion”].)
    In reaching this conclusion, we emphasized the difference “between the
    location of the petitioning activity [England] and the location of the
    defendant’s acts [California]” and applied established California authority
    that “ ‘petitioning activity undertaken in a foreign country is not protected by
    the anti-SLAPP statute.’ ” (Ibid., quoting Guessous v. Chrome Hearts, LLC
    (2009) 
    179 Cal. App. 4th 1177
    , 1186.)
    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
    21
    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 Civil Code section 47(b)
    are not available to Scoma under the facts of this case. We are not convinced.
    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.” (Civ. Code, § 47(b).) “ ‘The usual formulation is that the
    privilege applies to any communication (1) made in judicial or quasi-judicial
    proceedings; (2) by litigants or other participants authorized by law; (3) to
    achieve the objects of the litigation; and (4) that have some connection or
    logical relation to the action.’ ” (Jacob B. v. County of Shasta (2007) 40
    16    In any event, we cannot blindly rely on a prior opinion in which anti-
    SLAPP law, not the law associated with the litigation privilege, was at issue.
    That is because, as we mentioned ante, “a separate conflict of laws inquiry
    must be made with respect to each issue in the case.” (Washington 
    Mutual, supra
    , 24 Cal.4th at p. 920.)
    
    22 Cal. 4th 948
    , 955 (Jacob B.), quoting Silberg v. Anderson (1990) 
    50 Cal. 3d 205
    ,
    212 (Silberg).)
    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
    17     That said, the litigation privilege is subject to specified statutory
    exceptions, but none potentially applies here. (See Civ. Code, § 47(b)(1)
    [in papers filed in an action for marital dissolution or legal separation],
    (b)(2) [in communications made in furtherance of an act of intentional
    destruction or alteration of physical evidence], (b)(3) [in communications
    knowingly concealing the existence of an insurance policy in a judicial
    proceeding], & (b)(4) [in recording a lis pendens unrelated to specified
    proceedings].)
    23
    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 Civil Code
    section 47(b) bars claims by a party against a neutral expert who was
    retained to provide information for use in court in a pending case.
    (Ramalingam v. Thompson (2007) 
    151 Cal. App. 4th 491
    , 494 (Ramalingam)
    [litigation privilege barred the claim by one party who sued the jointly
    retained “neutral accountant” whose expert opinions had been provided for
    use in pending litigation]; Gootee v. Lightner (1990) 
    224 Cal. App. 3d 587
    , 591-
    596 (Gootee) [litigation privilege barred the claim by one party to the
    litigation who sued a psychology expert retained by stipulation of the parties;
    under the predecessor to Civ. Code, § 47(b)]; Howard v. Drapkin (1990) 
    222 Cal. App. 3d 843
    , 848, 864 (Howard) [the parties stipulated to retain, and the
    court ordered the retention of, a specified “independent psychologist” as “a
    neutral third person . . . to effect a resolution of a family law dispute”; after
    he testified and one of the parties sued him, the litigation privilege barred
    the party’s claims for intentional infliction of emotional distress, negligent
    infliction of emotional distress, and fraud; under the predecessor to Civ. Code,
    § 47(b)].)
    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
    24
    the trial court’s grant of summary judgment to the defendants, rejecting the
    plaintiffs’ argument “that the pertinent privileges under Civil Code section 47
    do not shield conduct in [a foreign country].” (Beroiz, at p. 490.)
    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
    25
    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 Civil
    Code section 47(b) barred claims by a party against a neutral expert who was
    retained to provide information for use in pending litigation. 
    (Ramalingam, supra
    , 
    151 Cal. App. 4th 491
    ; 
    Gootee, supra
    , 
    224 Cal. App. 3d 587
    ; and 
    Howard, supra
    , 
    222 Cal. App. 3d 843
    .) This is despite the facts that: (1) Scoma cited all
    three cases in support of his demurrer; (2) the court cited and relied on two of
    them in its order sustaining the demurrer; (3) Scoma cited two of the cases in
    26
    his appellate brief; and, significantly, (4) even Mireskandari cited one,
    Gootee, in his opposition to Scoma’s demurrer in the trial court.
