Opinion
D071385
09-14-2018
SHAHROKH MIRESKANDARI, Plaintiff and Appellant, v. LAUREN GALLAGHER, Defendant and Respondent.
Duckor Spradling Metzger & Wynn, Robert M. Shaughnessy; Esner, Chang & Boyer, Stuart B. Esner, Joseph S. Persoff; and Kathryn E. Karcher, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00029990-CU-FR-CTL) APPEAL from an order of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Reversed and remanded with directions. Duckor Spradling Metzger & Wynn, Robert M. Shaughnessy; Esner, Chang & Boyer, Stuart B. Esner, Joseph S. Persoff; and Kathryn E. Karcher, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Shahrokh Mireskandari sued Joseph Scoma, M.D., for breach of contract, breach of fiduciary duty, fraud, unfair competition (Bus. & Prof. Code, § 17200), and wrongful disclosure of medical information by a provider (Civ. Code, § 56.10 et seq.), based on the medical advice and opinions Scoma provided to a disciplinary tribunal in London, England, as part of the tribunal's formal proceedings involving Mireskandari. The trial court granted Scoma's special motion to strike under California's anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16), after ruling both that Mireskandari's causes of action arose from Scoma's constitutional right of petition in connection with a public issue and that Mireskandari did not demonstrate a probability of prevailing on the claims.
In September 2017, after Mireskandari filed his opening brief on appeal, Scoma's appellate counsel advised the court that Scoma had passed away in April 2017. In January 2018, the court granted a motion to substitute personal representative Lauren Gallagher for the deceased Scoma and ordered Gallagher substituted as respondent in the action in place of Scoma.
Gallagher has not filed a respondent's brief, although her attorney acknowledges receipt of Mireskandari's opening brief. Where there is no respondent's brief, we "decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) We do not consider the failure to file a respondent's brief as an admission of error; to the contrary, we review the presentation by Mireskandari (as appellant)—here, an opening brief, an appendix, and a reporter's transcript—and determine whether he has met his burden of establishing reversible error. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419, fn. 2.)
" 'SLAPP' is an acronym for 'strategic lawsuit against public participation.' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral).)
The trial court erred in concluding that Scoma provided his professional services in furtherance of his constitutional right of petition. As we will explain, even though Scoma performed his services in California, the proceedings for which Scoma's services were retained were pending in England, and "petitioning activity undertaken in a foreign country is not protected by the anti-SLAPP statute." (Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1186 (Guessous).) Accordingly, we will reverse the order granting Scoma's special motion to strike and remand with directions to enter an order denying the motion.
I.
UNDERLYING LEGAL STANDARDS
Section 425.16, subdivision (b)(1) provides in full: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
In applying this statute, a court generally is required to engage in a two-step process. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral, supra, 1 Cal.5th at p. 384.) "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Ibid.) " 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
"We review de novo the grant or denial of an anti-SLAPP motion. . . . We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. . . . In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. . . . We do not, however, weigh the evidence, but accept the plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067, citations omitted (Park).)
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because we must "accept plaintiff's submissions as true" in deciding the anti-SLAPP issues on appeal (Park, supra, 2 Cal.5th at p. 1067), we will not introduce each factual recitation with a phrase such as "Mireskandari alleges . . ." or "Mireskandari testifies . . . ." In doing so, we do not imply the existence of factual findings or substantial evidence in support of factual findings; we merely present the alleged facts based on pleadings and declarations solely for the purpose of ruling on the legal issues presented in this appeal.
Mireskandari emigrated to the United States in 1981 and became a United States citizen in 1990. He received degrees in this country from National University and the American University of Hawai'i law school. He later attended London Guildhall University Law School in England and completed his courses, exams and solicitor's apprenticeship, qualifying as a solicitor in 2000. By 2006, Mireskandari had become the managing partner of a British firm that employed over 40 solicitors and staff.
