Mireskandari v. Gallagher ( 2021 )

Filed 1/21/21 (unmodified opn. attached)
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., ORDER MODIFYING
OPINION AND DENYING
Defendant and Respondent. REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
The opinion filed December 30, 2020, is hereby modified as follows:
1. On page 8, at the end of the first full paragraph (after “to the
SDT.”), add the following new footnote 5 and renumber the remaining
footnotes:
In a petition for rehearing, Mireskandari characterizes
the basis of his CMIA claim to be “the totally unauthorized
disclosure of Mr. Mireskandari’s confidential and sensitive
protected medical information not only to the opposing
party [LSE/SRA], but to assorted third parties, not all of
whose identities are known to Mr. Mireskandari.” (Italics
added.) We disagree. Based on the record, the alleged
CMIA violation is limited to Scoma’s disclosure of
Mireskandari’s medical records to the LSE/SRA as part of
the SDT proceedings. In the complaint, Mireskandari does
not allege that Scoma disclosed the records “to assorted
third parties” as he argues on appeal.
2. On page 28, replace the last three sentences of the first full
paragraph (beginning with “Mireskandari’s claim . . .” and ending prior to the
footnote with “Scoma necessarily communicated them.”) with the following:
Mireskandari’s claim is not that he was damaged by Scoma
“fraudulently concealing”: he believed he was working only
for the LSE/SRA; he would not travel to Los Angeles to
conduct a physical examination of Mireskandari because of
a prior drunk driving arrest; or he provided his professional
opinion without having reviewed Mireskandari’s medical
records. Similarly, Mireskandari’s claim is not that he was
damaged 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.) Although the
complaint does not allege that Scoma forwarded the
medical records to anyone other than the LSE/SRA (see
fn. 5, ante), even if we assume that Scoma forwarded them
to an unauthorized third party, in forwarding the records,
Scoma necessarily communicated them.
The paragraph then ends with newly renumbered footnote 19.
3. On page 29, at the very top, delete the first sentence (“Further,
Mireskandari makes no attempt . . .”) and insert the following sentence:
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 following arguably noncommunicative acts by Scoma:
“fraudulently concealing” either his belief he was working
for the LSE/SRA or the reasons he did not want to conduct
a physical examination of Mireskandari; or obtaining
Mireskandari’s medical records “under false pretenses.”
2
Mireskandari’s petition for rehearing is denied.
There is no change in judgment.
McCONNELL, P. J.
Copies to: All parties
3
Filed 12/30/20 (unmodified opinion)
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. § 1602et 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
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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.
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