    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 obtaining Mr. Mireskandari’s private medical
    records under the false pretense of ‘independence,’ only to forward them to an
    unauthorized third party.” (Italics added.) However, Mireskandari fails to
    discuss, let alone present an argument pursuant to, the proper standard for
    determining whether the litigation privilege bars a potentially
    noncommunicative act. Upon applying the appropriate standard, we reject
    Mireskandari’s argument.
    “ ‘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
    27
    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” the reasons he did not want to conduct a
    physical examination of Mireskandari or by Scoma obtaining Mireskandari’s
    medical records “under false pretenses.” Rather, in his appellate briefing
    Mireskandari expressly tells us that he was damaged when Scoma
    “forward[ed] them to an unauthorized third party.” (Italics added.) In
    forwarding Mireskandari’s medical records, Scoma necessarily communicated
    them.18
    18    In contrast, for example, in 
    Kimmel, supra
    , 
    51 Cal. 3d 202
    , in order to
    obtain evidence to use in anticipated litigation, the cross-defendant recorded
    confidential telephone conversations in violation of California’s Invasion of
    Privacy Act (Pen. Code, § 630 et seq.). (Kimmel, at pp. 206-207.)
    Emphasizing that the cross-complainant’s claim for statutory violations was
    based on cross-defendant’s “conduct regardless of the purpose for which such
    conduct is undertaken,” our Supreme Court held that “the illegal recording of
    confidential telephone conversations” were “noncommunicative acts” and,
    thus, not subject to the litigation privilege. (Id. at p. 205.) There, the
    gravamen of the claim was a statutory violation because the conversations
    28
    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
    were recorded illegally, not injuries or damages that the cross-complainant
    suffered as a result of communicating the illegally recorded conversations.
    29
    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 [Civil
    Code section ]47(b) existed or were seriously contemplated when it occurred.”
    (Initial capitalization and underscoring omitted.) According to Mireskandari,
    “[a] foreign administrative tribunal regulating foreign solicitors is not a
    judicial proceeding as that term is contemplated by [Civil Code]
    section 47(b).” However, Mireskandari has forfeited appellate court
    consideration of this argument on at least two independent bases: (1) he did
    not raise this legal argument in the trial court (Cable Connection, Inc. v.
    DIRECTV, Inc. (2008) 
    44 Cal. 4th 1334
    , 1350, fn. 12 [“ ‘A party is not
    permitted to change his position and adopt a new and different theory on
    appeal. To permit him to do so would not only be unfair to the trial court, but
    manifestly unjust to the opposing litigant.’ ”]); and (2) he did not provide any
    legal argument or citation to authority for the statement quoted above
    (Cahill v. San Diego Gas & Elec. Co. (2011) 
    194 Cal. App. 4th 939
    , 956 [“The
    absence of cogent legal argument or citation to authority allows this court to
    treat the contention as waived”]; see Cal. Rules of Court, rule 8.204(a)(1)(B)
    [each point must be supported “by argument and, if possible, by citation of
    authority”]). In any event, Mireskandari cannot establish the premise of his
    argument that “no ‘judicial proceedings’ ” were pending at the time of
    Scoma’s communications. That is because, elsewhere in his appellate
    briefing, Mireskandari twice describes the SDT proceedings as “a quasi-legal
    proceeding” already underway at the time of Scoma’s communications and
    correctly recites California law by telling us that “[t]he litigation privilege
    applies to communications that are . . . made in . . . quasi-judicial
    30
    proceedings . . . ,” citing 
    Silberg, supra
    , 50 Cal.3d at page 212. (See also
    Jacob 
    B., supra
    , 40 Cal.4th at p. 955.)
    For the foregoing reasons, Mireskandari did not meet his burden of
    establishing trial court error in ruling that California’s litigation privilege
    (Civ. Code, § 47(b)) bars each of the causes of action in the complaint.
    IV. DISPOSITION
    The judgment is affirmed. Scoma is entitled to his costs on appeal.
    (Cal. Rules of Court, rule 8.278(a)(2).)
    IRION, J.
    WE CONCUR:
    McCONNELL, P. J.
    HALLER, J.
    31