Mireskandari's work included challenging racially motivated practices at the Solicitors Regulation Authority (SRA), which is the disciplinary arm of the Law Society of England and Wales (LSE), a professional body that represents the interests of solicitors in England and Wales. In retaliation for Mireskandari's efforts in these regards, the LSE and the SRA, along with another party, campaigned to discredit Mireskandari; and the SRA and the other party worked to end Mireskandari's career in law.
The SRA, an internal division of the LSE with no legal existence separate from the LSE, supervises the investigation and regulation of solicitors and their firms in England and Wales—a statutory responsibility delegated to the LSE. Without a citation to evidence or authority, in his anti-SLAPP motion Scoma described the SRA to the trial court as "the British equivalent of the State Bar of California."
Among other responsibilities, the SRA investigates suspected misconduct of solicitors admitted in England and Wales and, based on the results of the investigations, determines what, if any, action to take. In this capacity, in December 2008, following an audit report regarding Mireskandari and his firm, the SRA requested that an adjudication panel of the LSE direct an intervention into Mireskandari's law practice. Less than a week later, the LSE/SRA intervened in Mireskandari's law practice. In late 2009, the LSE, through the SRA, initiated disciplinary proceedings against Mireskandari and his firm before the Solicitor's Disciplinary Tribunal (SDT), an independent statutory board that hears cases alleging breaches of the rules and regulations applicable to solicitors and their firms. The proceedings were held in two phases: the first in April 2011; and the second more than a year later in May and June 2012.
Among other outcomes, an intervention results in the closure of the solicitor's law practice.
This and other references to "the LSE/SRA" are based on Mireskandari's submissions to the trial court, including the operative complaint, in which Mireskandari did not differentiate between the two entities.
In April 2012, a little over a month before the second phase of the SDT proceedings, Mireskandari became seriously ill in California. Because his treating physicians advised him that he "was not fit to return to . . . London or participate in the second part of the SDT proceedings," Mireskandari requested that the SDT continue or adjourn the second phase of the proceedings scheduled to commence the following month.
In response, at the LSE/SRA's request, the SDT ordered the appointment of an independent medical expert; and at the SDT's direction, the SRA (through its United Kingdom and California counsel) retained Scoma, instructing him to "report to the SDT and the parties on Dr. Mireskandari's ability to instruct legal representatives, prepare for, attend and participate in the adjourned hearings presently fixed to recommence on 28 May 2012, to include his ability to travel by plane from the US to the UK." Without ever meeting or examining Mireskandari or considering the details of his medications, in late May 2014 Scoma reported as follows: " 'I am able to confirm, and it is my opinion that Dr. 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.' " After being sent additional documents, including medical reports, to review, Scoma confirmed in mid-June 2012 that his " 'opinion and [original] report remain the same.' "
Based on Scoma's opinions and reports, the SDT proceeded with phase two of the hearing in Mireskandari's absence. At the conclusion of the proceedings, the SDT struck Mireskandari off the roll of solicitors and revoked his license to practice law in the United Kingdom. As a result, Mireskandari's law firm closed, and Mireskandari suffered damages.
Based on Scoma's actions and failures to act, Mireskandari sued Scoma for breach of contract, breach of fiduciary duty, fraud, unfair competition (Bus. & Prof. Code, § 17200), and wrongful disclosure of medical information by a provider (Civ. Code, § 56.10 et seq.). In the operative complaint, Mireskandari contends that Scoma's conduct caused Mireskandari "at least $500 million" in compensatory damages, plus punitive damages, costs, and attorney fees.
In two other causes of action, Mireskandari named a California law firm and one of its employees that allegedly assisted the SRA during the SDT proceedings. Those two defendants brought an anti-SLAPP motion similar to Scoma's; the same trial court granted the motion on the similar grounds; and in Mireskandari's appeal from that order, the appellate panel responsible for the present appeal decided the identical issues that Mireskandari raises here (Mireskandari v. Gilbert (Sept. 28, 2017, D070251) [nonpub. opn.]). Accordingly, in this opinion, we adopt without citation to Gilbert large portions of our prior opinion.
