Mireskandari v. Gallagher

• Decision Date: 30 December 2020
• Docket Number: D076130
• Citation: 59 Cal.App.5th 346,273 Cal.Rptr.3d 371
• Court: California Court of Appeals Court of Appeals
• Parties: Shahrokh MIRESKANDARI, Plaintiff and Appellant, v. Lauren GALLAGHER, as Executor, etc., Defendant and Respondent.

59 Cal.App.5th 346

273 Cal.Rptr.3d 371

Shahrokh MIRESKANDARI, Plaintiff and Appellant,

v.Lauren GALLAGHER, as Executor, etc., Defendant and Respondent.

D076130

Court of Appeal, Fourth District, Division 1, California.

Filed December 30, 2020

As Modified on Denial of Rehearing January 21, 2021

James & Associates, Becky S. James, Los Angeles, and Lisa M. Burnett for Plaintiff and Appellant.

Reback, McAndrews & Blessey, Robert C. Reback, Manhattan Beach, and Rebecca G. Goldstein for Defendant and Respondent.

IRION, J.

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 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 relating to the allegedly discriminatory and racist practices of the LSE/SRA toward BME solicitors. In retaliation, the LSE/SRA began a campaign to discredit Mireskandari. As part of its effort to obtain Mireskandari's "confidential information"—and, as a pretext for intervening in Mireskandari's law practice—the LSE/SRA retained a Los Angeles law firm. The LSE/SRA instructed the Los Angeles law firm "to illegally access" a specific website "to obtain [Mireskandari's] educational records without notice to or knowledge of [Mireskandari]." In late September 2008, one of the firm's paralegals "unlawfully and illegally ... gain[ed] access to [Mireskandari's] confidential educational records" and communicated the information she received to the LSE/SRA.

Within two weeks being advised of these records, the LSE/SRA demanded from Mireskandari information regarding his "educational and work background."

Approximately two months later, in mid-December 2008, the LSE/SRA intervened in Mireskandari's law practice.

More than two years later, in early April 2011, the Solicitor's Disciplinary Tribunal (SDT) "initiated the proceedings against [Mireskandari] regarding the intervention of [Mireskandari's] legal practice and his license to practice law in the United Kingdom" (SDT proceedings). After approximately three weeks of testimony, the SDT temporarily adjourned the SDT proceedings.

At that time, Mireskandari travelled to California. He became seriously ill and requested that the SDT proceedings be further adjourned. In support of his request, Mireskandari submitted evidence from California physicians of his illness, his inability to travel to England, and his inability to participate in the SDT proceedings.

In response, at the request of the LSE/SRA, the SDT appointed Scoma "as an independent expert (not the expert of the LSE/SRA)," and directed counsel to instruct Scoma "that he was to act as an independent expert." Consistently, in April 2012, which was almost a year after the adjournment, Scoma was directed in writing "that he was to be an independent expert to determine whether [Mireskandari] was medically fit to travel to London for the conclusion of the proceedings before the SDT."

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, 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 authorization—demonstrate that, "in violation of the terms and conditions of his appointment as an independent expert in the case," Scoma did not act independently.

In support of his cause of action for breach of contract, Mireskandari alleges that he was a third-party beneficiary of the agreement between the SDT and Scoma, pursuant to which Scoma agreed "to provide an independent examination of [Mireskandari's] medical condition." Scoma breached this agreement to the detriment of Mireskandari because, instead of conducting an independent examination of Mireskandari, "Scoma acted as the LSE/SRA's expert and advocated their position as to [Mireskandari's] condition and whether he could travel to London for the proceedings before the SDT."

In his second cause of action, Mireskandari alleges that, as an independent medical expert, Scoma owed Mireskandari a fiduciary duty. Scoma breached this duty when he "acted on behalf of the LSE/SRA to the detriment of [Mireskandari]," by "improperly communicat[ing] with the LSE/SRA" and "fail[ing] to communicate at all with [Mireskandari] when providing his reports to the LSE/SRA."

Mireskandari's third cause of action seeks relief based on Scoma's fraud and deceit. Mireskandari alleges that, despite having been retained as an independent expert, Scoma fraudulently concealed the following from Mireskandari: (1) Scoma believed that he was working for the LSE/SRA (not the SDT); (2) Scoma had communications with, and took directions from, the LSE/SRA with regard to what information to include in his report; (3) the true reason that Scoma, a San Diego resident, could not travel to Los Angeles to examine Mireskandari; (4) Scoma provided Mireskandari's medical records to the LSE/SRA without Mireskandari's authorization; and (5) Scoma provided his opinions without reviewing all of Mireskandari's medical records.

In his last cause of action against Scoma, Mireskandari asserts statutory violations of the California Confidentiality of Medical Information Act (CMIA) ( 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.⁵

Scoma demurred to the complaint and to each of the four causes of action alleged against him.⁶ 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...