In response to the operative complaint, Scoma filed a special motion to strike under California's anti-SLAPP statute, section 425.16. As to prong one, Scoma argued that, because Mireskandari's claims against Scoma "arise from communications he made in connection with proceedings against [Mireskandari] by the British equivalent of the State Bar of California," his actions were in furtherance of his constitutional right of petition in connection with a public issue. As to prong two, Scoma argued that all of Mireskandari's claims are barred by the litigation privilege found at Civil Code section 47; alternatively, as to each of the five causes of action, Scoma presented what he contended was a pleading or evidentiary deficiency that precluded each claim.
Scoma also filed a demurrer, but once the court granted the anti-SLAPP motion, the court took the demurrer off-calendar.
Mireskandari opposed Scoma's motion and requested that the trial court take judicial notice of 13 documents. As to prong one, Mireskandari argued that the anti-SLAPP statute did not apply to his claims, because the California statute does not protect foreign petitioning activity. As to prong two, Mireskandari argued first, as to all claims, under California's choice of law rules, that the law of the United Kingdom, which does not include Civil Code section 47's litigation privilege, applies. In addition, as to each individual cause of action, Mireskandari incorporated the substantive arguments he asserted in his written opposition to Scoma's companion demurrer.
In reply, Scoma requested that the court take judicial notice of five documents dealing with foreign law and presented legal arguments to rebut each of the contentions that Mireskandari raised in his opposition. Scoma also filed an opposition to Mireskandari's request for judicial notice and objections to specifically identified evidence submitted by Mireskandari.
Finally, Mireskandari filed an opposition to Scoma's request for judicial notice.
Following oral argument, the trial court granted Scoma's anti-SLAPP motion, ruling in relevant part that Scoma met his burden under prong one and that Mireskandari did not meet his responsive burden under prong two. As to prong one, the court reasoned that, even though all of the legal proceedings were in England, because Scoma's conduct occurred in California, California's anti-SLAPP statute applied to Scoma's actions. As to prong two, the court ruled as follows: Because Scoma's actions took place in California, California's litigation privilege (Civ. Code, § 47) barred all of Mireskandari's claims; and, based on an application of this privilege, Mireskandari did not establish a probability of success at trial on any cause of action. The court overruled Scoma's evidentiary objections and granted all requests for judicial notice.
Mireskandari timely appealed from the order granting Scoma's motion to strike, and we have jurisdiction to hear his appeal (Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13)).
III.
DISCUSSION
On appeal, Mireskandari argues that the trial court erred in its rulings on both prongs of the section 425.16 analysis—i.e., Scoma did not meet his burden of establishing that Mireskandari's claims arose from protected activity of Scoma, and in any event Mireskandari met his burden of demonstrating the merit of his claims by establishing the requisite probability of success. Because we will conclude that Mireskandari's claims are not based on Scoma's protected free speech or petitioning activity, we will reverse the order granting Scoma's special motion to strike.
Under prong one, "the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) Given this consideration and the statutory standard set forth at part I., ante, Mireskandari argues that none of five causes of action he alleged against Scoma arises from protected activity. According to Mireskandari, Scoma's activity that forms the basis of his causes of action—namely, failing to act as an independent witness in providing an expert opinion for use in a "quasi-judicial proceeding in the United Kingdom between British residents"—was not, in the language of section 425.16, subdivision (b)(1), "in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution." (All italics added.)
For the reasons that follow—and, in particular, the holding in Guessous, supra, 179 Cal.App.4th at page 1186, that "petitioning activity undertaken in a foreign country is not protected by the anti-SLAPP statute"—we agree with Mireskandari and will conclude that Scoma's acts are not constitutionally protected petitioning activity under subdivision (b)(1) of the anti-SLAPP statute, section 425.16.
As to prong one, Mireskandari also argues that, because his claims are based on Scoma's failure to act as an independent witness, they do not arise out of a "written or oral statement or writing made in connection with an issue under consideration or review by . . . [an] official proceeding authorized by law"—as required under section 425.16, subdivision (e)(2). We do not reach that issue, however, since we will assume without deciding that, other than determining whether Scoma's acts were in furtherance of his federal or state constitutional right of petition under subdivision (b)(1) of section 425.16, Scoma's acts qualify as protected activity under the anti-SLAPP statute. This will include the assumption that Scoma's communications involved petitioning activity; thus, the only issue on appeal is whether the petitioning activity is constitutionally protected.
Guessous involved a lawsuit in California between business competitors. (Guessous, supra, 179 Cal.App.4th at pp. 1180-1181.) In settlement of prior litigation in California, one of the Guessous plaintiffs and the Guessous defendant entered into a covenant not to sue. (Id. at p. 1181.) Pursuant to that covenant, the defendant agreed that it would not sue the plaintiff and his affiliated entities (which included the second Guessous plaintiff) for any claims based on alleged similarities between the products designed, manufactured, or sold by the plaintiffs. (Ibid.) Years later, in alleged violation of this covenant, the Guessous defendant filed two trademark infringement lawsuits in France against one of the Guessous plaintiffs. (Id. at pp. 1181-1182.) While the French actions were pending, the plaintiffs filed the Guessous action against the defendant in California. (Ibid.) Asserting claims for breach of contract and declaratory relief, the Guessous plaintiffs alleged that the defendant's covenant not to sue precluded the defendant's lawsuits in France. (Id. at p. 1182.)
The defendant responded to the California complaint with a special motion to strike under the anti-SLAPP statute. (Guessous, supra, 179 Cal.App.4th at p. 1182.) The trial court denied the motion, and the Court of Appeal affirmed on the basis that the defendant did not meet its burden under prong one. (Id. at pp. 1182, 1187.)
On appeal, the court first examined the "express language of the anti-SLAPP statute [that] limits motions to strike to causes of action arising from any act 'in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue.' (§ 425.16, subd. (b)(1), italics added.)" (Guessous, supra, 179 Cal.App.4th at p. 1185.) The court concluded that this language "is plain and unambiguous": "It clearly limits the petitioning or free speech activity to that made pursuant to rights granted by the United States or California Constitutions . . . ." (Id. at p. 1185.) After analyzing the First Amendment to the United States Constitution and article 1, section 3 of the California Constitution, the Guessous court ruled that "neither Constitution grants a United States citizen the right to petition a foreign government." (Guessous, at p. 1185.)
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (U.S. Const., 1st Amend.)
"The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." (Cal. Const., art. 1, § 3.)
We agree with the reasoning and holding in Guessous, supra, 179 Cal.App.4th 1177, and apply it in this appeal. In his motion, his points and authorities, and his supporting evidence in the trial court, Scoma asserted that, for purposes of section 425.16, subdivision (e)(2), the "official proceeding authorized by law" that formed the basis of his communications in connection with the constitutional right to petition was the LSE/SRA disciplinary action against Mireskandari before the SDT in London, England. However, because "neither [the United States nor California] Constitution grants a United States citizen the right to petition a foreign government" (Guessous, at p. 1185), "petitioning activity undertaken in a foreign country is not protected by the anti-SLAPP statute" (id. at p. 1186).
In its order granting Scoma's anti-SLAPP motion, the trial court based its ruling on the analysis that, even though "[all the] underlying proceedings took place in England[,] . . . Scoma's litigation related activities took place in California." However, for purposes of applying the anti-SLAPP statute, the protected activity is the right to petition, not the right to provide an expert opinion. (See Navellier, supra, 29 Cal.4th at p. 89 ["the critical consideration" is whether the cause of action is based on "the defendant's protected . . . petitioning activity" (italics added)].) As we just explained, all parties and the court understood that all petitioning activity took place in England. If the petitioning activity is not protected under the anti-SLAPP statute, then neither is the provision of expert testimony for use during the petitioning activity.
The superior court erred in relying on the following language from Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136 (Summerfield): " '[S]ection 425.16, subdivision (e)(2), "has been held to protect statements to persons who are not parties or potential parties to litigation, provided such statements are made 'in connection with' pending or anticipated litigation." ' " In its order, the court reasoned that because "the underlying conduct [i.e., Scoma's professional services] involves prefiling investigatory conduct on behalf of the LSE/SRA, a regulatory agency, . . . [it] falls within the purview of litigation activity." As we explain, Summerfield is distinguishable and, accordingly, inapplicable.
In Summerfield, an attorney provided an affidavit for his client's submission to a foreign court in an attempt "to influence the determination of issues pending in a California court." (Summerfield, supra, 201 Cal.App.4th at pp. 129-130, italics added.) The foreign court ruled against the client, and the client's adversary sued the attorney and his firm in California for malicious prosecution based on the preparation and filing of the affidavit in the foreign proceeding. (Ibid.) In an appeal following the disposition of the defendants' anti-SLAPP special motion to strike, the prong one issue was whether the attorney's statement (i.e., providing the client's affidavit) was an "act" under subdivision (e) of section 425.16 (and the Court of Appeal concluded that it was). (Id. at pp. 135-136.) There was no question but that the attorney had provided the affidavit in an attempt "to influence the determination of issues pending in a California court" (id. at pp. 129-130, italics added); thus, there was no issue but that the attorney had provided the affidavit in furtherance of the constitutional right of petition under subdivision (b)(1) of the anti-SLAPP statute.
In Guessous, supra, 179 Cal.App.4th 1177, like our assumption here (see fn. 9, ante.), there was no issue as to whether the defendant's activity qualified an " 'act' " for purposes of subdivision (e) of the anti-SLAPP statute. The Guessous defendant had filed and prosecuted two lawsuits against one of the Guessous plaintiffs in France (Guessous, at pp. 1181-1182)—clearly an " 'act' " for purposes of subdivision (e) of the anti-SLAPP statute (Guessous, at p. 1185; see § 425.16, subd. (e)(1) [an " 'act' " includes "any written or oral statement or writing made before a . . . judicial proceeding"]). In Guessous, as here, the issue was whether the judicial proceeding for which the act was performed was one in furtherance of the defendant's constitutional right of petition or free speech for purposes of subdivision (b)(1) of the anti-SLAPP statute. (Guessous, at p. 1185.)
In contrast, here, even though Scoma's activities may have been " 'in connection with' pending or anticipated litigation" for purposes of section 425.16, subdivision (e)(2) (as in Summerfield, supra, 201 Cal.App.4th at p. 135), that is not the issue before us. Stated differently, Summerfield did not consider the issue in the present appeal—namely, whether the defendant's provision of certain professional services involved the constitutional right of petition under section 425.16, subdivision (b)(1); and " ' "cases are not authority for propositions not considered" ' " (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626). Accordingly, Summerfield does not apply to the issue in this appeal, and for this reason the trial court erred in applying Summerfield here.
In summary, for purposes of determining whether a defendant's acts are protected petitioning activity under subdivision (b)(1) of the anti-SLAPP statute (§ 425.16), as between the location of the petitioning activity and the location of the defendant's acts, the focus should be on the former. In the present case, because the petitioning activity took place entirely outside of the United States, it was not protected by the United States or California Constitution. Thus, 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.
IV.
CONCLUSION
Scoma's conduct from which Mireskandari's causes of action arose did not include activity "in furtherance of [Scoma's] right of petition . . . under the United States Constitution or the California Constitution." (§ 425.16, subd. (b)(1), italics added.) Thus, Scoma did not meet his initial burden of establishing that any of Mireskandari's claims arose from activity protected by the anti-SLAPP statute, and we will reverse the trial court's ruling on this basis.
Because Mireskandari's claims are not based on protected activity, the burden never shifted to Mireskandari to demonstrate the potential merits of his claims. For this reason, we do not reach the issue whether Mireskandari established a probability of success on the causes of action he alleges against Scoma. (Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 43-44 [court need not discuss second prong if defendant fails to establish that claims arise from protected activity]; Guessous, supra, 179 Cal.App.4th at p. 1187.) In not reaching the second prong, we do not express any view on the merits of any of Mireskandari's claims (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 371) or Scoma's defenses (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 496).
DISPOSITION
The trial court's order granting Scoma's anti-SLAPP motion is reversed, and the matter is remanded with instructions to deny the motion. Mireskandari 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.